[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2435
LEONARD B. HARMON,
Plaintiff, Appellant,
v.
BENNIE K. BULLOCK, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Leonard B. Harmon on brief pro se.
October 9, 2001
Per Curiam. Plaintiff Leonard Harmon was arrested
and charged with criminal trespass after refusing to leave
the house of a woman (Bennie Bullock--the mother of his
daughter) who had temporarily provided him with a room.
When those charges were dropped, plaintiff responded with
the instant 42 U.S.C. § 1983 action, filed pro se and in
forma pauperis, alleging violation of his constitutional
rights. Named as defendants were Bullock and the Dorchester
district court (the venue for the aborted criminal
proceedings). The district court reviewed the complaint
prior to service of process, in accordance with 28 U.S.C. §
1915(e)(2), and discerned no arguable legal basis for
plaintiff's claims. After spelling out the deficiencies in
the complaint, the court gave plaintiff 35 days to show
cause why it should not be dismissed. Plaintiff filed no
response (or any other pleading) within that time--he admits
on appeal that he "refused" to respond because of his
disagreement with the court's analysis--and the case was
accordingly dismissed with prejudice. Only later, in
conjunction with a timely motion to amend judgment, and
without any explanation for his tardiness, did plaintiff
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finally submit a response to the show-cause order. That
motion was summarily denied, and plaintiff now appeals.
We affirm. By itself, plaintiff's unexplained
failure to respond in timely fashion to the show-cause order
would provide a sufficient basis for upholding the
dismissal. Nor did the district court err in concluding
that the complaint was "frivolous or malicious" or "fail[ed]
to state a claim" within the meaning of § 1915(e)(2)(B).
Plaintiff asserts that the criminal-trespass charges were
unfounded, in that he fell within a statutory exception
involving "tenants or occupants of residential premises."
Mass. Gen. Laws ch. 266, § 120 (¶ 2). Even if so, the
Dorchester district court, which is a state entity, is
immune from § 1983 liability for the reasons enumerated by
the district court; the cases involving municipal agencies
on which plaintiff relies are inapposite. In turn,
plaintiff has provided no factual support for his suggestion
that Bullock, by conspiring with the arresting officers, was
herself acting "under color" of law for § 1983 purposes.
The district court afforded plaintiff ample opportunity to
amend his complaint in order to correct these various
shortcomings. As mentioned, plaintiff chose not to respond.
Nor has he set forth any supplemental allegations, either in
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his untimely response to the show-cause order or in his
brief on appeal, that would enable him to surmount the §
1915(e)(2) hurdle.
Plaintiff also contends that the district court's
rulings called its impartiality into question and so
warranted its recusal--an allegation we reject on its face
as frivolous.
Affirmed.
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