Carrera v. Fair ( 1993 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 92-2239 

                                    JOSE CARRERA,

                                Plaintiff, Appellant,

                                          v.

                               MICHAEL V. FAIR, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                 ____________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Jose Carrera on brief pro se.
            ____________
            Scott Harshbarger,  Attorney General, and  Michelle A.  Kaczynski,
            _________________                          ______________________
        Assistant Attorney General, on brief for appellees.


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                                  September 14, 1993
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                      Per Curiam.   We reject plaintiff's appeal  for the
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            following reasons.

                      1.  The  district court judge had  discretion under

            Rule 40.1(i) of the Local Rules of the United States District

            Court for  the District of  Massachusetts to retain  the case

            after remand, and he did not abuse that discretion.

                      2.   Plaintiff's complaints about his  counsel were

            not presented below and will  not be considered for the first

            time on appeal.

                      3.    Plaintiff's discriminatory  treatment  claims

            were properly dismissed because, as  we warned in our earlier

            opinion, Carrera  v. Fair, No.  90-1814, slip op. at  10 (1st
                     ________________

            Cir. March 16, 1992), plaintiff did not allege any sufficient

            basis  for supervisory liability.   Plaintiff failed  to cure

            this  pleading omission on  remand.  Plaintiff's  due process

            claim  failed  because plaintiff  did  not  allege sufficient

            facts to show  that the Morris Rules were  applicable to this

            particular   interstate   transfer,   and   the  failure   of

            Massachusetts  officials  to  undertake an  investigation  to

            determine whether plaintiff's request  for transfer had  been

            truly voluntary did  not violate due  process.  The  remanded

            claims   were  properly  dismissed  under  Fed.  R.  Civ.  P.

            12(b)(6).

                      Affirmed.
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