Carrera v. Fair , 4 F.3d 982 ( 1993 )

4 F.3d 982

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
Jose CARRERA, Plaintiff, Appellant,
v.
Michael FAIR, et al., Defendants, Appellees.

No. 92-2239.

United States Court of Appeals,
First Circuit.

September 14, 1993

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Jose Carrera on brief pro se.

Scott Harshbarger, Attorney General, and Michelle A. Kaczynski, Assistant Attorney General, on brief for appellees.

D.Mass.

AFFIRMED.

Before Selya, Boudin and Stahl, Circuit Judges.

Per Curiam.

1

We reject plaintiff's appeal for the following reasons.

2

1. The district court judge had discretion under Rule 40.1(i) of the Local Rules of the United States District Court for the District of Massachusetts to retain the case after remand, and he did not abuse that discretion.

3

2. Plaintiff's complaints about his counsel were not presented below and will not be considered for the first time on appeal.

4

3. Plaintiff's discriminatory treatment claims were properly dismissed because, as we warned in our earlier opinion, Carrera v. Fair, No. 90-1814, slip op. at 10 (1st Cir. March 16, 1992), plaintiff did not allege any sufficient basis for supervisory liability. Plaintiff failed to cure this pleading omission on remand. Plaintiff's due process claim failed because plaintiff did not allege sufficient facts to show that the Morris Rules were applicable to this particular interstate transfer, and the failure of Massachusetts officials to undertake an investigation to determine whether plaintiff's request for transfer had been truly voluntary did not violate due process. The remanded claims were properly dismissed under Fed. R. Civ. P. 12(b)(6).

5

Affirmed.