Hall v. Gonfrade

• Court: Court of Appeals for the First Circuit
• Decided: September 29, 1994
• Docket: 93-2368
• Status: Published

Opinion

USCA1 Opinion

        September 29, 1994      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 93-2368

                                   KIMBALL S. HALL,

                                Plaintiff, Appellant,

                                          v.

                              R. SCOTT GONFRADE ET AL.,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Kimball S. Hall on brief pro se.
            _______________
            John H. LaChance, LaChance & Whatley on brief for appellee.
            ________________  __________________

                                 ____________________

                                 ____________________

Per  Curiam.   Plaintiff/appellant Kimball  Hall appeals
                 ___________

            the dismissal of his complaint against  defendant/appellee R.

            Scott Gonfrade  by the United  States District Court  for the

            District  of Massachusetts.   We  affirm, albeit  for reasons

            other than those on which the district court relied.

                                          I

                 According  to the  allegations in  Hall's complaint,  on

            April  5,  1989,  Hall  and his  brother  attempted  to serve

            Gonfrade,  a  Deputy  Sheriff  of Middlesex  County,  with  a

            summons and complaint stemming from Gonfrade's alleged  false

            arrest   and  prosecution  of  Hall  in  1985.1      Gonfrade

            allegedly responded by assaulting  Hall's brother, seizing  a

            camera  from   Hall  and   destroying  the  film,   and  then

            fraudulently arresting  Hall and  charging him  with assault.

            Hall further alleges  that Gonfrade  submitted false  reports

            about  the incident.   A  jury found  Hall not guilty  of the

            assault charge on May 11, 1990.

                 On April 29, 1993, Hall filed a pro se complaint against

            Gonfrade and others.2   As amended on July 1,  the complaint,

            liberally  construed,  asserts  claims  against  Gonfrade for

            violations of  Hall's civil rights,  pursuant to 42  U.S.C.  

____________________

            1.  Although   Hall's   complaint  contains   several  counts
            stemming from the 1985 incident, these claims are time barred
            and have not been pressed on appeal.

            2.  Hall  does  not appeal  the  dismissal  of the  complaint
            against any of the defendants except Gonfrade.

1983,  for  false arrest  and malicious  prosecution stemming

            from  the 1989  incident.   He  also asserts  several pendant

            state law claims.  

                 On  July 8, 1993, Gonfrade filed a motion to dismiss the

            complaint on  statute of  limitations grounds.   On  July 22,

            Hall  filed a  motion  to enlarge  the  time for  filing  his

            opposition  to  the  motion   to  dismiss  to  and  including

            September  16, 1993.  This  motion was granted  on August 19,

            1993.  Nevertheless, Hall failed to file an opposition to the

            motion to dismiss.  He now asserts that he was never informed

            that his motion to  extend the time for filing  an opposition

            had been granted.   On November 19, 1993, the  district court

            granted  the  motion  to  dismiss  on  the  ground  that  "no

            opposition ha[d] been filed."  

                                          II

                 A litigant's "pro  se status [does not] absolve him from

            compliance  with the  Federal  Rules of  Procedure."   United
                                                                   ______

            States  v. Heller, 957 F.2d  26, 31 (1st  Cir. 1992) (quoting
            ______     ______

            Feinstein v. Moses, 951  F.2d 16, 21 (1st Cir. 1991)).  Thus,
            _________    _____

            pursuant to Local  Rule 7.1(B)(2), Hall was required  to file

            any opposition to  Gonfrade's motion to dismiss  on or before

            September 16.  Nor can Hall  be excused from this deadline by

            lack  of awareness that the  court had granted  his motion to

            extend  the  time  for filing  his  opposition.    It is  "an

            abecedarian  rule  of civil  practice  [that]  parties to  an

-3-

ongoing case  have an  independent obligation to  monitor all

            developments in  the  case and  cannot  rely on  the  clerk's

            office to do  their homework for them."  Witty  v. Dukakis, 3
                                                     _____     _______

            F.3d 517, 520  (1st Cir. 1993).   Hence, when Hall  failed to

            respond to the motion  to dismiss by September 16,  he waived

            his right to oppose the motion.  

                 Nevertheless, nothing  in Local Rule 7.1  indicates that

            failure  to  oppose  a  motion is  grounds  for  granting the

            unopposed motion.  This  court has recently held that  in the

            case  of  failure to  oppose a  motion for  summary judgment,

            "[t]he consequence .  . . of failing to comply  with the rule

            is that the party may lose the right to  file an opposition."

            Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 451-
            ______    ______________________________

            52  (1st  Cir.  1992) (interpreting  Local  Rule  7.1(A)(2)).

            However,  the court is still obliged  to consider whether, in

            light  of the record, the  motion should be granted according

            to  the  appropriate  legal  standard.     See  id.  at   452
                                                       ___  __

            (discussing unopposed  motion for summary judgment).   We see

            no reason why the rule should be any different in regard to a

            motion  to dismiss.3   See also Local  Rule 7.1(F) (providing
                                   ___ ____

____________________

            3.  This court's opinion in Mangual v. General Battery Corp.,
                                        _______    ____________________
            710 F.2d  15  (1st Cir.  1983), is  distinguishable from  the
            instant case.  In Mangual, the district court had ordered the
                              _______
            plaintiffs to  file their opposition to the motion to dismiss
            within  30 days of the  completion of discovery.   It granted
            the unopposed motion  to dismiss  only after  this order  was
            ignored.   In  reviewing  the district  court decision,  this
            court  likewise relied on cases  in which an  action had been
            dismissed for failure to comply with a district court order.

                                         -4-

that motions which are  to be decided without  hearings "will
                                                                     ____

            be decided on the papers submitted after an opposition to the
            __________________________________

            motion  has been filed, or  if no opposition  is filed, after

            the  time for  filing an  opposition has  elapsed") (emphasis

            added).

                 In the instant case, we agree with Gonfrade  that Hall's

            claim for false arrest is time barred.  A civil rights  claim

            pursuant to     1983 must  be brought  within the  applicable

            statute of limitations period  of the state within which  the

            incident occurred, see  Wilson v. Garcia,  471 U.S. 261,  275
                               ___  ______    ______

            (1985), in this case, three years,  see Mass. Gen. L. c. 260,
                                                ___

              2A;  Street v. Vose,  936 F.2d 38,  39-40 (1st  Cir. 1991),
                   ______    ____

            cert. denied,  112 S.Ct. 948 (1992).   Hall's arrest occurred
            ____  ______

            in 1989.   Since a claim for false arrest accrues on the date

            of the  arrest, see, e.g., Rose v.  Bartle, 871 F.2d 331, 351
                            ___  ___   ____     ______

            (3d Cir. 1989);  McCune v.  Grand Rapids, 842  F.2d 903,  907
                             ______     ____________

            (6th  Cir. 1988); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th
                              _______    ______

            Cir. 1983); Singleton v. New York, 632 F.2d 185, 191 (2d Cir.
                        _________    ________

            1980), cert. denied, 450  U.S. 920 (1981), Hall's  April 1993
                   ____  ______

            claim was time barred.

                 Hall's claim for malicious prosecution, however, did not

            accrue until he was found not guilty of the assault charge in

            May 1990.  See, e.g., Heck v. Humphrey, 114  S.Ct. 2364, 2371
                       ___  ___   ____    ________

            (1994); Brummett v. Camble, 946 F.2d 1178, 1183-84  (5th Cir.
                    ________    ______

            1991), cert. denied, 112 S.Ct. 2323 (1992); Rose, 871 F.2d at
                   ____  ______                         ____

-5-

348;  McCune, 842  F.2d at  907; Venegas,  704 F.2d  at 1146;
                  ______                     _______

            Singleton, 632 F.2d  at 198.   Hence, this  claim was  timely
            _________

            filed.  Nonetheless, it must be dismissed because it fails to

            state  a claim for which relief can  be granted.  See Fed. R.
                                                              ___

            Civ. P. 12(b)(6).  

                 Malicious prosecution standing  alone does not implicate

            federally protected rights.   See Torres v. Superintendent of
                                          ___ ______    _________________

            Police, 893 F.2d 404, 409 (1st Cir. 1990).  Hence, to state a
            ______

            federal  claim  under    1983  for  malicious prosecution,  a

            plaintiff must allege that  he suffered a deprivation  of his

            constitutional   right  to  substantive   or  procedural  due

            process.  Id.  at 409-10.   Hall has  not alleged  sufficient
                      __

            facts to support a claim that he was deprived of either.

                 A  substantive  due  process  deprivation   must  allege

            "conscience  shocking" conduct by the defendant.   See id. at
                                                               ___ __

            410.  Such conduct rarely has been found absent a plaintiff's

            having been  "physically abused, detained,  prosecuted due to

            racial or political motivation or otherwise deprived of equal

            protection  of the law."  Id. (citing cases); see also Ayala-
                                      __                  ___ ____ ______

            Martinez v.  Anglero,  982 F.2d  26,  27-28 (1st  Cir.  1992)
            ________     _______

            (affirming grant  of summary judgment where  evidence did not

            show prosecution was "for  racial or political motivation, or

            otherwise deprived  [plaintiff]  of equal  protection").   No

            similar conduct has been alleged by Hall.  Rather, he alleges

-6-

simple  misuse of  the legal  process.   This alone  will not

            sustain a claim under   1983.4  See id.
                                            ___ __

                 To support  a claim for  malicious prosecution due  to a

            violation of  procedural due process, a  plaintiff must show,

            inter  alia, that state tort  law remedy does  not furnish an
            _____  ____

            adequate  remedy.  Id.   The existence of  an adequate remedy
                               __

            for malicious prosecution under  Massachusetts law, see Smith
                                                                ___ _____

            v.  Massachusetts Dep't  of Correction,  936 F.2d  1390, 1402
                __________________________________

            (1st Cir.  1991), is fatal  to Hall's procedural  due process

            claim.  

                 Finally, our determination that Hall has failed to plead

            an  actionable claim  of malicious  prosecution and  that his

            claim  for false  arrest is time  barred precludes  any claim

            that he  has been the  victim of a  continuing constitutional

            violation.  See Perez-Ruiz, 25 F.3d at 41 n.1. 
                        ___ __________

                 The order of the district court dismissing Hall's claims

            is affirmed. 
               ________

____________________

            4.  Moreover, the  recent Supreme  Court case of  Albright v.
                                                              ________
            Oliver,  114 S.Ct.  807  (1994), "would  appear virtually  to
            ______
            foreclose reliance  on substantive  due process as  the basis
            for a viable malicious prosecution claim under section 1983."
            Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).
            __________    ______________

                                         -7-