March 24, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1873
ANTHONY SOLIMINE,
Plaintiff, Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant, Appellee.
No. 94-1995
ANTHONY SOLIMINE,
Plaintiff, Appellant,
v.
UNITED STATES FEDERAL BUREAU OF INVESTIGATIONS, CIVIL
RIGHTS, DIRECTOR AGENT MORRILL, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Anthony Solimine on brief pro se.
Donald K. Stern, United States Attorney, and Gwendolyn R. Tyre,
Assistant United States Attorney, on brief for appellees.
Per Curiam. The district court correctly dismissed, as
frivolous, pursuant to 28 U.S.C. 1915(d), the actions
underlying each of these appeals. The complaints,
essentially identical, were based on "an indisputably
meritless legal theory." Neitzke v. Williams, 490 U.S. 319,
327 (1989). Appellant's proffered amendment, submitted after
dismissal in one action and before dismissal in the second
action, did not cure the defective pleading. Appellant
attempts to contort his allegations into a claim of a
negligently-done voluntary undertaking, not within the
discretionary function exception to the Federal Tort Claims
Act, 28 U.S.C. 2680. It is clear, however, that what
appellant alleges is not a voluntary undertaking, but a
failure to undertake what appellant concedes is a duty not
within defendants' authority.
The orders of dismissal are affirmed.