USCA1 Opinion
November 8, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1585
DERRICK ANDERSON,
Plaintiff, Appellant,
v.
TOWER RECORDS, 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] ___________________
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Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
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Derrick Anderson on brief pro se. ________________
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Per Curiam. Derrick Anderson appeals pro se the __________ ___ __
dismissal of his in forma pauperis complaint as frivolous __ _____ ________
under 28 U.S.C. 1915(d). We affirm in part, vacate in
part, and remand other claims for further proceedings.
The complaint alleges that on October 28, 1991,
Anderson was arrested by two security guards as he was
leaving Tower Records. The guards allegedly searched him,
seized compact discs for which he had a receipt, and detained
him until Boston Police officers arrived and transported him
to a "lock-up." Anderson was later tried for shoplifting and
acquitted. He seeks declaratory relief and damages against
Tower Records, the two guards, their supervisor, and "any
other respondeat superiors" for violations of his civil
rights under 42 U.S.C. 1983, 1985, as well as for
violations of 18 U.S.C. 241, 242.
We affirm the dismissal of Anderson's 42 U.S.C.
1985 and 18 U.S.C. 241, 242 claims, as well as the
dismissal of his claim for damages under 42 U.S.C. 1983
based on defendants' testimony at Anderson's criminal trial.
Anderson makes no reference to these claims in his brief, and
we affirm their dismissal on the ground that he has waived
them. See, e.g., Frazier v. Bailey, 957 F.2d 920, 932 n.14 ___ ____ _______ ______
(1st Cir. 1992). We add that, in any event, we think these
claims were properly dismissed for the reasons stated by the
district court.
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Anderson's remaining claims allege unlawful search
and seizure, false arrest, and malicious prosecution under 42
U.S.C. 1983. The district court dismissed these claims on
the ground that Anderson failed to state facts showing that
the defendants acted under color of law. See Alexis v. ___ ______
McDonald's Restaurants of Mass., Inc., 1995 WL 584187 at *7 ______________________________________
(1st Cir. Oct. 10, 1995) (discussing state action
requirement). We think that the dismissal of these claims
under 1915(d), without an opportunity to amend, was
precipitous.1 Since there are circumstances under which
security guards and their employers have been found to be
state actors, see, e.g., Murray v. Wal-Mart, Inc., 874 F.2d ___ ____ ______ _______________
555, 558-59 (8th Cir. 1989); Rojas v. Alexander's Dep't _____ __________________
Store, Inc., 654 F. Supp. 856, 858 (E.D.N.Y. 1987), we cannot ___________
say that Anderson would be unable to cure any deficiency in
his allegations by more specific pleading, see Neitzke v. ___ _______
Williams, 490 U.S. 319, 331 (1989) (complaint which fails to ________
state a cause of action is not automatically frivolous).
Accordingly, we vacate the dismissal of these claims.
We stress that at this stage Anderson has not met
the "color-of-law" requirement through adequate allegations
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1. We note that although the district court issued a show
cause order allowing Anderson twenty days within which to
explain why his complaint should not be dismissed, the record
discloses that this order was returned, undelivered, because
Anderson, an inmate, had been transferred from one prison to
another.
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of fact (let alone proof), and it may well be that he cannot
do so. But this is an area of law in which the precedents do
not provide a simple bright-line test, and there are at least
hints that Anderson might have more to allege on the color-
of-law issue if afforded an opportunity. Because of
circumstances outside the control of both the district court
and Anderson, that opportunity has not been effectively
afforded, and we think that it should be, without intimating
any view about the ultimate result in this case.
Affirmed, in part; vacated, in part; and remanded for ________________________________________________________
further proceedings. ____________________
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