Verogna v. Johnstone, 583 F.Supp.3d 331

Background

Pro se plaintiff Sensa Verogna sued U.S. District Judge Steven McAuliffe, Magistrate Judge Andrea Johnstone, and attorneys Jonathan Eck and Julie Schwartz, alleging constitutional violations and a conspiracy arising from a prior suit Verogna filed against Twitter (No. 20-536-SM).
In the underlying Twitter case, Verogna litigated anonymously, accused Twitter of racial discrimination and First Amendment violations, and objected to counsel appearing for Twitter; that case was dismissed after Verogna failed to comply with an order to proceed in his own name and his appeal was dismissed for nonpayment of fees.
In this suit Verogna alleged § 1985(2) and (3) conspiracies, a § 1986 claim, Bivens/§ 1983 claims against judges and counsel, sought $250,000,000 and injunctive relief, and claimed improper ex parte communications and judicial bias.
The court conducted preliminary review under Local Rule 4.3(d)(3); Verogna moved for leave to file an oversized memorandum (granted), recusal (denied), and alternative service (denied as moot).
The court dismissed the complaint sua sponte for lack of subject-matter jurisdiction as an improper collateral attack on another judge’s rulings and, alternatively, as frivolous and conclusory; judicial immunity barred claims against the judges; amendment was denied as futile.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the presiding judge must recuse under 28 U.S.C. § 455 and due process	McCafferty should recuse because she was chief judge while the underlying case proceeded and colleagues are defendants, so impartiality might be questioned	Court: claims are patently frivolous and no reasonable person could infer bias	Recusal denied
Whether the district court has subject-matter jurisdiction to review rulings from another federal judge (collateral attack)	Verogna argued the prior rulings were wrongful and part of a conspiracy, seeking damages and relief in this separate suit	Defendants: district courts lack authority to collaterally review another federal judge’s rulings; appellate review lies with the courts of appeals	Dismissed for lack of jurisdiction as an improper collateral attack
Whether Judges McAuliffe and Johnstone are immune from suit	Verogna alleged judicial acts were wrongful, in bad faith, and part of a conspiracy, defeating immunity	Defendants: judicial immunity shields judges for judicial acts, even for alleged errors or bad faith	Judges dismissed on absolute judicial immunity grounds
Viability of § 1985(2) and (3) conspiracy claims	Verogna alleged conspiracy to deprive civil rights and equal protection, motivated by class-based animus and personal/political/economic motives	Defendants: complaint is conclusory, lacks factual allegations of class-based, invidious discrimination or plausible conspiracy	§ 1985(2) and (3) claims dismissed for failure to plausibly allege requisite class-based animus or conspiracy
Viability of Bivens/§ 1983 claims against opposing counsel and judges	Verogna claimed constitutional deprivations via conspiracy involving counsel and judges	Defendants: attorneys are not state actors; judges are immune; allegations are conclusory and repackage appellate grievances	Bivens/§ 1983 claims dismissed for failure to allege state-action for counsel and barred by judicial immunity for judges

Key Cases Cited

Erickson v. Pardus, 551 U.S. 89 (2007) (pro se pleadings construed liberally)
Neitzke v. Williams, 490 U.S. 319 (1989) (frivolousness standard under § 1915)
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923) (district courts lack appellate jurisdiction to reverse other courts)
Forrester v. White, 484 U.S. 219 (1988) (limits on collateral attacks on judicial decisions)
Stump v. Sparkman, 435 U.S. 349 (1978) (scope of judicial immunity)
Mireles v. Waco, 502 U.S. 9 (1991) (judicial immunity not overcome by allegations of bad faith or malice)
Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828 F.2d 1385 (9th Cir. 1987) (rejecting attempts to evade collateral-attack doctrine via Bivens claims)
Celotex Corp. v. Edwards, 514 U.S. 300 (1995) (respect for federal court orders unless reversed on appeal)
Dennis v. Sparks, 449 U.S. 24 (1980) (conspiracy allegations do not automatically defeat immunity)
Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843 (2019) (courts must consider subject-matter jurisdiction sua sponte)
Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24 (1st Cir. 2000) (dismissal without notice limited to frivolous or incurable pleadings)
Hamann v. Carpenter, 937 F.3d 86 (1st Cir. 2019) (pleading standard: accept well-pleaded facts, disregard conclusory legal assertions)