USCA1 Opinion
February 24, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1696
ANGEL LUIS FIGUEROA,
Plaintiff, Appellant,
v.
SPECIAL AGENT JAMES J. DOYLE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Angel Figueroa on brief pro se. ______________
Donald K. Stern, United States Attorney, and Susan M. Poswistilo, ________________ ___________________
Assistant United States Attorney, on brief for appellees.
____________________
____________________
Per Curiam. On October 12, 1993, we remanded this case ___________
so that plaintiff (as he had requested) might attempt to
amend his complaint to state a claim under Bivens v. Six ______ ___
Unknown Named Agents, 403 U.S. 388 (1971). See Figueroa v. ____________________ ___ ________
DEA, 7 F.3d 218 (1st Cir. 1993) (table) (per curiam). ___
Plaintiff thereafter failed to do so, and took no other
action apart from submitting a change of address form to the
district court. On April 21, 1994, defendants filed a motion
to dismiss under Fed. R. Civ. P. 41(b) for failure to
prosecute. Plaintiff filed no opposition, and the district
court granted the motion on May 19, 1994. Having now
appealed from this ruling, plaintiff makes no reference to
the Rule 41(b) dismissal in his principal brief. Only in his
reply brief does he attempt an explanation, alleging that (1)
he had assumed the district court would initiate the
necessary further proceedings, and (2) he never received a
copy of the defendants' motion to dismiss (despite the
appearance therein of a proper certificate of service).
We affirm. By failing to seek reconsideration below (a
measure he has employed earlier in this litigation), and by
failing to challenge the Rule 41(b) dismissal in his
principal brief on appeal, plaintiff has waived the issue.
See, e.g., Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, ___ ____ _______________ _____________
354 (1st Cir. 1992) ("It is well settled in this court ...
that a legal argument made for the first time in an
appellant's reply brief comes too late and need not be
addressed."). We add that invocation of the waiver rule here
would work no injustice, inasmuch as plaintiff's substantive
claim (upon which he has elaborated in his appellate papers)
appears entirely meritless. By way of the instant attack on
the forfeiture of his assets, plaintiff is seeking simply to
challenge the sufficiency of the evidence supporting his
underlying conviction--a challenge we have decisively
rejected in the past. See Figueroa v. United States, 19 F.3d ___ ________ _____________
7 (1st Cir. 1994) (table) (per curiam); United States v. ______________
Figueroa, 976 F.2d 1446 (1st Cir. 1992), cert. denied, 113 S. ________ ____________
Ct. 1346 (1993).
Affirmed. _________
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