USCA1 Opinion
April 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1916
RAYMOND F. BRIERLY,
Plaintiff, Appellant,
v.
VIRGINIA BRIERLY, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Raymond F. Brierly on brief pro se.
__________________
Chappell & Chappell on brief for appellee Virginia Brierly.
___________________
James E. O'Neil, Attorney General, and Jacqueline G. Kelley,
________________ ______________________
Special Assistant Attorney General, on brief for appellee Robert
Fallon, Director, State of Rhode Island Department of Human Services.
____________________
____________________
Per Curiam. Plaintiff appellant challenges the
__________
dismissal of his First Amended Complaint for failure to state
a claim,1 denial of his motion for leave to file a Second
Amended Complaint, and the award of attorneys' fees and costs
to defendant Virginia Brierly.
Although plaintiff appears here pro se, he was
___ __
represented by counsel below. His First Amended Complaint,
styled as an action for damages and equitable relief under 42
U.S.C. 1983, named as defendants his ex-wife, Virginia
Brierly, and the Acting Director of the State of Rhode
Island's Department of Human Services ["DHS"], Robert Fallon.
Plaintiff's pleadings are difficult to recap with
precision. We set out here the core facts distilled from the
First Amended Complaint. Count One appears directed solely
at Virginia Brierly. It recites that after his divorce from
Virginia Brierly in 1981, plaintiff failed to make child
support payments in accordance with the terms of the Rhode
Island Family Court's decree. In March, 1986, plaintiff was
____________________
1. Both defendants filed motions to dismiss. Although one
of the motions was couched as a motion for judgment on the
pleadings under Fed. R. Civ. P. 12(c), it in essence also
raised a Rule 12(b)(6) objection by challenging the legal
foundation for the complaint. It was properly dealt with on
this basis by the district court. See Amersbach v.
___ _________
Cleveland, 598 F.2d 1033 (6th Cir. 1979), cited with approval
_________ ___________________
in Whiting v. Maiolini, 921 F.2d 5 (1st Cir. 1990); Charles
__ _______ ________
A. Wright et. al., 5A Federal Practice and Procedure 1369
______________________________
at n.6 (2d ed. Supp. 1992).
personally served with notice of a motion brought by Virginia
Brierly to adjudge him in contempt. The hearing on the
motion was continued beyond its first scheduled date.
Allegedly due to Virginia Brierly's "failure to properly and
lawfully serve any kind of notice [of the continued date]
upon plaintiff," plaintiff was absent when the hearing was
eventually held on September 30, 1986. As a result,
plaintiff states, he was adjudged in contempt for failure to
pay some $58,640 in arrearages. Also allegedly unbeknownst
to plaintiff, a bench warrant issued for his arrest, pursuant
to which he was arrested in February, 1988. He was then
required to execute a deed in blank to the former marital
residence to secure his release. He states that he
petitioned for review of the contempt order, apparently
without success, and appealed to the Rhode Island Supreme
Court, which "after hearing, argument, and presentation of
briefs" refused to grant a writ of certiorari in September,
1990.
Count Two appears directed solely at Robert Fallon
in his capacity as Acting Director of the DHS. It alleges
that DHS announced an amnesty program "whereby arrangements
for the payment of child support arrearages could be made
without fear of arrest or interest payments." Plaintiff
sought, through counsel, to take advantage of this program by
-3-
opening negotiations with DHS toward establishing a payment
schedule and other terms. The amnesty period terminated
while plaintiff was awaiting a response from DHS about
certain terms,2 but DHS allegedly represented that it "would
honor the terms of the amnesty" until a final agreement had
been reached. Nevertheless, plaintiff says that DHS filed an
"unlawful petition" causing his arrest and incarceration for
seven days in September, 1991. He was allegedly then
required to execute a promissory note in the amount of
$58,640.00, and was found liable by the Family Court for
additional interest on arrearages. He states that he
objected on the basis of DHS's alleged amnesty promise, but
the Family Court failed to "recognize" the amnesty program.
Our standard on review of dismissal of a complaint
under Rule 12(b)(6) is whether, construing the complaint in
the light most favorable to the plaintiff, dismissal is
appropriate because "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Roeder v. Alpha Indus.,
______ _____________
Inc., 814 F.2d 22, 25 (1st Cir. 1987) (quoting Conley v.
____ ______
Gibson, 355 U.S. 41, 45-46 (1957)); see also Finnern v.
______ _________ _______
____________________
2. The amnesty time period is not mentioned in the First
Amended Complaint, but for the sake of clarity, we note that
the proposed Second Amended Complaint states that the program
was announced in April, 1990 and ran through May 25, 1990,
while plaintiff's appeal from his first contempt citation was
pending. The authority for, and mechanics of, the amnesty
program are not disclosed in the pleadings.
-4-
Sunday River Skiway Corp., 984 F.2d 530, 537 (1st Cir. 1993)
__________________________
("If a trial court accepts plaintiff's facts and can envision
no reasonable application of the law that would entitle
plaintiff to relief, the court may rightly dismiss the
case.").
The Supreme Court recently reaffirmed the Federal
Rules' "liberal system of notice pleading" in a civil rights
action brought under 42 U.S.C. 1983 against a municipality.
Leatherman v. Tarrant County Narcotics Intelligence &
__________ ____________________________________________
Coordination Unit, 61 U.S.L.W. 4205 (U.S. Mar. 3, 1993).
__________________
However, "minimal requirements are not tantamount to
nonexistent requirements." Gooley v. Mobil Oil Corp., 851
______ ________________
F.2d 513, 514 (1st Cir. 1988). The court need not "conjure
up unpled allegations or contrive elaborately arcane scripts"
in order to craft a cognizable legal theory where none seems
to exist. Gooley, 851 F.2d at 514.
______
Plaintiff's First Amended Complaint is deficient in
numerous ways, most of which were well described by the trial
judge. In line with his rulings, we interpret the complaint
as asserting that each defendant's separate conduct reflected
a deviation from an established state rule, policy or
statute. It may well be, as the district court held, that
the claim asserted against defendant Virginia Brierly is
infirm because it does not charge any conduct fairly
attributable to the State. Lugar v. Edmondson Oil Co., 457
_____ __________________
-5-
U.S. 922, 937, 940 (1982). Likewise, the damages claim
asserted against the defendant Fallon may well be barred by
the Eleventh Amendment, which proscribes suits against State
officials which must be paid from State funds. Hafer v.
_____
Melo, 112 S. Ct. 358, 362 (1991); Will v. Michigan Dep't of
____ ____ __________________
State Police, 491 U.S. 58, 65 (1989). But we think it
_____________
unnecessary here to reach these issues because both claims
are infirm for another reason: there are no facts indicating
that the remedies available from the State were inadequate.
It is well established that unauthorized conduct
which cannot be foreseen and controlled in advance does not
constitute a violation of the procedural requirements of the
Due Process Clause "until and unless [the State] refuses to
provide a suitable postdeprivation remedy." Hudson v.
______
Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor,
______ ________ _______ ______
451 U.S. 527 (1981); Zinermon v. Burch, 494 U.S. 113, 125
________ _____
(1990); Lowe v. Scott, 959 F.2d 323 (1st Cir. 1992). Since
____ _____
inadequacy of the state's remedy is a material element of the
claim, plaintiff had the burden to set forth supporting
factual allegations, either direct or inferential, to sustain
an actionable legal theory. Gooley, 851 F.2d at 515.
______
Plaintiff's vague allegations reflect, instead, that
there was a state process for challenging both of the alleged
due process deprivations. Plaintiff even states that he used
the process, appealing at least one of his objections as far
-6-
as the Rhode Island Supreme Court. That plaintiff disagreed
with the result does not show that the process itself is
inadequate. To the extent that plaintiff is attempting by
this suit to overturn those state court judgments, he is not
entitled to any relief in the district court or here. Lower
federal courts have no power to sit in review of state court
orders. District of Columbia Court of Appeals v. Feldman,
_______________________________________ _______
460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263
______ ___________________
U.S. 413 (1923); Lancellotti v. Fay, 909 F.2d 15, 17 (1st
___________ ___
Cir. 1990).
We also see no reason to disagree with the trial
court's decisions to grant Virginia Brierly's motion for
attorney's fees and costs, and to deny plaintiff's second
motion to amend the complaint. Both decisions are entrusted
to the sound discretion of the district court, whose rulings
will not be disturbed except on a clear showing of abuse.
See Coyne v. Somerville, 972 F.2d 440, 446 (1st Cir. 1992)
___ _____ __________
(denial of motion to amend); Finnern, 984 F.2d at 537 (same);
_______
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) (fee
__________________________ ____
awards under 42 U.S.C. 1988); Lancellotti, 909 F.2d at 15
___________
(sanctions under Rule 11).
The district court awarded costs and fees to
Virginia Brierly when it dismissed the claim asserted against
her in plaintiff's First Amended Complaint. The order ran
jointly against plaintiff and his attorney under Rule 11, and
-7-
against plaintiff alone under 42 U.S.C. 1988. The court
pointedly found that plaintiff's purpose in bringing the suit
included an effort to harass Virginia Brierly and to
retaliate against her for the losses plaintiff had suffered
in the state courts. Moreover, the court reasoned that the
claim as pleaded was so frivolous and lacking in foundation
that neither a competent attorney nor a party could believe,
after a reasonable inquiry, that it was well-grounded in fact
or in law.
These findings more than satisfied the requirements
of Rule 11 and 42 U.S.C. 1988, which, though not identical
to one another, permit fee awards either where the pleading
falls below an objective standard of reasonableness or where
__
there is a showing of subjective bad faith. Here both
standards were violated. See Hughes v. Rowe, 449 U.S. 5, 14
___ ______ ____
(1980) (applying the criteria announced in Christiansburg
______________
Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978) to awards of
___________ ____
fees to prevailing defendants under 42 U.S.C. 1988);
Lancellotti, 909 F.2d at 19 (observing the alternative
___________
standards for Rule 11 awards); Foster v. Mydas Assoc., Inc.,
______ _____ ____________
943 F.2d 139 (1st Cir. 1991) (discussing criteria and
findings necessary under each authority).
In light of these detailed findings, and
plaintiff's first two futile attempts to plead a legally
cognizable claim, we see no abuse of discretion in the
-8-
district court's denial of leave to file yet a third
complaint "for reasons cited in connection with dismissal of
the First Amended Complaint." See Foman v. Davis, 371 U.S.
___ _____ _____
178, 182 (1962) (while leave to amend is usually "freely
given," denial will be upheld where there is stated a
"justifying reason," such as "bad faith or dilatory motive
... repeated failure to cure deficiencies by amendments ...
undue prejudice to the opposing party [or] futility of the
amendment").
Accordingly, the district court's judgment is
affirmed.
________
-9-