Lafortune v. City of Biddeford ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2382
DOROTHY LAFORTUNE,
Plaintiff, Appellant,
v.
CITY OF BIDDEFORD, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Dorothy Lafortune on brief pro se.
Keith R. Jacques, Aaron P. Burns and Smith Elliott Smith &
Garmey, on brief for appellees.
July 22, 2005
Per Curiam. Dorothy Lafortune brought this action against
the City of Biddeford, Maine, and its former mayor, Donna Dion,
claiming First Amendment and due process violations arising from
two City Council orders (Order #2001.80 and Order #2001.94) which
prohibited the rebroadcast of her television program on Biddeford's
public access cable television channel and suspended her right to
use the Biddeford public access television facilities. She also
claimed that City Council Order #2001.94 constituted an unlawful
bill of attainder and sought direct review of Order #2001.80 under
Rule 80B of the Maine Rules of Civil Procedure.
In December 2002, the district court dismissed the action
as moot after the City imposed a moratorium on public access
programming. Lafortune appealed that ruling and we remanded for
further proceedings in the district court, concluding that
defendants had failed to make a showing sufficient to meet their
burden of demonstrating that the challenged conduct would not
recur. The district court subsequently granted summary judgment to
Lafortune on her prior restraint claim, and granted summary
judgment to defendants on the bill of attainder and due process
claims. The Rule 80B claim was dismissed as moot after the City
Council rescinded the order in issue.
Lafortune now appeals the district court's grant of
summary judgment to defendants and its dismissal of her Rule 80B
claim. She also challenges the district court's denial of her
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post-remand request to amend her complaint. Substantially for the
reasons relied upon by the district court, we affirm.
Lafortune devotes much of her appellate brief to the
merits of the claims she sought to add to her complaint after
remand. Since the district court denied leave to amend the
complaint, the merits of those additional claims are not properly
before us and we decline to address them now. Further, we conclude
that the district court did not err in denying Lafortune's request
to amend her complaint. See Watson IV v. Deaconess Waltham Hosp.,
298 F.3d 102, 109 (1st Cir. 2002) (where dispositive motion is
pending and party seeks leave to amend the complaint, "the proposed
amendment must be not only theoretically viable but also solidly
grounded in the record [and] . . . supported by substantial
evidence.") (citing Hatch v. Dept. for Children, Youth and Their
Families, 274 F.3d 12, 19 (1st Cir. 2001)). Lafortune fails to
offer substantial evidence that the additional claims she would
have inserted in the amended complaint have merit, and they are
based on an entirely new set of facts and legal theories. In
addition, Lafortune indicated that she wished to seek damages
although the operative complaint had requested only injunctive
relief. Thus, the district court in its discretion could properly
deny her request to amend.
With respect to the issues raised on summary judgment, we
agree that the City Council's rescission of Order #2001.80 rendered
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Lafortune's Rule 80B appeal moot. See Steir v. Girl Scouts of the
USA, 383 F.3d 7, 15 (1st Cir. 2004); Tenoco Oil Co. v. Department
of Consumer Affairs, 876 F.2d 1013, 1019-20 (1st Cir. 1989).
Further, to the extent Lafortune challenges the district court's
determination that City Council Order #2001.94 did not constitute
a bill of attainder, we also agree that Lafortune failed to
demonstrate that the order was equivalent to a legislative act.
Accordingly, defendants were entitled to summary judgment on the
claim. See Little v. City of N. Miami, 805 F.2d 962, 966-67
(11th Cir. 1986).
In addition, we conclude that the district court
correctly found that Lafortune's procedural due process claim is
barred by the Parratt-Hudson doctrine, which "shields a public
entity from a federal due process claim where the denial of process
was caused by the random and unauthorized conduct of government
officials and where the state has provided adequate postdeprivation
remedies to correct the official's random and unauthorized acts."
Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir. 2005). The
essence of Lafortune's due process claim is that the City Council
proceeding in issue was undertaken without authority and that
defendants failed to follow the procedure established in
Biddeford's Cable Television Ordinance. Accordingly, it appears
that the acts complained of fit the definition of "random and
unauthorized." See O'Neill v. Baker, 210 F.3d 41, 50 (1st Cir.
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2000). Lafortune also failed to show that postdeprivation review
under Me. R. Civ. P. 80B was inadequate or unavailable.
With regard to Lafortune's substantive due process claim,
we agree that the challenged conduct did not meet the threshold for
establishing the requisite abuse of government power. See Nestor
Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st
Cir. 1992); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d
1524, 1528 (1st Cir. 1983).
We have considered Lafortune's remaining arguments and
find them to be lacking in merit. Finally, we note that Lafortune
has submitted a "Motion for Suspension of Rules," in which she
requests leave to remove an action pending in the Maine state court
directly to this court. We lack jurisdiction to grant such a
request. See 28 U.S.C. §§ 1291, 1292. The motion is denied and
the judgment of the district court is affirmed.
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