May 5, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1953
CHARLES J. OROPALLO,
Plaintiff, Appellant,
v.
RICHARD L. PARRISH, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Breyer, Chief Judge,
Cyr and Stahl, Circuit Judges.
Charles J. Oropallo on brief pro se.
Jeffrey R. Howard, Attorney General, and Lucy C. Hodder,
Assistant Attorney General, on brief for appellees.
Per Curiam. Plaintiff-appellant Charles J. Oropallo, a
New Hampshire inmate, appeals pro se from the dismissal of
his amended civil rights complaint for failure to state a
claim. For the reasons stated below, we modify the dismissal
in part, and, otherwise, affirm.
BACKGROUND
On June 8, 1993, appellant filed an in forma pauperis
complaint in the district court alleging violations of 42
U.S.C. 1983, 1985 against various prison employees and
officials, as well as against two fellow inmates. The
complaint also included two pendent state law claims.
The following facts were alleged by Oropallo, and we
assume for purposes of this opinion that they are true. In
early 1991, defendant Viola Lunderville, Administrator of
Security, terminated appellant from his job at the prison
recreation department. Appellant filed a civil suit
regarding this termination.1 In April 1991, approximately
six weeks after terminating appellant from his job,
Lunderville allegedly conspired with defendant Richard L.
Parrish, a prison official, to fabricate charges against
appellant. Parrish subsequently authored a false
disciplinary report stating that he had received information
1. The complaint does not state when this suit was filed.
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from two inmates leading him to search appellant's hobby
craft locker where Parrish found state property.2
After what Oropallo alleges was a sham disciplinary
hearing, he was found guilty of unlawful possession of state
property. The guilty finding was upheld by defendant Michael
Cunningham, the prison warden, and defendant Ronald Powell,
Commissioner of the New Hampshire Department of Corrections.
Thereafter, Oropallo filed a civil suit challenging the
disciplinary proceeding.
Since April 1991, and in connection with the
"fabricated" charge, Oropallo allegedly has been banned from
entering the North Yard area of the prison. Defendants
Donald G. Robb and George R. Sasser, both prison employees,
have allegedly participated in banning him from this area.
Oropallo avers that he has been denied use of the prison
gymnasium, hobby craft shop, North Yard ball field and
attendance at a jazz concert and a power lifting event.
Oropallo further avers that this "punishment" is in excess of
that normally handed down for disciplinary violations.3
2. The complaint alleges that these two inmate informants,
identified as defendants John Doe #1 and John Doe #2,
conspired with Parrish to deprive appellant of his civil
rights.
3. Although the complaint is far from clear on this point,
it appears that the ban from entering the North Yard area of
the prison and from participating in recreational activities
was imposed prior to the disciplinary hearing. The ban is
allegedly still in effect. It appears from Oropallo's brief
that the sanctions imposed following the disciplinary hearing
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In May 1992, Oropallo made inquiries of various prison
officials, including defendant Powell, regarding his being
banned from the North Yard area of the prison. Several days
later, appellant's typewriter and legal papers were
confiscated by defendant Loran Ackerman, a prison official.
Appellant filed a civil suit contesting the confiscation of
his legal materials.
Based on these facts, the complaint alleged a violation
of Oropallo's constitutional rights to due process and equal
protection, citing the Fifth, Ninth and Fourteenth Amendments
to the Constitution. In addition, the complaint alleged that
Oropallo has been unconstitutionally subjected to cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments.
The complaint was initially referred to a magistrate
judge (hereinafter, magistrate) who reviewed it prior to
completing service. See 28 U.S.C. 1915(d); Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989) (to avoid wasteful
litigation, under 1915(d) the court may dismiss claims
which are based on indisputably meritless legal theories or
delusional factual scenarios). The magistrate concluded that
Oropallo's "claims concerning attendance at the jazz concert
and special event and use of the hobby craft shop and ball
and guilty finding were suspended loss of good time and
suspended punitive segregation time.
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field are frivolous," and that his claim concerning
deprivation of exercise is insufficient to make out an
actionable constitutional violation. The magistrate granted
Oropallo thirty days in which to amend his complaint or face
a recommendation of dismissal.
Oropallo filed an amended complaint which restated his
1983 causes of action as claims for harassment, constituting
cruel and unusual punishment, and discrimination, in
violation of his rights to due process and equal protection.
The amended complaint was otherwise identical to the original
complaint. Oropallo did not aver that the alleged
discrimination was directed towards him as a member of a
particular class, or offer any other reason for the alleged
disparate treatment.
After reviewing Oropallo's amended complaint, the
magistrate recommended that the complaint be dismissed for
failure to state a claim.4 See Forte v. Sullivan, 935 F.2d
1, 3 (1st Cir. 1991) (a district court may sua sponte dismiss
an in forma pauperis complaint for failure to state a claim
following notice and an opportunity to amend in a manner that
would satisfy the procedural safeguards of Fed. R. Civ. P.
12(b)(6)). In support of his recommendation, the magistrate
stated:
4. The magistrate did not state whether this dismissal was
intended to be pursuant to 1915(d) or Fed. R. Civ. P.
12(b)(6).
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In his original complaint, plaintiff alleged that
he had been deprived of certain recreational
activities. Plaintiff was ordered to amend his
complaint to state facts that show an indefinite
limitation on exercise that could be harmful to his
health. However, the amended complaint does no
more than repeat the conclusory allegations of
plaintiff's initial complaint, namely, that he has
been deprived of "various recreational activities."
Amended Complaint at paras. 29, and 30. Thus, the
court finds that plaintiff has failed to show that
he has suffered any constitutional deprivation.
Oropallo filed a timely objection in which he disavowed
ever making a claim concerning lack of exercise, and argued
that he had stated a valid claim for harassment and
discrimination in violation of 1983. In his objection,
Oropallo, for the first time, articulated a motive for the
alleged discrimination. Oropallo stated that he was being
discriminated against in retaliation for the exercise of his
first amendment right to file complaints.
The district court reviewed the matter, and approved the
magistrate's report without stating additional reasons.
Judgment of dismissal entered on August 12, 1993. This
appeal ensued.
DISCUSSION
Oropallo argues that his amended complaint should not
have been dismissed because it states valid claims under
1983 for violations of his constitutional rights to be free
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from cruel and unusual punishment, to equal protection, to
proceduraldue process,and topetition thecourts.5 We disagree.
Since appellant was placed on notice of the inadequacy
of his complaint and has had an opportunity to amend, we
construe the dismissal of his amended complaint for failure
to state a claim as a Rule 12(b)(6) dismissal. See Guglielmo
v. Cunningham, 811 F. Supp. 31 (D.N.H. 1993). Appellate
review of a dismissal under Rule 12(b)(6) is plenary. See,
e.g., Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir.
1991). The standard for assessing the adequacy of a civil
rights claim is whether, accepting the factual allegations in
the complaint as true, and construing these facts in the
light most favorable to the plaintiff, the pleading shows any
fact which could entitle the plaintiff to relief. See, e.g.,
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.
Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). Because
appellant appears pro se, we read his complaint with an extra
5. Oropallo does not raise on appeal the dismissal of his 42
U.S.C. 1985 claim and it is, therefore, deemed waived.
Even if we were to address this issue, we would hold that
this claim was properly dismissed. Appellant does not
specify the subsection of 1985 upon which he relies.
However, the complaint can only conceivably be construed as
asserting a claim under 1985(3) which prohibits
conspiracies to interfere with the civil rights of
individuals. As so construed, the complaint fails to state a
cause of action because plaintiff does not allege that
defendants' actions were directed at a protected class. See
Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753
(1993).
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degree of solicitude. Rodi v. Ventetuolo, 941 F.2d 22, 23
(1st Cir. 1991).
Oropallo's procedural due process claim is far from
clear. The disciplinary hearing that appellant claims was a
sham is the subject of an independent complaint, and he
disavows any intent to challenge that proceeding in the
instant amended complaint. Instead, appellant's theory
appears to be that since the deprivations he complains of
were not imposed as sanctions following this disciplinary
hearing, or following any other hearing, they were
unconstitutionally imposed without any process.
This claim, however, must fail if there is no liberty
interest in the activities he alleges he has been denied.
See, e.g., Kentucky Dep't of Corrections v. Thompson, 490
U.S. 454 (1989) (holding that visitation privileges could be
suspended without hearing where no liberty interest in
receiving visitors existed). Appellant has abandoned any
allegation that he has been deprived of adequate exercise,
and the Constitution does not create an enforceable interest
in recreational programs designed to relieve the boredom of
prison life. Although liberty interests may be rooted in
state law, none of the prison rules invoked by the appellant
could conceivably be interpreted as creating an entitlement
to recreation.
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We need not devote much attention to Oropallo's Eighth
Amendment claim. The deprivations Oropallo complains of are
not sufficiently weighty to implicate the Eighth Amendment's
ban on cruel and unusual punishment. See Hudson v.
McMillian, 112 S. Ct. 995, 1000 (1992) (stating that only
those deprivations denying the minimal civilized measure of
life's necessities are sufficiently grave to form the basis
of an Eighth Amendment violation).
Appellant's claim that he has been denied equal
protection because prison officials imposed harsher sanctions
on him than on others "similarly situated" also fails. A
person bringing an action under the equal protection clause
of the Fourteenth Amendment must either show a violation of a
fundamental right or "intentional discrimination against him
because of his membership in a particular class, not merely
that he was treated unfairly as an individual." Huebschen v.
Department of Health & Social Services, 716 F.2d 1167, 1171
(7th Cir. 1983). There is no fundamental right to
recreational activities, and Oropallo makes no allegation
that race, religion or the like were at work here.
Finally, we address plaintiff's retaliation claim. It
is well established that conduct which is not otherwise
constitutionally deficient is actionable under 1983 if done
in retaliation for the exercise of constitutionally protected
first amendment freedoms. See Ferranti v. Moran, 618 F.2d
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888, 892 n.4 (1st Cir. 1980) ("[A]ctions otherwise
supportable lose their legitimacy if designed to punish or
deter an exercise of constitutional freedoms."); see also
Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993) (prison
officials cannot lawfully impose a disciplinary sanction
against a prisoner in retaliation for the prisoner's exercise
of his constitutional right). In McDonald v. Hall, 610 F.2d
16, 18 (1st Cir. 1979), we held that an inmate's allegations
that he was transferred to another prison in retaliation for
having earlier filed actions against prison officials
sufficed to state a cause of action.
However, even if we construe Oropallo's amended
complaint liberally to include his later allegation of
retaliation, we think his complaint falls short of stating a
cause of action. In contrast to Ferranti and McDonald, where
we found that the allegations were sufficient, it cannot be
said that Oropallo has set forth a chronology of events which
warrants an inference of retaliation. See Ferranti, 618
F.2d at 892 (inference of retaliation warranted from the
chronology of events recited and from the allegation that
appellant's first suit complains of prison conditions and is
directed at prison officials); McDonald, 610 F.2d at 18
(chronology of events provided support for inference of
retaliation). Admittedly, Oropallo does detail in his
complaint various lawsuits he has filed directed at prison
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officials. However, it is unclear, based on the complaint,
whether any of Oropallo's lawsuits antedates the decision to
ban him from the North Yard area of the prison and from
participating in recreational activities. If the ban was
imposed prior to the lawsuits, Oropallo's claim of
retaliation is seemingly without basis.
Although we are persuaded that Oropallo has failed to
state a claim for retaliation, the defect is one that might
easily be cured by amendment. In light of appellant's pro se
status, and because the district court did not address this
claim, we think the dismissal should be modified to be
without prejudice to the plaintiff's filing a second amended
complaint realleging this claim. Furthermore, since
appellant's pendent state claims were not addressed below, he
should be permitted to reallege these claims. The dismissal
of plaintiff's remaining claims is affirmed with prejudice.
Affirmed as modified.
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