MacFarlane v. Smith CV-96-38-SD 11/27/96 P

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James M. MacFarlane

v. Civil No. 96-38-SD

Peter William Smith; Jack P. Crisp, Jr.; Beryl Rich

O R D E R

This civil rights action arises out of the civil arrest of

plaintiff James M. MacFarlane following his failure to pay

alimony as ordered by a state court divorce decree. Presently

before the court are separate motions filed by defendants Judge

Peter Smith and Attorney Jack Crisp to dismiss the complaint

under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a

claim upon which relief can be granted. Plaintiff objects to

both motions.

Facts

Plaintiff MacFarlane was involved in state court divorce

proceedings against his ex-wife, defendant Beryl Rich. Defendant

Smith presided as a state court justice. At some point during the proceedings, plaintiff perceived

partiality shown by the presiding judge, defendant Smith, in

favor of Rich. In response, plaintiff filed motions for the

recusal of Judge Smith, which were denied. In addition,

plaintiff began to speak out against Judge Smith, distributing

thousands of embossed pencils with the legend "Kangaroo Court -

'Judge' Peter Smith" printed on them.

The state court's final Decree of Divorce included an

alimony monetary award in favor of Rich against plaintiff

MacFarlane. After a period during which MacFarlane failed to

discharge his obligation to pay. Jack Crisp, Rich's attorney and

another defendant herein, petitioned the court to issue a Civil

Arrest Order, or capias, to secure payment of the debt. Judge

Smith issued the capias, and plaintiff MacFarlane was

subseguently arrested. The next day, bail was set in the amount

that represented MacFarlane's alimony obligations under the

Decree of Divorce. Approximately ten days later, MacFarlane made

bail.

MacFarlane brings this action against Attorney Crisp and

Judge Smith under

for violation of his

constitutional rights. Plaintiff claims violations of (1) the

Due Process Clause of the Fourteenth Amendment; (2) the Fourth

Amendment's prohibition against unreasonable seizures; and (3)

2 the First Amendment.

Discussion

1. Rule 12(b)(6) Standard

To resolve defendants' Rule 12(b) (6) motion, the court must

"take all well-pleaded facts as true," Shaw v. Digital Equip.

Corp.,

(1st Cir. 1996), and extend the

plaintiff "every reasonable inference in his favor." Pihl v.

Massachusetts Pep't of Educ.,

(1st Cir. 1993)

(citing Coyne v. City of Somerville,

(1st

Cir. 1992)). A Rule 12(b)(6) dismissal is appropriate "'only if

it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'" Garita Hotel

Ltd. Partnership v. Ponce Fed. Bank, F.S.B.,

(1st

Cir. 1992) (guoting Correa-Martinez v. Arrillaqa-Belendez, 903

F .2d 49, 52 (1st Cir. 1990)).

2. Jack Crisp's Motion to Dismiss

Section 1983 provides a federal cause of action to redress

violations of the Constitution or other federal laws. Assuming,

arguendo, that plaintiff can make the predicate showing of a

constitutional violation on these facts, the guestion becomes,

against whom may he seek redress in federal court for civil

3 damages under section 1983? The section 1983 cause of action

only runs against persons acting under color of law who deprive

another of constitutional rights. Generally, only formal agents

of the state are deemed to act under color of law. "Private

actors" are not amenable to a section 1983 action, and those with

grievances against them must seek justice under common law.

Nonetheless, "private actors may align themselves so closely with

either state action or state actors that the undertow pulls them

inexorably into the grasp of 1983." Roche v. John Hancock Mutual

Life Insurance Co.,

(1st Cir. 1996).

The conduct of a private actor is treated as state action

redressable under section 1983 only if the state is sufficiently

linked to that conduct.

The Supreme Court in Adickes v. S.H. Kress & Co.,

(1970), held that the state is sufficiently linked to private

conduct when the private actor and state agents are co­

participants in a joint action.

Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not reguire that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.

.

Under the caselaw applying Adickes, it is not entirely clear

4 what degree of state official involvement in the conduct of a

private actor is necessary to warrant a conclusion of "joint

action." In one case, the Supreme Court found state officials

sufficiently involved simply because they were mobilized to aid a

private actor in securing his rights under state law. Lugar v.

Edmondson Oil Co.,

(1982) ("The Court of

Appeals erred in holding that . . . 'joint participation'

reguires something more than invoking the aid of state officials

to take advantage of [state law rights].").

In contrast, the Court in Dennis v. Sparks,

(1980), reguired more significant entanglement of state officials

and the private actor marked by concerted action that goes beyond

mere aid in securing state law rights. Under the higher

threshold of Dennis, state officials summoned to secure private

rights under state law must be pursuing the ends of a conspiracy

with the right holder before a sufficient link to the state is

found.

("Private persons, jointly engaged with state

officials in the challenged action, are acting 'under color' of

law for purposes of § 1983 actions. Of course, merely resorting

to the courts and being on the winning side of a lawsuit does not

make a party a co-conspirator or a joint actor with the judge.

But here the allegations were that an official act of the

defendant judge was the product of a corrupt conspiracy.").

5 The case law does not indicate which of the two different

standards, Lugar or Dennis, controls which sets of facts. See

Edmonson v. Leesville Concrete Co.,

(1991)

(finding that private litigant's peremptory challenge to

potential juror constituted state action because state court

officials assisted and enforced exercise of this state-created

right; no discussion of conspiracy); see also Howerton v. Gabica,

(9th Cir. 1983) (applying Lugar standard to

find sufficient state involvement where police facilitated

landlord's eviction of tenant by accompanying landlord to

premises). But see Casa Marie, Inc. v. Superior Court of Puerto

Rico for the District of Arecibo,

(1st. Cir.

1993) ("It is obvious, nonetheless, that something more than mere

resort to a state court is reguired to transform the moving party

into a co-conspirator or a joint actor with the judge."). See

also Alexis v. McDonald's Restaurants of Mass.,

(1st Cir. 1995) (despite fact that police officer aided defendant

in exercising property rights by removing plaintiff from

premises, defendant was not acting "under color" of law because

no "concerted action tantamount to substituting the judgment of a

private party for that of police or allowing the private party to

exercise state power").

For the reasons that follow, this court finds that the

6 conspiracy standard of Dennis, rather than the lower "aid and

assistance" standard of Lugar, marks the appropriate threshold to

determine whether Attorney Crisp was engaged in joint action with

state officials. Choice of the governing threshold of state

official involvement sets the scope of federal judicial authority

under section 1983. The lower the threshold, the more private

conduct will be swept under the rubric of "state action"

redressable within the adjudicatory competence of federal courts.

Thus, resolution of this issue should begin with the broader

principles governing the distribution of judicial authority

between state and federal courts.

Settling the dispute of one individual against another has

traditionally been considered at the core of state law's sphere

of authority. "The jurisdiction which Article 3 of the

Constitution conferred on the national judiciary reflected the

assumption that the state courts, not the federal courts, would

remain the primary guardians of that fundamental security of

person and property which the long evolution of the common law

had secured to one individual as against other individuals."

Monroe v. Pape,

(1961) (Frankfurter, J.,

dissenting). The Supreme Court has recognized that section 1983

was not intended by the enacting Congress to effectuate any broad

departures from traditional boundaries between state and federal

7 authority.

[S]ome questions of property, contract, and tort law are best resolved by state legal systems without resort to federal courts. . . . [This principle] respects the delicate balance between state and federal courts and comports with the design of § 1983, a statute that reinforces a legal tradition in which protection for persons and their rights is afforded by the common law and the laws of the States as well as the Constitution.

Albright v. Oliver,

(1994) . Congress intended

section 1983 as a limited cause of action that fell short of

federalizing all state tort law. Accordingly, the scope of the

state action requirement has been closely circumscribed in

judicial application to maintain a viable distinction between

legal wrongdoing that remains on the level of state tort law and

that which rises to the level of constitutional tort.

("Careful adherence to the state action

requirement preserves an area of individual freedom by limiting

the reach of federal judicial power. ... A major consequence

is to require courts to respect the limits of their own power as

dictated against . . . private interests.").

However, the state action requirement is more than just a

limiting principle, as it serves functions going beyond that of

forestalling the penetration of otherwise boundless federal

judicial authority. Specifically, the state action inquiry focuses on the conditions which, if met, indicate that the matter

is one of federal concern overcoming the traditional presumption

that state courts retain primary competence to resolve disputes

between co-citizens of the state.

Thus, on the other hand, the degree of state official

involvement deemed necessary to turn private conduct into state

action cannot be so low as to swamp the distinction between state

torts and constitutional torts. And it cannot be so high that

section 1983 lies silent when federal interests are in need of

vindication. This leaves open the guestion of what conditions

indicate the presence of a federal interest and thereby help mark

the boundary between state torts and constitutional torts.

In other contexts, the Supreme Court has considered the

inadeguacy of available state remedies to redress the deprivation

at issue as a condition relevant to whether a federal cause of

action was intended by Congress or otherwise appropriate. For

example, the Court in Monroe focused on the availability of

adeguate state remedies as relevant to whether Congress intended

a section 1983 cause of action for conduct of state officers that

went beyond authorization under state law. In holding that

section 1983 reached such unauthorized conduct, the Court

reasoned that Congress intended to "provide a federal remedy

where the state remedy, though adeguate in theory, was not available in practice." Id. at 174. There were, in theory,

state remedies available because the officer was acting outside

legally conferred authority. But, according to the Court, such

remedies appeared practically inadeguate "because, by reason of

prejudice, passion, neglect, intolerance or otherwise, state laws

might not be enforced." Id. at 180. The Court concluded that

Congress intended the section 1983 cause of action to extend to a

state agent's unauthorized conduct (which the Court accordingly

treated as state action) because available state remedies were

practically inadeguate.

Likewise, the Court in Bivens v. Six Unknown Fed. Narcotics

Agents,

(1971), considered the inadeguacy of

state remedies to redress deprivation of interests protected

under the Fourth Amendment as relevant to setting the scope of

federal judicial power. The Court reasoned that the invasion of

privacy, at issue in the case, by a federal officer represented a

more onerous and coercive species of legal wrong than the typical

tortious invasion by a private citizen. State tort remedies,

aimed only at the latter, were adjudged inadeguate by the Court

and replaced with a federal cause of action.

By analogy, similar considerations should guide resolution

of the degree of state officer involvement necessary to transform

"private conduct" into "state action" redressable under section

10 1983. Without such guidance, that state action requirement is

reduced to a "we know it when we see it" type of standard. At

the outset, state officials are implicated in every instance of

an individual's invoking or exercising rights under state law.

(Burger, J., dissenting). In the

shadows behind all right holders stands the state ready to

mobilize its law enforcement machinery and deploy state officials

to secure enjoyment of the benefits it confers by proclamation of

law. This fact forms an important background supposition against

which much daily interaction takes place. However, the fact of

state officer involvement cannot be enough to treat private

conduct as sufficiently gravid with state action. Otherwise, the

state action requirement would not serve its function of limiting

the reach of federal judicial power, and every individual whose

invocation of state law rights proved inimical to the federal

rights of another would be a potential defendant in

constitutional litigation under section 1983. The state action

requirement therefore is not whether state officers are involved,

because that will always be affirmative; rather, it is a question

of the degree of state officer involvement that implicates

federal interests. However, without any milestones or

benchmarks, such as those provided by consideration of available

state remedies, the inquiry becomes highly impressionistic. To

11 avoid this, the reasoning of Bivens and Monroe can be relied upon

in settling on the appropriate threshold of state official

involvement. Accordingly, when state official involvement in

private conduct reaches the degree necessary to render state

remedies inadeguate, any resulting deprivation carries sufficient

indicia of federal concern that the conditions for the exercise

of federal judicial authority are met. It is this degree of

state official involvement that turns private wrongful conduct

into a section 1983 violation. The Supreme Court has implied as

much, holding that a factor is whether "the injury caused is

aggravated in a unigue way by the incidents of government

authority."

.

When involvement of state officials in private conduct is

at its lowest point on the spectrum, any resulting legal wrong is

a core instance of a state tort, and available state remedies

have been specifically tailored through evolution of statutory

and common law to redress such wrongs. Where, as here, an

individual claims that enjoyment of federal rights is jeopardized

by another individual's invocation and exercise of state rights,

he suffers no prejudice by a state court resolution of the

lawfulness of defendant's conduct. This counsels a presumption

against finding that private conduct influenced minimally by the

state is state action on the theory that Congress did not intend

12 to supplant adequate and appropriate state remedies.

However, at a certain point, the level of state official

entanglement in private conduct renders state tort law inadequate

to redress resulting legal wrongs. State officials may become so

entangled with private conduct that the private nature and origin

of the conduct is obscured by the influence of state power. When

such point has been reached, entanglement of state officials

becomes the functional equivalent of delegation to a private

party of coercive sovereign authority traditionally reserved for

agents of the state. The Court in Bivens held that invasion of

privacy by a federal officer is a different species of legal

wrong than typical tortious invasions due to coercive authority

vested in a federal officer and unavailable to the typical

tortfeasor.

(Harlan,

J., concurring) ("One can agree . . . that Congress had no

intention of taking over the whole field of ordinary state torts

. . . without being certain that the enacting Congress would not

have regarded actions by an official, made possible by his

position, as far more serious than an ordinary state tort, and

therefore a matter of federal concern.") The element of coercion

likewise distinguishes the conduct of a private individual

exercising delegated state power from the typical tort, and, for

that reason, state remedies provide insufficient medicine for any

13 resulting deprivation of federal rights. For such conduct, the

presumption that state courts retain primary authority to settle

disputes between private parties is overcome, and the state

action reguirement envelops such conduct, clearing a space for

federal law to reach out and effect justice. "The pretense of

authority alone might seem to Congress sufficient basis for

creating an exception to the ordinary rule that it is to the

state tribunals that individuals within a State must look for

redress against other individuals within that State."

.

Obviously, the degree of state influence rendering private

conduct more coercive and onerous than typical tortious wrongs

will vary with context. "Only by sifting facts and weighing

circumstances can the nonobvious involvement of the State in

private conduct be attributed its true significance." Burton v.

Wilmington Parking Auth.,

(1961) .

However, there are two contexts that warrant special

treatment. In some contexts, state tort law may be bereft of the

necessary categories to redress deprivation of particular

interests protected by the Constitution. Some constitutional

rights do not enjoy any counterparts in the interests

traditionally protected at state common law. "There may be no

damage remedy for the loss of voting rights or for the harm from

14 psychological coercion leading to a confession. ... It would

indeed be the purest coincidence if the state remedies for

violations of common-law rights by private citizens were fully

appropriate to redress those injuries which only a state official

can cause and against which the Constitution provides

protection."

n.5. In addition,

there may be no adeguate state remedy because state law sanctions

the grievance at issue.

(Frankfurter, J., dissenting) ("As to the adeguacy of state-court

protection of person and property, there seems a very sound

distinction, as a class, between injuries sanctioned by state law

(as to which there can never be state-court redress, if at all,

unless (1) the state courts are sufficiently receptive to a

federal claim to declare their own law unconstitutional, or (2)

the litigant persists through a tortuous and protracted process

of appeals . . . to this Court) and injuries not sanctioned by

state law."). In these contexts, state remedies are prima facie

inefficacious, and a lower threshold should govern whether state

official involvement reaches the level at which private conduct

will be treated as state action.

Lugar's lower threshold of state involvement can be

explained by the presence of both of the above factors which

render state remedies prima facie inadeguate. Because available

15 state remedies provided inadequate redress, the Court found the

private conduct constituted state action on a lower threshold

showing of co-participation by state officials. The plaintiff in

Lugar presented a three-count complaint. Count One, brought

under section 1983, alleged that the state law procedures

followed by defendant creditor in attaching plaintiff's property

constituted an unconstitutional deprivation in violation of the

Due Process Clause. Count Two, also brought under section 1983,

alleged that the unconstitutional deprivation of property

resulted from defendants' "malicious, wanton, willful, opressive

[sic!, [and] unlawful acts." Count Three was an overlapping

claim for malicious prosecution brought under state tort law.

The Court found state action to support Count One; however, it

dismissed Count Two for lack of such. As both Counts One and Two

arose out of the same facts, the degree of state officer

involvement in the creditor's conduct remained constant for both

counts. The question then is: What was the operative difference

such that the Court found state official involvement in the

creditor's conduct sufficient to support a finding of state

action for Count One and not for Count Two?

First, Count One alleged conduct on the part of the creditor

that was authorized under state law, whereas Count Two alleged

unauthorized conduct. The Lugar court held that unauthorized

16 conduct could not be treated as state action. The Court in

Monroe held that whether or not a state official's conduct was

authorized under state law was irrelevant to the state action

inquiry because state remedies, while theoretically available for

unauthorized conduct, were practically inadequate. Under Lugar,

when a state official and a private citizen co-participate in

unauthorized conduct that violates another's riqhts, a federal

remedy stands only aqainst the state official, and not the

private citizen, presumably because state remedies, while

practically inadequate aqainst the former, are both theoretically

and practically available aqainst the private actor. On the

other hand, conduct authorized under state law, like that at

issue in Count One in Lugar, raises concerns about the adequacy

of state remedies regardless of which of the co-participants is

sued. Thus, the authorized conduct in Count One was less likely

to be adequately redressed at state law than was the unauthorized

conduct of Count Two.

Second, in Lugar there were no available state common-law

counterparts for Count One, while Count Two overlapped with

established state torts. Count Two alleged "malicious abuse" of

state procedure, and the state tort of malicious prosecution

would be available to redress such legal wrong. However, Count

One alleged invocation of state attachment procedures which, if

17 wrongful, would not fit any state tort categories. Since the

debtor in Lugar retained possession of the attached property,

application of the two most relevant torts of conversion and

trespass to chattels was precluded, as both torts are against

possession. Due to the gap in available and adeguate state

remedies for Count One, the Court was willing to find the state

action reguirement satisfied by a lower level of state officer

involvement for Count One than for Count Two.

Readjusting the focus to the facts at issue here, it is on

these grounds that the instant case is distinguishable from

Lugar, despite surface similarities. Lugar and this case are

factually similar. In Lugar, state officials were deployed to

assist a private creditor in attaching property of his debtor.

Likewise here, state officials were deployed to assist a

creditor, defendant Crisp, in arresting his debtor, plaintiff

MacFarlane. Unlike in Lugar, the plaintiff in this case has

available overlapping claims under the common law for false

imprisonment and malicious prosecution against the defendant.

Even though Crisp's conduct was authorized under state law, that

authority would be void if a state court entertaining tort

actions against Crisp adjudged the sanctioning law as

unconstitutional. In this case, state remedies are both

theoretically and practically available, and MacFarlane suffers

18 no prejudice by state court resolution of the lawfulness of

Crisp's conduct. Given overlapping state tort law remedies,

Lugar's lower "aid and assistance" threshold of officer

involvement is inappropriate here.

Applying the higher "conspiracy" standard of Dennis,

plaintiff MacFarlane must show that his seizure under the civil

arrest order resulted from conspiracy between defendant Crisp and

the state officers involved. Only then will Crisp's otherwise

private conduct be deemed state action, bringing him within

section 1983's grasp.

A party seeking to wield a section 1983 cause of action

against a private individual on grounds of an alleged conspiracy

with state officials bears a higher burden of proof than is

otherwise reguired to survive a motion brought under Rule

12(b)(6), Fed. R. Civ. P. On this point, the First Circuit has

noted.

In an effort to control frivolous conspiracy suits under § 1983, federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiff's mind, show the existence and scope of the alleged conspiracy. It has long been the law . . . that complaints cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with reference to material facts.

Slotnick v. Staviskey,

(1st Cir. 1977). If the

complaint contains nothing more than conclusory allegations

19 rather than well-pled facts, dismissal under Rule 12(b)(6) is

appropriate. See Dahlberq, supra, 748 F.2d at 93 (dismissing

complaint under Rule 12(b)(6) because "on the facts in the record

[no claim could be made] . . . that [state officers] entered into

a conspiracy or had a meeting of the minds with [the

defendants]); Thompson v. Aland,

(N.D. Tex.

1986) (dismissing under Rule 12(b)(6) because complaint did not

contain "factual allegations of conspiratorial conduct" beyond

the "blanket accusation of conspiracy").

While the complaint states that defendant Crisp and the

state officials conspired against him, it fails entirely to plead

any facts tending to show the existence of a tainted agreement,

such as a "backroom" meeting between the co-conspirators. Since

sufficient state involvement in Crisp's conduct has not been

adeguately alleged and supported. Crisp will not be treated as a

state actor, and the section 1983 claim against him is dismissed

under Rule 12 (b) (6) .

3. Judge Peter Smith's Motion to Dismiss

Plaintiff MacFarlane also seeks damages under section 1983

against Judge Smith, who issued the civil arrest order regarding

plaintiff. Under well-settled law, a judge enjoys absolute

immunity from a suit for money damages. Mireles v. Waco, 502

(1991). One of the limited circumstances under which

immunity will be pierced is when the judge acts "in complete

absence of all jurisdiction."

.

Plaintiff MacFarlane contends that Judge Smith issued the

civil arrest order in absence of jurisdiction because he was, at

that time, disgualified for partiality. Part I, article 35, of

the state constitution provides that "it is the right of every

citizen to be tried by judges as impartial as the lot of humanity

will admit." New Hampshire courts have adopted a per se rule of

judicial disgualification for particularly visible and obvious

appearances of partiality or impropriety. State v. Martina, 135

N.H. Ill, 120-21,

(1991) ("a per se rule of

disgualification due to the probability of unfairness applies

when the trier of fact has pecuniary interests in the outcome,

when the trier of fact has become personally embroiled in

criticism from a party before him, or when he has heard evidence

in secret at a prior proceeding, or when he is related to a

party"). Plaintiff argues that Judge Smith's alleged

impartiality during the divorce proceedings disgualified him

under this rule, and divested his jurisdiction over matters

related to the divorce dispute. Plaintiff thus concludes that

Judge Smith cannot shield himself from this section 1983 action

because he acted in absence of jurisdiction and, for that reason,

21 is precluded from relying upon absolute judicial immunity. The

issue, therefore, is whether disqualification for partiality

strips a judge of otherwise proper jurisdiction such that the

"acting in complete absence of all jurisdiction" exception to

absolute judicial immunity applies.

There is some support in New Hampshire caselaw for the view

that a judge disqualified for partiality lacks jurisdiction to

preside over the case. In Russell v. Perry,

, 155

(1843), the New Hampshire Supreme Court said, "where a justice is

interested . . . the statute prohibits him from acting

judicially. These cases, then, are excepted out of the ordinary

jurisdiction of a justice." Perry supports a conclusion that a

judge disqualified for partiality takes subsequent action with

respect to the case in absence of jurisdiction.

Actions taken in the absence of jurisdiction will not,

however, subject a judge to liability unless such actions were

taken in the clear absence of jurisdiction, which is a standard

that forgives transgressions in borderline cases. The Supreme

Court has directed that "the scope of the judge's jurisdiction

must be construed broadly where the issue is the immunity of the

judge." Stump v. Sparkman,

(1978). "It is a

general principle of the highest importance to the proper

administration of justice that a judicial officer, in exercising

22 the authority vested in him, shall be free to act upon his own

convictions, without apprehension of personal consequences to

himself." Bradley v. Fisher,

(1872).

To demonstrate the narrowness of the exception to judicial

immunity, the Court gave the following example to illustrate the

distinction between clear absence of jurisdiction, which defeats

the judge's immunity, and "excess of jurisdiction," for which the

judge remains immune:

if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction . . .; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would be acting in excess of his jurisdiction.

n.7 (citing

13

Wall, at 352). The Court in Sparkman counseled treating a

judge's jurisdiction as sufficiently broad that he is only in

limited cases deemed to act in its "clear absence." Under this

understanding of the breadth of judicial immunity, this court

finds that a judge's acting despite a disqualification for

partiality does not constitute acting in "clear absence of

jurisdiction," despite the dicta of the New Hampshire court in

Russe11 that such "cases . . . are excepted out of the ordinary

jurisdiction of a justice." Russe11, supra, 14 N.H. at 155. If

disqualification for partiality left a judge acting in "clear

23 absence of jurisdiction," judges would be saddled with litigation

upon the mere allegation of partiality. Even unfounded

allegations may reguire a trial before the judge's probity is

conclusively established.

The Supreme Court in Mireles held that judicial immunity

protects judges from such conseguences, stating that "judicial

immunity is an immunity from suit, not just the ultimate

assessment of damages." Mireles, supra, 502 U.S. at 11. The

Court continued, "judicial immunity is not overcome by

allegations of bad faith or malice, the existence of which

ordinarily cannot be resolved without engaging in discovery and

eventual trial." Id. The existence of partiality, like bad

faith or malice, cannot be ordinarily resolved "without engaging

in discovery and eventual trial." Id. Thus, if shielding judges

from litigation provides sufficient reason for the Court in

Mireles to treat acts in bad faith as covered under judicial

immunity, then, likewise, the risk of litigation provides

sufficient reason to treat acts taken by a judge disgualified for

partiality as absolutely immune from suit. Accordingly, this

court holds that any actions taken by Judge Smith after his

alleged disgualification for partiality were not taken in "clear

absence of jurisdiction" and that he is absolutely immune from

the section 1983 claim against him.

24 Conclusion

For the foregoing reasons, the motions to dismiss filed by

defendants Smith (document 6) and Crisp (document 9) are herewith

granted. The only remaining defendant in this case is Beryl

Rich.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

November 27, 1996

cc: James MacFarlane, pro se Daniel J. Mullen, Esg. Tanya G. Richmond, Esg. Cynthia L. Fallon, Esg. M s . Beryl Rich Diane M. Gorrow, Esg.

25