Hurley v. Fuyat CV-93-135-B 12/17/93 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter H. Hurley
v. Civ. No. 93-135-B
John E. Fuyat, et al.
O R D E R
This action arises from the unsavory judicial conduct of
John E. Fuyat, a former Associate Justice of Rhode Island Family
Court. Plaintiff, a family court litigant, brought this civil
rights action pursuant to 42 U.S.C. §1983. Plaintiff alleged
that Fuyat's alcoholism, his persistent failure to perform his
judicial duties, and his solicitation and acceptance of "loans"
from opposing attorneys denied plaintiff his Fourteenth Amendment
right to procedural due process. Plaintiff sued Fuyat personally
and in his official capacity as an Associate Justice of Rhode
Island Family Court. He also named as defendants in their
official capacities three individuals whose ostensible duty it is
to ensure that Family Court judges do not deprive litigants of
their due process rights: Thomas F. Fay, the Chief Justice of
the Rhode Island Supreme Court; Jeremiah S. Jeremiah, the
Presiding Justice of the Family Court of the State of Rhode Island; and Thomas H. Needham, the Chairman of Rhode Island's
Commission on Judicial Tenure and Discipline. The claims
against Fuyat have been voluntarily dismissed. The remaining
defendants together now move that I dismiss the counts against
them pursuant to Federal Rule of Civil Procedure 12(b)(2) and
(6) .1
I. Facts
Plaintiff was the defendant in a divorce action assigned to
Judge Fuyat in 1988. Over the course of the litigation, Fuyat
allegedly solicited and accepted "loans" and "favors" from both
plaintiff's wife's attorney and the attorney representing
plaintiff's mother-in-law, an intervenor in the case. Plaintiff
contends that before trial, Fuyat solicited and accepted a $4,000
loan from the mother-in-law's attorney. Then, a few days after
the trial began, this attorney's law partner arranged for their
defendants have previously had their motion granted by Judge Boyle of the Federal District Court for the District of Rhode Island. Soon after issuing his opinion, however. Judge Boyle found out that his daughter had been offered a clerkship in Rhode Island Family Court for the upcoming term. To avoid any appearance of impropriety, the judge retracted his opinion and recused himself from the case. As the other judges from that district also have recused themselves for various reasons, the case has been assigned to me.
2 investment partnership to "loan" the judge a further $20,000.
Finally, in March 1989, when plaintiff had objections pending
before the court, Fuyat solicited a loan from plaintiff's wife's
attorney, who, as a "favor," arranged for a friend to "loan" the
judge $5 0,000.
Plaintiff further alleges that his divorce action was
plagued by unnecessary delays because Fuyat persistently failed
to perform his judicial duties. The action was first assigned to
Fuyat in June 1988 and the trial date set for September 23.
Fuyat's unexplained absences from the courtroom, however,
prompted six postponements. As a result, the trial did not begin
until November 30. Fuyat ultimately heard evidence on nine
separate occasions and concluded the case on May 4, 1989. During
this period, the proceedings were postponed at least ten times,
allegedly because Judge Fuyat was "absent or otherwise and
without explanation unavailable."2
2A s additional evidence of Fuyat's disregard for his judicial duties, plaintiff alleges that, rather than decide contested issues, Fuyat would retreat to chambers and endlessly urge attorneys to settle. Plaintiff contends that this style of case management, as well as the allegedly inordinate amount of time Fuyat spent attending to personal matters, resulted in backlogged cases, untimely decisions, and deferred and delayed proceedings.
3 Finally, plaintiff asserts that Fuyat's addiction to alcohol
and/or drugs contributed to the above delays and further tainted
the proceedings. To support this claim, plaintiff alleges that
Fuyat was an alcoholic throughout his tenure on the bench; that
Fuyat checked himself into an inpatient alcohol and drug
rehabilitation facility after the Chief Justice relieved him of
his duties on August 25, 1989;3 and that when Fuyat tendered his
resignation a month later, he cited alcoholism as the reason.
Plaintiff's complaint states that, although the other
defendants did not know of Fuyat's alcoholism or of the "loans"
until Fuyat's August 25 suspension, these defendants proximately
caused plaintiff's injuries. Plaintiff alleges that the Chief
Justice knew that drugs and alcohol were a national problem, yet
failed to establish the policies and procedures necessary to
ensure that the Rhode Island courts were drug and alcohol-free.
3Ihe Chief Justice of the Rhode Island Supreme Court was informed of Fuyat's creative financing technigues and promptly relieved him of his duties pending an investigation by the Commission on Judicial Tenure and Discipline. In September, the Presiding Justice informed plaintiff and the other parties to the divorce action that they had three options: (1) settle; (2) have another judge review the record and decide the case; or (3) relitigate. The parties decided to relitigate. On March 23, 1990, the Rhode Island Supreme Court disbarred Fuyat. Several months later, the Supreme Court also suspended the mother-in- law's attorney and his law partner.
4 Plaintiff also alleges that the Presiding Justice of the
Family Court knew or should have known of Fuyat's willful and/or
persistent failure to perform his judicial duties, but did not
refer him to the Commission on Judicial Tenure and Discipline.
While plaintiff primarily faults the Presiding Justice for this
failure, he also blames the Chief Justice and the Chairman of the
Commission. Plaintiff alleges that they failed to promulgate the
standards, policies and procedures necessary for supervisors like
the Presiding Justice to determine whether a subordinate judge
has willfully or persistently failed to perform his or her
judicial duties.
Plaintiff's complaint initially alleged 11 counts, seven
against Fuyat and four against the other defendants. By
stipulation, the counts against Fuyat have been either
"voluntarily dismissed" or "dismissed with prejudice". The
remaining counts -- Counts 3 through 6 -- are asserted solely
against the Chief Justice, the Presiding Justice and the Chairman
of the Commission.
Counts 3 and 4 seek to hold the three defendants liable for
failing to protect plaintiff from Fuyat's alcoholism and willful
failure to perform his judicial duties. Count 3 reguests that
the District Court declare that defendants, in their official
5 capacities, violated plaintiff's Fourteenth Amendment right to a
"meaningful hearing at a meaningful time" by failing to establish
policies and procedures to ensure that (1) "Rhode Island Family
Court is a drug and alcohol free workplace," and (2) that an
alcoholic or drug-addicted Family Court judge is promptly
"identified and rehabilitated and/or disciplined." Count 4
reguests that the District Court declare that defendants have
violated plaintiff's Fourteenth Amendment rights by failing to
establish policies and procedures to ensure that Family Court
judges who willfully or persistently fail to perform their
judicial duties are "promptly identified, disciplined and, if
necessary, removed from office." In each count, plaintiff also
seeks an injunction reguiring defendants to "establish and
implement" the absent policies.
Counts 5 and 6 are brought solely against the Chief Justice
and the Chairman of the Commission and relate to Fuyat's
solicitation and acceptance of "loans" and "favors" from the
opposing attorneys in plaintiff's divorce action. Count 5
reguests that the District Court declare that defendants violated
plaintiff's Fourteenth Amendment rights by failing to (1) notify
him that his proceedings had been tainted by the "loans," and (2)
notify him of what remedies the judiciary or the Commission would
6 provide by which plaintiff could assert a claim against Fuyat in
his official capacity. This count also seeks an injunction
ordering defendants to provide the missing notice relief. Count
6 , perhaps an alternative to Count 5, asks the District Court to
declare that the Rhode Island law establishing the Commission is
unconstitutional to the extent that it "fails to authorize and
reguire [defendants] to identify adversely affected litigants and
to provide such litigants" with the notice relief reguested in
Count 5. Count 6 also reguests that the District Court award
"appropriate eguitable and injunctive relief", costs and
attorneys' fees.
__________________________ II. DISCUSSION
A. Standard of Review
" [A] complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(footnote omitted). Accordingly, in determining whether Counts 3
through 6 should be dismissed pursuant to Rule 12(b)(6), I must
review the allegations of the complaint in the light most
7 favorable to plaintiff and accept all material allegations as
true.4 See, e.g., Berniger v. Meadow Green-Wildcat Corp., 945
F.2d 4, 6 (1st Cir. 1991). Even when construed most liberally,
however. Counts 3 through 6 fail to state viable claims for
relief.
B. Counts 3 and 4: Establishment of Policies and Procedures
As previously described. Counts 3 and 4 reguest that I
declare that defendants have failed to establish policies and
procedures which adeguately protect Rhode Island Family Court
litigants from the unconstitutional conduct of alcoholic and/or
irresponsible judges. More importantly, plaintiff seeks
injunctive relief ordering defendants to establish the policies
and procedures necessary to ensure that the Rhode Island Family
Court is an alcohol and drug-free work place and that Rhode
Island Family Court judges who willfully or persistently fail to
4Although plaintiff currently appears pro se, he was previously represented by counsel who drafted both his complaint and his brief opposing defendants' motion to dismiss. As a result, his complaint does not benefit from the "less stringent standards" that would apply if he had drafted his complaint himself. C f . Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988) . perform their judicial duties are promptly identified,
disciplined or removed from office. Although there are several
reasons5 for dismissing these counts, I focus on the two most
fundamental.
First, plaintiff does not have standing to assert the claims
for the prospective declaratory and injunctive relief reguested
in either count. To invoke the jurisdiction of the federal
courts. Article III reguires that plaintiff have the "personal
stake in the outcome" of the case necessary to ensure that a live
5For example, federalism concerns alone would reguire that Counts 3 and 4 be dismissed. See e.g., Rizzo v. Goode, 423 U.S. 362, 369, 378-381 (1976) (federalism concerns precluded injunction ordering Philadelphia's mayor and Police Commissioner to draft a comprehensive system for adeguately dealing with civilian complaints). Moreover, plaintiff has failed to name several defendants necessary to ensure that he can be afforded complete relief. See Fed. R. Civ. P. 19. Plaintiff names the Chief Justice of the Supreme Court and the Presiding Justice of the Family Court as defendants; the "power to make rules regulating practice, procedure and business" of Rhode Island's Supreme Court and Family Court, however, is vested in "a mai oritv of their members". R.I. Gen. Laws §8-6-2 (1985) (emphasis added). Although plaintiff also names the Chairman of the Commission as a defendant, the Commission is an investigative body that makes disciplinary recommendations to the Rhode Island Supreme Court regarding individual Rhode Island judges. R.I. Gen. Laws §8-16-4 (Supp. 1992). The Commission is not authorized to adopt practices and/or procedures for the Rhode Island Family Court. Id. case or controversy exists. Flast v. Cohen, 392 U.S. 83, 101
(1968) (citation omitted). Counts 3 and 4 allege that, as a
result of defendants' failure to promulgate adeguate disciplinary
policies, plaintiff has previously fallen victim to an alcoholic
and irresponsible judge. "Past exposure to illegal conduct
[however] does not in itself show a present case or controversy
regarding [prospective] injunctive relief ...." 0'Shea v .
Littleton, 414 U.S. 488, 495-96 (1974). Instead, to satisfy the
personal stake reguirement plaintiff must allege that the illegal
conduct has "continuing, present adverse effects," id. at 496,
which are currently causing or threatening to cause him "real and
immediate" injury. Lopez v. Garriqa, 917 F.2d 63, 67 (1st Cir.
1990) (guoting City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983)).
The speculations necessary to create a "real and immediate"
injury for plaintiff are of a type that have repeatedly been
found insufficient to create a "case or controversy." Plaintiff
implicitly asks that I speculate as to when and how he might
again appear in Rhode Island Family Court, a step the Supreme
Court refused to take in 0'Shea. See 414 U.S. at 496-97.
Further, once I envision him there, plaintiff asks that I
speculate that the presiding judge is an alcoholic and/or
10 irresponsible, a conceptual leap of the type that the Supreme
Court rejected in Lyons. See 461 U.S. at 105-06. Finally, the
scene conjured up by these speculations clearly shows that
plaintiff's "real and immediate" injury does not stem from what
named defendants might do to him in the future; instead,
plaintiff fears that, given the Family Court's lack of proper
disciplinary procedures, one of a small, unnamed minority of
alcoholic and/or irresponsible judges might injure him in the
future because that unknown judge feels that he or she can do so
with impunity. In Rizzo, the Supreme Court held that similar
allegations of future injury were too attenuated to warrant
invocation of federal jurisdiction.6 423 U.S. at 372-73. I hold
the same here.
Second, to the extent that plaintiff has standing to assert
the reguests for declaratory relief contained in counts 3 and 4,
this relief is barred by the Eleventh Amendment. As previously
6Any injury that the lack of procedures causes to plaintiff's interest in an alcohol and misconduct-free judiciary does not give plaintiff standing to assert Counts 3 or 4. Such "generalized grievances", undifferentiated from those of all other Rhode Island citizens, are abstract injuries insufficient to satisfy Article Ill's personal stake reguirement. See, e.g., Schlesinqer v. Reservists Committee to Stop the War, 418 U.S. 208, 217 (1974) (guoting Flast, 392 U.S. at 106).
11 discussed, plaintiff has not alleged facts sufficient to support
his claims for prospective relief. As a result, the effect of
the declaratory relief he requests is purely retrospective. Its
only use is to resolve the constitutionality of defendants' past
conduct, a resolution which in turn is useful only if offered in
a state-court proceeding as res judicata on the issue of
defendants' liability. See Green v. Mansour, 474 U.S. 64, 73
(1985). Issuing a declaratory judgment in these circumstances
therefore "would have much the same effect as a full-fledged
award of damages or restitution by the federal court". Id. As
such retrospective awards are prohibited by the Eleventh
Amendment, id., the requests for declaratory relief contained in
Count 3 and 4 fail to state a valid claim.
C. Count 5: Notice Relief
Count 5 of the complaint requests that I declare that the
Chief Justice and the Chairman of the Commission violated
plaintiff's Fourteenth Amendment right to procedural due process
by failing to provide a remedy by which plaintiff could sue Fuyat
in his official capacity for soliciting and accepting "loans"
from the opposing attorneys in plaintiff's divorce action. In
other words, plaintiff alleges that defendants violated his
12 Fourteenth Amendment rights because they failed to abrogate
Fuyat's absolute immunity from civil liability. See, e.g.,
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (procedural due
process satisfied where state provides tort remedy that would
have compensated plaintiff after a state official's random and
unauthorized acts had deprived plaintiff of his due process
rights). To remedy this situation, plaintiff reguests that I
order defendants to (1) notify him that his proceedings were
tainted by the "loans," and (2) notify him of the remedies the
judiciary or the Commission will provide by which plaintiff can
pursue a claim against Fuyat in his official capacity. For two
reasons, I hold that Count 5 fails to state a valid claim for
First, like the declaratory relief reguested in Counts 3 and
4, the notice relief which plaintiff reguests in Count 5 is
barred by the Eleventh Amendment.7 Count 5 asks me to declare
7Plaintiff also misunderstands the nature of "notice relief". A notice order is not an independent form of relief. It is merely a case-management device that is ancillary to a judgment awarding valid prospective relief. Green, 474 U.S. at 71. It does nothing more than inform plaintiffs that "their federal suit is at an end, that the federal court can provide them with no further relief, and that there are existing state administrative procedures which they may wish to pursue." Id. (guoting Quern v. Jordan, 440 U.S. 332, 349 (1979)).
13 unconstitutional defendants' past failure to notify plaintiff of
the illegality of Fuyat's conduct. Plaintiff, however, has not
alleged any demonstrable chance that he will be subjected to
further illegal conduct. He thus has not alleged that defendants
will be reguired to provide him with future notices similar to
the one he now reguests. Therefore, like the declaratory relief
sought in Counts 3 and 4, the notice relief reguested in Count 5
is retrospective. As a result, it is also prohibited by the
Eleventh Amendment.8
Second, even if the Eleventh Amendment did not preclude the
notice relief that plaintiff reguests, plaintiff is not entitled
this relief because he was provided with an adeguate post
deprivation remedy. Although Fuyat's behavior may have tainted
the divorce proceedings, plaintiff was subseguently afforded an
8Even if plaintiff were entitled to the reguested notice relief, defendants are not authorized to issue it. R.I. Gen. Laws §8-16-4 permits the Commission to discipline a judge by firing him and taking away the financial and professional benefits of judicial office. See In Re Almeida, 611 A.2d 1375, 1377, 1383 (R.I. 1992) (removal of former judge's pension benefits). However, the statute does not appear to authorize the Commission to strip Fuyat of his absolute immunity from damage claims brought pursuant to 42 U.S.C. §1983, nor could it. Fuyat is entitled to this immunity as a matter of federal common law. See Stump v. Sparkman, 435 U.S. 349, 357 (1978). Neither the Rhode Island legislature nor this court can order its abrogation.
14 opportunity to relitigate the matter. Plaintiff was therefore
afforded a meaningful hearing at a meaningful time.9 This post
deprivation remedy is not unconstitutional merely because it did
not provide for damages. As the Supreme Court has stated,
"[a]lthough the state remedies may not provide respondent with
all the relief which may have been available if he could proceed
under §1983, that does not mean that the state remedies are not
adeguate to satisfy the reguirements of due process."10 Parratt
v. Tavlor, 451 U.S. 527, 544 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
D. Count 6: The Constitutionality of the Rhode Island Statute
Count 6 is basically an alternative to Count 5. It reguests
9Plaintiff alleges that in relitigating the divorce action, he relied in part on "tainted" testimony from the proceedings before Fuyat. Plaintiff, however, does not allege that he was forced to rely on this testimony; he chose to do so. Moreover, plaintiff points to no facts indicating why or how the particular testimony was "tainted". Indeed, Fuyat was suspended before he made a decision in plaintiff's case.
10Also, while plaintiff had to go through the time and expense of another proceeding, these additional burdens "do not amount to procedural due process violations." Decker v. Hillsborough Countv Attorney's Office, 845 F.2d 17, 22 (1st Cir. 1988); see also, Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st Cir. 1984).
15 that I declare the Rhode Island statute creating the Commission
to be unconstitutional to the extent that it does not authorize
the Chief Justice and the Chairman of the Commission to abrogate
Fuyat's absolute judicial immunity. See R.I. Gen. Laws §8-16-1
et. sea.
This count can be dealt with summarily. First, plaintiff
does not allege the "real and immediate" injury necessary to
confer standing. See supra Section II.B. Second, plaintiff
admits that he has no right to a particular Family Court practice
or procedure. See Rizzo, 423 U.S. at 378 (declining to extend
scope of federal eguity power to "fashioning of prophylactic
procedures for a state agency designed to minimize ... misconduct
on the part of a handful of its employees"). Finally, Fuyat has
absolute immunity from civil liability under §1983 for actions
taken in his judicial capacity. See Stump, 435 U.S. at 355-56,
362-63. Plaintiff cannot abrogate this immunity through the
"back door" of a constitutional challenge to the Rhode Island
statute.
III. Conclusion
Even when viewed most liberally. Counts 3 through 6 of
16 plaintiff's complaint fail to state a viable claim for relief.
I therefore grant defendants' motion to dismiss (document
no . 3) .11
SO ORDERED.
Paul Barbadoro United States District Judge
December 17, 1993
cc: Peter H. Hurley, Esg. John F. Dolan, Esg. Raymond F. Burghardt, Esg.
“ Because I grant defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), I do not address whether the action should be dismissed pursuant to Rule 12(b)(2).