Picciotto v. Zabin , 399 F. App'x 604 ( 2010 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1224
STEFANO PICCIOTTO, ET AL.,
Plaintiffs, Appellants,
v.
ALBERT P. ZABIN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Stefano Picciotto, Judith Picciotto and Melita Picciotto on
brief pro se.
Richard W. Renehan, Timothy J. Dacey, Mariana Korsunsky and
Goulston & Storrs and Michael J. Stone and Peabody & Arnold, LLP,
on brief for defendant-appellee attorneys.
Martha Coakley, Attorney General and Sarah M. Joss, Assistant
Attorney General, on brief for defendants-appellees Robert Steadman
and Mitchell J. Sikora, Jr., and Robert V. Costello, in his
official capacity.
November 9, 2010
Per Curiam. We have carefully reviewed the record
and the parties’ briefs and, for the following reasons, find no
error either in the dismissal of appellants’ complaint or in
the imposition of attorneys’ fees as a sanction.
1. The two judges named as defendants are absolutely
immune from appellants’ claims for damages.
2. Appellants lack standing to seek declaratory
relief because all they aver is that the judges had violated
their constitutional rights during the attorneys’ fees case.
That is, since that case is over, there simply is no
possibility that appellants again will be subject to an
occurrence of such alleged violations. See Golden v. Zwickler,
394 U.S. 103, 109-10 (1969) (holding that plaintiff lacked
standing to seek a judgment declaring a state statute
unconstitutional where, although he had been prosecuted under
the statute in the past, the chance of a second prosecution was
too remote).
3. Appellants fail to state a 42 U.S.C. § 1983 claim
against the attorney-appellees despite their allegation that
the attorneys had been “willful participant[s] in joint
activity” with the judge presiding over the state case. See
Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d
252, 259 (1st Cir. 1993) (internal quotation marks and citation
omitted). First, the fact that one of the attorneys (a law
school class-mate of the judge) had visited the judge at the
courthouse in order to ask whether the judge would consider
being a trustee on the law school’s alumni board is not enough
to show a conspiracy. As the Massachusetts Appeals Court
pointed out in the appeal of the state action, appellants never
alleged (and do not now) that the pending case was mentioned
during this meeting or that the judge had ever pursued the
possibility of a trusteeship. See Zabin v. Picciotto, 896
N.E.2d 937, 961 (Mass. App. Ct. 2008). Therefore, there is
just no evidence that the meeting had any connection to the
pending fees litigation, and, as such, appellants’ allegation
in this regard need not be credited. See Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st
Cir. 2004) (“in considering motions to dismiss courts should .
. . eschew any reliance on bald assertions, unsupportable
conclusions, and opprobrious epithets”; internal quotation
marks and citation omitted).
We also need not credit appellants’ assertion that
the judge had agreed to reward the attorney-appellees
financially in exchange for this same attorney’s aid in
arranging for the judge to be appointed to a higher court.
There simply is no evidence of such an agreement, and
appellants do not even attempt to provide an explanation
concerning how the attorney could have arranged for such an
appointment. Finally, the events that took place around the
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time of Halloween similarly cannot be used to demonstrate the
existence of a conspiracy. In particular, appellants’ counsel
was consulted about the matter, and having essentially agreed
to the goings on, see Zabin, 896 N.E.2d at 961 & n.42 (noting
that counsel voiced no objection), it is difficult to see how
such could have been the result of joint action between the
attorney-appellees and the judge.
4. We add only the following comments. First, we
would still affirm the dismissal of appellants’ complaint, even
assuming (without deciding) that the district court had entered
the dismissal sua sponte. That is, appellants’ briefs on
appeal clearly demonstrate that any amendment would have been
futile. See Gonzalez-Gonzalez v. United States, 257 F.3d 31,
36-37 (1st Cir. 2001) (holding that a sua sponte dismissal may
be upheld so long as “the allegations contained in the
complaint, taken in the light most favorable to the plaintiff,
are patently meritless and beyond all hope of redemption”).
Second, the question whether the district court may
have misunderstood our judgment in Appeal No. 01-1277 is moot.
That is, the court plainly knew that the complaint still was
pending, as it ended up dismissing the case on the merits.
Moreover, in issuing the judgment, we did not review, nor
express any opinion regarding, the merits of the complaint.
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5. Given all of the foregoing, the award of
attorneys’ fees was not an abuse of discretion. Appellants
filed suit against persons who clearly are not, except in
extremely limited circumstances, amenable to suit under § 1983.
Moreover, in attempting to overcome such limitations,
appellants made serious and detrimental allegations about these
persons -- allegations which turned out to have no support in
the record and which, apparently, had been made up out of thin
air. From this, we think appellants’ bad faith is plain. See
Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (holding
that attorneys’ fees may be assessed “when a party has acted in
bad faith, vexatiously, wantonly, or for oppressive reasons”;
internal quotation marks and citations omitted).
The judgment of the district court is affirmed, and
all pending motions are denied as moot.
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