Brierly v. Brierly

• Court: Court of Appeals for the First Circuit
• Decided: April 7, 1993
• Docket: 92-1916
• Status: Published

Opinion

USCA1 Opinion

April 6, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 92-1916

                                 RAYMOND F. BRIERLY,

                                Plaintiff, Appellant,

                                          v.

                              VIRGINIA BRIERLY, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Raymond F. Brierly on brief pro se.
            __________________
            Chappell & Chappell on brief for appellee Virginia Brierly.
            ___________________
            James  E. O'Neil,  Attorney  General, and  Jacqueline  G.  Kelley,
            ________________                           ______________________
        Special  Assistant  Attorney General,  on  brief  for appellee  Robert
        Fallon, Director, State of Rhode Island Department of Human Services.

____________________

                                 ____________________

Per Curiam.    Plaintiff  appellant challenges  the
                      __________

            dismissal of his First Amended Complaint for failure to state

            a claim,1  denial of his  motion for  leave to file  a Second

            Amended Complaint, and the award of attorneys' fees and costs

            to defendant Virginia Brierly.

                      Although  plaintiff appears  here  pro  se, he  was
                                                         ___  __

            represented by  counsel below.  His  First Amended Complaint,

            styled as an action for damages and equitable relief under 42

            U.S.C.    1983,  named  as defendants  his ex-wife,  Virginia

            Brierly,  and  the  Acting Director  of  the  State of  Rhode

            Island's Department of Human Services ["DHS"], Robert Fallon.

Plaintiff's pleadings are  difficult to recap  with

            precision.  We set out here the core facts distilled from the

            First Amended  Complaint.  Count One  appears directed solely

            at  Virginia Brierly.  It recites that after his divorce from

            Virginia  Brierly in  1981,  plaintiff failed  to make  child

            support payments  in accordance with  the terms of  the Rhode

            Island Family Court's decree.  In  March, 1986, plaintiff was

____________________

            1.  Both defendants  filed motions to dismiss.   Although one
            of the  motions was couched as  a motion for  judgment on the
            pleadings under Fed.  R. Civ.  P. 12(c), it  in essence  also
            raised  a Rule  12(b)(6) objection  by challenging  the legal
            foundation  for the complaint.  It was properly dealt with on
            this  basis  by  the  district  court.    See   Amersbach  v.
                                                      ___   _________
            Cleveland, 598 F.2d 1033 (6th Cir. 1979), cited with approval
            _________                                 ___________________
            in Whiting v. Maiolini,  921 F.2d 5 (1st Cir.  1990); Charles
            __ _______    ________
            A. Wright et. al.,  5A Federal Practice and Procedure    1369
                                   ______________________________
            at n.6 (2d ed. Supp. 1992).

personally served with notice of a motion brought by Virginia

Brierly  to  adjudge him  in contempt.    The hearing  on the

            motion   was  continued  beyond  its  first  scheduled  date.

            Allegedly due to Virginia  Brierly's "failure to properly and

            lawfully serve  any kind of  notice [of  the continued  date]

            upon plaintiff,"  plaintiff was  absent when the  hearing was

            eventually  held  on  September  30,  1986.    As  a  result,

            plaintiff states,  he was adjudged in contempt for failure to

            pay some  $58,640 in arrearages.   Also allegedly unbeknownst

            to plaintiff, a bench warrant issued for his arrest, pursuant

            to which  he was arrested  in February,  1988.   He was  then

            required to execute  a deed  in blank to  the former  marital

            residence  to  secure  his  release.     He  states  that  he

            petitioned  for  review  of  the contempt  order,  apparently

            without  success, and  appealed to  the Rhode  Island Supreme

            Court, which  "after hearing, argument,  and presentation  of

            briefs" refused to grant  a writ of certiorari in  September,

            1990.  

                      Count Two appears directed  solely at Robert Fallon

            in  his capacity as Acting  Director of the  DHS.  It alleges

            that DHS announced  an amnesty program "whereby  arrangements

            for the  payment of  child support  arrearages could  be made

            without  fear of  arrest  or interest  payments."   Plaintiff

            sought, through counsel, to take advantage of this program by

-3-

opening negotiations with  DHS toward establishing a  payment

            schedule  and other  terms.   The  amnesty period  terminated

            while  plaintiff  was  awaiting  a response  from  DHS  about

            certain terms,2 but DHS  allegedly represented that it "would

            honor the terms of  the amnesty" until a final  agreement had

            been reached.  Nevertheless, plaintiff says that DHS filed an

            "unlawful petition" causing his  arrest and incarceration for

            seven  days  in  September,  1991.    He was  allegedly  then

            required  to  execute  a promissory  note  in  the  amount of

            $58,640.00,  and  was found  liable by  the Family  Court for

            additional  interest  on  arrearages.    He  states  that  he

            objected on the  basis of DHS's alleged  amnesty promise, but

            the Family Court failed to "recognize" the amnesty program.

                      Our standard on review  of dismissal of a complaint

            under Rule  12(b)(6) is whether, construing  the complaint in

            the  light  most favorable  to  the  plaintiff, dismissal  is

            appropriate  because  "it  appears  beyond  doubt  that   the

            plaintiff can prove  no set of facts in  support of his claim

            which  would entitle him to relief."  Roeder v. Alpha Indus.,
                                                  ______    _____________

            Inc.,  814 F.2d  22, 25  (1st Cir.  1987) (quoting  Conley v.
            ____                                                ______

            Gibson,  355 U.S.  41,  45-46 (1957));  see  also Finnern  v.
            ______                                  _________ _______

____________________

            2.  The  amnesty time  period is not  mentioned in  the First
            Amended  Complaint, but for the sake of clarity, we note that
            the proposed Second Amended Complaint states that the program
            was  announced in April, 1990  and ran through  May 25, 1990,
            while plaintiff's appeal from his first contempt citation was
            pending.   The authority  for, and mechanics  of, the amnesty
            program are not disclosed in the pleadings.

                                         -4-

Sunday  River Skiway Corp., 984 F.2d 530, 537 (1st Cir. 1993)
            __________________________

            ("If a trial court accepts plaintiff's facts and can envision

            no  reasonable  application of  the  law  that would  entitle

            plaintiff  to  relief,  the  court may  rightly  dismiss  the

            case.").

                      The Supreme  Court recently reaffirmed  the Federal

            Rules' "liberal system  of notice pleading" in a civil rights

            action brought under 42 U.S.C.   1983 against a municipality.

            Leatherman  v.   Tarrant  County  Narcotics   Intelligence  &
            __________       ____________________________________________

            Coordination  Unit, 61  U.S.L.W.  4205 (U.S.  Mar. 3,  1993).
            __________________

            However,   "minimal  requirements   are  not   tantamount  to

            nonexistent requirements."   Gooley  v. Mobil Oil  Corp., 851
                                         ______     ________________

            F.2d 513, 514 (1st Cir.  1988).  The court need  not "conjure

            up unpled allegations or contrive elaborately arcane scripts"

            in  order to craft a cognizable legal theory where none seems

            to exist.  Gooley, 851 F.2d at 514.  
                       ______

                     Plaintiff's First Amended Complaint is  deficient in

            numerous ways, most of which were well described by the trial

            judge.   In line with his rulings, we interpret the complaint

            as asserting that each defendant's separate conduct reflected

            a  deviation  from  an  established  state  rule,  policy  or

            statute.   It may well be,  as the district court  held, that

            the claim  asserted  against defendant  Virginia  Brierly  is

            infirm  because  it  does   not  charge  any  conduct  fairly

            attributable to the State.   Lugar v. Edmondson Oil  Co., 457
                                         _____    __________________

-5-

U.S.  922,  937, 940  (1982).   Likewise,  the  damages claim

            asserted against the  defendant Fallon may well be  barred by

            the Eleventh Amendment, which proscribes suits against  State

            officials  which must  be paid  from State  funds.   Hafer v.
                                                                 _____

            Melo, 112 S. Ct. 358, 362  (1991); Will v. Michigan Dep't  of
            ____                               ____    __________________

            State  Police,  491 U.S.  58,  65 (1989).   But  we  think it
            _____________

            unnecessary here  to reach  these issues because  both claims

            are infirm for another reason:  there are no facts indicating

            that the remedies available from the State were inadequate. 

                      It  is well  established that  unauthorized conduct

            which cannot be  foreseen and controlled in advance  does not

            constitute a violation of  the procedural requirements of the

            Due Process  Clause "until and unless [the  State] refuses to

            provide  a  suitable  postdeprivation  remedy."    Hudson  v.
                                                               ______

            Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor,
            ______                            ________ _______    ______

            451 U.S. 527  (1981); Zinermon  v. Burch, 494  U.S. 113,  125
                                  ________     _____

            (1990); Lowe v. Scott,  959 F.2d 323 (1st Cir. 1992).   Since
                    ____    _____

            inadequacy of the state's remedy is a material element of the

            claim,  plaintiff  had the  burden  to  set forth  supporting

            factual allegations, either direct or inferential, to sustain

            an actionable legal theory.  Gooley, 851 F.2d at 515.
                                         ______

                 Plaintiff's  vague  allegations  reflect, instead,  that

            there was a state process for challenging both of the alleged

            due process deprivations.  Plaintiff even states that he used

            the  process, appealing at least one of his objections as far

-6-

as the Rhode Island Supreme Court.   That plaintiff disagreed

            with  the result  does not  show that  the process  itself is

            inadequate.   To the extent  that plaintiff is  attempting by

            this  suit to overturn those state court judgments, he is not

            entitled to any  relief in the district court or here.  Lower

            federal courts have no power to sit  in review of state court

            orders.  District  of Columbia Court  of Appeals v.  Feldman,
                     _______________________________________     _______

            460 U.S. 462, 476  (1983); Rooker v. Fidelity Trust  Co., 263
                                       ______    ___________________

            U.S. 413 (1923);  Lancellotti v.  Fay, 909 F.2d  15, 17  (1st
                              ___________     ___

            Cir. 1990).     

                      We  also see no  reason to disagree  with the trial

            court's  decisions  to  grant Virginia  Brierly's  motion for

            attorney's  fees and  costs, and  to deny  plaintiff's second

            motion to amend the complaint.   Both decisions are entrusted

            to the sound discretion of the district court,  whose rulings

            will not be  disturbed except  on a clear  showing of  abuse.

            See  Coyne v. Somerville, 972  F.2d 440, 446  (1st Cir. 1992)
            ___  _____    __________

            (denial of motion to amend); Finnern, 984 F.2d at 537 (same);
                                         _______

            Christiansburg Garment Co. v. EEOC, 434  U.S. 412 (1978) (fee
            __________________________    ____

            awards under 42 U.S.C.    1988); Lancellotti, 909 F.2d  at 15
                                             ___________

            (sanctions under Rule 11). 

                      The  district  court  awarded  costs  and  fees  to

            Virginia Brierly when it dismissed the claim asserted against

            her in  plaintiff's First Amended  Complaint.  The  order ran

            jointly against plaintiff and his attorney under Rule 11, and

-7-

against  plaintiff alone under 42  U.S.C.   1988.   The court

            pointedly found that plaintiff's purpose in bringing the suit

            included  an  effort  to   harass  Virginia  Brierly  and  to

            retaliate against  her for the losses  plaintiff had suffered

            in the state courts.   Moreover, the court reasoned  that the

            claim  as pleaded was so frivolous  and lacking in foundation

            that neither a  competent attorney nor a party could believe,

            after a reasonable inquiry, that it was well-grounded in fact

            or in law.

                      These findings more than satisfied the requirements

            of Rule 11 and 42 U.S.C.    1988, which, though not identical

            to one another,  permit fee awards either  where the pleading

            falls below an objective  standard of reasonableness or where
                                                                 __

            there  is a  showing  of subjective  bad  faith.   Here  both

            standards were violated.  See Hughes v. Rowe, 449 U.S.  5, 14
                                      ___ ______    ____

            (1980)  (applying  the criteria  announced  in Christiansburg
                                                           ______________

            Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978) to awards of
            ___________    ____

            fees  to  prevailing  defendants  under 42  U.S.C.     1988);

            Lancellotti,  909  F.2d  at  19  (observing  the  alternative
            ___________

            standards for Rule 11 awards); Foster v. Mydas  Assoc., Inc.,
                                           ______    _____  ____________

            943  F.2d  139  (1st  Cir.  1991)  (discussing  criteria  and

            findings necessary under each authority).

                      In   light   of   these   detailed   findings,  and

            plaintiff's  first two  futile  attempts to  plead a  legally

            cognizable claim,  we  see  no abuse  of  discretion  in  the

-8-

district  court's  denial  of  leave  to  file  yet  a  third

            complaint "for reasons cited  in connection with dismissal of

            the First Amended Complaint."   See Foman v. Davis,  371 U.S.
                                            ___ _____    _____

            178, 182  (1962) (while  leave  to amend  is usually  "freely

            given,"  denial  will  be  upheld where  there  is  stated  a

            "justifying reason,"  such as  "bad faith or  dilatory motive

            ... repeated  failure to cure deficiencies  by amendments ...

            undue  prejudice to the  opposing party [or]  futility of the

            amendment").    

                      Accordingly,  the  district  court's   judgment  is

            affirmed.   
            ________

-9-