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USCA1 Opinion
May 11, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1021
HO WONG,
Plaintiff, Appellant,
v.
THOMAS MATERAZZO, ETC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Ho Wong on brief pro se.
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Albert W. Wallis, City of Boston Corporation Counsel, and
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William J. Pidgeon, Jr., Assistant Corporation Counsel, City of
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Boston, Law Department on brief for appellee.
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Per Curiam. Plaintiff appellant states that he is
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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
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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
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3.
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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);
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Miller v. Town of Hull, 878 F.2d 523, 530 (1st Cir.), cert.
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denied, 493 U.S. 976 (1989). To maintain his claim under
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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
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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,
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479 U.S. 828 (1986) (citing Pennhurst State School & Hospital
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v. Halderman, 465 U.S. 89, 104 (1984)).
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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
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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.
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Document Info
Docket Number: 94-1021
Filed Date: 5/12/1994
Precedential Status: Precedential
Modified Date: 9/21/2015