Michaud v. City of Rochester ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1263
DAVID MICHAUD,
Plaintiff, Appellant,
v.
CITY OF ROCHESTER; MICHAEL MCQUADE, Individually and
Officially; WAYNE PERREAULT, Individually and Officially;
VIRGINIA DOHERTY; Individually and Officially,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
David Michaud on brief pro se.
Donald E. Gardner and Devine, Millimet & Branch on brief for
appellees.
December 27, 2000
Per Curiam. Pro se appellant David Michaud appeals
from the dismissal of his civil rights complaint. In a
report and recommendation dated December 30, 1999, a
magistrate judge recommended dismissal for failure to state
a federal claim. See 28 U.S.C. § 1915A(a) & (b) (providing
for dismissal on preliminary review of prisoner complaints
against government officers or employees if the complaints
do not state a claim for relief). After reviewing an
objection filed by appellant, the district court approved
the recommendation in an order dated January 19, 2000, and
dismissed the complaint. We affirm.
On appeal, appellant argues that he stated a due
process claim for relief, contending that there was state
action and that he possessed a property interest sufficient
to warrant protection under the Due Process Clause. But the
district court did not dismiss the due process claim for
lack of state action or the requisite property interest.
Adopting the magistrate judge's reasoning, the district
court essentially dismissed it under the Parratt-Hudson
doctrine. See Parratt v. Taylor, 451 U.S. 527, 541-43
(1981) (rejecting due process claim based on negligent loss
of property where defendants' act was "random and
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unauthorized" and there was an adequate state
postdeprivation remedy to redress the loss), overruled in
part on other grounds by Daniels v. Williams, 474 U.S. 327
(1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(extending the ruling in Parratt to intentionally caused
losses of property). In objecting to the magistrate judge's
report, appellant did not argue that the magistrate judge
had erred in relying on that principle of law. Likewise, on
appeal, appellant has not argued that the district court
erred in dismissing his claim based on that principle, but
argues other points which the district court was apparently
willing to assume in his favor. Due to his double default,
appellant has waived consideration of the dismissal of his
due process claim. See Brown v. Hot, Sexy and Safer
Productions, Inc., 68 F.3d 525, 536-37 (1st Cir. 1995)
(affirming Rule 12(b)(6) dismissal of due process claim
where, both in district court and on appeal, plaintiffs had
failed to adequately argue points pertinent to the Parratt-
Hudson doctrine); Sands v. Ridefilm Corp., 212 F.3d 657, 663
(1st Cir. 2000) (declining to consider argument on appeal
which appellant failed to make in objecting to magistrate
judge's report).
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As for the equal protection claim, we also conclude
that appellant has waived appellate consideration of his
claim. In his appellate brief, appellant contends that
appellees stole and destroyed his property, knowing that he
was incarcerated and indigent. But he failed to present the
same factual allegations to the district court when he
objected to the magistrate judge's report, and the
magistrate judge had recommended dismissing the equal
protection claim for lack of adequate supporting
allegations. Because appellant failed to present his
present argument to the district court, we decline to
consider it. See Sands, supra.
Affirmed. See Loc. R. 27(c).1
1We deny appellant's motion for leave to assert, in a
hearing, claims of misrepresentation against appellees'
attorney. We also deny appellees' request to reconsider the
denial of their motion to revoke appellant's in forma pauperis
status under 28 U.S.C. § 1915(g). For reasons fully explained
in the case law, we conclude that appellant has not accumulated
the requisite "three strikes" under the statute. See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996) (explaining
that a dismissal followed by an affirmance counts as only one
strike under § 1915(g) and that dismissals by the district court
should not be counted until after a petitioner has exhausted or
waived his avenues of appeal); accord Jennings v. Natrona County
Detention Ctr., 175 F.3d 775, 779-81 (10th Cir. 1999). In view
of our ruling, we deny appellant's motion to strike appellees'
motion for reconsideration as moot.
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