     [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
               For the First Circuit

No. 01-1580

                        WILLIAM T. HAMILTON,

                       Plaintiff, Appellant,

                                 v.

                           JOAN E. ARNOLD

                        Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Nathaniel M. Gorton, U.S. District Judge]


                               Before

                        Boudin, Chief Judge,

                   Rosenn*, Senior Circuit Judge,

                     and Lipez, Circuit Judge.




     Edward Greer for appellant.
     Brent A. Tingle with whom Joseph A. Seckler was on brief for
appellee.


                          January 23, 2002


________________
*Of the Third Circuit, sitting by designation.
             Per Curiam. This litigation is a continuation of a

lengthy   marital       campaign   waged     in   the    Massachusetts    state

courts.      After eleven years of marriage and the birth of three

children,     Janet     Guy-Hamilton    sued      her   husband,   William    T.

Hamilton (Hamilton) for divorce in the Worcester County Probate

and Family Court in Massachusetts.                 After a protracted and

contentious trial, the presiding judge, Arline Rotman, granted

the divorce.       The judge awarded joint legal custody of the

children, the central issue in the suit, to both parents, with

physical custody to the mother.               The judge also ordered the

father to pay child support and              directed that he pay $10,000

toward his former wife’s legal fees, because the judge found

that Hamilton had needlessly protracted the litigation.

             Hamilton appealed to the Massachusetts Appeals Court.

That court affirmed the judgment of the county court.                    In its

decision, the appellate court noted that Hamilton appealed from

“every significant aspect” of the judgment of divorce entered by

the Worcester Probate and Family Court.                 The appellate court’s

review of the record and arguments of the parties convinced it

that   the     appeal    lacked    merit.         Hamilton   petitioned      the

Massachusetts Supreme Judicial Court for leave to obtain further

review.      On July 24, 1995, the Supreme Judicial Court denied

both the petition for review and a motion for reconsideration.


                                       -3-
While the appeals and petition for review were pending in the

Massachusetts appellate courts, the Massachusetts Commission on

Judicial      Conduct    conducted      an   investigation     of   a   complaint

concerning the improper assignment of the judge to the divorce

suit, because of her friendship with Joan Arnold (Arnold), the

attorney for Mrs. Hamilton.             The Commission issued its findings

on    April    25,    1995,    announcing      that   the    claims     had    been

investigated,         computer     records       analyzed,     many     witnesses

interviewed      and    the     court    files    reviewed,     and     that    the

complainant’s allegations were unsubstantiated.

              Following the bitter, hard-fought and lengthy divorce

proceedings in the state courts, Hamilton resourcefully filed

this action in the United States District Court for the District

of Massachusetts.        In his complaint as amended, he alleged that

the defendant, Arnold, the attorney who represented his former

wife in their divorce proceedings, conspired with the presiding

judge in that lawsuit to deprive Hamilton of his constitutional

right to a fair divorce trial, in contravention of 42 U.S.C. §

1983.    The plaintiff seeks compensatory and punitive damages.

The   district       court    denied     Arnold’s     motion   to   dismiss     the

complaint, finding it “marginally sufficient to state a claim.”

After extensive discovery extending over eighteen months, the




                                         -4-
district    court    granted      the    defendant’s      motion    for    summary

judgment.    Hamilton timely appealed.              We affirm.

            Although Hamilton specifically finds fault with several

of the district court’s findings of fact, his basic contention

is that the district court erred in granting summary judgment

because there is a genuine issue of material fact that must be

submitted    to    the    jury.     As    Hamilton    contends,      this    court

exercises de novo review over the district court’s granting

summary judgment.          Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4

(1st Cir. 1994).         Summary judgment is only appropriate if “the

record discloses no trialworthy issue of material fact and the

moving party is entitled to judgment as a matter of law.”

Alexis v. McDonald’s Rests. Inc., 67 F.3d 341, 346 (1 st Cir.

1995).   The record must be viewed in the light most favorable to

the nonmoving party.         Griggs-Ryan v. Smith, 904 F.2d 112, 115

(1st Cir. 1990).     All reasonable inferences must be accepted in

favor of the nonmoving party.             Id.

            Hamilton argues that the evidence, when viewed in the

light most favorable to him, is sufficient for a reasonable jury

to infer a conspiracy and that summary judgment therefore was

inappropriate.      Because the sine qua non of a conspiracy, the

agreement,    is    exceedingly         difficult    to   prove    directly,    it

usually must be inferred from the circumstances.                          Earle v.


                                         -5-
Benoit, 850 F.2d 836, 843 (1st Cir. 1988).           Indisputably, there

is no proof of any explicit agreement on the part of the judge

in the divorce proceedings and Arnold to unlawfully grant a

favorable divorce decree to the former Mrs. Hamilton.                   The

question for this court is whether the evidence Hamilton adduced

is   sufficient   for   a   reasonable   jury   to    find   a   conspiracy

“‘without speculation and conjecture.’”              Id. at 844 (quoting

Aubin v. Fudala, 782 F.2d 280, 286 (1st Cir. 1986)).               Hamilton

asserts that it was.        The district court held that it was not.

          Hamilton forcefully argues that the due process clause

of the Fourteenth Amendment guarantees him “an impartial and

disinterested tribunal” in his divorce proceeding.               Marshall v.

Jerrico, Inc., 446 U.S. 238, 242 (1980).               Therefore, trials

require an absence of actual bias.         In re Murchison, 349 U.S.

133, 136 (1955).        Redress for such a violation is available

under 42 U.S.C. § 1983 when the constitutional right is violated

under color of state law.       A private attorney who conspires with

a state judge is within § 1983’s purview.            Casa Marie, Inc. v.

Superior Court, 988 F.2d 252, 258-59 (1st Cir. 1993).               Because

judges generally enjoy absolute immunity from suits for money

damages, Mireless v. Waco, 502 U.S. 9 (1991), the plaintiff did

not name Judge Rotman as a party defendant.




                                   -6-
           Because    the    facts     accumulated     in      the    related

proceedings are very extensive, the plaintiff has reduced them

to six categories, each disputed by the defendant.                   Hamilton

argues that drawing all reasonable inferences therefrom in his

favor, they establish genuine issues of material fact in dispute

sufficient to preclude summary judgment.               The categories as

stated by him are:

      1.   evidence of signaling in the courtroom between the
           defendant and the presiding judge associated with
           skewed evidentiary rulings;
      2.   evidence of improper ex parte meetings between Joan
           Arnold and the judge, as suggested by the defendant’s
           regular presence in the judge’s chambers;
      3.   evidence of improper ex parte communications between
           the defendant and the judge, as demonstrated by
           judicial comments on “grandparent intermeddling;”
      4.   the judge’s improper award of reverse attorney’s fees
           to the defendant without any proof whatsoever of time
           expended;
      5.   the defendant’s and the judge’s denials, during
           discovery, of maintaining a friendship and socializing
           with one another, which were contradicted by multiple
           witnesses and documentary evidence; and
      6.   testimonial and statistical evidence demonstrating
           that, contrary to the random judicial assignment
           system in effect, Arnold tried the vast majority of
           her contested cases before the presiding judge, rather
           than appearing randomly before all three judges of the
           Worcester Probate Court, and had an unusually
           favorable record with the presiding judge in the
           Hamilton case.

           The district court here, viewing the evidence in the

light most favorable to Hamilton, found that Judge Rotman and

the   defendant   were     close   personal     friends     who   frequently

associated   with    one    another.       He   also   found      that   “they

                                     -7-
improperly flaunted their friendship” and may have engaged in

other    inappropriate         conduct      that    gave    the     appearance      of    a

potential conflict of interest.                   D.C. op. at 9.          However, the

court    held    that    the    obvious       friendship          and   appearance       of

impropriety did not, without more, “constitute circumstantial

evidence of an express or implicit agreement to deprive Hamilton

of a fair proceeding.”           Id.

            At   oral    argument,          Hamilton’s       counsel      stressed       as

“overwhelming” and “powerful” the statistical evidence Hamilton

adduced.    Hamilton claims the statistical evidence proves that

the judge and the defendant manipulated the trial assignments in

the     Worcester       Probate       Court        so     that     Arnold      appeared

disproportionately often in front of Judge Rotman.                             Hamilton

himself    gathered     the     statistics         by    searching      the   Worcester

County    Probate    Court’s      records.              Because    assignments      were

random, Hamilton assumed that the defendant should have appeared

before two of the court judges about an equal number of times.

Hamilton    discovered         that    in    open       court    appearances     Arnold

appeared    before      Judge     Rotman          120    times,     and    before    her

colleague, Judge Lian, 37 times.                   Although on the surface this

disparity appears striking, it is less so when examined in the

context of actual cases: Judge Rotman was assigned to 36 of

Arnold’s cases, while Judge Lian was assigned to 23.                           This 3:2


                                            -8-
ratio is hardly eye-opening, and could result from nothing more

than    a   simple     stroke    of    circumstance.           Moreover,      assuming

arguendo that Arnold’s cases were not randomly assigned, there

is no evidence inculpating Arnold in any manipulation.                             Such

chicanery      can     only     be     inferred        through       conjecture     and

speculation,      which    are       not    acceptable       bases    for    finding   a

conspiracy.

              Hamilton’s other evidence is similarly unconvincing.

There are witnesses who testified that the defendant had at

times been seen in Judge Rotman’s chambers, but no witnesses saw

them there together during the trial.                  Hamilton also argues that

Judge       Rotman’s     admonition          to      Hamilton’s       parents     about

denigrating his former wife in front of their children must have

been the result of ex parte communications between the defendant

and the presiding judge.             However, divorces are often bitter, as

was this one, and children are often used as pawns by one or

both parents.        The caution to the grandparents is more likely an

expression of sound advice rather than the result of an ex parte

communication.

              Hamilton    further          asserts    that    there    was    improper

signaling, such as winks and nods, between the judge and Arnold

while he was testifying.               Hamilton submitted affidavits from

witnesses who, in other cases, claimed to have seen similar


                                            -9-
signaling between the judge and the defendant.               Such behavior,

if it occurred, is not to be condoned, but without more it is

not evidence of a conspiracy.              The alleged winks and nods in an

open court between the judge and a lawyer in a case at trial is

wholly inconsistent with a clandestine conspiracy to subvert the

trial.     Hamilton alleges that the signaling was followed by

“skewed” evidentiary rulings from the judge, but he has not

drawn our attention to anything specific or insidious.

            The issue here is not the apparent impropriety of some

of   the   actions      of   the    judge    and   Arnold   in   the   divorce

proceedings, but whether such impropriety proves a conspiracy

depriving Hamilton of his right to a fair and impartial trial.

Hamilton challenged that conduct in the Massachusetts Court of

Appeals    and   that    court     found    it   unsubstantiated.      We   have

carefully reviewed the record and briefs with respect to all the

allegations.      We are satisfied that no reasonable jury could

have found a conspiracy between the judge and this defendant on

the speculative evidence presented by Hamilton, even giving him

the benefit of all inferences.               Thus, we see no error in the

district court’s finding that “[t]here is simply no evidence of

any ex parte communications regarding Hamilton’s divorce case,

much less of an agreement to deprive him of a fair divorce

proceeding.”     (D.C. op. at 9).


                                      -10-
Affirmed.   Costs taxed against the appellant.




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