Murphy v. Molino ( 1995 )

USCA1 Opinion

          January 30, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 94-1924 

                              WILLIAM J. MURPHY, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                                    DARWIN MOLINO,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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            William J. Murphy, Jr. on brief pro se.
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            Darwin Molino on brief pro se.
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                      Per Curiam.   Darwin Molino rented  a cabin from  a
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            trust of  which William J. Murphy,  Jr. is trustee.   After a

            dispute  about  Molino's  non-payment  of  rent,  the Bristol

            housing  court  at  Murphy's  behest  issued  a  summons  and

            complaint  on December  20,  1993.   An attempted  settlement

            broke down, and in May 1994, Molino sought  unsuccessfully to

            transfer  the  pending  case  to  the  Massachusetts  Supreme

            Judicial Court.

                      When this  effort failed,  Molino on June  3, 1994,

            filed a petition to remove the case to federal district court

            relying  on federal  question jurisdiction,  see 28  U.S.C.
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            1441(c), and on a provision allowing removal by defendant who

            is denied or cannot  enforce in state court his  "equal civil

            rights."   28 U.S.C.    1443(1).   Removal was improper.   No

            federal  question  arises  on  the  face  of  the  complaint,

            Oklahoma  Tax Commis. v. Graham, 489 U.S. 838 (1989); and the
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            equal rights provision relates to racial equality, Johnson v.
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            Mississippi, 421  U.S.  213,  219  (1975),  whereas  Molino's
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            concern  is  with  a  supposed  violation of  his  "right  to

            confidentiality" during a mediation proceeding.

                      On  July 29,  1994,  the  district court  dismissed

            Molino's removed  action for lack of  jurisdiction.  Judgment

            was  entered on  August 1,  1994, and  Molino filed  a timely

            appeal.   Apparently after the dismissal  the Bristol housing

            court ordered the sheriff to take possession of the cabin and



















            to  collect past rent, interest  and costs.   Molino sought a

            temporary restraining order from the district  court, seeking

            to  prevent the  eviction.   The  district  court denied  the

            motion.   On this appeal, Molino continues to insist that the

            district court did  have jurisdiction over the  case and asks

            that the housing court's writ to the sheriff be vacated.

                      Molino's  brief on  appeal is  a two-page  document

            that  is mainly  a cross-reference  to appended  statutes and

            other  papers.  Despite  Molino's conclusory assertion, there

            is no basis for  believing that federal question jurisdiction

            exists in  the district court or that this is a case in which

            equal rights removal is justified.  If Molino were asking for

            a remand rather than dismissal, he would arguably be entitled

            to that relief, see 28 U.S.C.    1447(c); Ronan v. Stone, 396
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            F.2d 502,  503 (1st Cir.  1968), but  apparently the  housing

            court is the last place he wants to be, and we have no reason

            to consider relief that Molino himself does not seek.

                      Molino's  more  interesting  argument is  that  the

            housing court should not  have proceeded with the  case after

            dismissal by  the  district court  since  the case  had  been

            removed, never remanded, and  apparently never refiled in the

            housing  court.  If the  state court had  proceeded while the

            case  was pending  in  federal district  court,  it would  be

            acting  contrary to  the  district court's  plenary authority

            over the removed  action, and the district court would indeed



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            have  had  authority to  protect its  own jurisdiction.   See
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            generally  Hyde Park Partners, L.P. v. Connolly, 839 F.2d 842
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            (1st Cir. 1988).  But here the housing court apparently acted

            only  after  the federal  court  had dismissed  the  case and

            relinquished authority over it.

                      Whether the housing court  should have required the

            papers to be refiled by  Murphy is a matter of state law.  If

            there was any error  in the manner in  which the state  court

            reassumed authority  over the case,  Molino was free  to seek

            review  in the  state system.   This  court, however,  is not

            entitled  to engage collaterally  in review of  a state court

            judgment where  federal jurisdiction  has not been  infringed

            upon.  Rooker v. Fidelity Trust, 263 U.S. 413 (1923).
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                      We  affirm  the  judgment of  the  district  court.
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            Molino's motion to expedite this appeal is dismissed as moot.
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