Gallant v. Delahanty

Opinion

USCA1 Opinion

December 14, 1994
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-1733

                                ALFRED A. GALLANT, II,

                                Plaintiff, Appellant,

                                          v.

                         THOMAS DELAHANTY, II, JUDGE, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Alfred A. Gallant, Jr. on brief pro se.
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Per Curiam.   A magistrate  judge recommended  that
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            plaintiff's vague,  verbose,  and partially  illegible  civil

            rights complaint be dismissed as  frivolous under 28 U.S.C.  

            1915(d)  because the allegations were "fanciful" and directed

            at acts perpetrated by private individuals, rather than state

            actors.  The district court adopted the report  and dismissed

            the complaint.

                      We  agree  that much  of plaintiff's  complaint was

            properly  dismissed as  frivolous under  28 U.S.C.    1915(d)

            because   the  legal   theory   underlying  the   claims  was

            indisputably  meritless.    The  claims   properly  dismissed

            included the following:  1) plaintiff's complaint that police

            had failed to investigate crimes, see Sattler v. Johnson, 857
                                              ___ _______    _______

            F.2d 224, 227 (4th Cir. 1988) (victims have no constitutional

            right to have  defendants criminally  prosecuted); Slagel  v.
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            Shell Oil  Refinery, 811  F.Supp. 378,  382 (C.D. Ill.  1993)
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            (police  officer  had  no  constitutional  duty  to   conduct

            investigation  of plaintiff's assault charge), aff'd, 23 F.3d
                                                           _____

            410  (7th  Cir.  1994), or  protect  plaintiff  prior to  his

            incarceration, DeShaney  v. Winnebago County Dep't  of Social
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            Services, 489 U.S. 189 (1989); 2) allegations concerning pre-
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            incarceration  stalkings  and harassment,  Yancey  v. Carroll
                                                       ______     _______

            County, 876  F.2d 1238, 1245 (6th  Cir. 1989) (investigation,
            ______

            without   more,   is   not   a   constitutional   violation);

            Philadelphia Yearly Meeting  v. Tate, 519 F.2d 1335, 1337 (3d
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Cir. 1975);  Hickombottom v.  Chicago, 739 F.Supp  1173, 1178
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            (N.D. Ill.  1990) (police  surveillance of apartment  did not

            violate the  Fourth Amendment as plaintiff  had no reasonable

            expectation of privacy in his comings and goings); 3)  denial

            of  workers'  compensation   benefits;  4)   unconstitutional

            conviction, Heck v. Humphrey, 114 S.Ct. 2364 (1994); 5) four-
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            day denial of an attorney, United States v. Gouveia, 467 U.S.
                                       _____________    _______

            180, 187  (1984);  Kirby v.  Illinois, 406  U.S. 682,  688-89
                               _____     ________

            (1972);  6)  deprivation  of  property  without due  process,

            Hudson  v.  Palmer,  468 U.S.  517,  533  (1984); Daniels  v.
            ______      ______                                _______

            Williams,  474 U.S. 327 (1986); electronic surveillance while
            ________

            in prison,  United States v.  Willoughby, 860 F.2d  15, 22-23
                        _____________     __________

            (2d  Cir.  1988) (no  reasonable  expectation  of privacy  in

            conversation conducted  in a  public area  of a  jail), cert.
                                                                    _____

            denied, 488 U.S. 1033 (1989); United States v. Harrelson, 754
            ______                        _____________    _________

            F.2d  1153,   1169-71  (5th  Cir.  1985)   (prisoner  had  no

            reasonable expectation  of privacy while  conversing with his

            wife in his cell),  cert. denied, 474 U.S. 908,  1034 (1985);
                                ____________

            United States v.  Hearst, 563  F.2d 1331,  1344-46 (9th  Cir.
            _____________     ______

            1977)   (monitoring   and   recording   of   prisoner-visitor

            conversations was  reasonable and therefore not  violative of

            the Fourth  Amendment), cert.  denied, 435 U.S.  1000 (1978);
                                    _____________

            and 7)  ineffective  assistance of  post-conviction  counsel,

            Pennsylvania  v. Finley, 481 U.S. 551  (1987); Polk County v.
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            Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th
            ______                       ____    _____

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Cir.  1976).   In  a similar  view, the  denial of  access to

            courts claim was subject to dismissal under   1915(d) because

            the restrictions  described (e.g.,  delay in access  to legal
                                         ____

            papers; rifling of papers; destruction of some papers; denial

            of  forms,   paper   clips,  staples)   were   insufficiently

            substantial.

                      Other allegations, however, although  often lacking

            enough  detail  to state  constitutional  claims  which would

            survive a  Rule 12(b)(6) motion to dismiss, were not premised

            on  indisputably meritless  legal  theories  and  conceivably

            could  be cured by  more specific factual  allegations.  Four

            potential claims fall into this area.

                      First,   plaintiff   outlined  conceivable   Eighth

            Amendment violations.   He claimed he had  been assaulted and

            terrorized by  both guards and  inmates while  in prison  and

            denied  medical  attention  and  nutrition.   See  Farmer  v.
                                                          ___  ______

            Brennan,  114  S.  Ct.  1920  (1994)  (prison  officials  who
            _______

            knowingly disregard  substantial  risk  of  serious  harm  to

            inmates  may  be held  liable  under  the Eighth  Amendment);

            Estelle v.  Gamble, 429  U.S. 97 (1976).   While  plaintiff's
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            allegations are  confusing and conclusory, enough  was stated

            to avoid  a   1915(d)  dismissal.   Street v. Fair,  918 F.2d
                                                ______    ____

            269, 272-73 (1st Cir. 1990).

                      Second,  plaintiff  complained  that his  mail  was

            tampered with,  switched, and  late and  that legal mail  was

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opened.    Depending  on  how  the facts  were  fleshed  out,

            conceivably  a  constitutional  claim  could  exist, if,  for

            example, incoming legal mail were opened with some regularity

            outside plaintiff's  presence.  Castillo v.  Cook County Mail
                                            ________     ________________

            Room Dep't, 990 F.2d 304 (7th Cir. 1993) (reversing   1915(d)
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            dismissal  of  inmate  complaint, which  alleged  that  three

            letters  from public  officials  received  in an  eight-month

            period had been  opened, because  a colorable  constitutional

            claim had been  stated).   This claim, too,  should not  have

            been dismissed under   1915(d).

                      Third,  plaintiff  should  be  afforded  a  further

            opportunity to articulate his complaints concerning placement

            in segregation for refusal  to work.  On the  present record,

            we cannot tell whether plaintiff  had any liberty interest in

            remaining  out of  segregation,  and, if  so, whether  he was

            accorded  due process before being  deprived of it.   Rodi v.
                                                                  ____

            Ventetuolo, 941 F.2d 22 (1st Cir. 1991).
            __________

                      Fourth,  plaintiff  outlined  some  contours  of  a

            possible  First  Amendment  retaliatory transfer  claim.   He

            asserted  that shortly after he tried to communicate with the

            governor, a newspaper, an  attorney, and the federal district

            court  in  March 1994,  he  was transferred  to  high maximum

            security in retaliation.   See McDonald v. Hall, 610  F.2d 16
                                       ___ ________    ____

            (1st  Cir. 1979)  (prisoner  who alleged  that  he had  filed

            actions  against prison  officials, that he  was subsequently

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transferred,  and that  the transfer  was in  retaliation for

            litigation  activities,  stated  a  claim  even   though  the

            allegations  were conclusory);  Ferranti  v. Moran,  618 F.2d
                                            ________     _____

            888,  891-92 (1st  Cir.  1980) (retaliation  claim stated  by

            allegations  that officials  denied plaintiff  a  transfer to

            minimum  security after  plaintiff filed  a suit  complaining

            about prison conditions).   See also  Mujahid v. Sumner,  807
                                        ___ ____  _______    ______

            F.Supp. 1505 (D.Hawaii  1992) (rule  forbidding prisoners  to

            correspond  with the  media  was facially  unconstitutional),

            aff'd,  996 F.2d 1226 (9th Cir. 1993).  Because plaintiff did
            _____

            not state the subject  of his communication, he may  not have

            satisfied even McDonald's lenient pleading standard, Leonardo
                           __________                            ________

            v.  Moran, 611  F.2d  397, 398  (1st  Cir. 1979),  but  since
                _____

            plaintiff may  be able to fill  in enough details to  state a

            claim, a sua sponte   1915(d) dismissal was not appropriate.
                     ___ ______

                      We therefore remand for  further proceedings.  As a

            result  of this opinion, plaintiff  is now on  notice that in

            order  to state  constitutional  claims he  may  not rest  on

            vague,   conclusory   allegations,  but   must   set  factual

            allegations respecting  the material elements of  his claims.

            Gooley v. Mobil  Oil Corp.,  851 F.2d 513,  514-15 (1st  Cir.
            ______    ________________

            1988).   Therefore,  on  remand, plaintiff  should amend  his

            complaint.

                      Appellant's  request  for   appellate  counsel   is

            denied.

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Vacated and remanded.
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