Hoover v. Suffolk University

Opinion

USCA1 Opinion

June 13, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-2074

BENJAMIN HOOVER, JR.,

                                Plaintiff, Appellant,

                                          v.

                        SUFFOLK UNIVERSITY LAW SCHOOL, ET AL.,

                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                                 ___________________

                                        Before

                             Torruella, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Benjamin Hoover, Jr. on brief pro se.
               ____________________
               Paul V. Lyons, Michael  L. Rosen and Foley, Hoag &  Eliot on
               _____________  _________________     ____________________
          brief for appellees.

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                                  __________________

Per Curiam.    Plaintiff-appellant Benjamin Hoover,
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            Jr.,  proceeding  pro  se,  has appealed  from  the  district

            court's order dismissing his complaint under 42 U.S.C.   1983

            against  defendants-appellees  Suffolk University  Law School

            ("Suffolk"), Suffolk Dean Paul Sugarman and Suffolk Registrar

            Lorraine Cove.      Hoover's complaint alleged that, after he

            had objected to a failing grade he had received in a  Suffolk

            class  that  would prevent  him  from  graduating, defendants

            denied him due process by  refusing to present his case to  a

            faculty board of review.  On August 2, 1993, defendants moved

            to  dismiss Hoover's complaint under Fed. R. Civ. P. 12(b)(6)

            on  the ground  that  defendants were  not  state actors  and

            therefore could  not be liable under    1983.   On August 19,

            the  district court enlarged the  time for Hoover  to file an

            opposition to the  motion to August  26.  On  August 30,  the

            district  court,   noting   Hoover's  failure   to  file   an

            opposition, granted  the motion to dismiss  the complaint for

            the  reasons stated by defendants.  On September 7, 1993, the

            district court issued  an order  dismissing the  case in  its

            entirety.

                 One  week  later,  on  September 14,  Hoover  filed  his

            opposition  to the motion to  dismiss, a motion  for leave to

            file an amended complaint,  a proposed amended complaint, and

            a proposed  supplemental complaint.   Both of  these proposed

            complaints  added claims of racial discrimination under Title

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VI of  the Civil Rights Act  of 1964, 42 U.S.C.    2000d, and

            added  as  a defendant  the  professor  who  gave Hoover  the

            failing  grade.   The  proposed supplemental  complaint added

            allegations arising out  of Hoover's dismissal  from Suffolk,

            which occurred  after the  filing of the  original complaint.

            Hoover  also  filed a  motion for  a change  of venue  to the

            District of  Puerto Rico,  asserting that the  district judge

            was  biased because he had once been a part-time professor at

            Suffolk  and  that Suffolk's  influence  in  the Boston  area

            precluded impartial treatment of Hoover's case there.

                 The  district court  denied all  of  these motions  in a

            September 17, 1993 order.  Hoover appeals.  We affirm.

State Action Under   1983
                              _________________________

Hoover's  appeal from the  district court's dismissal of

            his original complaint lacks  merit.  That complaint asserted

            claims under 42 U.S.C.    1983, which permits liability  only

            for persons  acting "under  color of any  statute, ordinance,

            regulation,  custom, or usage,  of any State  or Territory or

            the District of  Columbia . . . ."   The district court ruled

            that  defendants  were  private  entities and  therefore  not

            subject to liability under   1983.  The only  basis for state

            action  Hoover asserted  was  that Suffolk  receives  federal

            funding.    It  is  well-settled, however,  that  receipt  of

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federal funding does not  render an entity a state  actor for

            purposes of   1983.  Rendell-Baker v. Kohn, 457 U.S. 830, 840
                                 _____________    ____

            (1982); Berrios v. Inter  American University, 535 F.2d 1330,
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            1332 n.5 (1st  Cir. 1976).   Indeed, Hoover  concedes in  his

            brief on appeal that he "asserted section 1983 in error."

Disqualification of the District Judge
                        ______________________________________

Hoover  argues  that  the  district  judge  should  have

            recused himself because of the judge's prior affiliation with

            Suffolk.   At the onset of  the case on May  28, 1993, before

            hearing Hoover's  motion for  a temporary restraining  order,

            the district judge informed the parties as follows:

"You  should know  before we begin  that at
                    one time --  perhaps five,  six, seven  years
                    ago  --  I  was  a  part-time  instructor  at
                    Suffolk Law  School.  I was  not there during
                    the term  of Mr. Sugarman, but,  of course, I
                    know  Mr. Sugarman  as an  attorney.   He has
                    appeared in  this Court.  Other  than that, I
                    have no connection with Mr. Sugarman.
                      
                      I have had, naturally, some connection with
                    Lorraine  Cove in the  sense that  I returned
                    the  examination lists  to her  office.   But
                    other than  that, I have  no connection  with
                    her.  You should know that.

                      Because the matter is  sufficiently remote,
                    as  far as  I am  concerned, not to  draw any
                    impartiality  into  question,  but   you  may
                    differ -- in which  case I would be  happy to
                    remove  myself  and  have  this  assigned  to
                    another judge --  I kept it because I  do not
                    see  any problem with it.  At the same time I
                    am aware that it  might be a little difficult

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to find another judge on short notice.  It is
                    up to you.  I will leave it to you."
                 Hoover then stated that he would accept the district judge

          hearing  the temporary restraining order.  As of the dismissal of

          the case on  September 7, 1993,  Hoover had filed  no motion  for

          disqualification.  Only in  his September 14, 1993 post-dismissal

          motion for change of venue did Hoover raise the matter.

                 We agree with defendants that Hoover's three-month delay -

          -  until  after  dismissal  --  in  moving  for  disqualification

          precludes him from raising the matter on appeal.  "[A] party must

          raise its claim  of a  district court's  disqualification at  the

          earliest possible  moment  after  obtaining  knowledge  of  facts

          demonstrating  the  basis for  such a  claim."   Apple  v. Jewish
                                                           _____     ______

          Hospital & Medical Center, 829 F.2d 326, 333 (2nd Cir. 1987).  As
          _________________________

          the   court   in   Apple   aptly   stated,   "[A]   movant   [for
                             _____

          disqualification] may  not hold back  and wait, hedging  its bets

          against the eventual outcome."  Id. at 334.
                                          ___

                 Even   were  we  to   consider  Hoover's  disqualification

          argument, it lacks any  merit.  Hoover  has set forth no  factual

          allegations to suggest that  the district judge had  any personal

          or  financial stake in  the outcome  of the  case.   The district

          court expressed no personal bias in his statements at the hearing

          on  the temporary  restraining order.   There are  no allegations

          that  the judge has ever had  a close or social relationship with

          any  of  the individual  defendants, or  that  the judge  has any

          current relationship with Suffolk at all.  There was no basis for

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recusal  here.   See  Easley v.  University  of Michigan  Bd.  of
                           ___  ______     ________________________________

          Regents, 906 F.2d  1143 (6th  Cir. 1990) (judge  not required  to
          _______

          recuse  himself from suit against  law school where  judge was an

          alumnus of the law school, served as a volunteer fund  raiser for

          the  law school, and was on the law school's visiting committee),

          cert. denied, 499 U.S.  947 (1991); Brody v. President  & Fellows
          ____________                        _____    ____________________

          of Harvard College,  664 F.2d  10, 11-12 (1st  Cir. 1981),  cert.
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          denied, 455 U.S. 1027 (1982).
          ______

Denial of Leave to Amend and Supplement the Complaint
                _____________________________________________________

Hoover's  notice of  appeal challenges  only  the district

          court's  September 7,  1993  order  of  dismissal, and  does  not

          mention  the district  court's  September 17  denial of  Hoover's

          post-dismissal motions (which Hoover  challenges at length in his

          brief).  For  that reason,  defendants argue that  under Fed.  R.

          App. P. 3(c), which provides that "[a] notice of appeal also must

          designate the  judgment, order,  or part thereof  appealed from,"

          only Hoover's challenge to the September  7 dismissal is properly

          before this court.  We  need not resolve this question.   Even if

          we were to  consider Hoover's challenges to  the district court's

          September 17 rulings, we would affirm the district court.

                 The crux of  Hoover's argument is that  the district court

          did  not have  discretion to deny  Hoover the right  to amend his
               ___

          complaint.  Hoover points to Fed.  R. Civ. P. 15(a), which states

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that a "party may amend the party's pleading once as  a matter of

          course at any time before a responsive pleading is served . . . .

          Otherwise a party may amend the party's pleading only by leave of

          court . .  . , and  leave shall be  freely given when  justice so

          requires."   Hoover notes, correctly, that  defendants' motion to

          dismiss did  not constitute a "responsive  pleading" for purposes

          of Rule 15(a).   Dartmouth Review v. Dartmouth College,  889 F.2d
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          13,  22 (1st  Cir.  1989); Wright,  Miller  and Kane,  6  Federal

          Practice & Procedure   1483, at 585 (2nd ed. 1990).

                 The point  Hoover overlooks, however, is  that when Hoover

          filed his  motion  to  amend  and  supplement  the  complaint  on

          September 12, the district court  had already dismissed the case.

          "[T]he thrust of Rule  15(a) is aimed at the  pre-judgment phases

          of litigation."   Dartmouth Review,  supra, 889  F.2d at 22.   We
                            ________________   _____

          have recently held that, although there is disagreement among the

          circuits on this point, "a plaintiff's  time to amend his or  her

          complaint  as  a  matter  of  right  within   the  First  Circuit

          terminates upon  a district court's dismissal of the complaint." 

          Acevedo-Villalobos v.  Hernandez, no. 93-1544 (1st Cir. 4/28/94),
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          slip. op. at 12, 1994  U.S. App. Lexis 8990.  Similarly,  we held

          in  Jackson v.  Salon,  614 F.2d  15,  17 (1st  Cir.  1980), that
              _______     _____

          "[b]ecause  the motion  was received  by the  court after  it had

          dismissed the complaint, it was too late for [plaintiff] to amend

          as a matter of right."    These holdings govern the issue in this

          case.   Following  the district  court's dismissal  of  the case,

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Hoover's  only option -- other than  appeal -- was to "seek leave

          to  amend under  Rule 15(a)  after  having the  judgment reopened

          under either Rule 59 or 60."  Acevedo-Villalobos, supra, slip op.
                                        __________________  _____

          at 14.

                 Even putting aside the fact  that Hoover did not accompany

          his motion to  amend with the requisite Rule 59  or 60 motion, we

          could not find that  the district court abused its  discretion in

          denying  leave  to  amend or  supplement.    For  one thing,  the

          proposed amended and supplemental complaints included no adequate

          allegations of state  action on  the part of  any defendant,  and

          thus  contained nothing that  would cure the  defects of Hoover's

          claims under   1983.

                 Hoover did propose to add new claims under Title VI of the

          Civil Rights Act of 1964, 42  U.S.C.   2000d, which provides, "No

          person in the United States shall, on the ground of  race, color,

          or national origin,  be excluded from participation in, be denied

          the benefits  of,  or be  subjected to  discrimination under  any

          program or activity receiving  Federal financial assistance."  We

          agree with  the district  court, however, that  Hoover's proposed

          amended and  supplemental complaints  based these claims  "on the

          bare  allegation   of  racial  discrimination  with   no  support

          whatsoever."   All that  the  proposed complaints  alleged as  to

          racial discrimination  was that  Hoover's dismissal from  the law

          school  "was done without due process,  as a discrimination plot.

          This  was done with intent and malice  to create and did create a

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deliberate  indifference towards  plaintiff because  plaintiff is

          black."  The proposed complaints did not "assemble . . . specific

          facts  adequate  to show  or  raise  a plausible  inference  that

          [Hoover  was] subjected to race-based discrimination."  Dartmouth
                                                                  _________

          Review, supra, 889  F.2d at 17.  These complaints might well have
          ______  _____

          been  subject to  dismissal under  Fed. R.  Civ. P.  12(b)(6) for

          failure to state a  claim.  Thus,  the district court acted  well

          within  its discretion in denying leave to amend or supplement as

          futile.   See id.  at 23; Correa-Martinez  v. Arrillaga-Belendez,
                    ___ ___         _______________     __________________

          903 F.2d 49, 59 (1st Cir. 1990).

The alleged change-of-address snafu
                         ___________________________________

Hoover  also  argues  that  the district  court  erred  in

          granting  defendants'  motion  to  dismiss before  receiving  and

          considering  Hoover's opposition to that  motion.  Hoover did not

          timely  file his opposition.   Hoover  asserts, however,  that he

          changed  his residence around this  time, and that  on August 13,

          1993, he informed defendants and the district court of his change

          of  address.  For some reason, Hoover alleges, the district court

          failed  to make  proper note  of his change  of address,  so that

          Hoover did not  receive timely  notice of the  court's August  19

          order extending until August 26 the deadline for him  to file his

          opposition  to  the  motion to  dismiss.    The  clerk of  court,

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furthermore, allegedly told him orally on  September 7, 1993 that

          he could file his opposition by September 14.

                 There  is no  dispute that  Hoover did  receive a  copy of

          defendants' motion to dismiss on August 11.  Even apart  from the

          district court's extension  of the filing deadline  to August 26,

          of  which  Hoover  allegedly  received no  notice,  the  district

          court's local rules  require that  an opposition to  a motion  be

          filed within fourteen days  after service of the motion  (in this

          instance,  by August  25).   Loc.  R.  7.1(B)(2).   Hoover  filed

          nothing before September 14, and did not contact the clerk of the

          district court to discuss the matter until September 7.

                 In any  event, this matter  is irrelevant to  this appeal.

          Since Hoover  has now conceded that the  district court's grounds

          for dismissing  his original  complaint were  correct, he  has in

          effect conceded  that consideration  of his opposition  could not

          have changed  the district court's September  7 ruling dismissing

          the original complaint.  

                 Furthermore, as we have  said, once the original complaint

          had been dismissed, amendment of that complaint required leave of

          court.  The possibility  that Hoover might have filed  his motion

          to amend  before dismissal,  had there been  no change-of-address

          snafu,  does not change or lift that requirement.  The change-of-

          address circumstance, of  course, was one factor  that could have

          been  considered by the district court in weighing whether or not

          to grant leave to amend.   Given the deficiencies of the proposed

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amended and supplemental complaints, the district court certainly

          did not  abuse its  discretion in nevertheless  denying leave  to

          amend.

                 We have considered all of Hoover's remaining arguments and

          find them meritless.

                 Hoover's  request,  in his  brief,  for  oral argument  is

          denied.
          ______

                 The rulings of the district court are affirmed.
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