Schnackenberg, Kiley and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge.
Sherman H. Skolnick brought an action for damages against the Honorable William J. Campbell, Chief Judge of the district court for the northern district of Illinois, B. Franklin Chiles, Judge Campbell's court crier, and James Guadagno, a deputy marshal assigned to Judge Campbell as bailiff.
Count 1 of the complaint alleged that Skolnick is a plaintiff in an action in district court, Skolnick v. Mayor & City Council of Chicago, and that defendants conspired to deter him, by force, intimidation, and threat, from attending the court as such party and to injure him in his person and property on account of his having so attended.*fn1 Several acts in furtherance of the conspiracy were alleged.
Count 2 re-alleged the same facts, basing jurisdiction on their having taken place in the United States Court House, a federal enclave, and on the theory they were torts under the law of Illinois, which became federal law upon acceptance of cession.*fn2 The facts alleged can be separated into two claims of libel and one of assault and battery.
The central event, aside from the alleged libels, was an attempt by plaintiff Skolnick to appear before Judge Campbell on January 4, 1967 to argue a motion in Skolnick v. Mayor & City Council of Chicago. There appears to be agreement that Mr. Skolnick, a paraplegic invalid, was in the courtroom in his wheelchair while court was in session, that his motion was not called, that Judge Campbell left the bench, that plaintiff then attempted to gain the attention of the judge or the minute clerk, that Chiles took hold of Skolnick's wheelchair and propelled him toward or out of the courtroom door. There is conflict over whether Skolnick had been previously notified his motion would not be heard, over the orderliness of Skolnick's conduct, over the degree of force used by Chiles, and over the extent to which Guadagno participated in ejecting Mr. Skolnick from the courtroom.
The complaint in this action was filed January 6, a motion by Skolnick that all judges of the seventh circuit disqualify themselves and that a judge be brought in from elsewhere, January 17, and an answer and motion for summary judgment January 24. On February 2 the motion for disqualification was denied by Judge Hoffman. On February 7, Judge Hoffman granted defendants' motion for summary judgment. On the same date Skolnick filed notice that he would move for a stay until disposition of an application forwarded to the Supreme Court of the United States the previous day seeking to compel the disqualification of Judge Hoffman. On February 14, Skolnick moved to vacate the order granting summary judgment and presented affidavits by himself and two others, in opposition to the motion for summary judgment. This motion was denied.
Plaintiff Skolnick appealed, and moved in this court that all judges disqualify themselves and that judges be brought in from elsewhere. The division of this court sitting in this case denied the motion, and each of the judges making up the division declined to disqualify himself.
The position of Judge Campbell, appearing from a memorandum on file and incorporated in the answer, is summarized as follows: The action, Skolnick v. Mayor & City Council of Chicago, had been assigned to a three judge court. Judge Campbell ordered Skolnick's motion to be presented on briefs to the three judge court. His clerk notified the parties by telephone that the motion would not be heard January 4. Skolnick said he was coming anyway. Judge Campbell had received warnings concerning plaintiff's antagonism to judges and the possibility that plaintiff might have an impulse to violence with firearms. Judge Campbell gave directions to Chiles and Guadagno "that one of them at all times * * * be immediately adjacent to his wheelchair and keep him under constant observation in order immediately to detect and prevent any possible untoward incident."
42 U.S.C. sec. 1985(2) provides for recovery for conspiracy to deter any party in any court of the United States from attending such court, or to injure such party on account of his having so attended. In our opinion it would be absurd to apply this conspiracy provision to the decision of the judge of the federal court involved that a motion be submitted on briefs and not argued orally, and to the actions of court officers, under the direction of the judge, for the purpose of maintaining order and security in the courtroom. Principles of judicial and official immunity from civil liability to be mentioned later, would lead to the same result, but it seems more direct to say that the statute simply does not apply.
Hence there is no merit in Count 1, and we turn to Count 2, treating it as several claims in tort.
The "press release" alleged libel.
Skolnick's motion sought disqualification of Judge Campbell because of "disquieting" published reports that he was a director of a foundation which reportedly derives much of its income from a mortgage on a Las Vegas hotel and gambling casino. On January 2, 1967, Judge Campbell issued a press release asserting that he had originally been a member of the board, had attended the initial meeting, had resigned several months ago, and had no idea of its investments.
The portion alleged to be libelous referred to the individual who had filed the motion as an "uninformed pro-se litigant" and referred to his motion as "such trash." Skolnick alleges that he is ...