Not for Publication in West's Federal Reporter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. 04-1975
ERICK J. JONES,
Plaintiff, Appellant,
v.
CITY OF BOSTON, 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
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Erick J. Jones on brief pro se.
Thomas F. Reilly, Attorney General, and Eva M. Badway,
Assistant Attorney General, on brief for appellees Suffolk County
District Attorney and Suffolk County District Attorney's Office.
Kenneth J. Forton, Assistant Corporation Counsel, on brief for
appellees, City of Boston, John Doe and John Foe.
June 14, 2005
Per Curiam. Appellant Erick Jones appeals from the
dismissal of his civil rights complaint under Fed. R. Civ. P.
12(b)(6) and the district court's denial of his motion to amend his
complaint. For the reasons given below, we affirm.
Jones asserts that his federal and state malicious
prosecution claims were timely and that he should have been allowed
to amend his complaint to add related fact allegations.1 As
indicated below, however, Jones failed to plead specific facts
tending to show that the state criminal proceedings terminated in
his favor. As a result, his malicious prosecution claims are
neither presently cognizable (they have not yet accrued), nor
substantively viable (one of the prerequisites for that cause of
action is lacking).2 Lambert v. Williams, 223 F.3d 257, 262 n.3
(4th Cir. 2000) (discussing significance of failure to show
favorable termination) (relying ultimately on Heck v. Humphrey, 512
U.S. 477, 483-84 (1994)); Nieves v. McSweeney, 241 F.3d 46, 53 (1st
Cir. 2001) (describing key elements of the common-law cause of
action in Massachusetts). Hence, we affirm.
1
On appeal, Jones concedes that his remaining claims were
untimely, and he does not challenge the court's conclusion that his
suit against the Suffolk County District Attorney's Office and
associated defendants was barred by immunity or otherwise.
2
For present purposes, we assume that Jones may assert a
malicious prosecution claim under 42 U.S.C. § 1983 based on the
Fourth Amendment. See Nieves v. McSweeney, 241 F.3d 46, 54 (1st
Cir. 2001) (stating that it is an "open question" whether the
Constitution permits the assertion of such a claim)(citations
omitted).
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The complaint and proposed amendment thereto made only
conclusory allegations on the favorable termination question. On
appeal, Jones explains that the Commonwealth dismissed the criminal
charges against him, offering a state court docket summary in
support. But he does not allege facts that would permit an
inference that the charges were dismissed because of his innocence
or the Commonwealth's lack of reasonable grounds for the
prosecution. See Wynne v. Rosen, 391 Mass. 797, 800-01 (1984)
(defining the circumstances when a state dismissal of charges
constitutes a favorable termination). Moreover, the state court
docket indicates that the dismissal occurred after Jones completed
a period of pretrial probation under Mass. Gen. Laws c. 276, § 87.
If anything, this suggests that dismissal was a compromise solution
as defendants maintain, in which neither party conceded guilt or
innocence. See Commonwealth v. Tim T., 437 Mass. 592, 596 (2002)
(describing the implications of pretrial probation when used as a
prelude to dismissal). A disposition of this kind is not
"favorable." Wynne, 391 Mass. at 801 (agreeing that a dismissal
based on the parties' compromise bars a malicious prosecution
claim).
Jones acknowledges that his attorney assented to his
pretrial probation. But he suggests that neither he nor his
attorney were present at the dismissal hearing and "thus" did not
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consent to dismissal of the charges.3 An oblique contention of
this kind is an insufficient basis for a remand to the district
court. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52
(1st Cir. 1990) (in evaluating a motion to dismiss, the court is
not obliged to credit "bald assertions, periphrastic
circumlocutions, [or] unsubstantiated conclusions"). For one
thing, neither the original complaint nor the proposed amendment
alleges affirmatively that Jones did not consent to the dismissal.
In addition, the course of events described in the state court
docket all tend to support the opposite conclusion that Jones
acquiesced in the dismissal, if not directly, then through his
attorney. In any event, this indirect claim of lack of consent
does not solve the basic flaw in this case -- Jones' failure to
plead specific facts permitting the inference that the charges
against him were dismissed because he was innocent and there were
no reasonable grounds to prosecute him.4
Affirmed.
3
The docket shows that Jones was not present at the dismissal
hearing, but that his attorney was. To the extent that Jones
relied on the docket for his claim that his attorney was not
present, he apparently misread the docket.
4
In fact, Jones' record appendix contains materials which
seriously undermine his malicious prosecution claims. For example,
a grand jury transcript indicates that the grand jury had access to
a videotaped statement by Jones' alleged victim. Jones claimed
that the defendants had withheld that statement from the grand
jury.
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