AMario v. Professional

• Court: Court of Appeals for the First Circuit
• Decided: September 30, 1992
• Docket: 92-1187
• Status: Published

Opinion

USCA1 Opinion

        September 30, 1992      [NOT FOR PUBLICATION]

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No. 92-1187

ARTHUR D'AMARIO, III,

                                Plaintiff, Appellant,

                                          v.

                       PROFESSIONAL SECURITY SERVICES, ET AL.,

                                Defendants, Appellees.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________

            Arthur D'Amario, III, on  Memorandum Supporting Motion for Summary
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        Disposition, pro se.
            John A. Davey, Jr.  and Olenn & Penza on Memorandum in Support  of
            __________________      _____________
        the Motion for Summary Disposition,  for appellees, Lonergan, Wahl and
        Donley.
            Robert M. Brady  on Memorandum in Opposition to Appellant's Motion
            _______________
        for Summary Disposition, for appellee, Aloysius Murphy.
            James  E. O'Neil,  Attorney  General,  William M.  Kolb, Assistant
            ________________                       ________________
        Attorney  General, and  Kara M.  Fay, Assistant  Attorney General,  on
                                ____________
        Memorandum   in   Opposition  to   Appellant's   Motion  for   Summary
        Disposition,  for appellees,  State of Rhode  Island and  Rhode Island
        Department of Mental Health, Retardation and Hospitals.

Kevin F. McHugh on  Memorandum in Opposition to Appellant's Motion
            _______________
        for Summary Disposition, for appellee, City of Providence. 
            Andrew S. Richardson, on submissions to the Court, for  appellees,
            ____________________
        Stevie Nicks, Frank J. Russo, Gemini Concerts, and Concerts East.
            Paul T. Jones, Jr. on brief  for appellee, Providence Civic Center
            __________________
        Authority.

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Per  Curiam.   Plaintiff-appellant  Arthur D'Amario
                      ___________

            filed a complaint on  February 4, 1987 in the  district court

            for the District of Rhode Island against defendants-appellees

            the  Providence  Civic Center  Authority  ("PROCCA"), various

            security personnel  employed by PROCCA, the Providence Police

            Department, and a number of other defendants.   The complaint

            sought  injunctive relief and damages  under 42 U.S.C.   1983

            and under  state law for alleged  infringements of D'Amario's

            rights stemming from a  May 3, 1986 incident in  which PROCCA

            security  personnel  denied  D'Amario  admittance  to  a rock

            concert at  the  Providence  Civic  Center  because  D'Amario

            insisted on bringing in a camera.

                      The same PROCCA no-camera rule was the subject of a

            previous suit brought by D'Amario.  In that case the district

            court, affirmed by this court, ruled that D'Amario enjoyed no

            constitutional right to bring  a camera into Providence Civic

            Center  concerts.    D'Amario  v.  Providence  Civic   Center
                                 ________      __________________________

            Authority, 639  F.Supp. 1538  (D.R.I. 1986), aff'd,  815 F.2d
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            692 (1st Cir.) (unpublished  opinion), cert. denied, 484 U.S.
                                                   _____ ______

            859 (1987).

                      In  the instant  case,  after D'Amario  had had  an

            opportunity  for  some  discovery,  the magistrate  judge  on

            November 30, 1987 granted  defendants' motions to dismiss the

            complaint.   The  magistrate  judge  ruled that  (1)  by  the

            doctrine of  stare decisis,  this court's ruling  in D'Amario
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foreclosed D'Amario's claims  that his constitutional  rights

            were  violated  by enforcement  of  the  no-camera rule;  (2)

            D'Amario's     1983  claims  against  the  Providence  Police

            Department    charging    assault,   false    arrest,   false

            imprisonment, and  malicious prosecution  did not allege  any

            official departmental policy or custom that arguably violated

            his rights;  (3) D'Amario's claims of  assault, false arrest,

            false   imprisonment,   and  malicious   prosecution  against

            Professional  Security Services, a  private company,  and its

            employees  sounded only  in state  law; (4)  D'Amario's equal

            protection   claim  was   defective  for  lack   of  adequate

            allegations of arbitrary deprivation  of a protected right or

            membership in a suspect class; and (5) D'Amario's allegations

            against  the   Rhode  Island  Department  of   Mental  Health

            Retardation and  Hospitals ("RIMHRH"), charging  that doctors

            employed by  RIMHRH refused  to give D'Amario  sleeping pills

            while he was in  an RIMHRH facility, failed to state  a claim

            of  cruel and unusual punishment.   On October  22, 1991, the

            district  court accepted  the magistrate  judge's  report and

            recommendation and dismissed the complaint.

                      Subsequently,  D'Amario filed  a  Fed.  R. Civ.  P.

            59(e) motion to alter or amend the district court's judgment.

            D'Amario argued that, in view of his pro se status, he should
                                                 ______

            be permitted  to file an amended complaint.  He also raised a

            number of objections  to the merits  of the district  court's

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dismissal.    On  December   20,  1991,  the  district  court

            summarily denied  D'Amario's motion.   D'Amario appeals.   We

            affirm.

                      D'Amario argues on appeal that the district court's

            refusal to  permit him to  file an amended  complaint, curing

            the deficiencies of his  original complaint, was inconsistent

            with this court's dictates  in Forte v. Sullivan, 935  F.2d 1
                                           _____    ________

            (1st  Cir. 1991), and Street v. Fair,  918 F.2d 269 (1st Cir.
                                  ______    ____

            1990).

                      In Street, the district court dismissed plaintiff's
                         ______

            pro se, in forma pauperis   1983 complaint sua sponte, before
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            defendants  had responded  to  the complaint.   The  district

            court  found that  the  complaint  did  not allege  facts  to

            support  its allegations  of civil  rights violations.   This

            court  reversed the dismissal and remanded  the case to allow

            plaintiff an opportunity  to amend his complaint.  We pointed

            out  that sua sponte dismissal is appropriate only when an in
                      ___ ______

            forma  pauperis complaint  is "frivolous"  under 28  U.S.C.  

            1915(d).    We  found   that  plaintiff's  complaint,   while

            factually deficient,  was not "frivolous" for  purposes of 28

            U.S.C.     1915(d) because it would state a claim if adequate

            supporting facts  were pleaded.  Mere  factual deficiency was

            sufficient  to support  a dismissal  for failure  to state  a

            claim under Fed.  R. Civ.  P. 12(b)(6), but  a Rule  12(b)(6)

            dismissal could not be  ordered sua sponte, without affording
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plaintiff  notice and an opportunity  to be heard.   Thus, we

            held that the court's dismissal was in error, because neither

            the substantive  requirements for  a   1915(d)  dismissal nor

            the procedural  requirements for  a  Rule 12(b)(6)  dismissal

            were met.

                      In Forte, similarly, we reversed the dismissal of a
                         _____

            pro se, in forma pauperis complaint because the complaint was
            ___ __

            not "frivolous" under   1915(d)  and because -- although  the

            complaint  may  have been  subject  to  dismissal under  Rule

            12(b)(6)  as factually  deficient  --   sua sponte  dismissal
                                                    ___ ______

            without notice  was improper  under Rule 12(b)(6).   Although

            defendant  had filed a motion  to dismiss, we  found that the

            dismissal had, in effect,  been sua sponte because plaintiff,
                                            ___ ______

            a prison inmate, had not received the motion to dismiss until

            it already had been granted.

                      D'Amario's   situation  is   altogether  different.

            D'Amario's  complaint was  not  dismissed under  28 U.S.C.   

            1915(d),  but under Rule 12(b)(6).   The dismissal  was by no

            means  sua  sponte.   To  the  contrary,  the district  court
                   ___  ______

            granted motions to dismiss  and a motion for judgment  on the

            pleadings submitted  by various  defendants.   D'Amario filed

            numerous  objections  to  these  motions,   long  before  the

            magistrate judge's report and recommendation.   D'Amario even

            conducted  some discovery  during  that period.   The  record

            reveals that in  none of these  filings did D'Amario  request

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leave  to amend the complaint.   It was  after the magistrate

            judge  issued  his  report  and  recommendation, recommending

            dismissal of D'Amario's complaint, that D'Amario sought leave

            to amend.

                      Our decisions  in Street and Forte, therefore, have
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            no application  in these  circumstances.  D'Amario  had ample

            opportunity to respond to  defendants' motions to dismiss his

            complaint for factual deficiency under Rule 12(b)(6).

                      Also,  we  can  find  no fault  with  the  district

            court's implicit  denial, in adopting  the magistrate judge's

            report and   recommendation,  of D'Amario's motions  to amend

            his  complaint.   The district  court acted  well within  its

            discretion,  see Fed.  R. Civ. P.  15(a), in  concluding that
                         ___

            D'Amario's motions to amend, filed only after issuance of the

            magistrate judge's report, came too late.

                      D'Amario  also challenges on  appeal the  merits of

            the district court's dismissal of  his complaint.  We  affirm

            that  dismissal  for the  reasons  stated  in the  magistrate

            judge's November 30, 1987 report and recommendation.

                      We have considered D'Amario's other  objections and

            find them meritless.

                      The judgment of the district court is affirmed.
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