Gorczakoski v. Mass. Commission ( 1993 )

USCA1 Opinion

          May 18, 1993          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 92-2188

            


                              BERENICE MARY GORCZAKOSKI,
                                Plaintiff, Appellant,

                                          v.

                               MASSACHUSETTS COMMISSION
                               AGAINST DISCRIMINATION,
                                 Defendant, Appellee.


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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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                          Torruella and Cyr, Circuit Judges.
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               Berenice Mary Gorczakoski on brief pro se.
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               George   P.   Napolitano,  General   Counsel,  Massachusetts
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          Commission Against Discrimination, on brief for appellee.



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                 Per  Curiam.   We  find no  abuse  of discretion  in the
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            district  court's  dismissal  of  the  instant  complaint  as

            "frivolous"  under 28 U.S.C.   1915(d).  See, e.g., Denton v.
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            Hernandez, 112 S. Ct. 1728, 1734 (1992) (  1915(d)  dismissal
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            properly  reviewed  for  abuse  of  discretion);  Neitzke  v.
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            Williams, 490  U.S. 319,  325 (1989) (complaint  is frivolous
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            "where it lacks an arguable basis either in law or in fact");

            Watson v. Caton, 984 F.2d  537, 539 (1st Cir. 1993).   To the
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            extent plaintiff  seeks review of defendant's  finding of "no

            probable  cause,"  see Mass.  G.L. c.  151B,     5-6,  9, the
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            district  court plainly  lacked subject  matter jurisdiction.

            And to the extent  plaintiff seeks damages under 42  U.S.C.  

            1983  on  account  of   (1)  defendant's  allegedly  improper

            processing of her  claim or  (2) its reaction  to her  office

            visit  in February 1992, it is clear that defendant is immune

            under  the  Eleventh  Amendment.     See,  e.g.,  Johnson  v.
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            Rodriguez,  943  F.2d  104,  108-09 (1st  Cir.  1991),  cert.
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            denied, 112 S. Ct. 948 (1992). 
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                 Nor does it appear  that the deficiencies in plaintiff's

            complaint "could be remedied through more specific pleading."

            Denton, 112  S. Ct. at  1734.  In  Johnson, a case  involving
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            similar contentions against this same defendant, we held that

            alleged improprieties  in the handling of  a grievance failed

            to implicate a due process interest.  943 F.2d at 109-10; see
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            also Francis-Sobel v. University of Maine, 597 F.2d 15, 17-18
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            (1st Cir.) (EEOC finding of no reasonable cause does not give

            rise  to constitutional  claim), cert.  denied, 444  U.S. 949
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            (1979).  And  plaintiff's allegations as to  her treatment by

            unidentified  personnel   in  defendant's  office--conclusory

            allegations which  have received  no elaboration on  appeal--

            fall  well short of stating a  constitutional violation.  See
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            Watson,  984 F.2d at 540  ("The difference between failing to
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            state  a  claim  and making  a  frivolous  claim  is in  some

            situations a question of degree.").

                 Affirmed.
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