Nicolas v. State of RI ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2138
SYLVAIN NICOLAS,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Sylvain Nicolas on brief pro se.
Sheldon Whitehouse, Attorney General, and Richard B. Woolley,
Deputy Chief, on brief for appellees.
May 3, 2002
Per Curiam. Sylvain Nicolas appeals from the
district court’s order granting the defendants’ motion to
dismiss his civil rights complaint for failure to state a
claim, Fed.R.Civ.P. 12(b)(6). Nicolas alleged that the State
of Rhode Island and Lisa Holley, in her official capacity as
Chairperson of the Board of Parole, and individually, violated
his due process and equal protection rights when, at his parole
hearing, Holley asked Nicolas if he practiced a lot of voodoo
and black magic.
We review de novo a district court's dismissal of a
complaint for failure to state a claim under Fed.R.Civ.P.
12(b)(6). Chute v. Walker, 281 F.3d 314, 318 (1st Cir. 2002).
We must accept the well pled facts of the complaint as true and
indulge every reasonable inference in favor of allowing the
lawsuit to proceed. See North Bridge Associates, Inc. v.
Boldt, 274 F.3d 38, 40 (1st Cir. 2001). "Bald assertions,
unsupportable conclusions, periphrastic circumlocution, and the
like," on the other hand can safely be ignored. See Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
Having conducted this review, we conclude that the
district court’s finding that claims for damages against the
State of Rhode Island and against Lisa Holley in her official
capacity and individual capacity should be dismissed is correct
for essentially the reasons stated in the magistrate judge's
report and recommendation.
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We add that Nicolas' claims for declaratory and
injunctive relief were also properly dismissed. Though the
district court and the magistrate judge did not address
Nicolas’ request for a declaratory judgment, Nicolas did not
raise this omission in his objection to the magistrate’s report
or raise this issue in his initial brief on appeal. In his
reply brief, he makes a single reference to the request for a
declaratory judgment in his summary of relief sought.
Accordingly, he has not adequately preserved this request for
relief, as failure to raise a particular objection to a
magistrate’s report waives that claim, Park Motor Mart, Inc. v.
Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir. 1980), and
arguments may not be raised for the first time in a reply
brief, North American Specialty Ins. Co. v. Lapalme, 258 F.3d
35, 45 (1st Cir. 2001).
The district court also did not address Nicolas’
request for "relief" from the correctional institution so he
could be "deported." Because Nicolas cannot obtain relief that
would shorten his term of imprisonment through a § 1983 action
but must seek such relief through a habeas petition, this claim
was also properly dismissed. Heck v. Humphrey, 512 U.S. 477,
480 (1994) (explaining Preiser v. Rodriguez, 411 U.S. 475(1973)).
Finally, accepting the well pled facts of the
complaint as true and indulging every reasonable inference in
favor of allowing the lawsuit to proceed, we conclude that
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Nicolas has not stated a claim of the denial of his rights to
due process or equal protection.
Accordingly, the district court’s order dismissing
the complaint for failure to state a claim is affirmed.
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