Robert Aldrich v. Raquel Ruano

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1798
ROBERT ALDRICH,
Plaintiff, Appellant,
v.
RAQUEL RUANO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[William G. Young, U.S. District Court Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
Robert Aldrich on brief pro se.
May 23, 2014

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Per Curiam. Appellant Robert Aldrich appeals from the
Fed. R. Civ. P. 12(b)(6) sua sponte dismissal of his complaint.
Aldrich v. Ruano, 952 F. Supp. 2d 295 (D. Mass. 2013). This
complaint named as defendant Raquel Ruano, an attorney who had
represented the City of Boston and two City police officers ("the
City") in an earlier action that appellant had brought. The
current complaint alleges that, during the trial of this earlier
case, Ruano (1) had eavesdropped on and recorded a conference
between appellant and his witnesses and (2) had hired a private
investigator who also had eavesdropped on these witnesses while
serving subpoenas on them. Appellant avers that, by using the
information gained from the foregoing at the prior trial, Ruano
influenced the jury to find for the City and, in so doing, violated
appellant's First Amendment right of access to the courts, see 42
U.S.C. § 1983; although the complaint also alleges violations of
the Sixth Amendment and of various federal and state statutes,
appellant makes no developed arguments on appeal concerning the
dismissal of these claims, and they have been forfeited. See
National Organization for Marriage, Inc. v. McKee, 669 F.3d 34, 46
n.12 (1st Cir. 2012).
I. The Merits
The district court concluded, based on Polk County v.
Dodson, 454 U.S. 312 (1981), that Ruano was not acting "under color
of state law" within the meaning of § 1983. In holding, in Polk
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County, that a public defender was not so acting when representing
a criminal defendant, the Supreme Court focused on the fact that a
defender opposes the government, instead of acting on its behalf.
Id. at 318-19. Here, in contrast, Ruano, like a prosecutor, was a
government lawyer representing government defendants. We need not
decide the issue, however, as it is clear that appellant cannot
make out a claim for denial of access to the courts.
It is beyond dispute that appellant was aware, during the
prior trial, of Ruano's alleged unconstitutional conduct and that
he, in fact, argued the issue of her conduct to the court. Thus,
having actually had access to a judicial remedy, appellant's claim
of the denial of such necessarily fails. See Sousa v. Marquez, 702
F.3d 124, 126 (2d Cir. 2012) (holding that an access-to-courts
claim is "not cognizable when the plaintiff had knowledge of the
crucial facts and an opportunity to rebut opposing evidence,
because such a plaintiff necessarily had adequate access to a
judicial remedy"); Swekel v. City of River Rouge, 119 F.3d 1259,
1263 (6th Cir. 1997) ("[w]hen the abuse transpires post-filing, the
aggrieved party is already in court and that court usually can
address the abuse, and thus, an access to courts claim typically
will not be viable"). Given this, the access-to-courts claim is
"patently meritless and beyond all hope of redemption," Gonzalez-
Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001), and the
sua sponte dismissal may be affirmed on this ground.
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II. Motion to Disqualify
Before Judge Young's sua sponte dismissal, appellant
submitted a motion requesting that the judge be disqualified from
presiding over the case (Judge Young never ruled on the motion).
This motion was meritless for two reasons.
First, appellant was required to have shown, regarding
Judge Young's adverse rulings in prior cases, that such rulings
"display[ed] a deep-seated favoritism or antagonism that would make
fair judgment impossible." Liteky v. United States, 510 U.S. 540,
555 (1994). Appellant's allegations in this regard, however, are
too conclusory and fail to show bias. As for the fact that Judge
Young has been sued by appellant, "[t]here is no rule that requires
a judge to recuse himself from a case, civil or criminal, simply
because he was or is involved in litigation with one of the
parties." In re Taylor, 417 F.3d 649, 652 (7th Cir. 2005).
Recusal thus was not required.
III. Conclusion
The judgment of the district court is affirmed.
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