United States Court of Appeals
For the First Circuit
No. 07-1985
MATTHEW THOMAS, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Tashima* and Lipez, Circuit Judges.
John F. Killoy for appellants.
Neil F.X. Kelly, Assistant Attorney General, for appellees
State of Rhode Island and Providence Plantations; Patrick C. Lynch,
Attorney General; Rhode Island State Police, Colonel Steven M.
Pare; State Police Trooper Badge #37; State Police Detective
Timothy Sanzi; State Police Detective Joseph Philibin, and State
Police Detective Michael Casey.
Claire Richards, Special Counsel, for appellee Governor Donald
L. Carcieri.
Rebecca Tedford Partington, Assistant Attorney General, for
appellees State Police Detectives Ken Barry and Ken Bell.
September 24, 2008
*
Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Appellants are seven members of
the Narragansett Indian Tribe ("the Tribe")1 who brought suit under
42 U.S.C. § 1983 claiming that Rhode Island state officials,
including state police officers, violated their constitutional
rights by arresting them "without lawful authority" on tribal
lands. Relying on our earlier ruling that the state police had
jurisdiction to make arrests on Narragansett tribal lands, see
Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30-31 (1st
Cir. 2006)(en banc), the district court dismissed appellants'
complaint for failure to state a claim on which relief could be
granted. See Fed. R. Civ. P. 12(b)(6). The court also denied
appellants' request for leave to amend their complaint.
Appellants challenge both of these rulings. They argue
that the court construed their allegations too narrowly, thereby
ignoring a viable Fourth Amendment claim based on the lack of
probable cause for arrest. Alternatively, they claim that the
court wrongly denied their request to amend the complaint, thereby
denying them the opportunity to remedy any deficiencies. We
affirm.
1
The appellants are Narragansett Indian Tribe members Matthew
Thomas, Randy Noka, Bella Noka, Hiawatha Brown, John Brown, Thawn
Harris, and Adam Jennings.
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I.
We have previously described at great length the events
associated with the July 14, 2003 raid of the Narragansett Indian
Smoke Shop by the police. See Jennings v. Jones, 499 F.3d 2, 4-5
(1st Cir. 2007);2 Narragansett Indian Tribe, 449 F.3d at 18-21. We
recount here only the facts most pertinent to the case at hand.
The State of Rhode Island imposed an excise tax on all
cigarettes sold, distributed, or held for sale or distribution
within its borders. To enhance collection of this tax, it required
cigarette dealers to affix to their merchandise stamps furnished by
the State. Id. Failure to comply with these rules was a
misdemeanor and subjected the cigarettes to seizure. The Tribe
believed that the State had no jurisdiction over tribal lands and
that the State's tax regime, therefore, did not apply to cigarette
sales on its property. The Tribe opened a smoke shop on tribal
land located in Charleston, Rhode Island, and sold cigarettes
without the stamps affixed and without collecting the state sales
2
We addressed the claims of appellant Adam Jennings in our
decision in Jennings, and therefore his claims here are barred by
the principle of res judicata. See Aristud-Gonzalez v. Gov't Dev.
Bank, 501 F.3d 24, 27 (1st Cir. 2007) (explaining that res judicata
encompasses claim preclusion, which may be used both to prevent the
re-litigation of the same cause of action and bar claims that were
not brought earlier but grew out of the same nucleus of operative
facts and should have been brought in an earlier action).
Appellants' counsel acknowledged at oral argument that Jennings is
no longer a viable plaintiff in this case.
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tax. Consequently, the cigarettes were priced significantly below
the prevailing market rate.
After securing a search warrant, the police entered the
smoke shop on July 14, 2003 to seize the unstamped cigarettes. The
officers' entry "sparked an altercation" and resulted in eight
arrests. Id.
The Tribe then brought suit against the State arguing
that under the Rhode Island Indian Claims Settlement Act, 25 U.S.C.
§§ 1701-16, Rhode Island officials did not have the authority to
enter tribal land for the purpose of enforcing state laws. We
considered this issue en banc, and a majority of the court held
that state officers could execute a search warrant on tribal lands
and arrest members of the Tribe in order to enforce the State's
laws. Narragansett Indian Tribe, 449 F.3d at 24. The Tribe
petitioned for certiorari, which was denied on November 27, 2006.
Narragansett Indian Tribe v. Rhode Island, 127 S. Ct. 673 (2006).
On July 13, 2006, while the petition for certiorari was
still pending, appellants initiated this action pursuant to 42
U.S.C. § 1983 against the State, the officers who conducted the
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raid, and several state officials.3 In their complaint, they stated:
Defendants individually and in concert with the
others acted under the color of state law and in their
official capacities, but said acts are illegal, and each
defendant individually and in concert with the others
acted deprived [sic] the plaintiffs of their
constitutional rights.
The transportation, detention and prosecution of the
plaintiffs without lawful authority or jurisdiction
constituted a seizure within the meaning of the Fourth
Amendment and deprived plaintiffs of their liberty. This
seizure and deprivation of liberty were unreasonable in
violation of the Fourth and Fourteenth Amendments to the
United States Constitution.
On February 2, 2007, after the Supreme Court denied
certiorari, the defendants filed a Motion to Dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), arguing that appellants had failed to
state a claim on which relief could be granted because the
Narragansett case had resolved the question of state authority. In
their response to the motion, appellants indicated that they would
be seeking leave to amend their complaint, but did not specify the
content of the proposed changes, or explain why they were
necessary. Appellants never filed a written motion to amend the
complaint.
3
The following people and entities were listed as defendants:
the State of Rhode Island and Providence Plantation, Governor
Donald L. Carcieri in his official capacity, Rhode Island Attorney
General Patrick C. Lynch in his official capacity, Colonel Steven
M. Pare of the State Police, State Police Trooper Badge #37, State
Police Detective Timothy Sanzi, State Police Detective Joseph
Philibin, State Police Detective Michael Casey, and State Police
Troopers -- John Does 1 to 7.
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At a hearing on the dismissal motion, appellants argued
that the Narragansett case was not dispositive because the
complaint concerned the claims of "individual tribal members for
violations of their own individual civil rights," and not the
State's "jurisdiction and authority in taxation" over the Tribe.
When asked by the court what had occurred during the raid that
"could possibly give rise to" a § 1983 claim, counsel for
appellants pointed to three alleged incidents of excessive force:
(1) an appellant was bitten by a state police dog, (2) a pregnant
appellant was forced to the ground by the police with a knee to her
back, and (3) an appellant received a "chest bump." None of these
incidents, however, were alleged in the complaint. Appellants
further asserted at the hearing that they needed time for discovery
so they could determine whether other episodes of excessive force
had occurred, and they requested leave to amend their complaint
after such discovery had been completed. Appellants never
suggested at this hearing that the police lacked probable cause for
the arrests.
The district court concluded in a written opinion that
the complaint "fail[ed] to state any viable cause of action." The
court found that the notion that the complaint contained an
excessive force claim, which had been "weakly suggested" by
appellants at the hearing, was not supported by the contents of the
complaint itself. The district court also held that appellants'
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"passing references in their memorandum to their desire to amend
their pleading," unaccompanied by a motion, were "patently
inadequate" as a motion to amend. The court rejected appellants'
argument that they needed discovery to properly allege their
excessive force claim, concluding that "[t]here is nothing more to
be learned [because the appellants] were there; they knew what
happened."
In the district court's view, the complaint "was
conceived as a placeholder of sorts for claims sounding in false
arrest, false imprisonment and malicious prosecution which might
possibly become viable if, or when, the Supreme Court reversed the
First Circuit's en banc decision." However, in light of the
Supreme Court's denial of the petition for certiorari, the district
court concluded that there is "no doubt that the raid was carried
out with lawful authority and jurisdiction." Because appellants'
claims were "all predicated on the assertion that the raid was
unlawful," the court ruled that the complaint was "legally
insufficient and on its face plainly fails to state a claim." It
granted the State's motion to dismiss.
On appeal, appellants argue that the district court erred
when it "narrowly interpreted 'lawful authority' in the Complaint
to mean solely that the State had lawful authority and jurisdiction
to carry out the Smoke Shop Raid," and that the district court
should have interpreted the allegation of lack of authority to
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encompass the absence of probable cause. They contend that the
failure to do so was inconsistent with the district court's
obligation under Rule 12(b)(6) to broadly construe their complaint
and to deny the motion to dismiss only if no set of facts could
support their claim for relief. Appellants also contend that the
district court erred in denying their request for leave to amend
their complaint under Federal Rule of Civil Procedure 15. They
argue that they should be permitted additional time to engage in
discovery prior to amending their complaint.
We review de novo the district court's dismissal of the
complaint under Rule 12(b)(6). Clark v. Boscher, 514 F.3d 107, 112
(2008). In doing so, we must assume the truth of all well-pleaded
facts and give the plaintiff the benefit of all reasonable
inferences therefrom. Id. We review for abuse of discretion the
denial of appellants' purported motion to amend. Aponte-Torres v.
Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006).
II.
In Bell Atlantic Corp. v. Twombly, the Supreme Court
explained that "[w]hile a complaint attacked by a Rule 12(b)(6)
motion does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." 127
S. Ct. 1955, 1964-65 (2007)(internal citations and quotations
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omitted). The complaint must allege "a plausible entitlement to
relief" in order to survive a motion to dismiss. Id. at 1965.
Subsequently, the Supreme Court reiterated that "[s]pecific facts
are not necessary; the statements need only 'give the defendants
fair notice of what the . . . claim is and the grounds upon which
it rests.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)
(quoting Twombly, 127 S. Ct. at 1964).4
Appellants argue that their allegation that the police
acted "without lawful authority" is broad enough to include a claim
that the police lacked probable cause. As appellants put it in
their brief:
The issue here is NOT [emphasis in original]
whether the state had authority to make an
arrest on Tribal lands but was the arrest of
these individuals lawful. The lawfulness must
be decided based upon the facts of each
arrest-was there probable cause for each
arrest that was made. This determination has
not been made and cannot be made in a vacuum
without the benefit of discovery and testimony
from witnesses and the parties themselves.
The issue of probable cause or reasonable
grounds to make the arrest is one for the jury
to decide.
There is not a hint of this probable cause argument in the
proceedings before the district court. Instead, as the district
court noted in its opinion, "plaintiffs weakly suggested [at oral
4
The motion to dismiss standard cited by appellants -- a
complaint should not be dismissed unless "it appears beyond doubt
that the plaintiff can prove no set of facts" that entitles him to
relief -- was set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957). That standard no longer governs in light of Twombly.
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argument] that the complaint contained an excessive use of force
claim based on a dog bite and/or a 'chest bump,' however, even the
most generous reading of the complaint reveals no such allegation."
The appellants have not even weakly suggested that excessive use of
force claim on appeal. Instead, they have replaced the excessive
use of force claim with a probable cause claim that was never
presented to the district court.
Appellants cannot raise an argument on appeal that was
not "squarely and timely raised in the trial court." Iverson v.
City of Boston, 452 F.3d 94, 102 (1st Cir. 2006); see also id.
(litigants must "spell out their legal theories face-up and
squarely in the trial court; if a claim is 'merely insinuated'
rather than 'actually articulated,' that claim ordinarily is deemed
unpreserved for purposes of appellate review.") On that basis
alone, we reject the argument that the district court erred in
granting the motion to dismiss because the claim of appellants
included a viable claim that the appellants were arrested without
probable cause.
However, even if the probable cause theory of the
appellants were properly before us, we would reject it. The vague
references in the complaint to acts of the defendants that "are
illegal" and "without lawful authority" were insufficient to
apprise defendants that the appellants were asserting a more
particular claim that there was a lack of probable cause for the
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arrests. As we have stated, "[n]otice pleading rules do not
relieve a plaintiff of responsibility for identifying the nature of
her claim." Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir.
2006). Our precedent is clear that courts "must always exhibit
awareness of the defendant's inalienable right to know in advance
the nature of the cause of action being asserted against him,"
because such notice is "[a] fundamental purpose of pleadings under
the Federal Rules of Civil Procedure." Rodriguez v. Doral Mortgage
Corp., 57 F.3d 1168, 1171 (1st Cir. 1995). Here, the generality of
the complaint's language did not afford defendants such notice with
respect to the probable cause claim.
III.
Appellants alternatively argue that the district court
should have given them the opportunity to amend their complaint
because there are significant facts, some not yet revealed through
discovery, that support their allegations. Under Federal Rule of
Civil Procedure 15, parties must obtain leave to amend from either
the opposing party or the court in order to amend their complaint
after a responsive pleading has been filed.5 The procedure for
5
Fed. R. Civ. P. 15(a)(i) states:
(1) Amending as a Matter of Course. A party may
amend its pleading once as a matter of course: (A) before
being served with a responsive pleading; or (B) within 20
days after serving the pleading if a responsive pleading
is not allowed and the action is not yet on the trial
calendar.
(2) Other Amendments. In all other cases, a party
may amend its pleading only with the opposing party's
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requesting leave to amend a complaint in the District of Rhode
Island is set forth in Civil Local Rule 15. This rule states that
a motion to amend a pleading "shall be made promptly after the
party seeking to amend first learns the facts that form the basis
for the proposed amendment" and must be accompanied by the
"proposed amended pleading" and "a supporting memorandum that
explains how the amended pleading differs from the original and why
the amendment is necessary." District of Rhode Island Civil Local
Rule 15.
Appellants did not satisfy the requirements of the local
rule. As an initial matter, the "request" for leave to amend
included in plaintiffs' response to the motion to dismiss,
unaccompanied by any of the required documents, did not comply with
the motion practice prescribed by Local Rule 15. Moreover, even if
we overlooked this procedural defect, the district court's decision
to deny leave to amend was sound in light of appellants' failure to
make the substantive showings required by the rule.
At the hearing on the defendants' motion to dismiss (and
not before), appellants suggested that they wanted to amend their
complaint to add claims of excessive force. However, on appeal,
appellants do not specifically mention any allegations that the
proposed amendment would have added. Instead, they argue generally
written consent or the court's leave. The court should
freely give leave when justice so requires. . . .
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that the district court erroneously denied their request to add
"additional claims." Appellants' general reference on appeal to
unenumerated "additional claims" confirms the observation of the
district court that plaintiffs' belated request for leave to amend
was nothing more than "a vague intent to amend a complaint along
with wishful thinking that discovery may turn up new facts." The
court did not abuse its discretion in denying appellants' request
for leave to amend.
Affirmed.
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