[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1839
FRIEDRICH LU,
Plaintiff, Appellant,
v.
EMERGENCY SHELTER COMMISSION OF CITY OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Friedrich Lu on brief pro se.
Merita A. Hopkins, Corporation Counsel, and Andrea W.
McCarthy, Assistant Corporation Counsel, City of Boston Law
Department, on brief for appellee.
January 22, 2001
Per Curiam. After a thorough review of the record
and of the parties’ submissions, we affirm the dismissal of
Count I with prejudice, but we vacate the dismissal of Count
II and direct the district court to remand that count to the
state court.
As to Count I, we do not rest on the grounds stated
by the district court. Although the district court read
appellant Friedrich Lu’s (“Lu’s”) complaint as if Lu claimed
that St. Francis House Shelter, a private entity, acted
improperly toward him, it appears to us that Lu alleges that
“the defendant” – i.e., the Emergency Shelter Commission
(“the Commission”) – acted improperly. Further, the lower
court went on to conclude that the Commission (through the
City of Boston (“the City”)) had no authority over the St.
Francis House, and as a result, the City was not a proper
party to this lawsuit. But it was inappropriate for the
lower court to rely on the City’s unsupported assertions on
a motion to dismiss. Compare Fed. R. Civ. P. 56. See
Clorox Co. Puerto Rico v. Proctor & Gamble Comm’l Co., 228
F.3d 24, 20 (1st Cir. 2000); Fed. R. Civ. P. 12(b).
Still, Count I of the Complaint was subject to
dismissal under Fed. R. Civ. P. 12(b)(6). “As is well
established, § 1983 creates no independent substantive
rights, but rather provides a cause of action by which
individuals may seek money damages for governmental
violations of rights protected by federal law.” Cruz-Erazo
v. Rivera-Montanez, 212 F.3d 617, 621 (1st Cir. 2000). The
Complaint fails to state a due process claim because it
fails to allege any specific liberty or property interest
which was threatened by the alleged wrongdoing, and because
it does not allege any actions which approach the “shocks
the conscience” standard. Pittsley v. Warish, 927 F.2d 3,
6 (1st Cir. 1999). Further, to the extent Count I attempts
to set out a procedural due process claim, it fails because
any alleged wrongdoing may be remedied through an action
under the state public records law. “[A] procedural due
process claim is not actionable unless, inter alia, no
adequate ‘post-deprivation remedy’ is available under state
law.” See Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st
Cir. 1994).
To the extent Count I claims a violation of Lu’s
First Amendment rights, that claim is inadequate as a matter
of law, too. See Houchins v. KQED, Inc., 438 U.S. 1, 9
(1978) (Burger, C.J., plurality) (“This Court has never
intimated a First Amendment guarantee of a right of access
to all sources of information within government control.”);
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El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 & n. 8
(1st Cir. 1992) (no authority for first amendment right of
access to information outside criminal justice context)
(citing Houchins).
That leaves only the state law claim. The claim
is not properly before the federal court, since to the
extent Lu seeks declaratory or injunctive relief under the
state law, “[a] federal court may not order state officials
to conform their behavior to state law.” Quintero de
Quintero v. Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992)
(citing Pennhurst State School & Hosp. V. Halderman, 465
U.S. 89, 106 (1984)). But we cannot tell whether the claim
is subject to dismissal on other grounds. Though the
Commission apparently is only an arm of the City and so not
separately subject to suit, it seems at this early stage of
the litigation, a simple amendment to the pleadings would
address that problem. See Fed. R. Civ. P. 15(a). We will
not affirm the dismissal of Count II with prejudice on this
ground.
We thus vacate the dismissal on the merits of Count
II and direct the district court to remand this state law
claim to the state court from whence it had been removed.
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The judgment of the district court is affirmed in
part and vacated in part; the dismissal of Count I with
prejudice is affirmed; the dismissal of Count II is vacated,
and the district court is directed to remand the Count to
the state court.
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