Brown v. Chicopee Fire ( 1993 )

USCA1 Opinion

          March 15, 1993        [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________


        No. 92-2258 

                                   MELVIN A. BROWN,

                                Plaintiff, Appellant,

                                          v.

                  CHICOPEE FIRE FIGHTERS, LOCAL 1710, IAFF, ET AL.,

                                Defendants, Appellees.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Melvin A. Brown on brief pro se.
            _______________
            Marshall T. Moriarty,  Craig D. Robinson,  and Maskell & Moriarty,
            ____________________   _________________       __________________
        on brief for appellees.


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                      Per Curiam.    Melvin A. Brown appeals pro  se from
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            the  district court's  dismissal  of his  claims against  the

            Trial  Court  of  Massachusetts, District  Court  Department,

            Springfield Division, Small  Claims Department and  the Trial

            Court  of  Massachusetts,  District  Court  Department, Small

            Claims   Sessions,   Chicopee   Trial  Court,   state   court

            defendants,   for  lack   of  subject   matter  jurisdiction,

            dismissal  of  his  federal  constitutional   claims  against

            Chicopee  Fire Fighters  Local  1710 (the  "Union") as  time-

            barred,  and dismissal  without  prejudice of  his state  law

            claims  against  the Union.    The  district court  dismissed

            appellant's claims in two thorough and well-reasoned opinions

            dated  October 8,  1991 and  September 17,  1992.   We affirm

            based on those opinions.  We add only the following comments.

                      On appeal, Brown's  central contention is that  the

            district court mischaracterized his fair representation claim

            as a state law claim.  The district court determined that the

            National Labor Relations Act did not apply to appellant, as a

            municipal   employee,   and   that,   therefore,   the   fair

            representation claim could only  be brought pursuant to Mass.

            Gen.  L.  ch.  150E.   Appellant  argues,  however,  that  by

            breaching   its  statutory   obligation   to   provide   fair

            representation, the Union violated his  constitutional rights

            to  due process of law.  Therefore, he contends, the district

            court has  jurisdiction over  the claim.   Furthermore, since



















            the failure to represent  is a "continuing event," continuing

            into  the  present time,  appellant  argues,  the statute  of

            limitations  period  has not  yet  begun  to run,  much  less

            expired.

                      Appellant has failed to  state a federal claim with

            respect   to  his   assertion   that  he   was  denied   fair

            representation by  the Union.  Therefore,  the district court

            did not err in dismissing  his fair representation claim  for

            lack of subject matter jurisdiction once it had dismissed all

            of  appellant's federal  claims.   The Union's  obligation to

            fairly represent appellant, if any, derives solely from state

            statutory law.  As the district court stated in its September

            17, 1991 Memorandum and Order:

                      The   rights   of  public   employees  in
                      Massachusetts are governed by  the Public
                      Employee  Collective Bargaining  statute,
                      Mass. Gen.  L. ch.  150E.  Under  chapter
                      150E,   public  employees   may  initiate
                      failure to represent actions  with either
                      the    Massachusetts   Labor    Relations
                      Commission  or  in the  state  court. See
                                                            ___
                      Graham  v.  Quincy  Food Serv.  Employees
                      _________________________________________
                      Ass'n, 407  Mass.  601 (1990);  Leahy  v.
                      _____                           _________
                      Local  1526,  American  Fed'n  of  State,
                      _________________________________________
                      County  & Mun.  Employees, 399  Mass. 341
                      _________________________
                      (1987).

            There   is   no   federal  constitutional   right   to   fair

            representation.1  Therefore, appellant  has failed to state a

                                
            ____________________

            1.   As the district court correctly concluded, appellant, as
            a municipal employee,  and the Union,  as a municipal  union,
            are excluded from the National Labor Relations Act, 29 U.S.C.
              185(a),  and therefore  appellant does not  have a  federal
            statutory right to fair representation. 

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            claim pursuant to    1983 of deprivation of  a constitutional

            right by the  Union's alleged breach of its  obligation under

            state law to fairly  represent him.  "Mere alleged  misuse or

            disregard of state law by state officials does not constitute

            a deprivation  of property without constitutional due process

            of law." Malachowski v. City of Keene, 787 F.2d 704, 708 (1st
                     ___________    _____________

            Cir.)  (citations  omitted),  cert.  denied,  479  U.S.  1022
                                          _____________

            (1986).  Thus, the  district court did not err  in dismissing

            appellant's fair  representation claim as a  state law claim.

            Because  we  find that  appellant failed  to state  a federal

            claim, we  need not  decide when the  statute of  limitations

            begins to run on appellant's failure to represent claim.

                      Affirmed.
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