
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          December 18, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
