Cloud v. Community Works ( 1998 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1796





                                    LEEVONN CLOUD,



                                Plaintiff, Appellant,



                                          v.



                               COMMUNITY WORKS, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Nancy J. Gertner, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                          Stahl and Lynch, Circuit Judges.
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            Leevonn Cloud on brief pro se.
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            Judith Malone,  Joseph F.  Hardcastle and  Palmer &  Dodge LLP  on
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        brief for appellees.





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FEBRUARY 25, 1998

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                      Per  Curiam.    Plaintiff-appellant  Leevonn  Cloud
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            appeals pro  se from the  dismissal of his  amended complaint
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            for failure to state a  claim of race discrimination under 42



            U.S.C.   1981.  We affirm in part, vacate in part, and remand



            for further proceedings consistent with this opinion.



                      The instant  complaint recounts  events surrounding



            Cloud's termination from employment as a campaign manager for



            Community  Works.     As   amended,  the   complaint  alleges



            violations of 42 U.S.C.    1981 against Community  Works; its



            Board  of Directors; Patricia  Williams, its former Executive



            Director;  Frances Froehlich,  its  former Interim  Executive



            Director; Robert  Paret, a member of the  Board of Directors;



            and  eleven  other  individual  members of  the  Board.    In



            addition, the amended complaint  alleges various claims under



            state law.   The  district court dismissed  the    1981 claim



            under Fed. R. Civ. P. 12(b)(6), and  it declined jurisdiction



            over the state claims, see 28 U.S.C.   1367(c)(3).1
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               1In the district  court, several of the  defendants argued
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            that  the complaint  should be  dismissed as  to them  on the

            alternative  ground  that they  were  never properly  served.

            Defendants  do  not  renew  this  argument  on  appeal,  and,

            although  the district court's order of dismissal is arguably

            ambiguous, we construe the dismissal as based solely on  Rule

            12(b)(6).  We note that Cloud is proceeding in forma pauperis
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            and that courts  have sometimes found "good  cause" where the

            failure  to  effect  proper service  is  attributable  to the

            United  States Marshal.  See, e.g.,  Dumaguin v. Secretary of
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            Health & Human  Servs., 28 F.3d 1218, 1221  (D.C. Cir. 1994).
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            However, on remand the district  court is free to revisit the

            issue  whether a  failure to  effect service  is grounds  for

            dismissal as to one or more of the defendants.



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                      We  review de novo the dismissal of a complaint for
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            failure to state  a claim.  Aulson v. Blanchard, 83 F.3d 1, 3
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            (1st Cir.  1996).  We  accept the factual allegations  in the



            complaint  as true and  indulge all reasonable  inferences in



            the  plaintiff's  favor.     Id.    Contrary   to  appellees'
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            suggestion,   civil  rights  claims  are  not  subject  to  a



            heightened  pleading  requirement.   Moreover,  as  a  pro se
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            plaintiff, Cloud is entitled to have his complaint "liberally



            construed."  Estelle v. Gamble, 429 U.S. 97, 106 (1976).
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                      Even given this generous standard, we are persuaded



            that Cloud has failed to state a claim of race discrimination



            against the bulk  of the defendants.   However, we  reinstate



            his  claim of  discriminatory  termination against  Williams,



            Paret,  and Community  Works.   In  some unspecified  period,



            Williams  allegedly suggested that  Cloud not attend  a fund-



            raising dance because she felt that  he would not fit in with



            the white, "New Age"  people in attendance.  Paret  allegedly



            questioned Cloud's ability  to conduct himself properly  in a



            room full  of white people,  especially white men.   We infer



            from  allegations in  the complaint  that  both Williams  and



            Paret were involved  in the decision to terminate  Cloud.  We



            think  that these  allegations are  sufficient  to survive  a



            motion under Fed. R. Civ. P. 12(b)(6).2
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               2We have considered the comments alleged to have been made
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            by  Froehlich, but  are not  persuaded that  they support  an

            inference of race discrimination.



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                      Our decision foreshadows  nothing about the outcome



            of  this case  should the  pleadings  be tested  in a  prompt



            summary judgment motion; we hold only that dismissal of the



            1981 claim cannot  be upheld as to all  defendants under Rule



            12(b)(6).    Cloud  has not  specifically  requested  that we



            reinstate his supplemental state  law claims, and  defendants



            suggest that  he is  now pursuing  them in state  court.   On



            remand,  Cloud is  free to  ask  the district  court, in  its



            discretion,  to  exercise  supplemental   jurisdiction.    We



            express no opinion as to the merits of his state law claims.







                      Affirmed in part, vacated in part, and remanded for
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            further proceedings.
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