Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2031
'OMAR 'ABDULLAH,
Plaintiff, Appellant,
v.
JEAN M. KENNET, sued in her individual
and official capacity, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
'Omar 'Abdullah on brief pro se.
Natalie S. Monroe and Thomas F. Reilly, Office of the Attorney
General, on brief for appellees.
July 15, 2004
Per Curiam. Appellant, 'Omar 'Abdullah, appeals from the
district court’s dismissal of his complaint alleging claims under
42 U.S.C. § 1983 and § 1985 and refusal to exercise pendant
jurisdiction over his state law claims. We have reviewed the
parties’ briefs and the record on appeal, and we affirm for the
reasons stated by Judge Gertner in her October 25, 2002 Memorandum
and Order.
Regarding his due process claim, Appellant contests that
the Parratt-Hudson doctrine is the appropriate analysis to apply to
his alleged deprivation of a liberty interest. Appellant is
misguided. The Parratt-Hudson line of cases frames the analysis
for a violation of procedural due process, regardless of which
interest petitioner claims to have been deprived. See Zinermon v.
Burch, 494 U.S. 113, 131-32 (1990); Brown v. Hot, Sexy and Safer
Productions, Inc., 68 F.3d 525, 535-36 (1995).
Appellant further argues that Parratt and Hudson are
inapposite to his claim because Appellees’ conduct was not “random
and unauthorized.” Appellant contends that Appellees Kennett’s and
Kenneally’s transfer of his petition to the Single Justice Session
clerk’s office is in contravention to Rule 31(d) of the
Massachusetts Rules of Civil Procedure. By his reasoning, Rule
31(d) designates conduct for clerks, and therefore, Appellees’
conduct cannot be “random and unauthorized.” Appellant inverts the
rationale of the Parratt-Hudson line of cases.
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Where a non-discretionary procedure for protecting a
liberty interest exists, a state employee’s violation of that
mandated procedure is “random and unauthorized.” See Brown, 68 F.3
at 536-37; Lowe v. Scott, 959 F.2d 323, 344 (1st Cir.1992). It is
not the procedures under Rule 31(d) that Appellant charges are the
source of his deprivation. Rather, Appellant complains that
Appellees’ alleged failure to follow these procedures caused a
deprivation of his liberty interest in access to the court. It is
exactly this kind of alleged conduct, the failure of state
employees to follow mandated procedures, which the state cannot
adequately predict or prevent, that the Parratt-Hudson doctrine
addresses. See Zinermon, 494 U.S. at 131-32; Brown, 68 F.3 at 536-
37; Lowe, 959 F.2d at 344. Looking to the adequacy of a post-
deprivation remedy was, therefore, the appropriate analysis, and
Appellant’s due process claim was properly dismissed.
Next Appellant argues that a clerical error on the docket
sheet, designating the nature of his case as a habeas petition
under M.G.L. c. 248 § 35, which specifically excludes individuals
confined under a criminal conviction, caused the single justice to
dismiss his petition, and thus, denied him court access.
Appellant's state filing unambiguously states that he is bringing
suit pursuant to M.G.L. c. 248 § 1. Justice Ireland, before whom
the state petition was brought, would have reviewed this filing to
make a determination; that the docket sheet contained a clerical
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error is of no consequence. Furthermore, a habeas petition is not
the appropriate vehicle with which to challenge indictment, trial,
conviction or sentencing in Massachusetts. See In re Soura, 436
Mass. 1003 (2002); Valliere v. Superintendent of Mass. Correctional
Inst., 429 Mass. 1024 (1999); Petition of Stewart, 411 Mass. 566
(1992). Dismissal of a habeas petition does not preclude a
petitioner from pursuing the proper vehicle, a motion under Mass.
R. Crim. P. 30. Appellant could have sought this form of relief.
Appellant pleads a race-based animus in support of his
Section 1985(2) claim for the first time on appeal, and we decline
to entertain the issue at this late date. See Teamsters,
Chauffeurs, Warehousemen and Helpers Union Local No. 59 v.
Superline Trans. Co., 953 F.2d 17, 21 (1st Cir. 1992).
Appellant also brought suit for conspiracy under Section
1983, which the district court did not address. We dismiss
Appellant’s claim here. “In order to make out an actionable
conspiracy under section 1983, a plaintiff has to prove not only a
conspiratorial agreement but also an actual abridgment of some
federally-secured right.” Nieves v. McSweeney, 241 F.3d 46, 53
(1st Cir. 2001). Appellant has failed to state a claim for
violation of the First or the Fourteenth Amendment and therefore,
likewise has no cause of action for conspiracy under Section 1983.
Lastly, it was well within the district court’s
discretion to decline to exercise pendant jurisdiction over
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Appellant’s state law claims after it had dismissed Appellant's
federal claims. Lares Group II v. Tobin, 221 F.3d 41, 45 (1st Cir.
2000).
Affirmed with the direction that dismissal of the pendant
state claims is without prejudice. Loc. R. 27(c).
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