Bane v. RMV ( 1995 )

USCA1 Opinion

          December 11, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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          No. 95-1701



                                   BERNARD M. BANE,



                                Plaintiff, Appellant,



                                          v.



                             REGISTRY OF MOTOR VEHICLES,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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               Bernard M. Bane on brief pro se.
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                      Per   Curiam.     The   district   court  dismissed
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            plaintiff's complaint as frivolous under 28 U.S.C.   1915(d),



            after informing  plaintiff that his  complaint was  deficient



            and  giving him  an  opportunity to  supply applicable  legal



            authority  to support  why  his action  should  proceed.   We



            affirm the dismissal.



                      Plaintiff has  failed to show a  deprivation of any



            federal or constitutional right, an essential element  of a



            1983  cause of  action.   None of plaintiff's  filings allege



            facts  indicating  that  Massachusetts  fails  to  provide  a



            constitutionally adequate remedy to redress the purported due



            process  deprivation, here,  the non-renewals  of plaintiff's



            license  to operate  and  automobile registration.   Such  an



            allegation is critical to a procedural due process claim, and



            its  omission  warrants dismissal  of  that  claim.   Rumford
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            Pharmacy v. City of  East Providence, 970 F.2d 996,  999 (1st
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            Cir. 1992).



                      Mass. Gen. L. ch.  90,   20A 1/2, clearly  provides



            predeprivation  safeguards  to avert  erroneous non-renewals.



            It is  the  issuance  of  parking  tickets  that  triggers  a



            potential  non-renewal.    Aside from  the  unelaborated  and



            conclusory  assertion  that    20A  1/2  is unconstitutional,



            plaintiff  failed completely  to indicate  in what  way those



            statutory  safeguards  are   inadequate  or  what  additional



            process  is required to challenge  the ticketing in the first







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            instance.    Given the  express  provisions of  ch.  20A 1/2,



            adequate predeprivation  process was available.   See Lowe v.
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            Scott, 959 F.2d 323, 344 (1st Cir. 1992).
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                      Further, Massachusetts appears to  provide adequate



            postdeprivation tort  remedies.  Smith v. Massachusetts Dep't
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            of  Correction,   936  F.2d  1390,  1402   (1st  Cir.  1991).
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            Plaintiff  has failed to allege  that a state-law tort remedy



            could not adequately cure the  alleged wrong.  Without  facts



            showing  the inadequacy of  the  Massachusetts predeprivation



            and postdeprivation remedies, plaintiff cannot state a   1983



            procedural due  process claim.1   Rumford Pharmacy,  970 F.2d
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            at  1000;  see  also  Campo   v.  New  York  City  Employee's
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            Retirement  System,  843 F.2d  96,  101-02  (2d Cir.),  cert.
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            denied, 488 U.S. 889  (1988) (plaintiffs cannot manufacture a
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               1983  claim  by  pointing to  allegedly  defective  agency



            procedure while  ignoring other state process  that serves to



            redress administrative error).  Because plaintiff has  failed



            to plead an actionable  claim of deprivation of due  process,



            his ancillary    1985  conspiracy claim necessarily  fails as


















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            1.  The   conduct   here  involved   is   hardly  "conscience

            shocking",  should  plaintiff  be   attempting  to  assert  a

            substantive due process  claim.  See, Senra v.  Cunningham, 9
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            F.3d 168, 173 (1st Cir. 1993).



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            well.   Rumford  Pharmacy, 970  F.2d at  1000 n.7;  Torres v.
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            Superintendent of Police,893 F.2d404, 410 n.8(1st Cir.1990).2
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                      In   short,  despite   an  opportunity   to  supply



            additional substance to the due process claim, see Purvis  v.
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            Ponte,  929 F.2d  822,  826 (1st  Cir.  1991), the  complaint
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            lacked sufficient allegations that  constitutionally adequate



            state  law  remedies were  not  available,  and was  properly



            dismissed.



                      Affirmed.
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            2.  To the extent that plaintiff's conspiracy theory attempts

            to rely  on  grounds  other than due  process, such  as equal

            protection  or the  First Amendment,  plaintiff's speculative

            and improbable conspiracy claim--that he has been singled out

            by defendants because of his previous litigation or political

            views--fails to identify facts that could support the kind of

            racial  or class-based  animus required  to obtain    1985(3)

            relief,   and  is   plainly  without   merit.     Griffin  v.
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            Breckenridge,  403  U.S. 88,  102  (1971);  see also  Rumford
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            Pharmacy, 970 F.2d at 1000 n.9.
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