USCA1 Opinion

December 11, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-1967
DANNY M. KELLY,
Plaintiff, Appellant,
v.
WILLIAM F. WELD,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. David S. Nelson, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________
____________________
Danny M. Kelly on brief pro se.
______________

Scott Harshbarger, Attorney General,

__________________
Assistant Attorney General, on Memorandum
Summary Disposition, for appellee.

and

Eleanor Coe Sinno

__________________
in Support of Motion

____________________
____________________

Per Curiam.
__________
court order

Danny M. Kelly appeals from a district

dismissing his

complaint.

Appellant

filed his

complaint in July, 1991 against Governor William F. Weld, "in

his role
The

as governor of the

complaint

alleged

Commonwealth of Massachusetts."

that

appellant

was

constitutional rights in violation of 42 U.S.C.

denied

his

1983 by the

failure of a Massachusetts inspection station to grant him an

inspection

sticker

for

his

specifically, he claimed that

of

free

expression,

protection and

1970

he had been denied his

enjoyment

due process.

Oldsmobile.

of

his

property,

Appellant sought

More
rights
equal

injunctive,

declaratory and compensatory relief and costs.

Appellee

moved to

referred the motion to a

two

reports

and

dismissed for
objections

to

that

the

same reasons

sticker.

to operate
For

court

The

of

the

claim.

claims

the Eleventh
complaint

Appellant

district

for

be

filed

court, in

an

1992 dismissed appellant's complaint

expressed in the

magistrate's reports

for injunctive relief to allow

his car

the reasons

opinion, we affirm.

as barred by

state a

and denied appellant's motion

appellant

appellant's

remainder

reports.

opinion dated August 5,

for the

that

be dismissed

failure to
both

The district

United States Magistrate who issued

recommending

compensatory relief
Amendment

dismiss.

without a

set forth in

current inspection
the district

court

We add only the following comments.

-2-

Appellant,

in

his brief,

describes

his

follows:
[t]he
case
is
based
upon
the
Commonwealth's
refusal to
provide a
Certificate of Inspection for Appellant's
1970
Oldsmobile
during
its
yearly
required auto inspection even though the

case as

car meets all specifications required

under state and Federal law to be granted
a Certificate of Inspection.
Appellant

admits later in his

brief, however, that after he

filed his complaint in this case he obtained a certificate of

inspection

for

his

car

from

another inspection

station.

Therefore, appellant's request for injunctive relief is moot.

Moreover, the

fact

that

appellant

was

able

to

obtain a certificate of inspection belies his claims that the

Commonwealth has denied him

any rights whatsoever, much less

any federal rights.

The essence of his complaint

specific

station

inspection

erred

in denying

certificate of inspection

when it allegedly

inspection requirements.

Appellant complains

is that a
his

car

met all of
in his

a
the

brief

that the district court failed to resolve the "main point" of

whether

or not

denied

his car

however,

is

the initial

inspection

an inspection

not one

over

station erroneously

certificate.

which

the federal

That question,
courts

have

jurisdiction.
Finally,
judicial error

appellant's claims

of judicial

bias and

in the denial of his request for a jury trial

are entirely without basis in the law.

-33

The alleged source of

judicial

bias,

judicial.
of

appellant's pro

se

status,

is not

extra-

Therefore, recusal is required only if the source

bias

and

alleged

appellant's allegations

indications
that

his

requirements -- "would create

the judge's

of
car

bias
met

ignoring

all

inspection

a reasonable doubt

concerning

impartiality." United States v.

_____________

33, 37 (1st Cir. 1991).

--

Lopez, 944 F.2d

_____

The judge focused on the appropriate

issues in dismissing this case and his actions do not provide

any basis for

recusal.

judicial bias,
with a jury
not to

the requested

motion to

been a showing of

remedy -- replacing

-- would not have been appropriate.

grant a motion

factual

Even if there had

question.

to dismiss is

Therefore,

dismiss can it be

court judgment is affirmed.

________

only

the judge
Whether or

a legal rather
if a

case

heard by a jury.

than a

survives a
The district

-44