USCA1 Opinion
March 24, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1873
ANTHONY SOLIMINE,
Plaintiff, Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant, Appellee.
____________________
No. 94-1995
ANTHONY SOLIMINE,
Plaintiff, Appellant,
v.
UNITED STATES FEDERAL BUREAU OF INVESTIGATIONS, CIVIL
RIGHTS, DIRECTOR AGENT MORRILL, ET AL.,
Defendants, Appellees.
________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Anthony Solimine on brief pro se. ________________
Donald K. Stern, United States Attorney, and Gwendolyn R. Tyre, _______________ __________________
Assistant United States Attorney, on brief for appellees.
____________________
____________________
Per Curiam. The district court correctly dismissed, as __________
frivolous, pursuant to 28 U.S.C. 1915(d), the actions
underlying each of these appeals. The complaints,
essentially identical, were based on "an indisputably
meritless legal theory." Neitzke v. Williams, 490 U.S. 319, _______ ________
327 (1989). Appellant's proffered amendment, submitted after
dismissal in one action and before dismissal in the second
action, did not cure the defective pleading. Appellant
attempts to contort his allegations into a claim of a
negligently-done voluntary undertaking, not within the
discretionary function exception to the Federal Tort Claims
Act, 28 U.S.C. 2680. It is clear, however, that what
appellant alleges is not a voluntary undertaking, but a
failure to undertake what appellant concedes is a duty not _______
within defendants' authority.
The orders of dismissal are affirmed. _________