Morrissey v. County of Henrico ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL J. MORRISSEY,
Plaintiff-Appellant,
and
CATHERINE M. JACKSON; DOROTHY
LUX MORRISSEY, by Catherine M.
Jackson and Michael J. Morrissey
as her next-of-friends,
Plaintiffs,
v.
No. 99-1230
COUNTY OF HENRICO, VIRGINIA;
HENRICO COUNTY SHERIFF'S OFFICE;
JEAN TODD; MARTHA CALLOWAY;
DOROTHY LOUISE MORRISSEY, a/k/a
Lu Morrissey; JAMES MOORE,
Defendants-Appellees,
and
AL HARRIS,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-255-3)
Submitted: October 26, 1999
Decided: November 19, 1999
Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael J. Morrissey, Appellant Pro Se. Joseph Dudley McCluskey,
Laura Graham Fox, LECLAIR RYAN, P.C., Richmond, Virginia; R.
Shawn Majette, Julie M. Whitlock, Karen Elizabeth Dunivan,
THOMPSON & MCMULLAN, Richmond, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael J. Morrissey appeals the district court's order denying
relief on his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint. Find-
ing no reversible error, we affirm.
Morrissey's complaint alleged that the Defendants forcibly
removed his mother from her home on the false pretense of a concern
regarding her health. One of Morrissey's sisters, Catherine M. Jackson,1
joined him in the lawsuit, and they also sued on behalf of their mother
as her next friend. Morrissey and Jackson named Henrico County, the
Henrico County Sheriff's Office, social worker Jean Todd, social
worker Martha Calloway, Henrico Circuit Court Judge Al Harris,
Henrico County Attorney James Moore, and their sister Lu Morrissey
as Defendants. They alleged various state and federal law claims,
including violations of their right to privacy, violation of familial
rights, violation of property rights and the right of liberty, violation
of state and federal due process rights, assault and battery, false
_________________________________________________________________
1 Pursuant to Fed. R. Civ. P. 40(a)(1) and (2), Jackson voluntarily dis-
missed her claims and is not a party to this appeal.
2
imprisonment, gross negligence, and intentional infliction of emo-
tional distress.
According to the district court's order, Morrissey voluntarily dis-
missed his claims against Defendants Judge Harris and Lu Morrissey
pursuant to Fed. R. Civ. P. 41(a)(1). The district court granted sum-
mary judgment pursuant to Fed. R. Civ. P. 56 in favor of the remain-
ing Defendants.
Morrissey raises ten issues on appeal in his informal brief. Specifi-
cally, he alleges that the district court erred by (1) denying Mor-
rissey's right to pursue discovery; (2) granting qualified and absolute
immunities to Defendants; (3) allowing Defendant Henrico Sheriff
Mathews to suggest a person to act as a guardian ad litem to investi-
gate whether Mrs. Morrissey should pursue her case against Mathews;
(4) denying Morrissey the right to represent his mother as her next
friend; (5) refusing Morrissey's motion for recusal; (6) dismissing the
case against Defendant Lu Morrissey; (7) conducting an extensive
inquiry as to Defendants' costs; (8) failing to support its action with
any evidence and without establishing any factual record; (9) not cit-
ing sufficient legal authority; and (10) ruling that Defendant Judge
Harris had absolute immunity.
In order to permit consideration of all issues raised by Morrissey's
appeal, this court twice instructed Morrissey to arrange for prepara-
tion of a transcript of the relevant district court hearings either at his
expense or by applying for in forma pauperis status. Morrissey failed
to comply with our request. We find that issues (2), (7), and (8) can-
not be adequately addressed without review of these transcripts.
Accordingly, we find that Morrissey has waived review of these
claims.
Additionally, we find that Morrissey waived claims (6) and (10) by
voluntarily dismissing his claims against Lu Morrissey and Judge
Harris. A voluntary dismissal without prejudice under Fed. R. Civ. P.
41(a)(1) is not appealable. See Unioil, Inc. v. E.F. Hutton & Co., 809
F.2d 548, 555-56 (9th Cir. 1986).
Morrissey presumably based his allegations in issue (1) on the dis-
trict court's order granting the Defendants' motion for a protective
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order pursuant to Fed. R. Civ. P. 26(c). We have held that "[a]n order
under rule 26(c) is committed to the discretion of the trial court and
will not be disturbed on appeal unless the court has abused its discre-
tion. Abuse may be demonstrated by a clear showing that denial of
discovery has caused substantial prejudice." M & M Medical Supplies
& Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th
Cir. 1992) (en banc) (citations omitted). After reviewing the record,
we find that Morrissey has failed to establish substantial prejudice and
discern no other basis to conclude that the district court abused its dis-
cretion in granting a protective order halting discovery.
Issues (3) and (4) both involve the district court's determination
that Morrissey was not the appropriate person to represent his moth-
er's interests in court. Under Fed. R. Civ. P. 17(c), we find that Mor-
rissey did not have the authority to file a lawsuit on behalf of his
mother as her next friend (as he alleges in issue (4)) because she
already had a state appointed guardian to act on her behalf.2 Morrissey
also alleges in issue (3) that the district court unfairly asked Henrico
County Sheriff Mathews to investigate whether his mother should
pursue her claims against him. The record belies this claim. The dis-
trict court simply asked Mathews, as Mrs. Morrissey's state-appointed
guardian, to suggest candidates for a guardian ad litem to represent
Mrs. Morrissey's interest in the lawsuit. The district court recognized
that a conflict of interest existed because Morrissey named Mathews
as a Defendant in the lawsuit and correctly determined that an inde-
pendent appointment was necessary to adequately protect Mrs. Mor-
rissey. See Fed. R. Civ. P. 17(c); Genesco, Inc. v. Cone Mills Corp.,
604 F.2d 281, 285 (4th Cir. 1979). Accordingly, we uphold the dis-
trict court's decision to appoint a guardian ad litem to represent Mrs.
Morrissey's interests.
We further find that Judge Payne did not err in refusing to recuse
himself under 28 U.S.C. § 455 (1994). We review a district judge's
refusal to recuse himself for abuse of discretion. See United States v.
DeTemple, 162 F.3d 279, 283 (4th Cir. 1998), cert. denied, ___ U.S.
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2 To the extent that Morrissey appeals the district court's order in this
court as her next friend, we also find that he lacks standing to represent
her interests. Further, Mrs. Morrissey's claims were voluntarily dis-
missed pursuant to Fed. R. Civ. P. 41(a)(1) and are not appealable.
4
___, 119 S.Ct. 1793 (1999); United States v. Gordon, 61 F.3d 263,
267 (4th Cir. 1995). Morrissey bases his claim on Judge Payne's
knowledge of Morrissey's propensity to sue and his determination
that Morrissey has previously sued nearly 200 defendants. We find
that any knowledge obtained by Judge Payne regarding Morrissey's
litigious nature was acquired through his involvement in judicial pro-
ceedings and does not constitute personal bias. See United States v.
Parker, 742 F.2d 127, 128 (4th Cir. 1984); United States v.
Carmichael, 726 F.2d 158, 160-61 (4th Cir. 1984). Accordingly, we
find that the district court did not abuse its discretion in denying Mor-
rissey's motion for recusal.
Finally, we find that Morrissey's claim that the district court failed
to cite sufficient legal authority (issue (9)) is frivolous and without
merit.
Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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