Papas, II. v. Baines

• Court: Court of Appeals for the First Circuit
• Decided: December 16, 1992
• Docket: 92-1381
• Status: Published

Opinion

USCA1 Opinion

December 16, 1992     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 92-1381 

                                  PAUL N. PAPAS, II,

                                Plaintiff, Appellant,

                                          v.

                             LINDA RANDO BAINES, 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

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Paul N. Papas, II on brief pro se.
            _________________
            Harvey  Weiner, Mark E.  Young and  Peabody & Arnold  on brief for
            ______________  ______________      ________________
        appellees, Saugus Federal Credit Union and Kristin O'Brien Bambury.
            Lisa A. Wallace and The First  National Bank of Boston-Law  Office
            _______________     ______________________________________________
        on brief for appellee John W. Shorrock.
            Philip Burling, Anthony Mirenda and Foley,  Hoag & Eliot on  brief
            ______________  _______________     ____________________
        for appellee Arthur Cook.

                                 ____________________

____________________

Per Curiam.   Pro  se plaintiff Paul  Papas appeals
                      __________    ___  __

            from a district court judgment dismissing his thirty-one (31)

            page complaint because Papas failed to file a "concise, clear

            statement of his claims against each defendant" in accordance

            with a previous court order.  We affirm.

                                    I.  BACKGROUND
                                    ______________

                      Papas  is presently  incarcerated at  the Southeast

            Correctional Center in Bridgewater, Massachusetts.   He filed

            the  instant  complaint  in  October  1991.    The  complaint

            identified  eight  defendants: Linda  Rando  Baines (Baines),

            Schooner    Broadcasting,    Inc.   (Schooner),    Marshfield

            Broadcasting, Inc.  (Marshfield), Terre Marique  Realty Trust

            (TMRT),  Saugus Federal  Credit Union  (SFCU), SFCU's  Member

            Service  Manager -  Kristin O'Brien  Bambury (Bambury),  John

            Shorrock (a Bank of Boston  Customer Service Representative),

            and  Saugus  police officer  Arthur  Cook.1   A  multitude of

            federal and  state claims for relief  are asserted, including

            conspiracy  to violate  the Racketeer Influenced  and Corrupt

            Organizations Act (RICO), the  Privacy Act, various state and

            federal  civil rights  statutes, (e.g.,  42 U.S.C.   1983 and

            M.G.L. c.  12,    11H and  11I) and other laws.   Stripped of

            legalese, the complaint alleges the following facts.

____________________

            1.  The  complaint  also  purported  to  sue  "all  presently
            unknown defendants." 

In 1991, Papas  was engaged  in mortgage  brokering

            through  a business named  Capital Return Company. (Complaint

             7).  In  some undisclosed fashion, Papas  allegedly became a

            creditor  of Schooner, a Massachusetts corporation which owns

            and operates  an FM radio  station (WFAL, Falmouth)  under an

            FCC  license.   (Id.,   s  10, 27).   Linda  Rando  Baines is
                             ___

            Schooner's  President and  General Manager  and a  trustee of

            Terre Marique Realty Trust  (TMRT), an entity which allegedly

            holds  title to property that is the site of Schooner's radio

            tower.  (Id.,   12).  Papas  alleged that Baines,  Marshfield
                     ___

            and TRMT schemed to  devalue Schooner and hide its  assets so

            as to deny Papas and other creditors their money.   (Id.   9-
                                                                 ___

            12).   Toward that end, and to conceal allegedly false public

            filings  and prevent  Papas  from  petitioning Schooner  into

            involuntary bankruptcy,  Baines allegedly conspired  with the

            SFCU,  Bambury, Shorrock,  and  Cook to  cause Papas's  false

            arrest and imprisonment.  (Id.  9, 15).
                                       ___

                      Papas  alleged  the   following  additional   facts

            regarding  his false  arrest claim.   On  May 2,  1991, Papas

            opened a joint account at SFCU with his  minor daughter.2  On

            May  18th, he deposited a  sight draft which  was accepted by

____________________

            2.  While  the  complaint   names  Papas's   daughter  as   a
            plaintiff, this  court's May  22, 1992  order left  Papas the
            sole  appellant.    See  Cheung v.  Orchestra  Foundation  of
                                ___  ______     _________________________
            Buffalo, Inc.,  906 F.2d  59, 61 (2d  Cir. 1990)(non-attorney
            _____________
            parent must be represented by counsel to sue on behalf of his
            child).

                                         -3-
                                          3

the bank teller.   Papas then withdrew $50.00.   Bambury then

            allegedly arrived  at the  bank and immediately  withdrew the

            funds from  Papas's account without notice  to him, allegedly

            violating  SFCU's   fiduciary  duties   to   Papas.     After

            communicating with Shorrock and  Baines, Bambury resolved  to

            treat the sight  draft as a  fraudulent check.   She did  not

            notify  Papas of  her resolution.   Bambury  contacted police

            officer Cook.  Papas attempted to make  another withdrawal on

            May 21st, but was told the  funds had not cleared and that he

            should return later.   On  May 23, 1991,  Bambury told  Papas

            that  the funds were available.   Papas returned  to SFCU and

            attempted to make a  withdrawal.  He was arrested  by officer

            Cook  and  charged with  uttering  and  attempted larceny  by

            fraudulent  check.   The complaint  ( 26) alleged  that these

            charges were  later dismissed with prejudice.   Papas claimed

            over  $9 million  in damages  for the  defendants' respective

            roles in his demise.3

                      On  December 10,  1991, SFCU  and Bambury  moved to

            strike  the  complaint  under Fed.  R.  Civ.  12(e) and  (f),

            contending  that it  was so  vague, ambiguous  and scandalous

            that  they could not frame a responsive pleading and that the

____________________

            3.  After  the  district  court  allowed  Papas's  motion  to
            proceed in  forma pauperis,  the eight named  defendants were
            served  by  certified  mail.  Four of  the  eight  -  Baines,
            Schooner,  TMRT,  and  Marshfield  -  have  not  acknowledged
            service of  the complaint.   We note  that Baines  personally
            signed the  certified mail return  receipt which  accompanied
            the summons and complaint.

                                         -4-
                                          4

complaint generally did not appear to state claims upon which

            relief  could be granted.  SFCU and Bambury acknowledged that

            Papas opened an account at SFCU and subsequently attempted to

            deposit a $3000 "sight draft" which Bambury determined to  be

            fraudulent.    As  a  result, officer  Cook  arrested  Papas.

            Contrary to the allegation in the complaint, SFCU and Bambury

            contended  that Papas  was convicted  of forgery,  uttering a

            forged instrument, and attempted larceny and sentenced to two

            and  one-half  years in  prison.    They submitted  certified

            copies  of records  of  Papas's criminal  proceedings in  the

            Massachusetts state courts in support of their contention.4 

                      On December 11,  1991, Cook filed an  answer to the

            complaint which  denied most  of the factual  allegations and

            alleged, inter  alia, that  the complaint  failed to  state a
                     _____  ____

            claim  upon which relief could  be granted.   On December 18,

            1991,  Shorrock  filed a  motion  for  summary judgment  with

            supporting  affidavits  which  also  showed  that  Papas  was

            convicted of the aforementioned offenses.  Shorrock contended

____________________

            4.  Papas was first convicted in the Lynn district court.  He
            appealed  to  the  jury  of  six  session  in   Peabody,  but
            ultimately  pled guilty.   Papas  submitted an  opposition to
            SFCU's motion to strike wherein he claimed that he entered an
            Alford plea  that is  inadmissible in  this civil  action and
            ______
            that he is presently incarcerated  on another matter.   Under
            the applicable Massachusetts  law, Papas's guilty  plea could
            be  treated as  an  admission in  the  instant civil  action,
            although it would  not have collateral estoppel  effect.  See
                                                                      ___
            United States v. One  Parcel of Real Property, 900  F.2d 470,
            _____________    ____________________________
            473  (1st  Cir.  1990), (citing  Aetna  Cas.  &  Sur. Co.  v.
                                             ________________________
            Niziolek, 395  Mass. 737,  481 N.E. 2d  1356, 1363  (footnote
            ________
            omitted)). 

                                         -5-
                                          5

that  the  complaint was  frivolous  because  Papas's arrest,

            conviction and incarceration arose  from the very incident on

            which the complaint was based.5  

                      On January  3, 1992,  the  district court  endorsed

            SFCU's and Bambury's motion to strike as follows

                        ALLOWED.    The present  complaint  is
                        unintelligible.   The  plaintiff is to
                        file  a  concise, clear  statement  of
                        his  claims  against   each  defendant
                        within  twenty  days  or  this  matter
                        will be dismissed.

            The court also  issued a separate scheduling  order which set

            deadlines for discovery and dispositive motions.

                      On  January  15, 1992,  Papas  filed  a motion  for

            clarification of the court's order to file  a clear statement

            of  his claims.    Papas queried  whether  the court's  order

            pertained only to his  claims against SFCU and Bambury  or to

            all defendants,  while pointing  out that defendant  Cook had

            filed  an  answer.   Papas  also  sought additional  time  to

            respond to  the court's order.6  The  district court endorsed

____________________

            5.  On  December  18,  1991,   Papas  filed  a  "Response  to
            Defendants Shorrock, Bambury and Saugus Federal Credit Union"
            which appended an incident report Bambury prepared describing
            the events that led to Papas's arrest.  Papas argued that the
            complaint was not  so vague  as to prevent  Bambury and  SFCU
            from admitting the factual allegations set forth therein.  In
            a  separate  opposition  to  Shorrock's  motion  for  summary
            judgment, Papas argued that his complaint is not solely based
            on his transactions at SFCU.  The district court did not rule
            on Shorrock's motion for summary judgment.   

            6.  Cook  filed   an  opposition  to  Papas's   motion  which
            construed  the court's January  3, 1992 order  as applying to
            Papas's  claims against  all  defendants and  asked that  the
                                     ___

                                         -6-
                                          6

this motion, "DENIED.  The court's order is clear and will be

            strictly  enforced."    The  court  extended  Papas's  filing

            deadline from January 23 to February 7, 1992. 

                      Papas  filed an  eight-page "Clearer  Statement" of

            his claims on or about February 5, 1992.  While purporting to

            relate only to Papas's claims against Bambury and  SFCU, this

            document  alleged  (p. 2,   3)  that "[t]his  complaint  is a

            result of a single scheme  devised and executed by  Defendant

            Linda  Rando Baines to rest control and shares from a partner

            of  Defendant Schooner  Broadcasting,  Inc., and  convert the

            assets of that corporation for personal gain, make the shares

            worthless, then sell the assets  (hiding the main asset), for

            a devalued price and circumvent the lien . . . Papas has on .

            . .  Schooner's FM radio  license."  The  "Clearer Statement"

            further alleged that Baines purchased property for Schooner's

            radio tower through a  straw, then placed that property  in a

            realty trust (presumably, TRMT, although it is  not so pled),

            with  the  specific intent  of  excluding  the property  from

            Schooner's assets.   Papas claimed that  Baines, Schooner and

            Marshfield  joined  in an  effort  to  deny  him payment  for

            services he rendered  in securing financing for  TRMT.  Papas

            reiterated  his claim  that Baines  and Schooner  filed false

            public documents,  specifying as his grounds  that any public

            filings that did not  show Papas as a lienholder  were false.

____________________

            complaint be dismissed.

                                         -7-
                                          7

Papas also claimed that  SFCU and Bambury violate  RICO every

            time   they   file  reports   without   showing   him  as   a

            shareholder.7 In  short, the "Clearer  Statement" essentially

            realleged that Baines, Schooner and Marshfield enlisted SFCU,

            Bambury,  Shorrock and Cook to deny Papas monies he claims to

            have rightfully deposited in SFCU.    

                      On  March 11,  1992,  the district  court issued  a

            memorandum and order dismissing  the suit for Papas's failure

            to file  a more  definite statement  in  accordance with  the

            court's previous order.8  The court  noted that the complaint

            was  predicated  on   Papas's  arrest,  while   the  "Clearer

            Statement"  was based on an alleged struggle for control of a

            corporation  (i.e.,  Schooner).    The court  held  that  the

            "Clearer Statement"  was not "clear, concise  and direct" and

            did not plead fraud with particularity as required by Fed. R.

            Civ. P. 9(b).   The court accorded Papas's filings  a liberal

            construction  under Haines  v.  Kerner, 404  U.S. 519  (1972)
                                ______      ______

            (reversing dismissal  of pro  se  prisoner's complaint  under
                                     ___  __

____________________

            7.  Papas attached  a copy of the  Saugus Police Department's
            May  23, 1991  booking sheet  to  his "Clearer  Statement" to
            support  his   claim  that  the  charges   against  him  were
            dismissed.  However, no such  disposition is recorded on this
            document.

            8.  As the  "Memorandum and Order" was followed by a separate
            "Order  of Dismissal,"  the district  court  properly entered
            judgment on a  "separate   document" as required  by Fed.  R.
            Civ.  P. 58.  See Fiore v. Washington County Community Mental
                          ___ _____    __________________________________
            Health  Center,   960  F.2d  229,  236   (1st  Cir.  1992)(en
            ______________
            banc)(noting order on separate document satisfies Rule 58). 

                                         -8-
                                          8

Fed.  R.  Civ.  P.  12(b)(6)),  and  held  that  neither  the

            complaint  nor the "clearer  statement" passed muster because

            they were "prolix, confusing, and contain[ed] material  which

            is vague, scandalous and even unnecessary."  The court  noted

            that "no connection  among the defendants is  drawn; no roles

            in the  conspiracy are assigned.  . . .   If there  were some

            basis to the plaintiff's  allegations that certain defendants

            were engaged  in  a struggle  for control  of a  corporation,

            there is  no basis  to conclude  that  those same  defendants

            engaged  in  that struggle  to deprive  the plaintiff  of his

            fee."  As the  order of dismissal did not  specify otherwise,

            we presume it to be with prejudice.  Velazquez-Rivera v. Sea-
                                                 ________________    ____

            Land  Service, Inc.,  920  F.2d 1073,  1075  n. 5  (1st  Cir.
            ___________________

            1990).9

                                     II. ANALYSIS
                                     ____________

                      The sole  issue on  appeal is whether  the district

            court abused its discretion in dismissing this action because

            Papas failed to comply with the court's order to file a  more

            definite statement of his  claims.  "The choice  of sanctions

____________________

            9.  Papas  filed  a motion  to  strike  the district  court's
            memorandum  and  order under  Fed. R.  Civ.  P. 12(e)  on the
            ground that it contained "immaterial, impertinent, defamatory
            and  scandalous matter."  The district court  did not  act on
            this motion. We conclude that this motion, which Papas served
            before he filed his notice of appeal, poses no jurisdictional
            bar.  Rule 12(e) applies to pleadings, not court orders.  The
            motion  was frivolous  on its  face, and  it did  not warrant
            treatment under Fed. R. Civ. P. 59(e).  We do not regard this
            motion as undermining Papas's notice of appeal.    

                                         -9-
                                          9

for  failing to  comply  with a  court  order lies  with  the

            district  court, and we may not lightly disturb a decision to

            dismiss."  Velazquez-Rivera, 920 F.2d  at 1075.  "A complaint
                       ________________

            that  fails to  comply  with Rule  8  may be  dismissed  with

            prejudice pursuant  to Fed. R.  Civ. P. 41(b)  after allowing

            time to file an  amended complaint."   Mangan  v. Weinberger,
                                                   ______     __________

            848 F.2d 909,  911 (8th  Cir. 1988), cert.  denied, 488  U.S.
                                                 _____  ______

            1013  (1989).   However,  we have  repeatedly cautioned  that

            dismissal with prejudice is a severe sanction that "should be

            employed  only  when  the  district  court,  in  the  careful

            exercise  of  its discretion,  determines  that  none of  the

            lesser sanctions available to it would truly be appropriate."

            Zavala Santiago v.  Gonzalez Rivera, 553  F.2d 710, 712  (1st
            _______________     _______________

            Cir. 1977).  A  second opportunity to amend may  be warranted

            where  a pro  se plaintiff has  made a  good faith  effort to
                     ___  __

            comply with an order  for a more definite statement,  but has

            fallen short.  See, e.g., Pardee v. Moses, 605 F.2d 865, 866-
                           ___  ____  ______    _____

            67 (5th Cir. 1979).            In this case, we hold that the

            district court did not abuse its discretion in dismissing the

            present action, notwithstanding the fact that Papas is pro se
                                                                   ___ __

            and was  given only one  opportunity to amend  his complaint.

            The  complaint was long and confusing.  The order requiring a

            clearer statement  of  Papas's claims  was wholly  justified.

            That  order  squarely warned  Papas  that  his complaint  was

            "unintelligible" and  that a clearer statement  of his claims

-10-
                                          10

against "each defendant" was  required or his complaint would

            be dismissed.   In  addition, both Cook's  answer and  SFCU's

            motion to strike asserted that  the complaint failed to state

            a claim upon which relief could be granted, while  Shorrock's

            motion  for summary  judgment argued  that the  complaint was

            frivolous.    Faced  with these  warnings,  Papas's  "Clearer

            Statement" essentially reiterated his initial allegations and

            failed to  identify  a viable  basis for  relief.10   Rather,

            Papas simply  appears to be trying to relitigate the criminal

            charges  that  resulted  in  his  arrest  and  conviction  by

            accusing the  defendants  of  committing  fraud  and  perjury

            during the course of the events that led to his arrest.  

                      To be sure, the fact that Papas attempted to comply

            with  the court's order, as evidenced by his timely filing of

            the  "Clearer  Statement," militates  against dismissal.   In

            addition, this case was  not long pending (5 months).   There

            was no  pattern of delay.  However, in this case not only did

            the "Clearer  Statement" fail  to rectify the  original fault

            but the record suggests  that Papas is attempting to  use the

            judicial process to harass  those parties who participated in

____________________

            10.  We  reject Papas's  claim  that the  order of  dismissal
            applies  only to  those defendants  who moved  to strike  his
            complaint  in  the  first  place  (SFCU and  Bambury).    The
            district court  had inherent power to  dismiss Papas's claims
            against the  non-moving defendants.  Link  v. Wabash Railroad
                                                 ____     _______________
            Co., 370 U.S. 626, 629-30 (1961).
            ___

                                         -11-
                                          11

the events which led  to his arrest and conviction.11   Under

            these circumstances, we think that dismissal  without further

            leave to amend  was justified.   See Ruth  v. First  National
                                             ___ ____     _______________

            Bank of New  Jersey, 410  F. Supp. 1233,  1234 (D.N.J.  1976)
            ___________________

            (dismissing  complaint for  bank  funds  as  frivolous  where

            complaint was  based on same transaction  for which plaintiff

            had been convicted of fraud).  

                      Papas  argues  that  the  district court  erred  in

            dismissing his  case before all the named defendants had been

            served,  particularly where  the  district court  denied  his

            request  for clarification of  the order for  a more definite

            statement.  That some  of the defendants had not  been served

            effectively did not  deprive the district  court of power  to

            dismiss the complaint  as to these defendants.  Cf.   Diaz v.
                                                            ___   ____

            Stathis,  440 F. Supp. 634,  637 (D. Mass.  1977), aff'd, 576
            _______                                            _____

            F.2d 9 (1st Cir.  1978) ("[W]here presented with a  motion to

            dismiss  filed by some  defendants to  an action,  the court,

            where  appropriate,  may  consider  the  sufficiency  of  the

            complaint as  against all  defendants.")  And,  where Papas's

            "Clearer Statement" contained  allegations regarding  Baines,

____________________

            11.  While the district court did not expressly refer to this
            as  a  reason for  dismissal,  "[u]nless  the district  court
            explicitly limits  its rationale for dismissing  the case, it
            is proper  in reviewing for 'extreme'  misconduct to consider
            all  of  the  aggravating circumstances  together."    Enlace
                                                                   ______
            Mercantil Internacional  v. Senior Industries,  848 F.2d 315,
            _______________________     _________________
            317 (1st Cir. 1988). 

                                         -12-
                                          12

Schooner  and  Marshfield, he  does not  appear to  have been

            prejudiced by the denial of his request for clarification.  

                   Papas   further   argues   that  his   complaint   and

            supplemental    filings    pled    fraud   with    sufficient

            particularity, in that he essentially claims that the all the

            statements of  Bambury, Shorrock, Cook and  Baines were false

            and, to the  extent that these defendants communicated by FAX

            or telephone, in violation of RICO.  Apart from the fact that

            Papas's  claims  appear  to be  no  more  than  a transparent

            attempt  to  impose  RICO  liability on  the  defendants  who

            participated in  the events  that led to  Papas's arrest  and

            prosecution, such broad assertions do not plead a "pattern of

            racketeering" for  RICO purposes.  See Fleet  Credit Corp. v.
                                               ___ ___________________

            Sion,  893 F.2d  441, 444  (1st Cir.  1990).   Finally, Papas
            ____

            argues that  the court's order is  wholly ineffective because

            it lacks  the appropriate  54(b) certification and  the court

            could  not have dismissed his claims against all parties.  As

            the order  of dismissal embraced  all claims and  parties, no

            54(b) certification was required.     

                      Judgment affirmed.
                      __________________

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