John F. Desmond, Plaintiff, Appellant, v. Department of Navy, et al., Defendants, Appellees, 67 F.3d 289 (1st Cir. 1995)

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US Court of Appeals for the First Circuit - 67 F.3d 289 (1st Cir. 1995) Oct. 2, 1995

John F. Desmond on brief pro se.

Donald K. Stern, United States Attorney, and David S. Mackey, Assistant United States Attorney, on brief for appellees.

Before Torruella, Chief Judge, Selya and Lynch, Circuit Judges.

Per Curiam.

Plaintiff filed pro se an eleven count amended complaint alleging a variety of common-law torts, constitutional, and statutory claims against the United States Department of the Navy, the Department of Veterans' Affairs and unknown government agents. In a motion "to dismiss or for summary judgment," defendants sought dismissal of most of the counts on jurisdictional grounds, including lack of statutory jurisdiction, sovereign immunity, failure to timely file under the Federal Torts Claims Act and mootness. Other counts were challenged for failure to state a claim. Plaintiff offered voluminous exhibits, affidavits and memoranda in support of his cause.

The magistrate's careful and thoughtful report analyzed each of the claims, the relevant arguments and evidence, and recommended dismissal of each count for separately delineated jurisdictional and merit-based reasons. Plaintiff's lengthy objections to the report were then considered by the district judge, who adopted the magistrate's recommendations in all respects.

Reviewing the dismissal de novo, we too agree with the magistrate's detailed analysis and affirm the district court judgment substantially for the reasons set forth in the magistrate's report.

We have also explored the record with care in light of a host of alleged procedural errors assigned by plaintiff. Without attempting to characterize plaintiff's arguments precisely, he challenges most of the court's interim rulings, including an order extending the time for defendants to answer the complaint, an order staying discovery pending disposition of defendants' motion to dismiss, the procedure used and evidence considered in resolving the motion to dismiss, the rejection of his motion for the appointment of counsel, and the rejection of his motions for recusal of the district judge. In addition, plaintiff challenges the power of the court to appoint a magistrate to consider the motion to dismiss.

We find no abuse of discretion nor other prejudicial error in the court's orders. There is also no support in the record for plaintiff's wide-ranging accusations of fraud, intimidation, and other wrongdoing during the pendency of the case by defendants, the district judge, the magistrates and the court clerk.

The judgment is affirmed. Plaintiff's motions "for hearing on fraud upon the court," for "summary judgement ... because of appellee's fraud," and "to hold immediate hearing on death threats," are denied.