Wong v. Materazzo ( 1994 )


Menu:
  • USCA1 Opinion









    May 11, 1994 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ___________________


    No. 94-1021




    HO WONG,

    Plaintiff, Appellant,

    v.

    THOMAS MATERAZZO, ETC., ET AL.,

    Defendants, Appellees.


    __________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Rya W. Zobel, U.S. District Judge]
    ___________________

    ___________________

    Before

    Breyer, Chief Judge,
    ___________
    Selya and Boudin, Circuit Judges.
    ______________

    ___________________

    Ho Wong on brief pro se.
    _______
    Albert W. Wallis, City of Boston Corporation Counsel, and
    _________________
    William J. Pidgeon, Jr., Assistant Corporation Counsel, City of
    ________________________
    Boston, Law Department on brief for appellee.



    __________________

    __________________



















    Per Curiam. Plaintiff appellant states that he is
    __________

    a homeless veteran who resides in Boston. He brought this

    action under 42 U.S.C. 1983 claiming that the Veterans

    Services Department for the City of Boston wrongfully

    suspended the benefits to which he was entitled under Mass.

    Gen. L. ch. 115, when he failed to provide a residential

    address within the City. Plaintiff's request for restoration

    of benefits was denied and he appealed to the Commonwealth

    Office of Veterans' Services. Shortly after he filed that

    appeal, he filed this complaint in district court alleging

    that the suspension of benefits violated state law and

    regulations1 and the Due Process Clause of the

    Constitution.2

    The district court granted the defendants' motion

    to dismiss for failure to exhaust administrative remedies.

    Plaintiff argues that the dismissal was error under the



    ____________________

    1. Massachusetts veterans' benefits are made payable by the
    municipality where the veteran "resides," meaning that the
    veteran is "present within a city or town . . .
    notwithstanding the lack of a present abode, with no present
    intention of definite or early removal . . . . " Mass. Gen.
    L. ch. 115, 1, 5; 108 CMR 2:02(7).

    2. Plaintiff also charged a violation of the Eighth
    Amendment and a deprivation of the constitutional right to
    equal protection of the laws. We treat both claims as
    surplusage. There are no facts alleged to support an Eighth
    Amendment claim, and the equal protection claim is
    contradicted by plaintiff's allegations that state law and
    policy require equal treatment. Any violation of state law
    would be correctable in state court. See discussion infra at
    ___ _____
    3.

    -2-















    general principal that exhaustion of state administrative

    remedies is not a prerequisite to maintenance of a suit under

    1983. Patsy v. Board of Regents, 457 U.S. 496 (1982);
    _____ _________________

    Miller v. Town of Hull, 878 F.2d 523, 530 (1st Cir.), cert.
    ______ ____________ _____

    denied, 493 U.S. 976 (1989). To maintain his claim under
    ______

    1983, however, the plaintiff must allege a cognizable

    violation of the Due Process Clause. "The constitutional

    violation actionable under 1983 is not complete when the

    deprivation occurs; it is not complete unless and until the

    State fails to provide [suitable post deprivation remedies]."

    Zinermon v. Burch, 494 U.S. 113, 126 (1990). Moreover, the
    ________ _____

    crux of plaintiff's complaint is that the defendants

    disregarded state law and regulations when they suspended his

    benefits. Ordinarily, an "alleged misuse or disregard of

    state law by state officials does not constitute a

    deprivation of property without constitutional due process. .

    . . Such deficiencies, if they exist, are readily and

    adequately correctable under state law in state court."

    Malachowski v. Keene, 787 F.2d 704 (1st Cir.), cert. denied,
    ___________ _____ ____________

    479 U.S. 828 (1986) (citing Pennhurst State School & Hospital
    _________________________________

    v. Halderman, 465 U.S. 89, 104 (1984)).
    _________

    We do not here consider the assertions in

    plaintiff's motion to amend the complaint, filed after the

    district court ordered dismissal of the action "without

    prejudice." The motion was denied because this appeal was



    -3-















    pending. New matters must be properly presented to the

    district court for decision; they may not be addressed for

    the first time on appeal.

    Affirmed.
    ________













































    -4-







Document Info

Docket Number: 94-1021

Filed Date: 5/12/1994

Precedential Status: Precedential

Modified Date: 9/21/2015