Tamburro v. City of East

• Court: Court of Appeals for the First Circuit
• Decided: December 18, 1992
• Docket: 92-1321
• Status: Published

Opinion

USCA1 Opinion

December 18, 1992     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 92-1321

                                 ALFRED W. TAMBURRO,
                                Plaintiff, Appellant,

                                          v.

                             CITY OF EAST PROVIDENCE AND
                                STATE OF RHODE ISLAND,
                                Defendants, Appellees.
                                 ____________________

        No. 92-1322

                                 ALFRED W. TAMBURRO,
                                Plaintiff, Appellant,

                                          v.

                                STATE OF RHODE ISLAND,
                                 Defendant, Appellee.
                                 ____________________

        No. 92-1323

                                 ALFRED W. TAMBURRO,
                                Plaintiff, Appellant,

                                          v.

                       RHODE ISLAND DEPARTMENT OF CORRECTIONS,
                                 Defendant, Appellee.
                                 ____________________

No. 92-1324

                                 ALFRED W. TAMBURRO,
                                Plaintiff, Appellant,

                                          v.

                             RHODE ISLAND SUPREME COURT,
                                 Defendant, Appellee.
                                 ____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Alfred W. Tamburro on brief pro se.
            __________________
            James  E.  O'Neil,  Attorney  General,  and  Terence  J.  Tierney,
            _________________                            ____________________
        Special Assistant  Attorney General,  on brief  for appellee  State of
        Rhode Island.
            William J.  Conley, Jr.,  City  Solicitor, on  brief for  appellee
            _______________________
        City of East Providence.

____________________

____________________

Per Curiam.   Plaintiff  Alfred Tamburro appeals  from a
                 __________

            judgment of  the district court dismissing  his complaints in

            these four consolidated  cases for failure to  state a claim.

            We find no error and therefore affirm.

                 The  district court,  without objection  from plaintiff,

            construed the complaints as  setting forth claims for damages

            under 42 U.S.C.    1983 for, inter alia, unlawful  arrest and
                                         __________

            detention and malicious prosecution.   Plaintiff now advances

            two issues on appeal.  First, he contends that District Court

            Judge  Torres erred  in refusing  to disqualify  himself from

            these cases.  He  explains that Judge Torres, while  a member

            of the Rhode Island  Superior Court in 1985, was  involved in

            one aspect of related litigation brought by plaintiff against

            some of  the defendants here.1   Plaintiff asserts  that, due

            to such  involvement, Judge Torres  is an unnamed  "John Doe"

            defendant  in one of the instant cases, although he is unable

            to  identify  which  one.    These  circumstances,  plaintiff

            argues, required Judge Torres' recusal.  We disagree.

                 28 U.S.C.   455 provides that  a judge "shall disqualify

            himself"  when he "[i]s  a party to  the proceeding."   Id.  
                                                                    ___

            455(b)(5)(i).    For  the  following reasons,  we  think  the

            district  court  was  justified  in  deeming  this  provision

____________________

            1.  In connection with civil actions plaintiff  filed against
            various government officials for  "harassment," then-Superior
            Court  Judge Torres  is  said to  have  denied him  in  forma
                                                                _________
            pauperis status, resulting in the dismissal of those actions.
            ________

                                         -3-

inapplicable here.   First, the suggestion  that Judge Torres

            is  an unnamed defendant is simply too nebulous to render him

            a  "party"  for the  purposes  of    455--particularly  given

            plaintiff's  inability to  specify  in which  case the  judge

            allegedly occupies  such status.   Second, recusal  would not

            have been mandatory under    455(b) even if Judge  Torres had

            been  a named defendant.   In order to  guard against "judge-

            shopping,"  "courts  have  refused  to  disqualify themselves

            under Section 455(b)(5)(i) unless there is a legitimate basis

            for suing the judge."   Andersen v. Roszkowski, 681  F. Supp.
                                    ________    __________

            1284, 1289 (N.D. Ill.  1988), aff'd, 894 F.2d 1338  (7th Cir.
                                          _____

            1990) (table);  see also, e.g.,  United States v.  Pryor, 960
                            ________  ____   _____________     _____

            F.2d 1, 3 (1st  Cir. 1992) (suit against judge  separate from

            case at bar;  "It cannot be that an automatic  recusal can be

            obtained  by the  simple  act of  suing the  judge."); United
                                                                   ______

            States  v. Studley,  783 F.2d  934, 940  (9th Cir.  1986) ("A
            ______     _______

            judge is not disqualified by a litigant's  suit or threatened

            suit against  him"); United States v. Grismore, 564 F.2d 929,
                                 _____________    ________

            933  (10th  Cir. 1977)  (same),  cert. denied,  435  U.S. 954
                                             ____________

            (1978).  And it cannot be disputed here that the actions of a

            state court  judge in  denying in  forma pauperis  status are
                                           __________________

            protected by judicial immunity and thus provide no legitimate

            basis  for   1983 liability.   See, e.g., Pierson v. Ray, 386
                                           ___  ____  _______    ___

            U.S. 547, 553-55 (1967).

-4-

Nor did the  district judge err  in concluding that  his

            prior involvement in the  related state court proceedings did

            not  give rise  to circumstances  "in which  his impartiality

            might reasonably be questioned."   28 U.S.C.   455(a).   This

            provision imposes an objective standard: whether a reasonable

            person  knowing  all  the  pertinent  facts  would  harbor  a

            reasonable doubt  concerning the judge's impartiality.   See,
                                                                     ___

            e.g.,  United  States v.  Lopez, 944  F.2d  33, 37  (1st Cir.
            ____   ______________     _____

            1991).   A decision  not to recuse  is reviewed  for abuse of

            discretion.  Id.   "Only if the district court's  decision to
                         ___

            sit 'cannot be defended as a rational conclusion supported by

            [a] reasonable  reading of  the record'  will we  insist upon

            disqualification."  In re  Allied-Signal, Inc., 891 F.2d 967,
                                __________________________

            970  (1st Cir. 1989) (quoting  In re United  States, 666 F.2d
                                           ____________________

            690, 695  (1st Cir. 1981)) (emphasis  deleted), cert. denied,
                                                            ____________

            495 U.S. 957  (1990).  Without more, the mere fact that Judge

            Torres was  involved in plaintiff's  state court  proceedings

            falls well short of mandating recusal, particularly given the

            tangential and cursory nature of that  involvement.  Much the

            way  a  judge is  not barred  from  hearing a  federal habeas

            petition  due to  the fact  that he  presided at  trial, see,
                                                                     ___

            e.g., Gregory v. United  States, 585 F.2d 548, 551  (1st Cir.
            ____  _______    ______________

            1978);  Rule 4(a)  of  Rules Governing  Proceedings Under  28

            U.S.C.    2255; see also, e.g., Oen Yin-Choy v. Robinson, 858
                            ________  ____  ____________    ________

            F.2d  1400, 1408 (9th Cir.  1988) (extradition judge need not

-5-

recuse   himself  in  subsequent  habeas  proceeding),  cert.
                                                                    _____

            denied, 490  U.S. 1106  (1989), Judge Torres'  involvement in
            ______

            the  earlier state  court  litigation provides  no reasonable

            basis for questioning his impartiality.  

                 Second, plaintiff complains of the procedure employed by

            the magistrate-judge  leading up  to the  recommendation that

            the complaints  be dismissed.  Plaintiff's  argument rests in

            large  part   on  an  erroneous  premise:   contrary  to  his

            suggestion,  the  magistrate-judge's  ruling of  January  28,

            1992,  did not recommend a dismissal on the merits but simply

            consolidated the cases on a procedural basis.  On January 30,

            a hearing was conducted  at which the magistrate-judge voiced

            doubts  as  to  the   viability  of  plaintiff's  complaints.

            Plaintiff  failed to  address  these concerns  either at  the

            hearing or thereafter, and  the recommendation that the cases

            be  dismissed  was issued  two  weeks  later.    Under  these

            circumstances, we think plaintiff was given ample notice that

            his complaints  were vulnerable to dismissal  and given ample

            opportunity to amend them.  See, e.g., Pavilonis v. King, 626
                                        ___  ____  _________    ____

            F.2d  1075, 1078 n.6 (1st  Cir.), cert. denied,  449 U.S. 829
                                              ____________

            (1980).   In any event,  plaintiff filed no  objection to the

            February  13  Report and  Recommendation  and  so waived  any

            argument  in this regard.  See, e.g., Davet v. Maccarone, 973
                                       ___  ____  _____    _________

            F.2d  22, 31 (1st Cir. 1992) ("Failure to raise objections to

            the  Report and  Recommendation waives  the party's  right to

-6-

review  in the district court and those not preserved by such

            objection are precluded on appeal.").

                 Affirmed.         
                 _________

-7-