Ross v. MCAD ( 1995 )

USCA1 Opinion

          November 6, 1995      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT









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        No. 94-2243



                                    DANNY M. ROSS,



                                Plaintiff, Appellant,



                                          v.



                   MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            Danny M. Ross on brief pro se.
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                      Per  Curiam.   Plaintiff-appellant  Danny  M.  Ross
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            filed a  42 U.S.C.   1983 action pro se and in forma pauperis
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            against the Massachusetts  Commission Against  Discrimination



            (MCAD)  alleging that MCAD had deprived him of due process of



            the   law  by   mishandling  his   complaint   of  employment



            discrimination.  He sought damages in the amount  of $500,000



            for alleged monetary losses, emotional and mental distress.



                      The  district  court  dismissed  the  complaint  as



            frivolous under 28 U.S.C.   1915(d), inasmuch as the Eleventh



            Amendment indisputably bars actions for money damages against



            an arm of the Commonwealth  in the absence of a waiver.   See
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            Will  v.  Michigan Dep't  of State  Police,  491 U.S.  58, 66
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            (1989);  Johnson v.  Rodriguez, 943 F.2d  104, 109  (1st Cir.
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            1991)  (as a  state  agency, MCAD  is immune  from  a    1983



            action), cert. denied, 502 U.S. 1063 (1992); see also Neitzke
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            v.  Williams, 490 U.S. at  319, 325 (1989)  (a district court
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            should dismiss a claim as frivolous under   1915(d) where the



            defendant  is clearly  immune  from suit).    The court  also



            denied, as "moot," a motion to amend the complaint which Ross



            filed  almost  a month  after  the  dismissal.   This  appeal



            followed.1



                      Ross  argues  that  the  court  did  not  read  his



            complaint liberally enough because his additional prayer, for








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            1.    In light of the disposition of this appeal, we need not

            inquire into the timeliness of Ross' challenge to the initial

            dismissal.



























            "such  other  relief as  this  court deems  fit,"  might have



            included  an injunction.  He also challenges the denial of an



            opportunity to amend the complaint.



                      Dismissals  for frivolousness  under  28  U.S.C.



            1915(d) are  reviewed only  for abuse of  discretion, "taking



            into  account the  liberal pleading  standards applicable  to



            complaints filed by pro se plaintiffs."  Watson v. Caton, 984
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            F.2d  537, 539 (1st  Cir. 1993) (citing  Denton v. Hernandez,
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            504 U.S.  25  (1992)).   There was  no abuse  in the  court's



            failure to  conjure up all conceivable  unpled allegations to



            save a legally baseless complaint.  See McDonald v. Hall, 610
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            F.2d 16, 19  (1st Cir. 1979).  Nor was  the court required to



            provide  an  opportunity  to  amend  prior  to  dismissing  a



            complaint which had no arguable basis in the law.  See Street
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            v. Fair, 918  F.2d 269, 272 (1st Cir. 1990).   Dismissal of a
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            complaint  for frivolousness due to  a lack of subject matter



            jurisdiction is not a dismissal "on the  merits."  Id.  Under
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              1915(d), too, it does not prejudice the filing of a  "paid"



            complaint.  Denton, 504 U.S. at 34.
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                      The judgment is affirmed.   Appellant's "Motion for
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            review  by  U.S.  Attorney   General  and  for  allowance  of



            Supplemental Reading" is denied.
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