USCA1 Opinion
September 27, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1115
RASHID PIGOTT,
Plaintiff, Appellant,
v.
LYNN POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
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___________________
Rashid Pigott on brief pro se.
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__________________
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Per Curiam. Pro se prisoner Rashid Pigott appeals
__________ ___ __
a district court order that dismissed his civil rights
complaint sua sponte under 28 U.S.C. 1915(d).1 The
___ ______
complaint sought declaratory relief and damages from thirty-
six defendants who allegedly violated 42 U.S.C. 1983 and
1985 in connection with Pigott's arrest and conviction for
manslaughter and a separate care and protection proceeding
concerning Pigott's son. The district court ruled that some
of Pigott's claims were barred by either the statute of
limitations, witness immunity, or because Pigott had failed
to allege state action. The remaining claims were dismissed
because Pigott failed to state a claim upon which relief
could be granted. We affirm.
I.
We begin with the relevant procedural background. On
November 4, 1992, Pigott purportedly submitted his civil
rights complaint and a letter requesting in forma pauperis
__ _____ ________
(IFP) application forms to the pro se clerk for the United
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States District Court for the District of Massachusetts.2
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1. 28 U.S.C. 1915(d) applies to complaints filed in forma
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pauperis. In relevant part, the statute provides that a
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court, "may dismiss the case if...satisfied that the action
is frivolous or malicious."
2. The letter, in relevant part, read as follows:
Re: Filing of Civil Rights Complaint
Dear Pro Se Clerk:
Enclosed please find Pro se, civil rights
complaint. I request that you send me the required
-2-
By letter dated November 27, 1992, Pigott resubmitted his
complaint with the standard IFP application and supporting
affidavits. The district court received these items for
filing on December 7, 1992. On December 31, 1992, the
district court issued a memorandum and order which allowed
Pigott's application to proceed IFP while simultaneously
dismissing the complaint. Pigott filed a timely notice of
appeal.
Pigott thereafter filed a motion to vacate the order of
dismissal with a supporting memorandum, a motion to amend his
complaint, and an amended complaint.3 Pigott argued that
the district court erred by dismissing his complaint without
first affording him notice of its deficiencies and an
opportunity to amend it to state viable claims. He also
submitted evidence in support of his contention that the
district court first received his complaint on November 4,
1992. That evidence consisted of a copy of Pigott's November
4, 1992 letter to the pro se clerk quoted above at n. 2 and a
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photocopy of a certified mail return receipt dated "11/4."
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applications for filing this complaint in Forma Pauperis.
I also request that you send me the local rules for
filing pamphlet for future reference.
This letter bears a crossed out time stamp of the district
court dated November 4, 1992.
3. The motion to vacate invoked Fed. R. Civ. P. 60(a) and
(b)(6).
-3-
The district court denied both motions on February 25, 1993.
Pigott did not file another notice of appeal.4
II.
The complaint asserted six causes of action which arose
from events which transpired between December 4, 1989 and
1992. An understanding of the parties is necessary to
comprehend Pigott's claims.
The complaint identified the defendants connected with
Pigott's criminal conviction as the Lynn Police Department,
Lynn police officers David Woumn, Chisholm, Chris Reddy,
Richard Carrow, Rawston, W. Conrad, Wentzell, L.E. Desmarais,
William Foley, John Doe, Sergeants Roach and Coppinger,
Lieutenant Dennis Flynn, Massachusetts state troopers Elaine
Condon, Mark Lynch, Mark Coleman, B. Windsor, and P. Zipper,
chemist Kenneth Gagnon, Flemmings Towing Company, defense
attorneys Christopher Skinner, M. Page Kelley, and Jeffrey
Baler, defense investigator Stephen Turner, social worker
Roberta Lerner, probation officer Stephen Mulloy, and Essex
County superior court clerk James Leary.
The defendants named in connection with the events
concerning Pigott's son include three social workers employed
by the United Homes for Children foster care agency (Marilyn
____________________
4. Generally, the denial of a Rule 60(b) motion must be
appealed separately. See 7 Moore's Federal Practice,
___ _________________
60.30[3], p. 137 (1992-1993 Supp.). Here, however, Pigott's
basic claims are inherent in Pigott's direct appeal of the
dismissal order.
-4-
Heathman, Mrs. Richardson and Danielle Carviello), a social
worker for the Massachusetts Department of Social Services
(Pam Grey), Salem Hospital, two unnamed Salem Hospital
security guards, and an unknown lawyer.
The complaint alleged the following facts. On December
4, 1989, while paying a business call to a residence in Lynn,
Massachusetts, Pigott was struck by a glass, slashed with a
butcher knife, and assaulted with other weapons. Pigott
escaped his assailants, went to another address, and
contacted the Lynn Police Department. Officers Chisholm,
Woumn, and Sergeant Roach responded and arrested Pigott -
allegedly without cause. As a result of Pigott's arrest and
immediate incarceration, Flemmings Towing Company towed
Pigott's car. Despite what Pigott says were obvious
injuries, the police did not take Pigott for medical
treatment for approximately one hour and forty-five
minutes.5
He was then returned to a cell in the Lynn police
station and prevented from making a telephone call until he
had been booked, fingerprinted, relieved of his clothing, and
interviewed by trooper Condon and Lieutenant Flynn. Pigott
alleged that Flynn and Condon threatened and coerced him into
____________________
5. The complaint does not describe Pigott's injuries. It
simply alleges that Pigott was taken to the Atlantic Medical
Care Center in Lynn Hospital. Pigott's appellate brief says
that his injuries required sutures, although this was not
stated in the complaint.
-5-
signing a statement, after which he was allowed to place a
telephone call. Pigott's first cause of action alleged that
the foregoing allegations established that he was illegally
arrested, that his property was seized, and that he was
deliberately denied medical care and legal representation in
violation of his Fourth, Fifth, Sixth and Eighth Amendment
rights.
Pigott further alleged that on the following day
(December 5, 1989), he was arraigned in the Lynn district
court on charges of first degree murder, assault and battery,
and illegally carrying a firearm. He was released on bail
and met with attorney Skinner, who assumed Pigott's defense.
Pigott's second cause of action alleged that the Lynn Police
Department violated his constitutional rights by getting
involved in setting Pigott's bail. The complaint does not
specify how or by whom this was accomplished.
Pigott returned to the Lynn Police Department on
December 5, 1989 and attempted to file a complaint against
the men who allegedly assaulted him on the previous day.
Pigott alleged that the police refused to let him file his
complaint and that officer Woumn threatened him with bodily
injury for trying to do so. Pigott's third cause of action
alleged that the Lynn Police Department and officer Woumn
violated his right of access to the courts by refusing
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Pigott's application for a criminal complaint and failing to
investigate the criminal activity Pigott tried to report.6
The complaint suggests that the criminal charges were
pending against Pigott when his son was born on January 23,
1990. Pigott's appellate brief informs us that he is the
unwed biological father of Majid Taggert. The complaint
alleged that, shortly after the birth, social workers Pam
Grey and Marilyn Heathman forcibly took Pigott's son from him
while two Salem Hospital security guards restrained Pigott.
Thereafter, social workers Heathman and Richardson allegedly
told Pigott that they determined he was an unfit parent after
consulting the Lynn Police Department. While the allegations
on this point are particularly vague, Pigott alleges that he
somehow became involved in a care and protection proceeding
wherein he demanded custody of his son.7
Defendants Heathman, Richardson and Carviello allegedly
denied Pigott visitation rights and refused to reveal the
whereabouts of his son to him. Pigott also claimed that an
unknown lawyer had a conflict of interest when she
represented a third party who had an interest in Pigott's son
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6. Pigott's third cause of action further alleged that
defendant Stephen Turner, a private investigator hired on
Pigott's behalf, never met with him during the time Pigott's
criminal case was pending.
7. Pigott may be referring to a proceeding to commit his son
to the custody of the Massachusetts Department of Social
Services pursuant to M.G.L. c. 119, 24.
-7-
in the care and protection proceeding while simultaneously
prosecuting Pigott on other criminal charges that were
ultimately dismissed. Pigott's fourth cause of action
alleged that the conduct of these defendants violated his
Fourth, Fifth and Fourteenth Amendment rights.
Pigott's criminal trial began on September 19, 1991.
The complaint alleged that Lynn police officers Christopher
Reddy, Richard Carrow, Rawston, W. Conrad, Wentzell, L.E.
Desmarais, William Foley, and Sgt. Coppinger, Massachusetts
state troopers Mark Lynch, Mark Coleman, Brian Windsor, and
Paul Zipper, and chemist Kenneth Gagnon conspired to violate
Pigott's civil rights by knowingly committing perjury and
submitting false evidence at Pigott's criminal trial.8
Pigott was convicted of manslaughter. He alleged that his
defense attorney (Skinner) fraudulently attempted to persuade
Pigott to plead guilty before trial and made slanderous
remarks and misrepresentations that resulted in Pigott's
conviction. Pigott's fifth cause of action alleged that
defense attorney Skinner's malpractice and the police
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8. See Complaint, 5-7, 34, 44. Paragraph 34 specifically
___
alleged that, "from December 4, 1989 up to and throughout
trial[,]" the aforementioned Lynn police officers, state
troopers, and chemist Gagnon, "all willfully and knowingly
committed perjury, fabricated and tampered with evidence, and
submitted and elicited a preponderance of maliciously
intended false or otherwise distortions of facts and events."
The complaint does not describe the witnesses' testimony nor
the evidence that was supposedly fabricated.
-8-
conspiracy at Pigott's trial violated Pigott's Fifth, Sixth
and Fourteenth Amendment rights.
Pigott was interviewed by probation officer Stephen
Mulloy following his conviction. The complaint alleged that
Mulloy denied Pigott's request for counsel and threatened
Pigott with indefinite imprisonment while referring to a
civil action that Pigott's family had filed. Roberta Lerner,
a social worker employed on Pigott's behalf, also interviewed
Pigott. The complaint alleged that Lerner violated the terms
of her employment, failed to assist Pigott in the care and
protection case, and prepared a libelous report of her
interview with Pigott.
Pigott further alleged that attorney Skinner waived his
right to appeal his criminal conviction without Pigott's
knowledge. Other defense attorneys (Kelley and Baler) also
allegedly refused to pursue Pigott's direct appeal. Attorney
Baler and Essex superior court clerk Leary are alleged to
have procured the dismissal of Pigott's private counsel. The
complaint does not state what Pigott's private counsel had
been hired to do, nor what harm befell Pigott as a result of
the alleged dismissal. Pigott further claimed that clerk
Leary violated his right of access to the courts by refusing
Pigott's pro se filings. Pigott's sixth cause of action
___ __
alleged that the actions of defendants Mulloy, Lerner,
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Skinner, Kelley, Baler, and Leary violated his Sixth and
Fourteenth Amendment rights.9
On October 15, 1991, Pigott was sentenced to prison for
4-15 years.10 Over one year later, Pigott instituted the
instant civil rights action. Faced with the barrage of
claims presented by the complaint, the district court noted
that under 28 U.S.C. 1915(d), courts may dismiss IFP
complaints sua sponte if the plaintiff's claim is based on an
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indisputably meritless legal theory or on factual allegations
that are clearly baseless. See, e.g., Denton v. Hernandez,
___ ____ ______ _________
112 S. Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S.
_______ ________
319, 327 (1989). The court then dismissed Pigott's claims
against the Lynn Police Department, Flemmings Towing Company,
and defendants Woumn, Chisholm, Roach, Flynn, and Condon as
time-barred under the three-year statute of limitations that
applies to civil rights actions in Massachusetts. See Street
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9. Mulloy allegedly violated Pigott's right to counsel by
refusing to accede to Pigott's request for an attorney during
his post-conviction interview. He is said to have violated
Pigott's right of access to the courts by threatening Pigott
with indefinite imprisonment in connection with a civil
action Pigott's family had filed. Pigott's defense attorneys
allegedly violated Pigott's constitutional rights by refusing
to pursue a direct appeal of his criminal conviction and
procuring the dismissal of private counsel. And, as noted
above, clerk Leary allegedly violated Pigott's right of
access to the courts by refusing Pigott's pro se filings.
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Pigott does not specify how social worker Lerner's libelous
interview report and failure to aid Pigott in the care and
protection case violated his constitutional rights.
10. He received a concurrent 2 1/2 - 3 year term for the
firearm charge.
-10-
v. Vose, 936 F.2d 38 (1st Cir. 1991), cert. denied, 112 S.
____ _____ ______
Ct. 948 (1992).
This ruling effectively barred Pigott's claims that
these defendants arrested him without cause, deliberately
denied him medical care and legal representation, and
wrongfully seized his property on December 4, 1989. The
district court reasoned that Pigott filed his complaint and
IFP application on December 7, 1992, the date the district
court received both items, and that these particular claims
were thus brought three days late. The district court did
not specifically address Pigott's claims that the Lynn Police
Department engaged in bail tampering and, along with officer
Woumn, violated Pigott's right of access to the courts on
December 5, 1989. We assume that the court implicitly held
that these claims were time-barred as well.11 The court
further ruled that those defendants who allegedly presented
perjured testimony at Pigott's trial were absolutely immune
under Briscoe v. LaHue, 460 U.S. 320, 325 (1983), and that
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Pigott's claims against his defense attorneys were barred by
Polk County v. Dodson, 454 U.S. 312 (1981), (holding that
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public defenders are not "state actors" for 42 U.S.C. 1983
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11. Thus, the district court dismissed Pigott's first,
second, and part of Pigott's third cause of action as time-
barred under the statute of limitations. Pigott's claim
against investigator Turner for failure to keep appointments,
which was also part of his third cause of action, was
dismissed for failing to state a constitutional tort within
the meaning of 42 U.S.C. 1983.
-11-
purposes). This ruling eliminated Pigott's fifth cause of
action and that part of his sixth cause of action that rested
on the alleged misconduct of Pigott's defense attorneys. The
court also dismissed that part of Pigott's fourth cause of
action that asserted claims against Salem Hospital, the two
unnamed security guards, and the unknown lawyer on the ground
that Pigott failed to allege state action. Finally, the
court dismissed Pigott's allegations against probation
officer Mulloy, Pigott's social worker (Lerner), and the four
other social workers (Heathman, Richardson, Carviello and
Grey) for failing to state sufficient claims upon which
relief could be granted.
We note that Pigott's amended complaint attempted to
cure some of the deficiencies identified in the district
court's dismissal order, largely by simply alleging that more
defendants conspired with the Lynn Police Department to
violate Pigott's civil rights.12 Pigott further alleged
that defendants Heathman, Richardson and Carviello destroyed
his relationship with his son by illegally refusing to allow
them visits without cause. Pigott sought to remedy other
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12. The amended complaint charged that Flemmings Towing
Company, clerk Leary, probation officer Mulloy, attorney
Nancy Winn, who had been previously identified as the
"unknown lawyer" in Pigott's original complaint, and defense
attorneys Skinner, Kelley and Baler were all involved in such
a conspiracy. But it stated no facts in support of these
allegations.
-12-
claims with allegations purporting to establish state
action.13
III.
At the outset, we note that Pigott's brief on appeal
makes no reference whatsoever to his claims against
defendants Mulloy, Lerner, Turner, Leary, and the unknown
lawyer (attorney Winn). He has therefore waived these claims
and their dismissal will be upheld. The same can be said
with respect to Pigott's claim that he was arrested without
cause. To the extent Pigott's claims against the Lynn Police
Department and officers Woumn, Chisholm, and Sgt. Roach rely
on his December 4, 1989 arrest, his brief makes no mention of
this claim, and we affirm its dismissal on the ground that
Pigott has waived it. See, e.g., Frazier v. Bailey, 957 F.2d
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920, 932 n. 14 & 15 (1st Cir. 1992); United States v.
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Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
_______ _____ ______
1082 (1990).
As for the remaining claims, we review section 1915(d)
dismissals for abuse of discretion, mindful that not every
complaint that fails to state a claim upon which relief can
be granted is subject to sua sponte dismissal for
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13. For example, defendants Grey and Heathman were alleged
to have seized Pigott's son for the state, while Salem
Hospital was alleged to have violated Pigott's civil rights
through a policy or custom when its security guards
restrained Pigott.
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frivolousness under 28 U.S.C. 1915(d). Denton v. Hernandez,
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112 S. Ct. at 1734; Neitzke v. Williams, 490 U.S. at 331. A
_______ ________
complaint or claim is "factually frivolous" when it alleges
facts that are "'clearly baseless'", "'fanciful'",
"'fantastic'" or "'delusional'". Denton, 112 S. Ct. at
______
1733, (quoting Neitzke, 490 U.S. at 327, 325, 328). A claim
_______
may be said to be legally frivolous if it asserts a claim for
which the defendant is clearly entitled to immunity, or a
claim of infringement of a legal interest that clearly does
not exist. Neitzke, 490 U.S. at 327.
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In addition, "[w]e have squarely held that 'a complaint
which states a claim that appears to have expired under the
applicable statute of limitations may be dismissed as
frivolous' under section 1915(d)." Johnson v. Rodriguez, 943
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F.2d 104, 107 (1st Cir. 1991), cert. denied, 112 S. Ct. 948
_____ ______
(1992) (quoting Street v. Vose, 936 F.2d at 39). However, at
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least where there is any possible doubt, we cautioned
district courts to issue an order to show cause to a
plaintiff whose claims appear to be time-barred before
dismissing a complaint sua sponte on statute of limitations
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grounds. Street v. Vose, 936 F.2d at 41, n. 5.
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IV.
Based on the principles just set forth, we conclude that
Pigott's claims were properly dismissed, although our
reasoning differs somewhat from that of the district court.
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Insofar as Pigott alleged that the nine Lynn police officers
and other defendants who testified at his criminal trial
committed perjury, Pigott concedes, as he must, that Briscoe
_______
v. LaHue, 460 U.S. 325, 329-46 (1983), entitles these
_____
defendants to absolute immunity from damages liability under
42 U.S.C. 1983. However, the complaint also alleged that
these defendants involved themselves in a conspiracy to
violate Pigott's civil rights. See Complaint, 44. Pigott
___
continues to press this claim on appeal, and argues that
there was a general police conspiracy to "railroad" him under
which liability may attach under 42 U.S.C. 1983 and 1985.
The district court did not specifically discuss Pigott's
conspiracy claim, presumably because Pigott alleged no facts
to support it, but we think this claim requires separate
consideration.
We have previously observed in dicta that proper
allegations of conspiracy might overcome an immunity claim.
See Malachowski v. City of Keene, 787 F.2d 704, 711-12 (1st
___ ___________ ______________
Cir.), cert. denied, 479 U.S. 828 (1986)(per curiam)(noting
_____ ______
that such allegations could overcome city prosecutor's
absolute immunity, and that prosecutorial immunity of
juvenile delinquency officer who initiated delinquency
proceedings might not extend to allegations that officer
filed false delinquency petition as part of overarching
conspiracy to deprive plaintiffs' of child custody). But "a
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complaint, containing as it does both factual allegations and
legal conclusions, is frivolous where it lacks an arguable
basis either in law or fact." Neitzke, 490 U.S. at 325.
______ ________ _______
(emphasis supplied). Turning to the factual allegations, we
note that Pigott's complaint contained only the most
conclusory allegations of conspiracy. The complaint
generally alleged that the defendants committed perjury and
fabricated evidence from Pigott's December 4, 1989 arrest
throughout his September 1991 trial. No description of the
perjury is given and the allegedly fabricated evidence is not
identified. The only specific factual allegation even
relating to a possible conspiracy is Pigott's assertion that
defendant Reddy and two prosecution witnesses (who are not
___
named defendants) violated Mass. Rule Crim. Pro. 21
(governing sequestration of witnesses) during Pigott's
criminal trial, but no detail is provided. See Complaint,
___
34.
In fact, Pigott did not even assert that the perjury
allegedly committed by these defendants resulted in his
conviction. Rather, he claimed that defense counsel Skinner
"maliciously slandered and misrepresented" him (again,
without giving any specifics) and that this conduct was the
direct cause of his conviction. Even liberally construed,
this mish-mash of allegations fails to raise an inference
that the named defendants agreed to deprive Pigott of his
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constitutional rights. See generally Earle v. Benoit, 850
___ _________ _____ ______
F.2d 836, 844 (1st Cir. 1988) (discussing elements of
conspiracy under 42 U.S.C. 1983).14
Purely conclusory allegations of conspiracy are not
adequate to state a claim. See Slotnick v. Stavisky, 560
___ ________ ________
F.2d 31, 33 (1st Cir. 1977), cert. denied, 434 U.S. 1077
_____ ______
(1978). Nevertheless, somewhat more caution is appropriate
where dismissal is contemplated under section 1915(d), at
least in those cases where it is not intended to give the
plaintiff advance notice of the defect and the opportunity to
amend. The issue is one of abuse of discretion and depends
upon the facts.
In this instance we do not think further proceedings are
warranted. Although we do not have to consider the propriety
of the district court's denial of reconsideration (since
Pigott did not appeal), we note that Pigott's amended
complaint, filed after dismissal, makes additional
allegations but still does not contain any facts that would
support a conspiracy. Nor does Pigott's brief on appeal
furnish any hint of facts that could support the conspiracy
claim.
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14. And while the complaint cites 42 U.S.C. 1985, Pigott
has not alleged the requisite discriminatory animus to state
a claim under this statute. See Landrigan v. City of
___ _________ ________
Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980).
_______
-17-
Even so, we might hesitate to sustain the dismissal
without an opportunity to replead if we thought that there
was any real risk of injustice. But Pigott's complaint is
manifestly founded upon the delusion that anyone who has had
any connection with the events described -- the arrest, post-
arrest treatment, trial, probation office inquiry, and child
custody dispute -- is a wrongdoer and in most cases a
conspirator. A fair portion of these charges have to be
insupportable, and if some nugget of truth lies buried under
the rubble (and we stress that no claim is stated on these
__
allegations), Pigott has only himself to blame.
V.
Pigott concedes that his claims against his court
appointed attorneys (Skinner, Kelley and Baler) are fatally
deficient in that they failed to allege state action under 42
U.S.C. 1983. See Polk County v. Dodson, 454 U.S. at 317 n.
___ ___________ ______
4; Malachowski v. City of Keene, 787 F.2d at 710 ("A private
___________ _____________
attorney who is sued for actions allegedly taken as court-
appointed counsel does not act under color of state law.")
On appeal, Pigott argues that his amended complaint cured
this deficiency by charging these defendants with conspiracy
as well. This charge was also wholly conclusory. For the
reasons already stated, we think the district court must be
sustained.
VI.
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Pigott contends that his claims with regard to the care
and protection proceeding are cognizable in federal court
notwithstanding the domestic relations exception to federal
jurisdiction. See generally Ankenbrandt v. Richards, 112 S.
___ _________ ___________ ________
Ct. 2206 (1992)(describing exception). This claim challenges
the seizure of Pigott's son by defendants Grey and Heathman
(who were aided by the two unknown Salem Hospital security
guards) and the frustration of Pigott's efforts to visit his
son by defendants Heathman, Carviello, and Richardson.
Pigott does not contend that the facts he has alleged against
these defendants are sufficient to state a claim upon which
relief could be granted. As the district court's dismissal
order notified Pigott that his complaint was so deficient as
to the four social worker defendants, and even the
allegations in Pigott's amended complaint fail to make out
viable claims against these defendants, we affirm the
dismissal of Pigott's claims against social workers Pam Grey,
Marilyn Heathman, Danielle Carviello, and Mrs. Richardson.
The district court may have erred in dismissing Pigott's
claims against the two unnamed Salem Hospital security guards
for lack of state action. The complaint identified defendant
Pam Grey as an employee of the Massachusetts Department of
Social Services and thus established her as a "state actor"
for 42 U.S.C. 1983 purposes. We may also assume that the
Salem Hospital security guards and social worker Marilyn
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Heathman were also engaged in state action when they assisted
Grey in restraining Pigott and seizing his son. See Casa
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Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252,
___________ ______________________________
259 (1st Cir. 1993)("'To act "under color" of law does not
require that the accused be an officer of the State. It is
enough that he is a willful participant in joint activity
with the State or its agents.'" )(citations omitted)).
But the liability of the guards and Salem Hospital was
predicated on Pigott's claim that the seizure of his son
violated his constitutional rights. Pigott's complaint and
amended complaint did little more than allege that Pigott had
a son who was taken from him after he had been determined to
be an unfit parent. Pigott has alleged no facts to suggest
that this determination was wrong or procedurally defective.
Since Pigott failed to allege sufficient facts to make out
such a violation even after the district court's dismissal
order notified him of this deficiency, his claims against the
security guards and Salem Hospital were properly dismissed.
VII.
Finally, we turn to those claims that were dismissed as
legally frivolous because they appeared to be barred by the
statute of limitations. The only claims that Pigott
continues to press on appeal are his claims that the Lynn
Police Department and officers Chisholm, Woumn, and Sgt.
Roach exhibited deliberate indifference to his medical needs
-20-
on December 4, 1989 and his claims that the Lynn Police
Department engaged in bail tampering and, along with officer
Woumn, violated his right of access to the courts on December
5, 1989.15
Pigott's claims that the Lynn Police Department engaged
in bail tampering and violated Pigott's right of access to
the courts by refusing to allow him to file a criminal
complaint were without basis. Pigott was released on bail
and, in stark contrast to Wagenmann v. Adams, 829 F.2d 196
_________ _____
(1st Cir. 1987), on which Pigott relies on appeal, Pigott has
not alleged that the police arranged to have his bail set so
high that he could not make it. Nor has he described any
other conduct that could be construed to violate his
rights.16
Similarly, the right of access to the courts does not
import an absolute right to institute criminal proceedings.
Insofar as Pigott contends that the Lynn Police Department
____________________
15. Pigott has presented no cogent argument with respect to
his claims against Flemmings Towing Company, Elaine Condon,
and Dennis Flynn. Accordingly, his claims against these
defendants are waived. See, e.g., Ramos v. Roche Products,
___ ____ _____ _______________
Inc., 936 F.2d 43, 51 (1st Cir.), cert. denied, 112 S. Ct.
____ _____ ______
339 (1991)(issue which is merely mentioned but not briefed is
waived on appeal).
16. Pigott's allegation that attorney Skinner informed him
that he was lucky to make bail because the Lynn police
generally would have opposed it due to his race does not
establish that the police violated his constitutional right
to be free from excessive bail, for Pigott says nothing to
show that his bail was excessive.
-21-
violated this right simply by refusing to accept his criminal
complaint, he has alleged the violation of a legal interest
that does not exist. Pigott further has not alleged any
facts which show that officer Woumn's threats to harm him
violated his federal rights.
Pigott's claim that officers Chisholm, Woumn, and Sgt.
Roach exhibited deliberate indifference to his medical needs
is a closer case. Pigott claimed that he was struck in the
face with a glass, slashed with a butcher knife, and
assaulted with other weapons. He allegedly suffered obvious
injuries and informed these officers that he needed immediate
medical attention. Pigott was incarcerated at the Lynn
police station for one hour and forty-five minutes before he
was taken for medical care. The complaint does not describe
Pigott's injuries. It also does not say what treatment was
required, although we are now told that Pigott required
sutures. Further, the complaint does not specify what harm,
if any, befell Pigott as a result of the seemingly brief
delay between Pigott's arrest and treatment. Compare Matzker
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v. Herr, 748 F.2d 1142, 1147-48 (7th cir. 1984)(alleged three
____
month delay in procuring medical and dental care stated
viable claim).17
____________________
17. The reason for the delay is not alleged. However, since
Pigott alleged that he was not booked and fingerprinted until
after he returned from the hospital, we may assume that the
delay was not occasioned by these administrative procedures.
-22-
As we explained in Manarite v. City of Springfield, 957
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F.2d 953, 956 (1st Cir. 1992), 1983 liability in a case like
this requires proof of "'deliberate indifference'" by "(1) an
unusually serious risk of harm... (2) defendant's actual
knowledge of (or, at least, willful blindness to) that
elevated risk, and (3) defendant's failure to take obvious
steps to address that known, serious risk." We do not think
that the facts in the complaint make out these elements.
More important, we see no basis for believing that any
amendment or particularization would solve the central
deficiency, namely, that something more than temporary
inattention or carelessness is needed for a constitutional
claim of cruel and unusual punishment. Rather, what is
required is a conscious refusal to take reasonable measures
to deal in a timely fashion with very substantial harm or the
threat of such harm.
Here, Pigott by his own version of events did not seek
hospital care when he left the scene of the fight but went to
another address. There is no hint that any permanent injury
resulted from the delay. Individuals arrive at police
stations and in emergency rooms with cuts and bruises every
day; but true emergencies, requiring medical care without an
instant's delay, are less commonplace. If this were an
ordinary tort suit and negligence sufficed for liability,
there might be an argument for requiring leave to amend --
-23-
although what is alleged does not itself indicate negligence.
But there is virtually nothing in the complaint to suggest
cruel and unusual punishment, or any benefit from further
pleadings.
VIII.
Our conclusion makes it unnecessary to reach the statute
of limitations issue on which the district court based its
decision to dismiss claims relating to the arrest and
immediate treatment of Pigott. We think that issue is a
difficult one.
A number of circuits have held that a pro se complaint
is timely so long as the necessary affidavit accompanies the
filing of the complaint, one rationale being that the time
spent in reviewing the affidavit and entering the IFP order
is the court's responsibility. See, e.g., Dean v. Veterans
___ ____ ____ ________
Admin. Regional Office, 943 F.2d 667, 668-71 (6th Cir. 1991),
______________________
vacated on other grounds, 112 S. Ct. 1255 (1992); Gilardi v.
_______ __ _____ _______ _______
Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987); Martin v.
_________ ______
Demma, 831 F.2d 69, 71 (5th Cir. 1987). Local Rule 4.5 in
_____
the district court suggests that that court would treat the
complaint as timely filed if "accompanied by [the requisite]
. . . affidavit . . . ." Pigott, however, did not accompany
his complaint with the affidavit, and the rationale just
described would have no application to his case.
-24-
On the other hand, Fed. R. Civ. P. 5(e) provides that
the clerk is not to refuse papers for filing "solely because
. . . not presented in proper form . . . ." One could argue
that the omission of the affidavit is merely a formal defect
-- although the opposite view of the matter is also possible.
One could also argue with some force that doubts about
timeliness should be construed in favor of the plaintiff,
although a plaintiff who waits till almost the end of the
three year limitations period before filing anything can be
said to assume some risk.
In all events, we do not think that the issue is
decisive in this case and therefore do not decide it.
However it is decided, it might be better if the Local Rule
4.5 gave clearer notice to litigants as to whether a
complaint transmitted without the affidavit is deemed filed
if accompanied by a request for IFP forms. A copy of this
opinion will be transmitted to the appropriate authorities in
the district court so that it may be considered whether an
amendment is desirable.
Affirmed.
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