Oropallo v. Parrish

Opinion

USCA1 Opinion

May 5, 1994           [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1953

CHARLES J. OROPALLO,

                                Plaintiff, Appellant,

                                          v.

                             RICHARD L. PARRISH, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Cyr and Stahl, Circuit Judges.
                                           ______________

                                 ___________________

               Charles J. Oropallo on brief pro se.
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               Jeffrey  R. Howard,  Attorney General,  and Lucy  C. Hodder,
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          Assistant Attorney General, on brief for appellees.

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                                  __________________

Per Curiam.  Plaintiff-appellant Charles  J. Oropallo, a
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            New  Hampshire inmate, appeals  pro se from  the dismissal of

            his amended  civil rights  complaint for  failure to  state a

            claim.  For the reasons stated below, we modify the dismissal

            in part, and, otherwise, affirm.

                                      BACKGROUND

                 On June 8,  1993, appellant filed  an in forma  pauperis

            complaint  in the  district court  alleging violations  of 42

            U.S.C.     1983,  1985 against  various prison  employees and

            officials,  as  well  as against  two  fellow  inmates.   The

            complaint also included two pendent state law claims.

                 The  following facts  were alleged  by Oropallo,  and we

            assume for purposes of this  opinion that they are true.   In

            early 1991,  defendant  Viola Lunderville,  Administrator  of

            Security,  terminated appellant  from his  job at  the prison

            recreation   department.    Appellant   filed  a  civil  suit

            regarding this  termination.1  In  April 1991,  approximately

            six   weeks  after   terminating  appellant  from   his  job,

            Lunderville  allegedly  conspired with  defendant  Richard L.

            Parrish,  a prison  official,  to  fabricate charges  against

            appellant.      Parrish   subsequently   authored   a   false

            disciplinary report stating that he  had received information

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            1.  The complaint does not state when this suit was filed.

                                         -2-

from  two inmates  leading  him to  search appellant's  hobby

            craft locker where Parrish found state property.2 

                 After  what Oropallo  alleges  was a  sham  disciplinary

            hearing, he was found guilty of unlawful possession of  state

            property.  The guilty finding was upheld by defendant Michael

            Cunningham, the  prison warden, and defendant  Ronald Powell,

            Commissioner of the New  Hampshire Department of Corrections.

            Thereafter,  Oropallo  filed  a  civil suit  challenging  the

            disciplinary proceeding.

                 Since   April  1991,   and   in  connection   with   the

            "fabricated"  charge, Oropallo allegedly has been banned from

            entering  the North  Yard  area of  the  prison.   Defendants

            Donald G.  Robb and George R. Sasser,  both prison employees,

            have allegedly  participated in  banning him from  this area.

            Oropallo  avers that  he has  been denied  use of  the prison

            gymnasium,  hobby  craft  shop,  North Yard  ball  field  and

            attendance at  a  jazz concert  and  a power  lifting  event.

            Oropallo further avers that this "punishment" is in excess of

            that normally handed down for disciplinary violations.3

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            2.  The  complaint alleges that  these two inmate informants,
            identified  as  defendants John  Doe  #1  and  John  Doe  #2,
            conspired  with Parrish  to  deprive appellant  of his  civil
            rights.

            3.  Although the complaint is  far from clear on this  point,
            it appears that the ban from  entering the North Yard area of
            the prison and from participating in  recreational activities
            was  imposed prior to the  disciplinary hearing.   The ban is
            allegedly  still in effect.  It appears from Oropallo's brief
            that the sanctions imposed following the disciplinary hearing

                                         -3-

In May  1992, Oropallo made inquiries  of various prison

            officials,  including defendant  Powell, regarding  his being

            banned from the North Yard area  of the prison.  Several days

            later,   appellant's   typewriter  and   legal   papers  were

            confiscated by defendant Loran  Ackerman, a prison  official.

            Appellant filed  a civil suit contesting  the confiscation of

            his legal materials.

                 Based on these facts,  the complaint alleged a violation

            of Oropallo's constitutional rights  to due process and equal

            protection, citing the Fifth, Ninth and Fourteenth Amendments

            to the Constitution.  In addition, the complaint alleged that

            Oropallo has been unconstitutionally  subjected to cruel  and

            unusual punishment in violation  of the Eighth and Fourteenth

            Amendments.

                 The  complaint  was initially  referred to  a magistrate

            judge (hereinafter,  magistrate)  who reviewed  it  prior  to

            completing service.    See 28  U.S.C.    1915(d); Neitzke  v.
                                   ___                        _______

            Williams,  490 U.S.  319,  327-28 (1989)  (to avoid  wasteful
            ________

            litigation,  under    1915(d)  the court  may dismiss  claims

            which are  based on indisputably meritless  legal theories or

            delusional factual scenarios).  The magistrate concluded that

            Oropallo's "claims concerning attendance at  the jazz concert

            and special  event and use  of the hobby craft  shop and ball

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            and guilty  finding  were suspended  loss  of good  time  and
            suspended punitive segregation time. 

                                         -4-

field  are  frivolous,"   and  that   his  claim   concerning

            deprivation  of  exercise  is  insufficient to  make  out  an

            actionable constitutional violation.   The magistrate granted

            Oropallo  thirty days in which to amend his complaint or face

            a recommendation of dismissal.  

                 Oropallo filed an amended complaint which restated his  

            1983 causes of action  as claims for harassment, constituting

            cruel   and  unusual   punishment,  and   discrimination,  in

            violation of  his rights to due process and equal protection.

            The amended complaint was otherwise identical to the original

            complaint.     Oropallo  did   not  aver  that   the  alleged

            discrimination  was directed  towards him  as a  member of  a

            particular class,  or offer any other reason  for the alleged

            disparate treatment.

                 After  reviewing  Oropallo's   amended  complaint,   the

            magistrate  recommended that the  complaint be  dismissed for

            failure to state a  claim.4  See Forte v. Sullivan,  935 F.2d
                                         ___ _____    ________

            1, 3 (1st Cir. 1991) (a district court may sua sponte dismiss

            an in forma pauperis  complaint for failure to state  a claim

            following notice and an opportunity to amend in a manner that

            would satisfy  the procedural safeguards  of Fed. R.  Civ. P.

            12(b)(6)).  In support  of his recommendation, the magistrate

            stated:

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            4.  The magistrate  did not state whether  this dismissal was
            intended to  be pursuant  to    1915(d)  or Fed.  R. Civ.  P.
            12(b)(6).

                                         -5-

In his original  complaint, plaintiff alleged  that
                 he  had  been   deprived  of  certain  recreational
                 activities.   Plaintiff  was ordered  to amend  his
                 complaint to  state facts  that show  an indefinite
                 limitation on exercise that could be harmful to his
                 health.   However,  the amended  complaint does  no
                 more  than repeat  the  conclusory  allegations  of
                 plaintiff's initial complaint,  namely, that he has
                 been deprived of "various recreational activities."
                 Amended Complaint at paras. 29, and  30.  Thus, the
                 court finds that plaintiff  has failed to show that
                 he has suffered any constitutional deprivation.

                 Oropallo filed a timely  objection in which he disavowed

            ever making  a claim concerning lack of  exercise, and argued

            that  he  had  stated  a   valid  claim  for  harassment  and

            discrimination in  violation of    1983.   In his  objection,

            Oropallo, for the  first time, articulated  a motive for  the

            alleged discrimination.   Oropallo  stated that he  was being

            discriminated against in retaliation  for the exercise of his

            first amendment right to file complaints.  

                 The district court reviewed the matter, and approved the

            magistrate's  report  without  stating   additional  reasons.

            Judgment  of  dismissal entered  on  August 12,  1993.   This

            appeal ensued.

                                      DISCUSSION

                 Oropallo argues  that his amended  complaint should  not

            have  been dismissed because  it states valid  claims under  

            1983 for violations of  his constitutional rights to be  free

-6-

from cruel  and unusual  punishment, to equal  protection, to

            proceduraldue process,and topetition thecourts.5 We disagree.

                 Since appellant  was placed on notice  of the inadequacy

            of  his complaint  and has  had an  opportunity to  amend, we

            construe the  dismissal of his amended  complaint for failure

            to state a claim as a Rule 12(b)(6) dismissal.  See Guglielmo
                                                            ___ _________

            v.  Cunningham, 811  F. Supp.  31 (D.N.H.  1993).   Appellate
                __________

            review of a dismissal  under Rule 12(b)(6) is plenary.   See,
                                                                     ___

            e.g., Miranda v. Ponce Fed.  Bank, 948 F.2d 41, 44 (1st  Cir.
            ____  _______    ________________

            1991).   The standard for  assessing the adequacy  of a civil

            rights claim is whether, accepting the factual allegations in

            the  complaint as  true, and  construing these  facts 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 appears pro se, we read his complaint with an extra

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            5.  Oropallo does not raise on appeal the dismissal of his 42
            U.S.C.    1985  claim  and it  is, therefore,  deemed waived.
            Even if  we were to  address this  issue, we would  hold that
            this  claim  was  properly  dismissed.   Appellant  does  not
            specify  the  subsection of     1985  upon which  he  relies.
            However, the  complaint can only conceivably  be construed as
            asserting   a   claim  under       1985(3)  which   prohibits
            conspiracies   to   interfere  with   the  civil   rights  of
            individuals.  As so construed, the complaint fails to state a
            cause  of  action  because  plaintiff does  not  allege  that
            defendants' actions were directed at a protected class.   See
                                                                      ___
            Bray  v. Alexandria  Women's Health  Clinic,  113 S.  Ct. 753
            ____     __________________________________
            (1993).

                                         -7-

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

            (1st Cir. 1991).

                 Oropallo's  procedural due  process  claim is  far  from

            clear.  The disciplinary hearing that appellant claims was  a

            sham  is the  subject  of an  independent  complaint, and  he

            disavows  any  intent to  challenge  that  proceeding in  the

            instant  amended  complaint.    Instead,  appellant's  theory

            appears  to be that  since the  deprivations he  complains of

            were not  imposed  as sanctions  following this  disciplinary

            hearing,   or  following   any   other  hearing,   they  were

            unconstitutionally imposed without any process.  

                 This claim,  however, must fail  if there is  no liberty

            interest  in the  activities he alleges  he has  been denied.

            See,  e.g., Kentucky  Dep't of  Corrections v.  Thompson, 490
            ___   ____  _______________________________     ________

            U.S. 454 (1989) (holding  that visitation privileges could be

            suspended  without  hearing  where  no  liberty  interest  in

            receiving  visitors existed).    Appellant has  abandoned any

            allegation that  he has  been deprived of  adequate exercise,

            and the Constitution does  not create an enforceable interest

            in recreational  programs designed to relieve  the boredom of

            prison life.   Although  liberty interests  may be  rooted in

            state  law, none of the prison rules invoked by the appellant

            could  conceivably be interpreted  as creating an entitlement

            to recreation.

-8-

We need  not devote much attention  to Oropallo's Eighth

            Amendment claim.  The  deprivations Oropallo complains of are

            not sufficiently weighty to implicate the Eighth  Amendment's

            ban  on  cruel  and  unusual  punishment.    See  Hudson   v.
                                                         ___  ______

            McMillian, 112  S. Ct.  995, 1000  (1992) (stating  that only
            _________

            those deprivations  denying the minimal civilized  measure of

            life's necessities  are sufficiently grave to  form the basis

            of an Eighth Amendment violation). 

                 Appellant's   claim  that  he   has  been  denied  equal

            protection because prison officials imposed harsher sanctions

            on him than  on others  "similarly situated" also  fails.   A

            person bringing  an action under the  equal protection clause

            of the Fourteenth Amendment must either show a violation of a

            fundamental right or "intentional discrimination  against him

            because  of his membership in a  particular class, not merely

            that he was treated unfairly as an individual."  Huebschen v.
                                                             _________

            Department of Health & Social  Services, 716 F.2d 1167,  1171
            _______________________________________

            (7th  Cir.  1983).     There  is  no  fundamental  right   to

            recreational  activities,  and Oropallo  makes  no allegation

            that race, religion or the like were at work here.  

                 Finally, we  address plaintiff's retaliation claim.   It

            is  well  established that  conduct  which  is not  otherwise

            constitutionally deficient is actionable under   1983 if done

            in retaliation for the exercise of constitutionally protected

            first amendment freedoms.   See Ferranti  v. Moran, 618  F.2d
                                        ___ ________     _____

-9-

888,   892   n.4  (1st   Cir.  1980)   ("[A]ctions  otherwise

            supportable lose  their legitimacy  if designed to  punish or

            deter  an exercise  of  constitutional freedoms.");  see also
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            Goff  v.  Burton, 7  F.3d 734,  738  (8th Cir.  1993) (prison
            ____      ______

            officials  cannot  lawfully  impose  a  disciplinary sanction

            against a prisoner in retaliation for the prisoner's exercise

            of  his constitutional right).  In McDonald v. Hall, 610 F.2d
                                               ________    ____

            16,  18 (1st Cir. 1979), we held that an inmate's allegations

            that he  was transferred to another prison in retaliation for

            having  earlier  filed   actions  against  prison   officials

            sufficed to state a cause of action. 

                 However,   even  if   we  construe   Oropallo's  amended

            complaint  liberally  to  include  his  later  allegation  of

            retaliation, we think his complaint  falls short of stating a

            cause of action.  In contrast to Ferranti and McDonald, where
                                             ________     ________

            we  found that the allegations  were sufficient, it cannot be

            said that Oropallo has set forth a chronology of events which

            warrants  an inference  of retaliation.    See  Ferranti, 618
                                                       ___  ________

            F.2d  at 892  (inference  of retaliation  warranted from  the

            chronology  of events  recited and  from the  allegation that

            appellant's first suit complains  of prison conditions and is

            directed  at  prison officials);  McDonald,  610  F.2d at  18
                                              ________

            (chronology  of  events  provided  support  for inference  of

            retaliation).    Admittedly,  Oropallo  does  detail  in  his

            complaint various  lawsuits he  has filed directed  at prison

-10-

officials.  However, it  is unclear, based on  the complaint,

            whether any of Oropallo's  lawsuits antedates the decision to

            ban  him from  the North  Yard area  of the  prison and  from

            participating  in recreational  activities.   If the  ban was

            imposed   prior  to   the  lawsuits,   Oropallo's   claim  of

            retaliation is seemingly without basis.

                 Although we  are persuaded  that Oropallo has  failed to

            state a claim for  retaliation, the defect is one  that might

            easily be cured by amendment.  In light of appellant's pro se

            status, and because the  district court did not  address this

            claim,  we  think the  dismissal  should  be  modified to  be

            without prejudice to the  plaintiff's filing a second amended

            complaint   realleging  this   claim.     Furthermore,  since

            appellant's pendent state claims were not addressed below, he

            should be permitted to reallege these claims.   The dismissal

            of plaintiff's remaining claims is affirmed with prejudice.  

                 Affirmed as modified.   
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