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USCA1 Opinion
December 14, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1733
ALFRED A. GALLANT, II,
Plaintiff, Appellant,
v.
THOMAS DELAHANTY, II, JUDGE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges. ______________
____________________
Alfred A. Gallant, Jr. on brief pro se. ______________________
____________________
____________________
Per Curiam. A magistrate judge recommended that __________
plaintiff's vague, verbose, and partially illegible civil
rights complaint be dismissed as frivolous under 28 U.S.C.
1915(d) because the allegations were "fanciful" and directed
at acts perpetrated by private individuals, rather than state
actors. The district court adopted the report and dismissed
the complaint.
We agree that much of plaintiff's complaint was
properly dismissed as frivolous under 28 U.S.C. 1915(d)
because the legal theory underlying the claims was
indisputably meritless. The claims properly dismissed
included the following: 1) plaintiff's complaint that police
had failed to investigate crimes, see Sattler v. Johnson, 857 ___ _______ _______
F.2d 224, 227 (4th Cir. 1988) (victims have no constitutional
right to have defendants criminally prosecuted); Slagel v. ______
Shell Oil Refinery, 811 F. Supp. 378, 382 (C.D. Ill. 1993) ___________________
(police officer had no constitutional duty to conduct
investigation of plaintiff's assault charge), aff'd, 23 F.3d _____
410 (7th Cir. 1994), or protect plaintiff prior to his
incarceration, DeShaney v. Winnebago County Dep't of Social ________ _________________________________
Services, 489 U.S. 189 (1989); 2) allegations concerning pre- ________
incarceration stalkings and harassment, Yancey v. Carroll ______ _______
County, 876 F.2d 1238, 1245 (6th Cir. 1989) (investigation, ______
without more, is not a constitutional violation);
Philadelphia Yearly Meeting v. Tate, 519 F.2d 1335, 1337 (3d ___________________________ ____
Cir. 1975); Hickombottom v. Chicago, 739 F.Supp 1173, 1178 ____________ _______
(N.D. Ill. 1990) (police surveillance of apartment did not
violate the Fourth Amendment as plaintiff had no reasonable
expectation of privacy in his comings and goings); 3) denial
of workers' compensation benefits; 4) unconstitutional
conviction, Heck v. Humphrey, 114 S. Ct. 2364 (1994); 5) four- ____ ________
day denial of an attorney, United States v. Gouveia, 467 U.S. _____________ _______
180, 187 (1984); Kirby v. Illinois, 406 U.S. 682, 688-89 _____ ________
(1972); 6) deprivation of property without due process,
Hudson v. Palmer, 468 U.S. 517, 533 (1984); Daniels v. ______ ______ _______
Williams, 474 U.S. 327 (1986); electronic surveillance while ________
in prison, United States v. Willoughby, 860 F.2d 15, 22-23 _____________ __________
(2d Cir. 1988) (no reasonable expectation of privacy in
conversation conducted in a public area of a jail), cert. _____
denied, 488 U.S. 1033 (1989); United States v. Harrelson, 754 ______ _____________ _________
F.2d 1153, 1169-71 (5th Cir. 1985) (prisoner had no
reasonable expectation of privacy while conversing with his
wife in his cell), cert. denied, 474 U.S. 908, 1034 (1985); ____________
United States v. Hearst, 563 F.2d 1331, 1344-46 (9th Cir. _____________ ______
1977) (monitoring and recording of prisoner-visitor
conversations was reasonable and therefore not violative of
the Fourth Amendment), cert. denied, 435 U.S. 1000 (1978); _____________
and 7) ineffective assistance of post-conviction counsel,
Pennsylvania v. Finley, 481 U.S. 551 (1987); Polk County v. ____________ ______ ___________
Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th ______ ____ _____
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Cir. 1976). In a similar view, the denial of access to
courts claim was subject to dismissal under 1915(d) because
the restrictions described (e.g., delay in access to legal ____
papers; rifling of papers; destruction of some papers; denial
of forms, paper clips, staples) were insufficiently
substantial.
Other allegations, however, although often lacking
enough detail to state constitutional claims which would
survive a Rule 12(b)(6) motion to dismiss, were not premised
on indisputably meritless legal theories and conceivably
could be cured by more specific factual allegations. Four
potential claims fall into this area.
First, plaintiff outlined conceivable Eighth
Amendment violations. He claimed he had been assaulted and
terrorized by both guards and inmates while in prison and
denied medical attention and nutrition. See Farmer v. ___ ______
Brennan, 114 S. Ct. 1920 (1994) (prison officials who _______
knowingly disregard substantial risk of serious harm to
inmates may be held liable under the Eighth Amendment);
Estelle v. Gamble, 429 U.S. 97 (1976). While plaintiff's _______ ______
allegations are confusing and conclusory, enough was stated
to avoid a 1915(d) dismissal. Street v. Fair, 918 F.2d ______ ____
269, 272-73 (1st Cir. 1990).
Second, plaintiff complained that his mail was
tampered with, switched, and late and that legal mail was
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opened. Depending on how the facts were fleshed out,
conceivably a constitutional claim could exist, if, for
example, incoming legal mail were opened with some regularity
outside plaintiff's presence. Castillo v. Cook County Mail ________ ________________
Room Dep't, 990 F.2d 304 (7th Cir. 1993) (reversing 1915(d) __________
dismissal of inmate complaint, which alleged that three
letters from public officials received in an eight-month
period had been opened, because a colorable constitutional
claim had been stated). This claim, too, should not have
been dismissed under 1915(d).
Third, plaintiff should be afforded a further
opportunity to articulate his complaints concerning placement
in segregation for refusal to work. On the present record,
we cannot tell whether plaintiff had any liberty interest in
remaining out of segregation, and, if so, whether he was
accorded due process before being deprived of it. Rodi v. ____
Ventetuolo, 941 F.2d 22 (1st Cir. 1991). __________
Fourth, plaintiff outlined some contours of a
possible First Amendment retaliatory transfer claim. He
asserted that shortly after he tried to communicate with the
governor, a newspaper, an attorney, and the federal district
court in March 1994, he was transferred to high maximum
security in retaliation. See McDonald v. Hall, 610 F.2d 16 ___ ________ ____
(1st Cir. 1979) (prisoner who alleged that he had filed
actions against prison officials, that he was subsequently
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transferred, and that the transfer was in retaliation for
litigation activities, stated a claim even though the
allegations were conclusory); Ferranti v. Moran, 618 F.2d ________ _____
888, 891-92 (1st Cir. 1980) (retaliation claim stated by
allegations that officials denied plaintiff a transfer to
minimum security after plaintiff filed a suit complaining
about prison conditions). See also Mujahid v. Sumner, 807 ___ ____ _______ ______
F.Supp. 1505 (D.Hawaii 1992) (rule forbidding prisoners to
correspond with the media was facially unconstitutional),
aff'd, 996 F.2d 1226 (9th Cir. 1993). Because plaintiff did _____
not state the subject of his communication, he may not have
satisfied even McDonald's lenient pleading standard, Leonardo __________ ________
v. Moran, 611 F.2d 397, 398 (1st Cir. 1979), but since _____
plaintiff may be able to fill in enough details to state a
claim, a sua sponte 1915(d) dismissal was not appropriate. ___ ______
We therefore remand for further proceedings. As a
result of this opinion, plaintiff is now on notice that in
order to state constitutional claims he may not rest on
vague, conclusory allegations, but must set factual
allegations respecting the material elements of his claims.
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514-15 (1st Cir. ______ ________________
1988). Therefore, on remand, plaintiff should amend his
complaint.
Appellant's request for appellate counsel is
denied.
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Vacated and remanded. ____________________
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Document Info
Docket Number： 94-1733
Filed Date： 12/14/1994
Precedential Status： Precedential
Modified Date： 9/21/2015