Davias v. Warden ( 1994 )

USCA1 Opinion

          September 12, 1994
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                [NOT FOR PUBLICATION]



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        No. 93-2279
                           ERICO DAVIAS, A/K/A ERIC DAVIS,
                                Plaintiff, Appellant,

                                          v.

                         WARDEN, NEW HAMPSHIRE STATE PRISON,
                                 Defendant, Appellee.

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                        APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Shane Devine, Senior U.S. District Judge]
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        No. 93-2290

                                    ERICO DAVIAS,
                                 Plaintiff, Appellant

                                          v.

                           STATE OF NEW HAMPSHIRE, ET AL.,
                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Joseph A. DiClerico, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Selya and Cyr, Circuit Judges.
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                                  __________________

            Erico Davias on briefs pro se.
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                 Per Curiam.  The judgments are affirmed in both of these
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            consolidated  appeals.  In  No. 93-2279,  plaintiff complains

            that  one or more employees  in the prison  mailroom opened a

            piece  of correspondence  sent to  him from  federal district

            court.  Incorporated into his amended complaint is a response

            to a  grievance filed by  plaintiff in  connection with  this

            incident, in  which the  warden explained  that the mail  had

            been opened  by  mistake.   Based  on this  explanation,  the

            magistrate-judge  found  that  plaintiff was  complaining  of

            simple  negligence on  the  part of  defendant--a finding  to

            which  plaintiff has not objected.   It is  well settled that

            such  an allegation fails to state  a claim under 42 U.S.C.  

            1983.   See,  e.g., Daniels  v. Williams,  474 U.S.  327, 328
                    ___   ____  _______     ________

            (1986) ("the Due Process Clause is simply not implicated by a

            negligent act  of an official  causing unintended loss  of or
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            injury   to  life,  liberty,   or  property")   (emphasis  in

            original); Germany v. Vance, 868 F.2d 9, 11 (1st Cir. 1989).
                       _______    _____

                 In  No.  93-2290,  plaintiff challenges  the  procedures

            surrounding his extradition from  Louisiana to New  Hampshire

            in   June   1991.     The   district   court  (adopting   the

            recommendations  of the  magistrate-judge)  dismissed on  res

            judicata  grounds,  finding  that  plaintiff  had  brought  a

            similar challenge in  a separate state-court suit.   From the

            record  before us, we are unable to confirm that judgment has

            issued  in that  proceeding.   This is  unimportant, however,



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            inasmuch  as  plaintiff's allegations  here are  identical to

            those  advanced in  an earlier  federal  action that  was the

            subject of our decision  in Davias v. New Hampshire,  No. 93-
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            1405 (1st Cir. Dec. 15, 1993) (per curiam).  Dismissal of the

            instant  action  on res  judicata  grounds  was thus  plainly

            warranted--if not  on the  basis of plaintiff's  state suit--

            then on the basis of his earlier federal proceeding.  

                 The judgments are affirmed.
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