Davias v. State of NH ( 1993 )

USCA1 Opinion

          December 15, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1405 

                          ERICO DAVIAS, a/k/a ERIC E. DAVIS,
                                Plaintiff, Appellant,

                                          v.

                           STATE OF NEW HAMPSHIRE, ET AL.,
                                Defendants, Appellees.
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF NEW HAMPSHIRE

                       [Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ____________________


        No. 93-1424


                                    ERICO DAVIAS,
                                Plaintiff, Appellant,

                                          v.

                          CLEVELAND, WATERS AND BASS, P.A.,
                                 Defendant, Appellee.

                                                     
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________

                                                     
                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

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            Erico Davias, a/k/a Eric Davis, on briefs pro se.
            ______________________________
            Jeffrey  R. Howard, Attorney General of New Hampshire, and Stephen
            __________________                                         _______
        J.  Judge, Senior Assistant Attorney General,  on brief for appellees,
        _________
        State of New Hampshire and Judd Gregg.
            Wayne C.  Beyer and Richard C.  Dale, II on  Memorandum in Support
            _______________     ____________________
        of Motion for Summary Affirmance,  for appellee, Cleveland, Waters and
        Bass, P.A.


                                 ____________________


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                 Per Curiam.   We affirm  the judgments in both  of these
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            consolidated appeals.  In No. 93-1405, we do so substantially

            for  the reasons  articulated by  the district  court in  its

            comprehensive trio of  decisions.  We add only  that, even if

            plaintiff had a right under  Louisiana law to appeal from the

            extradition order, see, e.g., State v. Hegwood, 510 So.2d 380
                               ___  ____  _____    _______

            (La. 1987); State v. Morales,  478 So.2d 943 (La. App. 1985),
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            plaintiff has failed  to demonstrate  that the New  Hampshire

            state defendants  were in any way involved with, or otherwise

            accountable  for,  any  abridgement  of   that  right.    See
                                                                      ___

            generally  McBride v.  Soos, 679  F.2d  1223, 1227  (7th Cir.
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            1982) ("It  is unreasonable  to require  the demanding  state

            agents to be familiar with  the procedural safeguards enacted

            in the asylum  state's extradition statutes and  then further

            require them  to ensure  that the  statutory safeguards  have

            been followed."). 

                 In No. 93-1424, we need not decide  whether defendant, a

            private  law firm, can  be said to have  acted under color of

            state  law.   It suffices  to conclude,  as explained  by the

            Magistrate-Judge  in  his  Report  and  Recommendation,  that

            defendant in any event was under no constitutional obligation

            to  affix  a  legend  to   the  mail  it  sent  to  plaintiff

            designating such correspondence  as "legal and confidential."

            Plaintiff's dispute is not with defendant but rather with the

            New Hampshire prison regulations that  govern the opening and

            reading of mail received by inmates.  Because the law in this






















            area  is unsettled,1 our  affirmance is without  prejudice to

            plaintiff filing a separate action against appropriate prison

            officials challenging such regulations. 

                 The judgments are affirmed.
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            1.  See generally, e.g., Brewer v. Wilkinson, 3 F.3d 816 (5th
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            Cir. 1993); Castillo v. Cook County Mail Room Dep't, 990 F.2d
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            304 (7th Cir.  1993) (per curiam); Knop v.  Johnson, 977 F.2d
                                               ____     _______
            996, 1012 (6th Cir. 1992);  Henthorn v. Swinson, 955 F.2d 351
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            (5th Cir.)  (per  curiam),  cert. denied,  112  S.  Ct.  2974
                                        ____________
            (1992); United States v. Stotts, 925 F.2d 83 (4th Cir. 1991);
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            Martin v. Brewer, 830 F.2d 76 (7th Cir. 1987).
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