Ricupero v. Mancini

Court of Appeals for the First Circuit·Decided August 24, 1994·No. 94-1211·Published

Opinion

USCA1 Opinion

August 24, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1211

KEVIN RICUPERO,

Plaintiff, Appellant,

v.

DAVID E. MANCINI, ETC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]
___________________

____________________

Before

Torruella, Selya and Cyr,
Circuit Judges.
______________

____________________

Kevin Ricupero on brief pro se.
______________
Russell F. Hilliard, Beth George-Kane and Upton, Sanders & Smith
___________________ ________________ ______________________
on brief for appellees.

____________________

____________________

Per Curiam. Plaintiff appeals the denial of leave
__________

to amend his civil rights complaint. We affirm.

The events leading to the denial of plaintiff's

motion for leave to amend are, briefly, as follows.

Plaintiff's complaint initially asserted claims under 42

U.S.C. 1983, and state law, against five defendants. After

a screening by the magistrate revealed defects in the

statement of some of the claims, plaintiff was afforded an

opportunity to amend or face a dismissal of the defective

claims. Plaintiff chose not to amend at that time, resulting

in dismissal of the case against three of the defendants.

The remaining two defendants were the Town of

Bennington, New Hampshire, and David E. Mancini, the Town's

Chief of Police. The federal claims against them fell into

two groups. First, there were claims stemming from Chief

Mancini's alleged failure to obtain a search warrant prior to

conducting a search of plaintiff's property. Second,

plaintiff claimed that Mancini, acting in the capacity of

town prosecutor, wrongfully initiated and prosecuted certain

misdemeanor charges against plaintiff.

At a pretrial conference in July, 1993, defendants

indicated that they expected to file a summary judgment

motion on various grounds. The district judge set September

15, 1993 as the last date for the filing of a summary

judgment motion, and December 15, 1993 as the closing date

for discovery.

Defendants filed their summary judgment motion,

replete with affidavits and exhibits, on the scheduled date.

Plaintiff offered voluminous materials in opposition, much of

it irrelevant. Summary judgment was awarded to defendants on

a showing that in fact Mancini had obtained a facially valid

search warrant from a neutral and detached state judge prior

to the challenged search. As to the second group of claims,

Mancini was insulated from civil liability by the doctrine of

absolute prosecutorial immunity, see Buckley v. Fitzsimmons,
___ _______ ___________

113 S. Ct. 2606, 2615 (1993), and there were no facts showing

that the Town had pursued an unlawful policy or practice

causally related to any constitutional violation. The

pendent state claims were simultaneously dismissed.

Plaintiff does not here renew his challenge to the summary

judgment.

Plaintiff filed the subject motion to amend nine

days after defendants filed their summary judgment motion.

The amendment was apparently designed to avoid the thrust of

defendants' summary judgment arguments. It added three new

federal claims based on the new premise that even if there

was a warrant for the search, the underlying affidavit was

false and the warrant invalid. In addition, plaintiff

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included constitutional challenges to the manner in which the

search and arrest were effected.

A decision to grant or deny a motion to amend is

committed to the sound discretion of the trial court.

Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102,
________________ _______________________

1108 (1st Cir. 1986). It will be disturbed only on a clear

showing of abuse, meaning that "no sufficient justification

appears." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d
_______________ __________________

49, 59 (1st Cir. 1990) (citing Foman v. Davis, 371 U.S. 178,
_____ _____

182 (1962)); accord Clair Recreation Ctr., Inc. v. Flynn, 897
______ ___________________________ _____

F.2d 623, 625 (1st Cir. 1990); see also Colmenares, 807 F.2d
___ ____ __________

at 1108. While Fed. R. Civ. P. 15(a) provides that "leave to

amend shall be freely given when justice so requires," the

court need not "grant every request to amend, come what may."

Correa-Martinez, 903 F.2d at 59; Colmenares, 807 F.2d at
_______________ __________

1108. Rather the court may, indeed must, give due

consideration to factors such as the substantive merits of

the amendment, the need to prevent undue delay, bad faith,

and prejudice to the opposing party. Foman v. Davis, 371
_____ _____

U.S. 178, 182 (1962).

We see no abuse here. The magistrate found that

while the amendments might not be substantively futile, on

balance leave to amend should be denied because,

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USCA1 Opinion



August 24, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 94-1211

                                   KEVIN RICUPERO,

                                Plaintiff, Appellant,

                                          v.

                           DAVID E. MANCINI, ETC., ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Kevin Ricupero on brief pro se.
            ______________
            Russell F. Hilliard, Beth George-Kane and Upton, Sanders & Smith 
            ___________________  ________________     ______________________
        on brief for appellees.

                                 ____________________

____________________

Per Curiam.  Plaintiff  appeals the denial of leave
                      __________

            to amend his civil rights complaint.  We affirm.

                       The events  leading to the  denial of  plaintiff's

            motion  for   leave  to  amend  are,   briefly,  as  follows.

            Plaintiff's  complaint  initially  asserted  claims  under 42

            U.S.C.   1983, and state law, against five defendants.  After

            a  screening  by  the  magistrate  revealed  defects  in  the

            statement  of some of  the claims, plaintiff  was afforded an

            opportunity  to amend  or face  a dismissal of  the defective

            claims. Plaintiff chose not to amend  at that time, resulting

            in dismissal of the case against three of the defendants.

                      The  remaining two  defendants  were  the  Town  of

            Bennington, New  Hampshire, and David E.  Mancini, the Town's

            Chief of Police.   The federal claims against them  fell into

            two groups.   First, there  were claims  stemming from  Chief

            Mancini's alleged failure to obtain a search warrant prior to

            conducting  a  search  of  plaintiff's  property.     Second,

            plaintiff  claimed that  Mancini, acting  in the  capacity of

            town  prosecutor, wrongfully initiated and prosecuted certain

            misdemeanor charges against plaintiff.  

                      At a pretrial conference  in July, 1993, defendants

            indicated  that  they expected  to  file  a summary  judgment

            motion on various grounds.   The district judge set September

            15,  1993 as  the  last  date for  the  filing of  a  summary

judgment motion, and  December 15, 1993  as the closing  date

            for discovery.  

                      Defendants  filed  their  summary judgment  motion,

            replete with affidavits and  exhibits, on the scheduled date.

            Plaintiff offered voluminous materials in opposition, much of

            it irrelevant.  Summary judgment was awarded to defendants on

            a  showing that in fact Mancini had obtained a facially valid

            search warrant from a neutral and detached  state judge prior

            to the challenged search.  As to the  second group of claims,

            Mancini was insulated from civil liability by the doctrine of

            absolute prosecutorial immunity, see Buckley  v. Fitzsimmons,
                                             ___ _______     ___________

            113 S. Ct. 2606, 2615 (1993), and there were no facts showing

            that the  Town had  pursued  an unlawful  policy or  practice

            causally  related  to  any  constitutional  violation.    The

            pendent   state   claims   were   simultaneously   dismissed.

            Plaintiff does not  here renew his  challenge to the  summary

            judgment.  

                      Plaintiff  filed the  subject motion to  amend nine

            days after  defendants filed  their summary judgment  motion.

            The  amendment was apparently designed to avoid the thrust of

            defendants' summary  judgment arguments.  It  added three new

            federal  claims based on the  new premise that  even if there

            was a  warrant for the  search, the underlying  affidavit was

            false  and  the  warrant  invalid.   In  addition,  plaintiff

-3-

included constitutional challenges to the manner in which the

            search and arrest were effected. 

                      A  decision to grant or  deny a motion  to amend is

            committed  to  the  sound  discretion  of  the  trial  court.

            Colmenares Vivas  v. Sun  Alliance Ins.  Co., 807  F.2d 1102,
            ________________     _______________________

            1108 (1st Cir.  1986).  It will be disturbed  only on a clear

            showing of  abuse, meaning that "no  sufficient justification

            appears."   Correa-Martinez  v. Arrillaga-Belendez,  903 F.2d
                        _______________     __________________

            49, 59 (1st Cir. 1990) (citing Foman v.  Davis, 371 U.S. 178,
                                           _____     _____

            182 (1962)); accord Clair Recreation Ctr., Inc. v. Flynn, 897
                         ______ ___________________________    _____

            F.2d  623, 625 (1st Cir. 1990); see also Colmenares, 807 F.2d
                                            ___ ____ __________

            at 1108.  While Fed. R. Civ. P. 15(a) provides that "leave to

            amend shall be  freely given when  justice so requires,"  the

            court need not "grant every request to amend, come what may."

            Correa-Martinez,  903 F.2d  at  59; Colmenares,  807 F.2d  at
            _______________                     __________

            1108.     Rather  the  court   may,  indeed  must,  give  due

            consideration to  factors such  as the substantive  merits of

            the amendment,  the need to  prevent undue delay,  bad faith,

            and prejudice to  the opposing  party.  Foman  v. Davis,  371
                                                    _____     _____

            U.S. 178, 182 (1962).

                      We see  no abuse here.   The magistrate  found that

            while the  amendments might  not be substantively  futile, on

            balance leave to amend should be denied because,

                 The delay exercised by plaintiff is significant, as
                 he filed  the motion  after defendants  filed their
                 motion for summary  judgment.  Plaintiff  was aware
                 of the factual  allegations underlying these claims

-4-

when    the    original   complaint    was   filed.
                 Furthermore,   this  case   is  ready   for  trial.
                 Allowing leave  to amend to add  new legal theories
                 at this  time would likely require  the retaking of
                 several depositions and other discovery delays.

            Order  at 3-4 (Feb. 18,  1994).  The  district court affirmed

            the magistrate's  decision.  While plaintiff correctly points

            out that when  he filed  his motion to  amend, the  discovery

            closing date  was actually  several weeks  away,1 we find  no

            fault with the balance struck by the magistrate.  

                      The amendment offered substantially different legal

            theories  and  raised  new  factual  issues at  a  time  when

            defendants   had   already   finished   their   own  pretrial

            preparation.   Plaintiff had delayed in  filing the amendment

            for almost two months after the pretrial conference at  which

            the substance of  defendant's objections had been  aired.  In

            the meantime, defendants  had prepared for summary  judgment,

            and possibly  a trial,  on the  basis of plaintiff's  initial

            theories.           Plaintiff's explanation for his delay was

            that he  had misplaced his previous attorney's notes.  Though

            we do not gainsay  the magistrate's finding of no  bad faith,

            nevertheless plaintiff knew the basis for the claims from the

            outset,  and had already pleaded two of them in a state civil

____________________

            1.  There was  still pending a motion by  plaintiff to compel
            discovery.    The  magistrate  was also  mistaken  about  the
            retaking of depositions, since  apparently neither party  had
            __
            noticed any depositions.   This too,  is of marginal  import,
            the material point being that the amendment raised new issues
            that  would  have  required  additional  discovery, including
            depositions.  

                                         -5-

suit  which  he was  simultaneously pursuing.   A  perusal of

            plaintiff's various  filings shows too, that  despite his pro
                                                                      ___

            se status, he is adept at pleading and motion practice.
            __

                      Finding no abuse of discretion in the lower court's

            determination  that it  would have  been unjust  to belatedly

            burden  the  defendants with  new  discovery  and delay,  the

            judgment below is affirmed.    
                              _________

-6-

Ricupero v. Mancini, (1st Cir. 1994).

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Foman v. Davis

371 U.S. 178 (Supreme Court, 1962)

Buckley v. Fitzsimmons

509 U.S. 259 (Supreme Court, 1993)

Jose Domingo Colmenares Vivas v. Sun Alliance Insurance Company

807 F.2d 1102 (First Circuit, 1986)

Opinion

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