United States Court of Appeals
For the First Circuit
No. 07-1453
STEVEN A. SWAN,
Plaintiff, Appellant,
v.
PAUL BARBADORO, JUDGE,
U.S. DISTRICT JUDGE OF NEW HAMPSHIRE,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. George Z. Singal,* U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.
Steven A. Swan on brief pro se.
Richard B. Myrus, Assistant U.S. Attorney, and Robert Clark
Corrente, United States Attorney, on brief for appellees.
March 11, 2008
*
Of the District of Maine, sitting by designation.
Per Curiam. Steven Swan appeals pro se from the
dismissal of litigation growing out of his conviction for federal
tax violations. He has previously filed two Bivens actions for
damages and injunctive relief, claiming that judges, prosecutors
and others violated his civil rights in obtaining the conviction.
These having failed, he filed the present suit for damages and
injunctive relief under RICO, 18 U.S.C. §§ 1961-1968, alleging
wrongdoing by judges, prosecutors and others in relation to his
conviction and also in connection with his latest Bivens actions.
A magistrate judge screened the complaint and found it
frivolous. 28 U.S.C. § 1915A. He ruled that most of the claims
were barred under Heck v. Humphrey, 512 U.S. 477 (1994), because
they rested on the supposed invalidity of Swan's conviction, and in
any event the claims were patently frivolous. The district court
upheld the magistrate judge's recommendation, and Swan now has
appealed to this court. He also has filed several motions.
His principal motion seeks the recusal of all First
Circuit judges and the transfer of the appeal to another circuit.
The recusal and transfer claims are based on the fact that the
named defendants include the district court judge and three judges
of this court who were involved in earlier phases of Swan's
litigation. No member of the present panel is a named defendant.
Under the recusal standard, we ask whether a fully
informed, rational observer would have reason to question a judge's
-2-
impartiality. In re United States, 441 F.3d 44, 56-57 (1st Cir.
2006). If Swan had any colorable claim, we would consider whether
judges from another circuit should hear the present appeal. But
the patently frivolous claims presented leave no room for any
rational person to imagine that any bias could underlie an
affirmance. There is, in addition, a countervailing concern "to
prevent parties from too easily obtaining the disqualification of
a judge, thereby potentially manipulating the system for strategic
reasons . . . ." In re Allied-Signal Inc., 891 F.2d 967, 970 (1st
Cir. 1989).
In this instance, a judgment in Swan's favor would impugn
the validity of his conviction, which is clearly impermissible
under Heck. E.g., Moore v. Guesno, 485 F. Supp. 2d 300, 308
(W.D.N.Y., 2007). Heck's bar cannot be circumvented by
substituting a supposed RICO action for the earlier Bivens claims
ineffectually designed for the same purpose. As it happens, the
RICO claim itself is not properly pleaded, but given Heck, there is
no reason to describe the substantive defects.
Swan's pending motion to file a late reply brief is
granted, but the motion to transfer the case is denied and the
appeal is dismissed as frivolous. 28 U.S.C. § 1915. The motion to
recuse is denied with respect to the present panel and is dismissed
as moot as to the circuit judges who are not on this panel but were
named by Swan as defendants.
-3-
It is so ordered.
-4-