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

. 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,

(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.,

(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,

(1972) (per curiam); Eveland v. Director of CIA,

(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,

(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,

(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,

(1974). Instead, to satisfy the

personal stake reguirement plaintiff must allege that the illegal

conduct has "continuing, present adverse effects,"

,

which are currently causing or threatening to cause him "real and

immediate" injury. Lopez v. Garriqa,

(1st Cir.

1990) (guoting City of Los Angeles v. Lyons,

(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

.

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

. 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

. 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,

(1974) (guoting Flast,

).

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,

(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".

As

such retrospective awards are prohibited by the Eleventh

Amendment,

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,

(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

relief.

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,

. 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."

(guoting Quern v. Jordan,

(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,

, 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

, nor could it. Fuyat is entitled to this immunity as a matter of federal common law. See Stump v. Sparkman,

(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,

(1981), overruled in part on other

grounds by Daniels v. Williams,

(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,

(1st Cir. 1988); see also, Alton Land Trust v. Town of Alton,

(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,

(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,

. 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).

17