USCA1 Opinion
August 24, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1211
KEVIN RICUPERO,
Plaintiff, Appellant,
v.
DAVID E. MANCINI, ETC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Kevin Ricupero on brief pro se.
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Russell F. Hilliard, Beth George-Kane and Upton, Sanders & Smith
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on brief for appellees.
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Per Curiam. Plaintiff appeals the denial of leave
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to amend his civil rights complaint. We affirm.
The events leading to the denial of plaintiff's
motion for leave to amend are, briefly, as follows.
Plaintiff's complaint initially asserted claims under 42
U.S.C. 1983, and state law, against five defendants. After
a screening by the magistrate revealed defects in the
statement of some of the claims, plaintiff was afforded an
opportunity to amend or face a dismissal of the defective
claims. Plaintiff chose not to amend at that time, resulting
in dismissal of the case against three of the defendants.
The remaining two defendants were the Town of
Bennington, New Hampshire, and David E. Mancini, the Town's
Chief of Police. The federal claims against them fell into
two groups. First, there were claims stemming from Chief
Mancini's alleged failure to obtain a search warrant prior to
conducting a search of plaintiff's property. Second,
plaintiff claimed that Mancini, acting in the capacity of
town prosecutor, wrongfully initiated and prosecuted certain
misdemeanor charges against plaintiff.
At a pretrial conference in July, 1993, defendants
indicated that they expected to file a summary judgment
motion on various grounds. The district judge set September
15, 1993 as the last date for the filing of a summary
judgment motion, and December 15, 1993 as the closing date
for discovery.
Defendants filed their summary judgment motion,
replete with affidavits and exhibits, on the scheduled date.
Plaintiff offered voluminous materials in opposition, much of
it irrelevant. Summary judgment was awarded to defendants on
a showing that in fact Mancini had obtained a facially valid
search warrant from a neutral and detached state judge prior
to the challenged search. As to the second group of claims,
Mancini was insulated from civil liability by the doctrine of
absolute prosecutorial immunity, see Buckley v. Fitzsimmons,
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113 S. Ct. 2606, 2615 (1993), and there were no facts showing
that the Town had pursued an unlawful policy or practice
causally related to any constitutional violation. The
pendent state claims were simultaneously dismissed.
Plaintiff does not here renew his challenge to the summary
judgment.
Plaintiff filed the subject motion to amend nine
days after defendants filed their summary judgment motion.
The amendment was apparently designed to avoid the thrust of
defendants' summary judgment arguments. It added three new
federal claims based on the new premise that even if there
was a warrant for the search, the underlying affidavit was
false and the warrant invalid. In addition, plaintiff
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included constitutional challenges to the manner in which the
search and arrest were effected.
A decision to grant or deny a motion to amend is
committed to the sound discretion of the trial court.
Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102,
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1108 (1st Cir. 1986). It will be disturbed only on a clear
showing of abuse, meaning that "no sufficient justification
appears." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d
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49, 59 (1st Cir. 1990) (citing Foman v. Davis, 371 U.S. 178,
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182 (1962)); accord Clair Recreation Ctr., Inc. v. Flynn, 897
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F.2d 623, 625 (1st Cir. 1990); see also Colmenares, 807 F.2d
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at 1108. While Fed. R. Civ. P. 15(a) provides that "leave to
amend shall be freely given when justice so requires," the
court need not "grant every request to amend, come what may."
Correa-Martinez, 903 F.2d at 59; Colmenares, 807 F.2d at
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1108. Rather the court may, indeed must, give due
consideration to factors such as the substantive merits of
the amendment, the need to prevent undue delay, bad faith,
and prejudice to the opposing party. Foman v. Davis, 371
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U.S. 178, 182 (1962).
We see no abuse here. The magistrate found that
while the amendments might not be substantively futile, on
balance leave to amend should be denied because,
The delay exercised by plaintiff is significant, as
he filed the motion after defendants filed their
motion for summary judgment. Plaintiff was aware
of the factual allegations underlying these claims
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when the original complaint was filed.
Furthermore, this case is ready for trial.
Allowing leave to amend to add new legal theories
at this time would likely require the retaking of
several depositions and other discovery delays.
Order at 3-4 (Feb. 18, 1994). The district court affirmed
the magistrate's decision. While plaintiff correctly points
out that when he filed his motion to amend, the discovery
closing date was actually several weeks away,1 we find no
fault with the balance struck by the magistrate.
The amendment offered substantially different legal
theories and raised new factual issues at a time when
defendants had already finished their own pretrial
preparation. Plaintiff had delayed in filing the amendment
for almost two months after the pretrial conference at which
the substance of defendant's objections had been aired. In
the meantime, defendants had prepared for summary judgment,
and possibly a trial, on the basis of plaintiff's initial
theories. Plaintiff's explanation for his delay was
that he had misplaced his previous attorney's notes. Though
we do not gainsay the magistrate's finding of no bad faith,
nevertheless plaintiff knew the basis for the claims from the
outset, and had already pleaded two of them in a state civil
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1. There was still pending a motion by plaintiff to compel
discovery. The magistrate was also mistaken about the
retaking of depositions, since apparently neither party had
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noticed any depositions. This too, is of marginal import,
the material point being that the amendment raised new issues
that would have required additional discovery, including
depositions.
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suit which he was simultaneously pursuing. A perusal of
plaintiff's various filings shows too, that despite his pro
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se status, he is adept at pleading and motion practice.
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Finding no abuse of discretion in the lower court's
determination that it would have been unjust to belatedly
burden the defendants with new discovery and delay, the
judgment below is affirmed.
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