11-1137-cv
Maunsell v. WCAX TV

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of May, two thousand twelve.

PRESENT: ROBERT D. SACK,
         REENA RAGGI,
         RAYMOND J. LOHIER, JR.,
                   Circuit Judges.

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DAVID FRANCIS MAUNSELL,
                  Plaintiff-Appellant,
              v.                                                                        No. 11-1137-cv

WCAX TV, PETER MARTIN, MARSELIS PARSONS,
BRIAN JOYCE,
                   Defendants-Appellees.
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FOR APPELLANT:                         David Francis Maunsell, pro se, Hardwick, Vermont.

FOR APPELLEES:                         No appearance.

         Appeal from a judgment of the United States District Court for the District of

Vermont (Christina Reiss, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 16, 2011, is AFFIRMED.
       Pro se plaintiff David Maunsell appeals from the sua sponte dismissal under 28 U.S.C.

§ 1915(e)(2) of his self-styled “petition” for the court to “revisit” its 2010 dismissal of his

complaint for lack of subject matter jurisdiction. As Maunsell’s “petition” attempts to re-file

the same complaint, we construe the “petition” as a motion for reconsideration and review

the district court’s denial of it for abuse of discretion, which we will identify only if the

district court’s decision rests on an error of law or a clearly erroneous factual finding, or

cannot be found within the range of permissible decisions. See Johnson v. Univ. of

Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (reviewing denial of motion for

reconsideration under Fed. R. Civ. P. 60(b)); cf. Munafo v. Metro. Transp. Auth., 381 F.3d

99, 105 (2d Cir. 2004) (reviewing denial of motion for amended judgment under Fed. R. Civ.

P. 59(e)). We assume the parties’ familiarity with the facts and record of the underlying

proceedings, which we reference only as necessary to explain our decision to affirm.

       The district court properly rejected Maunsell’s argument that he cannot obtain relief

in Vermont state courts because, even if the oaths taken by the identified public officials

were defective as Maunsell asserts, those officials’ actions are valid under the de facto officer

doctrine and cannot serve as the basis for proceeding in federal rather than state court. See

Ryder v. United States, 515 U.S. 177, 180 (1995); see also Maunsell v. Johnson, 100 F.

App’x 47, 49 (2d Cir. 2004) (summary order) (rejecting argument by same plaintiff under

de facto officer doctrine). Insofar as Maunsell asserts that his personal experience in the

Vermont state court system justifies his belief that he could not obtain a fair result there, he

offered no evidence to support this claim and, indeed, failed to present new allegations that

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the district court did not consider in dismissing the 2010 action. See Johnson v. Univ. of

Rochester Med. Ctr., 642 F.3d at 125 (stating that reconsideration under Fed. R. Civ. P.

60(b)(1) is permissible in case of mistake or inadvertence); cf. Munafo v. Metro. Transp.

Auth., 381 F.3d at 105 (stating that reconsideration under Fed. R. Civ. P. 59(e) is limited to

correcting clear error of law or preventing manifest injustice). His conclusory assertions of

statewide judicial bias were insufficient to state a claim for relief.       See 28 U.S.C.

§ 1915(e)(2)(B)(ii); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       Maunsell’s argument that the district judge in this case should have recused herself

must likewise be rejected as the judge’s impartiality could not reasonably be questioned on

the basis of her status as a former Vermont attorney or judge. See United States v. Lovaglia,

954 F.2d 811, 814–15 (2d Cir. 1992). Finally, the district court did not err by dismissing

Maunsell’s petition with prejudice, as repleading would not cure its deficiencies. See Cuoco

v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

       We have considered Maunsell’s remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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