USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1075
CHUKWU E. AZUBUKO,
Plaintiff, Appellant,
v.
ROBERT C. RUFO, SHERIFF,
SUFFOLK COUNTY SHERIFF'S DEPARTMENT,
Defendant, Appellee.
____________________
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 Lynch, Circuit Judges. ______________
____________________
Chukwu E. Azubuko on brief pro se. _________________
John M. Townsend, General Counsel, Suffolk County Sheriff's __________________
Department, on brief for appellee.
____________________
MARCH 4, 1997
____________________
Per Curiam. Appellant Chukwu E. Azubuko appeals __________
from the sua sponte dismissal, under Fed. R. Civ. P.
12(b)(6), of his complaint against Sheriff Robert C. Rufo.
The court dismissed the complaint, stating that it failed to
state a claim against the Sheriff.
It is evident that appellant "can prove no set of
facts in support of his claim which would entitle him to
relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ___ ______ ______
(standard for a Rule 12(b)(6) dismissal). First, it is plain
that appellant is premising Sheriff Rufo's liability for the
alleged false imprisonment solely on the Sheriff's status as
a supervisor or employer. That is, the only person directly ________
involved in the incident at the Roxbury District Court is an
attorney who supposedly worked for Sheriff Rufo. A claim
which is premised solely on respondeat superior is an
improper basis for a 1983 action. See Figueroa v. Aponte- ___ ________ _______
Rogue, 864 F.2d 947, 953 (1st Cir. 1989) (a defendant may be _____
found liable only for his or her own acts or omissions).
Second, appellant cannot state a claim for false
imprisonment under the Fourteenth Amendment. The
availability of an adequate remedy under Massachusetts law
for such a claim, see, e.g., Foley v. Polaroid Corp., 400 ___ ____ _____ _______________
Mass. 82, 508 N.E.2d 72 (1987), precludes a procedural due
process challenge. See Roche v. John Hancock Mut. Life Ins. ___ _____ ___________________________
Co., 81 F.3d 249, 256 (1st Cir. 1996). Further, there exists ___
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no substantive due process right to be free from such an
alleged deprivation. See Albright v. Oliver, 510 U.S. 266 ___ ________ ______
(1994) (plurality opinion).
Finally, appellant cannot state a Fourth Amendment
claim in this case because he never was arrested or seized.
A seizure occurs "only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." United ______
States v. Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J.). ______ __________
The letter concerning the arrest warrant stated specifically
that appellant would be arrested only if he failed to appear ______
at a "voluntary" court appearance. Thus, a reasonable person
reading this letter would understand that if he went to court
on his own steam, he would not be arrested. In any event, ___
appellant indicates that he, in fact, freely left the meeting
at the Roxbury District Court.
The judgment of the district court is affirmed. ________
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