Malek v. Knightly

June 5, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2113

STANLEY J. MALEK, JR.,

Plaintiff, Appellant,

v.

DEPUTY SHERIFF DAVID KNIGHTLY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Boudin, Circuit Judges.

Stanley J. Malek, Jr. on brief pro se.

Richard L. Barry, Jr. on brief for appellees.

Per Curiam. Plaintiff-appellant Stanley J. Malek

appeals from the dismissal of his amended civil rights

complaint for failure to state a claim. We affirm the

dismissal of appellant's federal claims, but modify the

dismissal of appellant's state law claims to reflect that

their dismissal is without prejudice to their being renewed

in state court.

BACKGROUND

On April 7, 1994, appellant filed a complaint in

the district court. As amended, the complaint alleges

violations of 42 U.S.C. 1983, 1985, and 1986 against

deputy sheriffs David Knightly and Francis Cote, Sheriff

Robert Garvey, Hampshire County Sheriff's Department, and

Hampshire County Sheriff's, Inc. The amended complaint also

includes a variety of state common law claims.

Stripped to its essentials, the complaint alleges

that on February 23, 1994, at approximately 8:00 a.m., deputy

sheriffs Knightly and Cote came onto appellant's property,

entered his home without his consent, and arrested him.

Knightly and Cote then transported appellant to jail. On the

way there, the deputy sheriffs showed appellant a "purported"

capias. After being held for a short period of time,

appellant was released and given a court date to return.

Thereafter, appellant sent notices regarding this incident to

the Hampshire County Commissioners, the chairman of the Board

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of Commissioners, and appellee Sheriff Garvey. Appellant

received no response to these notices.

Based on these facts, appellant alleged violations

of his rights to due process of law and to be free from

unreasonable searches and seizures under the Fourth, Fifth,

Ninth, and Fourteenth Amendments. He also alleged a

conspiracy to deprive him of his civil rights in violation of

42 U.S.C. 1983, 1985, and 1986. Finally, he alleged state

law claims for false imprisonment, trespass, defamation,

invasion of privacy, and civil conspiracy. On May 31, 1994,

defendants-appellees filed a motion to dismiss the amended

complaint for failure to state a claim. The two deputy

sheriffs and the sheriff also asserted a defense of quasi-

judicial immunity. In support of the motion to dismiss,

appellees submitted copies of various court documents. These

documents included a copy of a capias issued by Ware District

Court commanding appellant's arrest for contempt based on his

failure to appear in court for a supplementary process

hearing. Appellant responded by moving to strike the motion

to dismiss. On August 25, 1994, the district court allowed

the motion to dismiss as to all claims. Judgment entered on

August 26, 1994. Appellant filed a timely motion for

reconsideration, which was denied. This appeal ensued.

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DISCUSSION

I.

Appellate review of a motion to dismiss is de novo.

See, e.g., Armstrong v. Jefferson Smurfit Corp., 30 F.3d 11,

12 (1st Cir. 1994). The standard for assessing the adequacy

of a civil rights claim is whether, accepting the factual

averments in the complaint as true, and construing them in

the light most favorable to the plaintiff, the pleading shows

any fact which could entitle the plaintiff to relief. See,

e.g., Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.

Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). Because

appellant is pro se, we read his complaint with an extra

degree of solicitude. Rodi v. Ventetuolo, 941 F.2d 22, 23

(1st Cir. 1991). We are free to affirm on any basis

supported by the record. See Watterson v. Page, 987 F.2d 1,

7 n.3 (1st Cir. 1993).

II.

Appellant argues that his amended complaint should

not have been dismissed because it states a valid claim under

1983 for violation of his constitutional right to be free

from unreasonable searches and seizures.1 In particular, he

contends that a capias is not a warrant, and that he stated a

1. Appellant does not raise on appeal the dismissal of his
claims under 42 U.S.C. 1985, 1986, and they are,
therefore, deemed waived.

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claim against deputy sheriffs Knightly and Cote under the

Fourth Amendment based on their unconsented to entry into his

home without a warrant. Appellant also contends that he has

stated a claim against Sheriff Garvey, in his individual and

official capacity, based on Garvey's failure to reprimand

Knightly and Cote after appellant sent him three notices

about the February 23, 1994 incident.

A. Deputy Sheriffs Knightly and Cote

Appellees urge, and the district court found, that

deputy sheriffs Knightly and Cote are entitled to quasi-

judicial immunity because they were executing a facially

valid warrant. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.

1991). Appellant responds that the defense of absolute

immunity must fail because the deputies exceeded legal bounds

in executing the warrant. See Martin v. Board of County

Comm'rs, 909 F.2d 402, 405 (10th Cir. 1990) ("[A] judicial

warrant contains an implicit directive that the arrest . . .

be carried out in a lawful manner."). We need not resolve

the issue whether absolute immunity protects Knightly and

Cote, however, because we find that, in any event, they are

entitled to qualified immunity since they did not violate a

"clearly established" right. See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982) (holding that qualified immunity shields

public officials performing discretionary functions from

liability for civil damages insofar as their conduct does not

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violate clearly established rights of which a reasonable

person should have known).

In Payton v. New York, 445 U.S. 573 (1980), the

Supreme Court held that the Fourth Amendment prohibits the

police from effecting a warrantless and nonconsensual entry

into a suspect's home in order to make a routine felony

arrest. However, the Court also held that a criminal arrest

warrant alone was sufficient to authorize the entry into a

person's home to effect his arrest. Payton, 445 U.S. at 602-

03; see also Steagald v. United States, 451 U.S. 204, 214 n.7

(1981) (discussing Payton). Contrary to appellant's

suggestion, the deputy sheriffs who entered his home had an

arrest warrant. The issue, as we see it, is whether a bench

warrant for civil contempt authorizes entry into the

arrestee's home to effect the arrest.

This latter issue has received surprisingly little

discussion in the case law, and we have found no

Massachusetts or federal cases directly on point. Because

the issue was inadequately briefed, we do not resolve it

here. Given the dearth of relevant case law, we cannot say

that Knightly or Cote (or more precisely, an objectively

reasonably police office in their position) knew or should

have known that their actions violated appellant's Fourth

Amendment rights, if, in fact, they did. See Wiley v. Doory,

14 F.3d 993, 995 (4th Cir. 1994) (Powell, J.) (observing that

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in determining whether the plaintiff has asserted a violation

of a clearly established right, "`the proper focus is not

upon the right at its most general or abstract level, but at

the level of its application to the specific conduct being

challenged.'") (quoting Pritchett v. Alford, 973 F.2d 307,

312 (4th Cir. 1992)).

B. Sheriff Garvey

Appellant failed to state a claim against Sheriff

Garvey even if we assume, arguendo, that his deputies

violated a federally protected right. A supervisor may be

liable only on the basis of his own acts or omissions, and

there must be an affirmative link between the supervisor's

action or inaction and the street level misconduct. Bowen v.

City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992);

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.

1989). In the instant case, appellant attempts to hold

Sheriff Garvey liable based on his failure to reprimand

deputy sheriffs Knightly and Cote for their actions on

February 23, 1994. However, the failure of a supervisor to

discipline his subordinates following a single instance of

"misconduct" is insufficient for a finding of supervisory

liability because the failure to act cannot have caused the

violation. See Febus-Rodriguez v. Batencourt-Lebron, 14 F.3d

87, 93 (1st Cir. 1994) (no liability where supervisor was not

provided with requisite notice of behavior which was likely

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to result in constitutional violation). We add that, in any

event, Sheriff Garvey would also be entitled to a defense of

qualified immunity.

Appellant's claim against Sheriff Garvey in his

official capacity also fails. An official-capacity suit is

actually a suit against the entity of which the officer is an

agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). To

establish municipal liability under 1983, the plaintiff

must show that municipal employees were acting pursuant to

some official policy or custom of the city when they violated

the plaintiff's rights. Oklahoma City v. Tuttle, 471 U.S.

808, 810 (1985); Monell v. Department of Social Servs., 436

U.S. 658, 694 (1978). Because the issue was not briefed, we

pass the question whether Sheriff Garvey, in the instant

case, should be considered an agent of the state (in which

case Eleventh Amendment immunity applies) or of the county

(in which case it does not). We will assume, without

deciding, that Sheriff Garvey should be considered a county

agent. Even so, appellant's claim fails because he does not

allege that deputy sheriffs Knightly and Cote acted in

conformity with official county policy, or that their actions

were caused by Sheriff Garvey's acquiescence in previous

"misconduct."

III.

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Because we affirm the district court's dismissal of

appellant's federal claims, we find that the district court

did not abuse its discretion in dismissing the state law

claims. United Mine Workers of America v. Gibbs, 383 U.S.

715, 726 (1966). We modify the dismissal of the state law

claims, however, to the extent that they were dismissed with

prejudice. Appellant should not be barred by reason of the

impotence of his federal claims from bringing his common law

claims before a state tribunal.

We have carefully considered appellant's remaining

arguments and find them to be without merit. Accordingly, we

affirm the dismissal of appellant's claims but modify the

judgment to reflect that the state claims are dismissed

without prejudice to their renewal in state court.

Affirmed as modified.

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