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USCA1 Opinion
September 30, 1992 [NOT FOR PUBLICATION]
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No. 92-1187
ARTHUR D'AMARIO, III,
Plaintiff, Appellant,
v.
PROFESSIONAL SECURITY SERVICES, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Arthur D'Amario, III, on Memorandum Supporting Motion for Summary
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Disposition, pro se.
John A. Davey, Jr. and Olenn & Penza on Memorandum in Support of
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the Motion for Summary Disposition, for appellees, Lonergan, Wahl and
Donley.
Robert M. Brady on Memorandum in Opposition to Appellant's Motion
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for Summary Disposition, for appellee, Aloysius Murphy.
James E. O'Neil, Attorney General, William M. Kolb, Assistant
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Attorney General, and Kara M. Fay, Assistant Attorney General, on
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Memorandum in Opposition to Appellant's Motion for Summary
Disposition, for appellees, State of Rhode Island and Rhode Island
Department of Mental Health, Retardation and Hospitals.
Kevin F. McHugh on Memorandum in Opposition to Appellant's Motion
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for Summary Disposition, for appellee, City of Providence.
Andrew S. Richardson, on submissions to the Court, for appellees,
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Stevie Nicks, Frank J. Russo, Gemini Concerts, and Concerts East.
Paul T. Jones, Jr. on brief for appellee, Providence Civic Center
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Authority.
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Per Curiam. Plaintiff-appellant Arthur D'Amario
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filed a complaint on February 4, 1987 in the district court
for the District of Rhode Island against defendants-appellees
the Providence Civic Center Authority ("PROCCA"), various
security personnel employed by PROCCA, the Providence Police
Department, and a number of other defendants. The complaint
sought injunctive relief and damages under 42 U.S.C. 1983
and under state law for alleged infringements of D'Amario's
rights stemming from a May 3, 1986 incident in which PROCCA
security personnel denied D'Amario admittance to a rock
concert at the Providence Civic Center because D'Amario
insisted on bringing in a camera.
The same PROCCA no-camera rule was the subject of a
previous suit brought by D'Amario. In that case the district
court, affirmed by this court, ruled that D'Amario enjoyed no
constitutional right to bring a camera into Providence Civic
Center concerts. D'Amario v. Providence Civic Center
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Authority, 639 F.Supp. 1538 (D.R.I. 1986), aff'd, 815 F.2d
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692 (1st Cir.) (unpublished opinion), cert. denied, 484 U.S.
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859 (1987).
In the instant case, after D'Amario had had an
opportunity for some discovery, the magistrate judge on
November 30, 1987 granted defendants' motions to dismiss the
complaint. The magistrate judge ruled that (1) by the
doctrine of stare decisis, this court's ruling in D'Amario
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foreclosed D'Amario's claims that his constitutional rights
were violated by enforcement of the no-camera rule; (2)
D'Amario's 1983 claims against the Providence Police
Department charging assault, false arrest, false
imprisonment, and malicious prosecution did not allege any
official departmental policy or custom that arguably violated
his rights; (3) D'Amario's claims of assault, false arrest,
false imprisonment, and malicious prosecution against
Professional Security Services, a private company, and its
employees sounded only in state law; (4) D'Amario's equal
protection claim was defective for lack of adequate
allegations of arbitrary deprivation of a protected right or
membership in a suspect class; and (5) D'Amario's allegations
against the Rhode Island Department of Mental Health
Retardation and Hospitals ("RIMHRH"), charging that doctors
employed by RIMHRH refused to give D'Amario sleeping pills
while he was in an RIMHRH facility, failed to state a claim
of cruel and unusual punishment. On October 22, 1991, the
district court accepted the magistrate judge's report and
recommendation and dismissed the complaint.
Subsequently, D'Amario filed a Fed. R. Civ. P.
59(e) motion to alter or amend the district court's judgment.
D'Amario argued that, in view of his pro se status, he should
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be permitted to file an amended complaint. He also raised a
number of objections to the merits of the district court's
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dismissal. On December 20, 1991, the district court
summarily denied D'Amario's motion. D'Amario appeals. We
affirm.
D'Amario argues on appeal that the district court's
refusal to permit him to file an amended complaint, curing
the deficiencies of his original complaint, was inconsistent
with this court's dictates in Forte v. Sullivan, 935 F.2d 1
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(1st Cir. 1991), and Street v. Fair, 918 F.2d 269 (1st Cir.
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1990).
In Street, the district court dismissed plaintiff's
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pro se, in forma pauperis 1983 complaint sua sponte, before
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defendants had responded to the complaint. The district
court found that the complaint did not allege facts to
support its allegations of civil rights violations. This
court reversed the dismissal and remanded the case to allow
plaintiff an opportunity to amend his complaint. We pointed
out that sua sponte dismissal is appropriate only when an in
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forma pauperis complaint is "frivolous" under 28 U.S.C.
1915(d). We found that plaintiff's complaint, while
factually deficient, was not "frivolous" for purposes of 28
U.S.C. 1915(d) because it would state a claim if adequate
supporting facts were pleaded. Mere factual deficiency was
sufficient to support a dismissal for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), but a Rule 12(b)(6)
dismissal could not be ordered sua sponte, without affording
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plaintiff notice and an opportunity to be heard. Thus, we
held that the court's dismissal was in error, because neither
the substantive requirements for a 1915(d) dismissal nor
the procedural requirements for a Rule 12(b)(6) dismissal
were met.
In Forte, similarly, we reversed the dismissal of a
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pro se, in forma pauperis complaint because the complaint was
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not "frivolous" under 1915(d) and because -- although the
complaint may have been subject to dismissal under Rule
12(b)(6) as factually deficient -- sua sponte dismissal
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without notice was improper under Rule 12(b)(6). Although
defendant had filed a motion to dismiss, we found that the
dismissal had, in effect, been sua sponte because plaintiff,
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a prison inmate, had not received the motion to dismiss until
it already had been granted.
D'Amario's situation is altogether different.
D'Amario's complaint was not dismissed under 28 U.S.C.
1915(d), but under Rule 12(b)(6). The dismissal was by no
means sua sponte. To the contrary, the district court
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granted motions to dismiss and a motion for judgment on the
pleadings submitted by various defendants. D'Amario filed
numerous objections to these motions, long before the
magistrate judge's report and recommendation. D'Amario even
conducted some discovery during that period. The record
reveals that in none of these filings did D'Amario request
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leave to amend the complaint. It was after the magistrate
judge issued his report and recommendation, recommending
dismissal of D'Amario's complaint, that D'Amario sought leave
to amend.
Our decisions in Street and Forte, therefore, have
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no application in these circumstances. D'Amario had ample
opportunity to respond to defendants' motions to dismiss his
complaint for factual deficiency under Rule 12(b)(6).
Also, we can find no fault with the district
court's implicit denial, in adopting the magistrate judge's
report and recommendation, of D'Amario's motions to amend
his complaint. The district court acted well within its
discretion, see Fed. R. Civ. P. 15(a), in concluding that
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D'Amario's motions to amend, filed only after issuance of the
magistrate judge's report, came too late.
D'Amario also challenges on appeal the merits of
the district court's dismissal of his complaint. We affirm
that dismissal for the reasons stated in the magistrate
judge's November 30, 1987 report and recommendation.
We have considered D'Amario's other objections and
find them meritless.
The judgment of the district court is affirmed.
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Document Info
Docket Number： 92-1187
Filed Date： 9/30/1992
Precedential Status： Precedential
Modified Date： 9/21/2015