Pigott v. Lynn

September 27, 1993 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1115

RASHID PIGOTT,

Plaintiff, Appellant,

v.

LYNN POLICE DEPARTMENT, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Torruella, Cyr and Boudin,
Circuit Judges.

Rashid Pigott on brief pro se.

Per Curiam. Pro se prisoner Rashid Pigott appeals

a district court order that dismissed his civil rights

complaint sua sponte under 28 U.S.C. 1915(d).1 The

complaint sought declaratory relief and damages from thirty-

six defendants who allegedly violated 42 U.S.C. 1983 and

1985 in connection with Pigott's arrest and conviction for

manslaughter and a separate care and protection proceeding

concerning Pigott's son. The district court ruled that some

of Pigott's claims were barred by either the statute of

limitations, witness immunity, or because Pigott had failed

to allege state action. The remaining claims were dismissed

because Pigott failed to state a claim upon which relief

could be granted. We affirm.

I.

We begin with the relevant procedural background. On

November 4, 1992, Pigott purportedly submitted his civil

rights complaint and a letter requesting in forma pauperis

(IFP) application forms to the pro se clerk for the United

States District Court for the District of Massachusetts.2

1. 28 U.S.C. 1915(d) applies to complaints filed in forma

pauperis. In relevant part, the statute provides that a

court, "may dismiss the case if...satisfied that the action
is frivolous or malicious."

2. The letter, in relevant part, read as follows:

Re: Filing of Civil Rights Complaint
Dear Pro Se Clerk:
Enclosed please find Pro se, civil rights
complaint. I request that you send me the required

-2-

By letter dated November 27, 1992, Pigott resubmitted his

complaint with the standard IFP application and supporting

affidavits. The district court received these items for

filing on December 7, 1992. On December 31, 1992, the

district court issued a memorandum and order which allowed

Pigott's application to proceed IFP while simultaneously

dismissing the complaint. Pigott filed a timely notice of

appeal.

Pigott thereafter filed a motion to vacate the order of

dismissal with a supporting memorandum, a motion to amend his

complaint, and an amended complaint.3 Pigott argued that

the district court erred by dismissing his complaint without

first affording him notice of its deficiencies and an

opportunity to amend it to state viable claims. He also

submitted evidence in support of his contention that the

district court first received his complaint on November 4,

1992. That evidence consisted of a copy of Pigott's November

4, 1992 letter to the pro se clerk quoted above at n. 2 and a

photocopy of a certified mail return receipt dated "11/4."

applications for filing this complaint in Forma Pauperis.
I also request that you send me the local rules for
filing pamphlet for future reference.

This letter bears a crossed out time stamp of the district
court dated November 4, 1992.

3. The motion to vacate invoked Fed. R. Civ. P. 60(a) and
(b)(6).

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The district court denied both motions on February 25, 1993.

Pigott did not file another notice of appeal.4

II.

The complaint asserted six causes of action which arose

from events which transpired between December 4, 1989 and

1992. An understanding of the parties is necessary to

comprehend Pigott's claims.

The complaint identified the defendants connected with

Pigott's criminal conviction as the Lynn Police Department,

Lynn police officers David Woumn, Chisholm, Chris Reddy,

Richard Carrow, Rawston, W. Conrad, Wentzell, L.E. Desmarais,

William Foley, John Doe, Sergeants Roach and Coppinger,

Lieutenant Dennis Flynn, Massachusetts state troopers Elaine

Condon, Mark Lynch, Mark Coleman, B. Windsor, and P. Zipper,

chemist Kenneth Gagnon, Flemmings Towing Company, defense

attorneys Christopher Skinner, M. Page Kelley, and Jeffrey

Baler, defense investigator Stephen Turner, social worker

Roberta Lerner, probation officer Stephen Mulloy, and Essex

County superior court clerk James Leary.

The defendants named in connection with the events

concerning Pigott's son include three social workers employed

by the United Homes for Children foster care agency (Marilyn

4. Generally, the denial of a Rule 60(b) motion must be
appealed separately. See 7 Moore's Federal Practice,

60.30[3], p. 137 (1992-1993 Supp.). Here, however, Pigott's
basic claims are inherent in Pigott's direct appeal of the
dismissal order.

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Heathman, Mrs. Richardson and Danielle Carviello), a social

worker for the Massachusetts Department of Social Services

(Pam Grey), Salem Hospital, two unnamed Salem Hospital

security guards, and an unknown lawyer.

The complaint alleged the following facts. On December

4, 1989, while paying a business call to a residence in Lynn,

Massachusetts, Pigott was struck by a glass, slashed with a

butcher knife, and assaulted with other weapons. Pigott

escaped his assailants, went to another address, and

contacted the Lynn Police Department. Officers Chisholm,

Woumn, and Sergeant Roach responded and arrested Pigott -

allegedly without cause. As a result of Pigott's arrest and

immediate incarceration, Flemmings Towing Company towed

Pigott's car. Despite what Pigott says were obvious

injuries, the police did not take Pigott for medical

treatment for approximately one hour and forty-five

minutes.5

He was then returned to a cell in the Lynn police

station and prevented from making a telephone call until he

had been booked, fingerprinted, relieved of his clothing, and

interviewed by trooper Condon and Lieutenant Flynn. Pigott

alleged that Flynn and Condon threatened and coerced him into

5. The complaint does not describe Pigott's injuries. It
simply alleges that Pigott was taken to the Atlantic Medical
Care Center in Lynn Hospital. Pigott's appellate brief says
that his injuries required sutures, although this was not
stated in the complaint.

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signing a statement, after which he was allowed to place a

telephone call. Pigott's first cause of action alleged that

the foregoing allegations established that he was illegally

arrested, that his property was seized, and that he was

deliberately denied medical care and legal representation in

violation of his Fourth, Fifth, Sixth and Eighth Amendment

rights.

Pigott further alleged that on the following day

(December 5, 1989), he was arraigned in the Lynn district

court on charges of first degree murder, assault and battery,

and illegally carrying a firearm. He was released on bail

and met with attorney Skinner, who assumed Pigott's defense.

Pigott's second cause of action alleged that the Lynn Police

Department violated his constitutional rights by getting

involved in setting Pigott's bail. The complaint does not

specify how or by whom this was accomplished.

Pigott returned to the Lynn Police Department on

December 5, 1989 and attempted to file a complaint against

the men who allegedly assaulted him on the previous day.

Pigott alleged that the police refused to let him file his

complaint and that officer Woumn threatened him with bodily

injury for trying to do so. Pigott's third cause of action

alleged that the Lynn Police Department and officer Woumn

violated his right of access to the courts by refusing

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Pigott's application for a criminal complaint and failing to

investigate the criminal activity Pigott tried to report.6

The complaint suggests that the criminal charges were

pending against Pigott when his son was born on January 23,

1990. Pigott's appellate brief informs us that he is the

unwed biological father of Majid Taggert. The complaint

alleged that, shortly after the birth, social workers Pam

Grey and Marilyn Heathman forcibly took Pigott's son from him

while two Salem Hospital security guards restrained Pigott.

Thereafter, social workers Heathman and Richardson allegedly

told Pigott that they determined he was an unfit parent after

consulting the Lynn Police Department. While the allegations

on this point are particularly vague, Pigott alleges that he

somehow became involved in a care and protection proceeding

wherein he demanded custody of his son.7

Defendants Heathman, Richardson and Carviello allegedly

denied Pigott visitation rights and refused to reveal the

whereabouts of his son to him. Pigott also claimed that an

unknown lawyer had a conflict of interest when she

represented a third party who had an interest in Pigott's son

6. Pigott's third cause of action further alleged that
defendant Stephen Turner, a private investigator hired on
Pigott's behalf, never met with him during the time Pigott's
criminal case was pending.

7. Pigott may be referring to a proceeding to commit his son
to the custody of the Massachusetts Department of Social
Services pursuant to M.G.L. c. 119, 24.

-7-

in the care and protection proceeding while simultaneously

prosecuting Pigott on other criminal charges that were

ultimately dismissed. Pigott's fourth cause of action

alleged that the conduct of these defendants violated his

Fourth, Fifth and Fourteenth Amendment rights.

Pigott's criminal trial began on September 19, 1991.

The complaint alleged that Lynn police officers Christopher

Reddy, Richard Carrow, Rawston, W. Conrad, Wentzell, L.E.

Desmarais, William Foley, and Sgt. Coppinger, Massachusetts

state troopers Mark Lynch, Mark Coleman, Brian Windsor, and

Paul Zipper, and chemist Kenneth Gagnon conspired to violate

Pigott's civil rights by knowingly committing perjury and

submitting false evidence at Pigott's criminal trial.8

Pigott was convicted of manslaughter. He alleged that his

defense attorney (Skinner) fraudulently attempted to persuade

Pigott to plead guilty before trial and made slanderous

remarks and misrepresentations that resulted in Pigott's

conviction. Pigott's fifth cause of action alleged that

defense attorney Skinner's malpractice and the police

8. See Complaint, 5-7, 34, 44. Paragraph 34 specifically

alleged that, "from December 4, 1989 up to and throughout
trial[,]" the aforementioned Lynn police officers, state
troopers, and chemist Gagnon, "all willfully and knowingly
committed perjury, fabricated and tampered with evidence, and
submitted and elicited a preponderance of maliciously
intended false or otherwise distortions of facts and events."
The complaint does not describe the witnesses' testimony nor
the evidence that was supposedly fabricated.

-8-

conspiracy at Pigott's trial violated Pigott's Fifth, Sixth

and Fourteenth Amendment rights.

Pigott was interviewed by probation officer Stephen

Mulloy following his conviction. The complaint alleged that

Mulloy denied Pigott's request for counsel and threatened

Pigott with indefinite imprisonment while referring to a

civil action that Pigott's family had filed. Roberta Lerner,

a social worker employed on Pigott's behalf, also interviewed

Pigott. The complaint alleged that Lerner violated the terms

of her employment, failed to assist Pigott in the care and

protection case, and prepared a libelous report of her

interview with Pigott.

Pigott further alleged that attorney Skinner waived his

right to appeal his criminal conviction without Pigott's

knowledge. Other defense attorneys (Kelley and Baler) also

allegedly refused to pursue Pigott's direct appeal. Attorney

Baler and Essex superior court clerk Leary are alleged to

have procured the dismissal of Pigott's private counsel. The

complaint does not state what Pigott's private counsel had

been hired to do, nor what harm befell Pigott as a result of

the alleged dismissal. Pigott further claimed that clerk

Leary violated his right of access to the courts by refusing

Pigott's pro se filings. Pigott's sixth cause of action

alleged that the actions of defendants Mulloy, Lerner,

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Skinner, Kelley, Baler, and Leary violated his Sixth and

Fourteenth Amendment rights.9

On October 15, 1991, Pigott was sentenced to prison for

4-15 years.10 Over one year later, Pigott instituted the

instant civil rights action. Faced with the barrage of

claims presented by the complaint, the district court noted

that under 28 U.S.C. 1915(d), courts may dismiss IFP

complaints sua sponte if the plaintiff's claim is based on an

indisputably meritless legal theory or on factual allegations

that are clearly baseless. See, e.g., Denton v. Hernandez,

112 S. Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S.

319, 327 (1989). The court then dismissed Pigott's claims

against the Lynn Police Department, Flemmings Towing Company,

and defendants Woumn, Chisholm, Roach, Flynn, and Condon as

time-barred under the three-year statute of limitations that

applies to civil rights actions in Massachusetts. See Street

9. Mulloy allegedly violated Pigott's right to counsel by
refusing to accede to Pigott's request for an attorney during
his post-conviction interview. He is said to have violated
Pigott's right of access to the courts by threatening Pigott
with indefinite imprisonment in connection with a civil
action Pigott's family had filed. Pigott's defense attorneys
allegedly violated Pigott's constitutional rights by refusing
to pursue a direct appeal of his criminal conviction and
procuring the dismissal of private counsel. And, as noted
above, clerk Leary allegedly violated Pigott's right of
access to the courts by refusing Pigott's pro se filings.

Pigott does not specify how social worker Lerner's libelous
interview report and failure to aid Pigott in the care and
protection case violated his constitutional rights.

10. He received a concurrent 2 1/2 - 3 year term for the
firearm charge.

-10-

v. Vose, 936 F.2d 38 (1st Cir. 1991), cert. denied, 112 S.

Ct. 948 (1992).

This ruling effectively barred Pigott's claims that

these defendants arrested him without cause, deliberately

denied him medical care and legal representation, and

wrongfully seized his property on December 4, 1989. The

district court reasoned that Pigott filed his complaint and

IFP application on December 7, 1992, the date the district

court received both items, and that these particular claims

were thus brought three days late. The district court did

not specifically address Pigott's claims that the Lynn Police

Department engaged in bail tampering and, along with officer

Woumn, violated Pigott's right of access to the courts on

December 5, 1989. We assume that the court implicitly held

that these claims were time-barred as well.11 The court

further ruled that those defendants who allegedly presented

perjured testimony at Pigott's trial were absolutely immune

under Briscoe v. LaHue, 460 U.S. 320, 325 (1983), and that

Pigott's claims against his defense attorneys were barred by

Polk County v. Dodson, 454 U.S. 312 (1981), (holding that

public defenders are not "state actors" for 42 U.S.C. 1983

11. Thus, the district court dismissed Pigott's first,
second, and part of Pigott's third cause of action as time-
barred under the statute of limitations. Pigott's claim
against investigator Turner for failure to keep appointments,
which was also part of his third cause of action, was
dismissed for failing to state a constitutional tort within
the meaning of 42 U.S.C. 1983.

-11-

purposes). This ruling eliminated Pigott's fifth cause of

action and that part of his sixth cause of action that rested

on the alleged misconduct of Pigott's defense attorneys. The

court also dismissed that part of Pigott's fourth cause of

action that asserted claims against Salem Hospital, the two

unnamed security guards, and the unknown lawyer on the ground

that Pigott failed to allege state action. Finally, the

court dismissed Pigott's allegations against probation

officer Mulloy, Pigott's social worker (Lerner), and the four

other social workers (Heathman, Richardson, Carviello and

Grey) for failing to state sufficient claims upon which

relief could be granted.

We note that Pigott's amended complaint attempted to

cure some of the deficiencies identified in the district

court's dismissal order, largely by simply alleging that more

defendants conspired with the Lynn Police Department to

violate Pigott's civil rights.12 Pigott further alleged

that defendants Heathman, Richardson and Carviello destroyed

his relationship with his son by illegally refusing to allow

them visits without cause. Pigott sought to remedy other

12. The amended complaint charged that Flemmings Towing
Company, clerk Leary, probation officer Mulloy, attorney
Nancy Winn, who had been previously identified as the
"unknown lawyer" in Pigott's original complaint, and defense
attorneys Skinner, Kelley and Baler were all involved in such
a conspiracy. But it stated no facts in support of these
allegations.

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claims with allegations purporting to establish state

action.13

III.

At the outset, we note that Pigott's brief on appeal

makes no reference whatsoever to his claims against

defendants Mulloy, Lerner, Turner, Leary, and the unknown

lawyer (attorney Winn). He has therefore waived these claims

and their dismissal will be upheld. The same can be said

with respect to Pigott's claim that he was arrested without

cause. To the extent Pigott's claims against the Lynn Police

Department and officers Woumn, Chisholm, and Sgt. Roach rely

on his December 4, 1989 arrest, his brief makes no mention of

this claim, and we affirm its dismissal on the ground that

Pigott has waived it. See, e.g., Frazier v. Bailey, 957 F.2d

920, 932 n. 14 & 15 (1st Cir. 1992); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.

1082 (1990).

As for the remaining claims, we review section 1915(d)

dismissals for abuse of discretion, mindful that not every

complaint that fails to state a claim upon which relief can

be granted is subject to sua sponte dismissal for

13. For example, defendants Grey and Heathman were alleged
to have seized Pigott's son for the state, while Salem
Hospital was alleged to have violated Pigott's civil rights
through a policy or custom when its security guards
restrained Pigott.

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frivolousness under 28 U.S.C. 1915(d). Denton v. Hernandez,

112 S. Ct. at 1734; Neitzke v. Williams, 490 U.S. at 331. A

complaint or claim is "factually frivolous" when it alleges

facts that are "'clearly baseless'", "'fanciful'",

"'fantastic'" or "'delusional'". Denton, 112 S. Ct. at

1733, (quoting Neitzke, 490 U.S. at 327, 325, 328). A claim

may be said to be legally frivolous if it asserts a claim for

which the defendant is clearly entitled to immunity, or a

claim of infringement of a legal interest that clearly does

not exist. Neitzke, 490 U.S. at 327.

In addition, "[w]e have squarely held that 'a complaint

which states a claim that appears to have expired under the

applicable statute of limitations may be dismissed as

frivolous' under section 1915(d)." Johnson v. Rodriguez, 943

F.2d 104, 107 (1st Cir. 1991), cert. denied, 112 S. Ct. 948

(1992) (quoting Street v. Vose, 936 F.2d at 39). However, at

least where there is any possible doubt, we cautioned

district courts to issue an order to show cause to a

plaintiff whose claims appear to be time-barred before

dismissing a complaint sua sponte on statute of limitations

grounds. Street v. Vose, 936 F.2d at 41, n. 5.

IV.

Based on the principles just set forth, we conclude that

Pigott's claims were properly dismissed, although our

reasoning differs somewhat from that of the district court.

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Insofar as Pigott alleged that the nine Lynn police officers

and other defendants who testified at his criminal trial

committed perjury, Pigott concedes, as he must, that Briscoe

v. LaHue, 460 U.S. 325, 329-46 (1983), entitles these

defendants to absolute immunity from damages liability under

42 U.S.C. 1983. However, the complaint also alleged that

these defendants involved themselves in a conspiracy to

violate Pigott's civil rights. See Complaint, 44. Pigott

continues to press this claim on appeal, and argues that

there was a general police conspiracy to "railroad" him under

which liability may attach under 42 U.S.C. 1983 and 1985.

The district court did not specifically discuss Pigott's

conspiracy claim, presumably because Pigott alleged no facts

to support it, but we think this claim requires separate

consideration.

We have previously observed in dicta that proper

allegations of conspiracy might overcome an immunity claim.

See Malachowski v. City of Keene, 787 F.2d 704, 711-12 (1st

Cir.), cert. denied, 479 U.S. 828 (1986)(per curiam)(noting

that such allegations could overcome city prosecutor's

absolute immunity, and that prosecutorial immunity of

juvenile delinquency officer who initiated delinquency

proceedings might not extend to allegations that officer

filed false delinquency petition as part of overarching

conspiracy to deprive plaintiffs' of child custody). But "a

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complaint, containing as it does both factual allegations and

legal conclusions, is frivolous where it lacks an arguable

basis either in law or fact." Neitzke, 490 U.S. at 325.

(emphasis supplied). Turning to the factual allegations, we

note that Pigott's complaint contained only the most

conclusory allegations of conspiracy. The complaint

generally alleged that the defendants committed perjury and

fabricated evidence from Pigott's December 4, 1989 arrest

throughout his September 1991 trial. No description of the

perjury is given and the allegedly fabricated evidence is not

identified. The only specific factual allegation even

relating to a possible conspiracy is Pigott's assertion that

defendant Reddy and two prosecution witnesses (who are not

named defendants) violated Mass. Rule Crim. Pro. 21

(governing sequestration of witnesses) during Pigott's

criminal trial, but no detail is provided. See Complaint,

34.

In fact, Pigott did not even assert that the perjury

allegedly committed by these defendants resulted in his

conviction. Rather, he claimed that defense counsel Skinner

"maliciously slandered and misrepresented" him (again,

without giving any specifics) and that this conduct was the

direct cause of his conviction. Even liberally construed,

this mish-mash of allegations fails to raise an inference

that the named defendants agreed to deprive Pigott of his

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constitutional rights. See generally Earle v. Benoit, 850

F.2d 836, 844 (1st Cir. 1988) (discussing elements of

conspiracy under 42 U.S.C. 1983).14

Purely conclusory allegations of conspiracy are not

adequate to state a claim. See Slotnick v. Stavisky, 560

F.2d 31, 33 (1st Cir. 1977), cert. denied, 434 U.S. 1077

(1978). Nevertheless, somewhat more caution is appropriate

where dismissal is contemplated under section 1915(d), at

least in those cases where it is not intended to give the

plaintiff advance notice of the defect and the opportunity to

amend. The issue is one of abuse of discretion and depends

upon the facts.

In this instance we do not think further proceedings are

warranted. Although we do not have to consider the propriety

of the district court's denial of reconsideration (since

Pigott did not appeal), we note that Pigott's amended

complaint, filed after dismissal, makes additional

allegations but still does not contain any facts that would

support a conspiracy. Nor does Pigott's brief on appeal

furnish any hint of facts that could support the conspiracy

claim.

14. And while the complaint cites 42 U.S.C. 1985, Pigott
has not alleged the requisite discriminatory animus to state
a claim under this statute. See Landrigan v. City of

Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980).

-17-

Even so, we might hesitate to sustain the dismissal

without an opportunity to replead if we thought that there

was any real risk of injustice. But Pigott's complaint is

manifestly founded upon the delusion that anyone who has had

any connection with the events described -- the arrest, post-

arrest treatment, trial, probation office inquiry, and child

custody dispute -- is a wrongdoer and in most cases a

conspirator. A fair portion of these charges have to be

insupportable, and if some nugget of truth lies buried under

the rubble (and we stress that no claim is stated on these

allegations), Pigott has only himself to blame.

V.

Pigott concedes that his claims against his court

appointed attorneys (Skinner, Kelley and Baler) are fatally

deficient in that they failed to allege state action under 42

U.S.C. 1983. See Polk County v. Dodson, 454 U.S. at 317 n.

4; Malachowski v. City of Keene, 787 F.2d at 710 ("A private

attorney who is sued for actions allegedly taken as court-

appointed counsel does not act under color of state law.")

On appeal, Pigott argues that his amended complaint cured

this deficiency by charging these defendants with conspiracy

as well. This charge was also wholly conclusory. For the

reasons already stated, we think the district court must be

sustained.

VI.

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Pigott contends that his claims with regard to the care

and protection proceeding are cognizable in federal court

notwithstanding the domestic relations exception to federal

jurisdiction. See generally Ankenbrandt v. Richards, 112 S.

Ct. 2206 (1992)(describing exception). This claim challenges

the seizure of Pigott's son by defendants Grey and Heathman

(who were aided by the two unknown Salem Hospital security

guards) and the frustration of Pigott's efforts to visit his

son by defendants Heathman, Carviello, and Richardson.

Pigott does not contend that the facts he has alleged against

these defendants are sufficient to state a claim upon which

relief could be granted. As the district court's dismissal

order notified Pigott that his complaint was so deficient as

to the four social worker defendants, and even the

allegations in Pigott's amended complaint fail to make out

viable claims against these defendants, we affirm the

dismissal of Pigott's claims against social workers Pam Grey,

Marilyn Heathman, Danielle Carviello, and Mrs. Richardson.

The district court may have erred in dismissing Pigott's

claims against the two unnamed Salem Hospital security guards

for lack of state action. The complaint identified defendant

Pam Grey as an employee of the Massachusetts Department of

Social Services and thus established her as a "state actor"

for 42 U.S.C. 1983 purposes. We may also assume that the

Salem Hospital security guards and social worker Marilyn

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Heathman were also engaged in state action when they assisted

Grey in restraining Pigott and seizing his son. See Casa

Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252,

259 (1st Cir. 1993)("'To act "under color" of law does not

require that the accused be an officer of the State. It is

enough that he is a willful participant in joint activity

with the State or its agents.'" )(citations omitted)).

But the liability of the guards and Salem Hospital was

predicated on Pigott's claim that the seizure of his son

violated his constitutional rights. Pigott's complaint and

amended complaint did little more than allege that Pigott had

a son who was taken from him after he had been determined to

be an unfit parent. Pigott has alleged no facts to suggest

that this determination was wrong or procedurally defective.

Since Pigott failed to allege sufficient facts to make out

such a violation even after the district court's dismissal

order notified him of this deficiency, his claims against the

security guards and Salem Hospital were properly dismissed.

VII.

Finally, we turn to those claims that were dismissed as

legally frivolous because they appeared to be barred by the

statute of limitations. The only claims that Pigott

continues to press on appeal are his claims that the Lynn

Police Department and officers Chisholm, Woumn, and Sgt.

Roach exhibited deliberate indifference to his medical needs

-20-

on December 4, 1989 and his claims that the Lynn Police

Department engaged in bail tampering and, along with officer

Woumn, violated his right of access to the courts on December

5, 1989.15

Pigott's claims that the Lynn Police Department engaged

in bail tampering and violated Pigott's right of access to

the courts by refusing to allow him to file a criminal

complaint were without basis. Pigott was released on bail

and, in stark contrast to Wagenmann v. Adams, 829 F.2d 196

(1st Cir. 1987), on which Pigott relies on appeal, Pigott has

not alleged that the police arranged to have his bail set so

high that he could not make it. Nor has he described any

other conduct that could be construed to violate his

rights.16

Similarly, the right of access to the courts does not

import an absolute right to institute criminal proceedings.

Insofar as Pigott contends that the Lynn Police Department

15. Pigott has presented no cogent argument with respect to
his claims against Flemmings Towing Company, Elaine Condon,
and Dennis Flynn. Accordingly, his claims against these
defendants are waived. See, e.g., Ramos v. Roche Products,

Inc., 936 F.2d 43, 51 (1st Cir.), cert. denied, 112 S. Ct.

339 (1991)(issue which is merely mentioned but not briefed is
waived on appeal).

16. Pigott's allegation that attorney Skinner informed him
that he was lucky to make bail because the Lynn police
generally would have opposed it due to his race does not
establish that the police violated his constitutional right
to be free from excessive bail, for Pigott says nothing to
show that his bail was excessive.

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violated this right simply by refusing to accept his criminal

complaint, he has alleged the violation of a legal interest

that does not exist. Pigott further has not alleged any

facts which show that officer Woumn's threats to harm him

violated his federal rights.

Pigott's claim that officers Chisholm, Woumn, and Sgt.

Roach exhibited deliberate indifference to his medical needs

is a closer case. Pigott claimed that he was struck in the

face with a glass, slashed with a butcher knife, and

assaulted with other weapons. He allegedly suffered obvious

injuries and informed these officers that he needed immediate

medical attention. Pigott was incarcerated at the Lynn

police station for one hour and forty-five minutes before he

was taken for medical care. The complaint does not describe

Pigott's injuries. It also does not say what treatment was

required, although we are now told that Pigott required

sutures. Further, the complaint does not specify what harm,

if any, befell Pigott as a result of the seemingly brief

delay between Pigott's arrest and treatment. Compare Matzker

v. Herr, 748 F.2d 1142, 1147-48 (7th cir. 1984)(alleged three

month delay in procuring medical and dental care stated

viable claim).17

17. The reason for the delay is not alleged. However, since
Pigott alleged that he was not booked and fingerprinted until
after he returned from the hospital, we may assume that the
delay was not occasioned by these administrative procedures.

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As we explained in Manarite v. City of Springfield, 957

F.2d 953, 956 (1st Cir. 1992), 1983 liability in a case like

this requires proof of "'deliberate indifference'" by "(1) an

unusually serious risk of harm... (2) defendant's actual

knowledge of (or, at least, willful blindness to) that

elevated risk, and (3) defendant's failure to take obvious

steps to address that known, serious risk." We do not think

that the facts in the complaint make out these elements.

More important, we see no basis for believing that any

amendment or particularization would solve the central

deficiency, namely, that something more than temporary

inattention or carelessness is needed for a constitutional

claim of cruel and unusual punishment. Rather, what is

required is a conscious refusal to take reasonable measures

to deal in a timely fashion with very substantial harm or the

threat of such harm.

Here, Pigott by his own version of events did not seek

hospital care when he left the scene of the fight but went to

another address. There is no hint that any permanent injury

resulted from the delay. Individuals arrive at police

stations and in emergency rooms with cuts and bruises every

day; but true emergencies, requiring medical care without an

instant's delay, are less commonplace. If this were an

ordinary tort suit and negligence sufficed for liability,

there might be an argument for requiring leave to amend --

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although what is alleged does not itself indicate negligence.

But there is virtually nothing in the complaint to suggest

cruel and unusual punishment, or any benefit from further

pleadings.

VIII.

Our conclusion makes it unnecessary to reach the statute

of limitations issue on which the district court based its

decision to dismiss claims relating to the arrest and

immediate treatment of Pigott. We think that issue is a

difficult one.

A number of circuits have held that a pro se complaint

is timely so long as the necessary affidavit accompanies the

filing of the complaint, one rationale being that the time

spent in reviewing the affidavit and entering the IFP order

is the court's responsibility. See, e.g., Dean v. Veterans

Admin. Regional Office, 943 F.2d 667, 668-71 (6th Cir. 1991),

vacated on other grounds, 112 S.Ct. 1255 (1992); Gilardi v.

Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987); Martin v.

Demma, 831 F.2d 69, 71 (5th Cir. 1987). Local Rule 4.5 in

the district court suggests that that court would treat the

complaint as timely filed if "accompanied by [the requisite]

. . . affidavit . . . ." Pigott, however, did not accompany

his complaint with the affidavit, and the rationale just

described would have no application to his case.

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On the other hand, Fed. R. Civ. P. 5(e) provides that

the clerk is not to refuse papers for filing "solely because

. . . not presented in proper form . . . ." One could argue

that the omission of the affidavit is merely a formal defect

-- although the opposite view of the matter is also possible.

One could also argue with some force that doubts about

timeliness should be construed in favor of the plaintiff,

although a plaintiff who waits till almost the end of the

three year limitations period before filing anything can be

said to assume some risk.

In all events, we do not think that the issue is

decisive in this case and therefore do not decide it.

However it is decided, it might be better if the Local Rule

4.5 gave clearer notice to litigants as to whether a

complaint transmitted without the affidavit is deemed filed

if accompanied by a request for IFP forms. A copy of this

opinion will be transmitted to the appropriate authorities in

the district court so that it may be considered whether an

amendment is desirable.

Affirmed.

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