Malek v. Knightly

• Court: Court of Appeals for the First Circuit
• Decided: June 5, 1995
• Docket: 94-2113
• Status: Published

Opinion

USCA1 Opinion

June 5, 1995          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 94-2113 



                                STANLEY J. MALEK, JR.,



                                Plaintiff, Appellant,



                                          v.



                        DEPUTY SHERIFF DAVID KNIGHTLY, ET AL.,



                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________



                                 ____________________



            Stanley J. Malek, Jr. on brief pro se.
            _____________________

            Richard L. Barry, Jr. on brief for appellees.
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Per Curiam.   Plaintiff-appellant Stanley J.  Malek
                      __________



            appeals  from  the  dismissal  of his  amended  civil  rights



            complaint  for failure  to  state a  claim.   We  affirm  the



            dismissal of  appellant's  federal  claims,  but  modify  the



            dismissal  of appellant's  state law  claims to  reflect that



            their dismissal  is without prejudice to  their being renewed



            in state court.  



                                      BACKGROUND
                                      __________



                      On April  7, 1994,  appellant filed a  complaint in



            the  district  court.    As amended,  the  complaint  alleges



            violations of  42  U.S.C.     1983,  1985, and  1986  against



            deputy  sheriffs  David  Knightly and  Francis  Cote, Sheriff



            Robert  Garvey,  Hampshire County  Sheriff's  Department, and



            Hampshire County Sheriff's, Inc.   The amended complaint also



            includes a variety of state common law claims.



                      Stripped to its  essentials, the complaint  alleges



            that on February 23, 1994, at approximately 8:00 a.m., deputy



            sheriffs  Knightly and  Cote came onto  appellant's property,



            entered  his  home without  his  consent,  and arrested  him.



            Knightly and Cote then transported appellant to jail.  On the



            way there, the deputy sheriffs showed appellant a "purported"



            capias.    After  being held  for  a  short  period of  time,



            appellant  was released  and given  a court  date to  return.



            Thereafter, appellant sent notices regarding this incident to



            the Hampshire County Commissioners, the chairman of the Board


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of  Commissioners,  and appellee  Sheriff Garvey.   Appellant



            received no response to these notices.  



                      Based on these  facts, appellant alleged violations



            of  his rights  to due  process of  law and  to be  free from



            unreasonable searches and seizures  under the Fourth,  Fifth,



            Ninth,  and  Fourteenth  Amendments.     He  also  alleged  a



            conspiracy to deprive him of his civil rights in violation of



            42 U.S.C.   1983,  1985, and 1986.  Finally, he alleged state



            law  claims  for  false imprisonment,  trespass,  defamation,



            invasion of privacy, and civil conspiracy.   On May 31, 1994,



            defendants-appellees  filed a  motion to dismiss  the amended



            complaint  for  failure to  state a  claim.   The  two deputy



            sheriffs and the  sheriff also asserted  a defense of  quasi-



            judicial  immunity.   In support  of the  motion to  dismiss,



            appellees submitted copies of various court documents.  These



            documents included a copy of a capias issued by Ware District



            Court commanding appellant's arrest for contempt based on his



            failure  to  appear  in  court for  a  supplementary  process



            hearing.  Appellant responded by moving  to strike the motion



            to dismiss.  On  August 25, 1994, the district  court allowed



            the  motion to dismiss as to all claims.  Judgment entered on



            August  26,  1994.    Appellant  filed  a  timely  motion for



            reconsideration, which was denied.  This appeal ensued.


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DISCUSSION
                                      __________



                                          I.
                                          _



                      Appellate review of a motion to dismiss is de novo.
                                                                 __ ____



            See, e.g., Armstrong v. Jefferson Smurfit Corp., 30 F.3d  11,
            ___  ____  _________    _______________________



            12  (1st Cir. 1994).  The standard for assessing the adequacy



            of a  civil rights claim  is whether,  accepting the  factual



            averments in the  complaint as true,  and construing them  in



            the light most favorable to the plaintiff, the pleading shows



            any fact which could  entitle the plaintiff to relief.   See,
                                                                     ___



            e.g., Leatherman  v. Tarrant County  Narcotics Intelligence &
            ____  __________     ________________________________________



            Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.
            _________________                                   ______



            Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.  1988).  Because
            _______________



            appellant  is pro  se, we  read his  complaint with  an extra
                          ___  __



            degree  of solicitude.  Rodi  v. Ventetuolo, 941  F.2d 22, 23
                                    ____     __________



            (1st  Cir. 1991).    We  are  free to  affirm  on  any  basis



            supported by the  record.  See Watterson v. Page, 987 F.2d 1,
                                       ___ _________    ____



            7 n.3 (1st Cir. 1993).



                                         II.
                                         __



                      Appellant  argues that his amended complaint should



            not have been dismissed because it states a valid claim under



              1983 for violation  of his constitutional right to  be free



            from unreasonable searches and  seizures.1  In particular, he



            contends that a capias is not a warrant, and that he stated a



                                
            ____________________



            1.  Appellant  does not raise on appeal  the dismissal of his

            claims   under  42  U.S.C.      1985,  1986,  and  they  are,

            therefore, deemed waived.  



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claim  against deputy  sheriffs Knightly  and Cote  under the



            Fourth Amendment based on their unconsented to entry into his



            home  without a warrant.  Appellant also contends that he has



            stated a claim against Sheriff Garvey, in his individual  and



            official  capacity, based  on Garvey's  failure  to reprimand



            Knightly  and Cote  after  appellant sent  him three  notices



            about the February 23, 1994 incident.  



            A.  Deputy Sheriffs Knightly and Cote



                      Appellees urge, and the district court  found, that



            deputy  sheriffs Knightly  and  Cote are  entitled to  quasi-



            judicial  immunity  because they  were  executing a  facially



            valid warrant. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.
                           ___ _____    ________



            1991).    Appellant responds  that  the  defense of  absolute



            immunity must fail because the deputies exceeded legal bounds



            in  executing the  warrant.   See Martin  v. Board  of County
                                          ___ ______     ________________



            Comm'rs, 909 F.2d  402, 405 (10th  Cir. 1990) ("[A]  judicial
            _______



            warrant  contains an implicit directive that the arrest . . .



            be carried out in  a lawful manner.").   We need not  resolve



            the  issue whether  absolute immunity  protects  Knightly and



            Cote, however, because we  find that, in any event,  they are



            entitled to qualified  immunity since they did  not violate a



            "clearly established"  right.  See Harlow  v. Fitzgerald, 457
                                           ___ ______     __________



            U.S. 800, 818 (1982) (holding that qualified immunity shields



            public  officials  performing  discretionary  functions  from



            liability for civil damages insofar as their conduct does not


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violate  clearly  established rights  of  which  a reasonable



            person should have known).



                      In Payton  v. New  York, 445  U.S. 573  (1980), the
                         ______     _________



            Supreme Court  held that  the Fourth Amendment  prohibits the



            police from effecting a  warrantless and nonconsensual  entry



            into  a  suspect's home  in order  to  make a  routine felony



            arrest.   However, the Court also held that a criminal arrest



            warrant  alone was sufficient  to authorize the  entry into a



            person's home to effect his arrest.  Payton, 445 U.S. at 602-
                                                 ______



            03; see also Steagald v. United States, 451 U.S. 204, 214 n.7
                ________ ________    _____________



            (1981)   (discussing  Payton).     Contrary   to  appellant's
                                  ______



            suggestion, the deputy  sheriffs who entered his  home had an



            arrest warrant.  The issue, as we see it, is  whether a bench



            warrant  for   civil  contempt  authorizes  entry   into  the



            arrestee's home to effect the arrest.  



                      This  latter issue has received surprisingly little



            discussion   in  the  case   law,  and   we  have   found  no



            Massachusetts or  federal cases  directly on point.   Because



            the  issue  was inadequately  briefed, we  do not  resolve it



            here.  Given the dearth  of relevant case law, we cannot  say



            that  Knightly or  Cote  (or more  precisely, an  objectively



            reasonably police  office in  their position) knew  or should



            have known  that  their actions  violated appellant's  Fourth



            Amendment rights, if, in fact, they did.  See Wiley v. Doory,
                                                      ___ _____    _____



            14 F.3d 993, 995 (4th Cir. 1994) (Powell, J.) (observing that


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in determining whether the plaintiff has asserted a violation



            of a  clearly established  right, "`the proper  focus is  not



            upon the right at its most  general or abstract level, but at



            the level of  its application to  the specific conduct  being



            challenged.'") (quoting  Pritchett v.  Alford, 973 F.2d  307,
                                     _________     ______



            312 (4th Cir. 1992)). 



            B.  Sheriff Garvey



                      Appellant failed to  state a claim against  Sheriff



            Garvey  even  if  we  assume,  arguendo,  that  his  deputies
                                           ________



            violated a federally  protected right.   A supervisor may  be



            liable only  on the basis of  his own acts or  omissions, and



            there must  be an  affirmative link between  the supervisor's



            action or inaction and the street level misconduct.  Bowen v.
                                                                 _____



            City  of  Manchester,  966  F.2d  13,  20  (1st  Cir.  1992);
            ____________________



            Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
            ___________________    _________



            1989).    In the  instant  case, appellant  attempts  to hold



            Sheriff  Garvey  liable based  on  his  failure to  reprimand



            deputy  sheriffs  Knightly  and  Cote for  their  actions  on



            February 23, 1994.   However, the failure of a  supervisor to



            discipline his  subordinates following  a single  instance of



            "misconduct"  is insufficient  for a  finding of  supervisory



            liability because  the failure to act cannot  have caused the



            violation.  See Febus-Rodriguez v. Batencourt-Lebron, 14 F.3d
                        ___ _______________    _________________



            87, 93 (1st Cir. 1994) (no liability where supervisor was not



            provided with  requisite notice of behavior  which was likely


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to  result in constitutional violation).  We add that, in any



            event,  Sheriff Garvey would also be entitled to a defense of



            qualified immunity.



                      Appellant's  claim  against Sheriff  Garvey  in his



            official capacity  also fails.  An  official-capacity suit is



            actually a suit against the entity of which the officer is an



            agent.   Kentucky v.  Graham, 473 U.S.  159, 165 (1985).   To
                     ________     ______



            establish  municipal  liability under    1983,  the plaintiff



            must show  that municipal  employees were acting  pursuant to



            some official policy or custom of the city when they violated



            the  plaintiff's rights.   Oklahoma City v.  Tuttle, 471 U.S.
                                       _____________     ______



            808, 810 (1985);  Monell v. Department of  Social Servs., 436
                              ______    ____________________________



            U.S. 658,  694 (1978).  Because the issue was not briefed, we



            pass  the question  whether  Sheriff Garvey,  in the  instant



            case,  should be considered an  agent of the  state (in which



            case Eleventh  Amendment immunity  applies) or of  the county



            (in  which  case  it does  not).    We  will assume,  without



            deciding, that  Sheriff Garvey should be  considered a county



            agent.   Even so, appellant's claim fails because he does not



            allege  that  deputy  sheriffs  Knightly and  Cote  acted  in



            conformity with official county policy, or that their actions



            were  caused  by Sheriff  Garvey's  acquiescence  in previous



            "misconduct."  



                                         III.
                                         ___


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Because we affirm the district court's dismissal of



            appellant's federal  claims, we find that  the district court



            did  not abuse  its discretion  in dismissing  the state  law



            claims.   United Mine Workers  of America v.  Gibbs, 383 U.S.
                      _______________________________     _____



            715, 726 (1966).   We modify the  dismissal of the  state law



            claims, however, to the extent that they were  dismissed with



            prejudice.  Appellant should  not be barred by reason  of the



            impotence of his federal claims from bringing  his common law



            claims before a state tribunal. 



                      We have carefully considered  appellant's remaining



            arguments and find them to be without merit.  Accordingly, we



            affirm  the dismissal  of appellant's  claims but  modify the



            judgment  to  reflect that  the  state  claims are  dismissed



            without prejudice to their renewal in state court.



                      Affirmed as modified.
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