DocketNumber： 93-2368
Filed Date： 9/29/1994
Status： Precedential
Modified Date： 3/3/2016
September 29, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2368
KIMBALL S. HALL,
Plaintiff, Appellant,
v.
R. SCOTT GONFRADE ET AL.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Kimball S. Hall on brief pro se.
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John H. LaChance, LaChance & Whatley on brief for appellee.
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Per Curiam. Plaintiff/appellant Kimball Hall appeals
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the dismissal of his complaint against defendant/appellee R.
Scott Gonfrade by the United States District Court for the
District of Massachusetts. We affirm, albeit for reasons
other than those on which the district court relied.
I
According to the allegations in Hall's complaint, on
April 5, 1989, Hall and his brother attempted to serve
Gonfrade, a Deputy Sheriff of Middlesex County, with a
summons and complaint stemming from Gonfrade's alleged false
arrest and prosecution of Hall in 1985.1 Gonfrade
allegedly responded by assaulting Hall's brother, seizing a
camera from Hall and destroying the film, and then
fraudulently arresting Hall and charging him with assault.
Hall further alleges that Gonfrade submitted false reports
about the incident. A jury found Hall not guilty of the
assault charge on May 11, 1990.
On April 29, 1993, Hall filed a pro se complaint against
Gonfrade and others.2 As amended on July 1, the complaint,
liberally construed, asserts claims against Gonfrade for
violations of Hall's civil rights, pursuant to 42 U.S.C.
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1. Although Hall's complaint contains several counts
stemming from the 1985 incident, these claims are time barred
and have not been pressed on appeal.
2. Hall does not appeal the dismissal of the complaint
against any of the defendants except Gonfrade.
1983, for false arrest and malicious prosecution stemming
from the 1989 incident. He also asserts several pendant
state law claims.
On July 8, 1993, Gonfrade filed a motion to dismiss the
complaint on statute of limitations grounds. On July 22,
Hall filed a motion to enlarge the time for filing his
opposition to the motion to dismiss to and including
September 16, 1993. This motion was granted on August 19,
1993. Nevertheless, Hall failed to file an opposition to the
motion to dismiss. He now asserts that he was never informed
that his motion to extend the time for filing an opposition
had been granted. On November 19, 1993, the district court
granted the motion to dismiss on the ground that "no
opposition ha[d] been filed."
II
A litigant's "pro se status [does not] absolve him from
compliance with the Federal Rules of Procedure." United
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States v. Heller, 957 F.2d 26, 31 (1st Cir. 1992) (quoting
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Feinstein v. Moses, 951 F.2d 16, 21 (1st Cir. 1991)). Thus,
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pursuant to Local Rule 7.1(B)(2), Hall was required to file
any opposition to Gonfrade's motion to dismiss on or before
September 16. Nor can Hall be excused from this deadline by
lack of awareness that the court had granted his motion to
extend the time for filing his opposition. It is "an
abecedarian rule of civil practice [that] parties to an
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ongoing case have an independent obligation to monitor all
developments in the case and cannot rely on the clerk's
office to do their homework for them." Witty v. Dukakis, 3
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F.3d 517, 520 (1st Cir. 1993). Hence, when Hall failed to
respond to the motion to dismiss by September 16, he waived
his right to oppose the motion.
Nevertheless, nothing in Local Rule 7.1 indicates that
failure to oppose a motion is grounds for granting the
unopposed motion. This court has recently held that in the
case of failure to oppose a motion for summary judgment,
"[t]he consequence . . . of failing to comply with the rule
is that the party may lose the right to file an opposition."
Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 451-
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52 (1st Cir. 1992) (interpreting Local Rule 7.1(A)(2)).
However, the court is still obliged to consider whether, in
light of the record, the motion should be granted according
to the appropriate legal standard. See id. at 452
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(discussing unopposed motion for summary judgment). We see
no reason why the rule should be any different in regard to a
motion to dismiss.3 See also Local Rule 7.1(F) (providing
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3. This court's opinion in Mangual v. General Battery Corp.,
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710 F.2d 15 (1st Cir. 1983), is distinguishable from the
instant case. In Mangual, the district court had ordered the
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plaintiffs to file their opposition to the motion to dismiss
within 30 days of the completion of discovery. It granted
the unopposed motion to dismiss only after this order was
ignored. In reviewing the district court decision, this
court likewise relied on cases in which an action had been
dismissed for failure to comply with a district court order.
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that motions which are to be decided without hearings "will
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be decided on the papers submitted after an opposition to the
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motion has been filed, or if no opposition is filed, after
the time for filing an opposition has elapsed") (emphasis
added).
In the instant case, we agree with Gonfrade that Hall's
claim for false arrest is time barred. A civil rights claim
pursuant to 1983 must be brought within the applicable
statute of limitations period of the state within which the
incident occurred, see Wilson v. Garcia, 471 U.S. 261, 275
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(1985), in this case, three years, see Mass. Gen. L. c. 260,
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2A; Street v. Vose, 936 F.2d 38, 39-40 (1st Cir. 1991),
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cert. denied, 112 S. Ct. 948 (1992). Hall's arrest occurred
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in 1989. Since a claim for false arrest accrues on the date
of the arrest, see, e.g., Rose v. Bartle, 871 F.2d 331, 351
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(3d Cir. 1989); McCune v. Grand Rapids, 842 F.2d 903, 907
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(6th Cir. 1988); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th
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Cir. 1983); Singleton v. New York, 632 F.2d 185, 191 (2d Cir.
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1980), cert. denied, 450 U.S. 920 (1981), Hall's April 1993
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claim was time barred.
Hall's claim for malicious prosecution, however, did not
accrue until he was found not guilty of the assault charge in
May 1990. See, e.g., Heck v. Humphrey, 114 S. Ct. 2364, 2371
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(1994); Brummett v. Camble, 946 F.2d 1178, 1183-84 (5th Cir.
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1991), cert. denied, 112 S. Ct. 2323 (1992); Rose, 871 F.2d at
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348; McCune, 842 F.2d at 907; Venegas, 704 F.2d at 1146;
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Singleton, 632 F.2d at 198. Hence, this claim was timely
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filed. Nonetheless, it must be dismissed because it fails to
state a claim for which relief can be granted. See Fed. R.
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Civ. P. 12(b)(6).
Malicious prosecution standing alone does not implicate
federally protected rights. See Torres v. Superintendent of
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Police, 893 F.2d 404, 409 (1st Cir. 1990). Hence, to state a
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federal claim under 1983 for malicious prosecution, a
plaintiff must allege that he suffered a deprivation of his
constitutional right to substantive or procedural due
process. Id. at 409-10. Hall has not alleged sufficient
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facts to support a claim that he was deprived of either.
A substantive due process deprivation must allege
"conscience shocking" conduct by the defendant. See id. at
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410. Such conduct rarely has been found absent a plaintiff's
having been "physically abused, detained, prosecuted due to
racial or political motivation or otherwise deprived of equal
protection of the law." Id. (citing cases); see also Ayala-
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Martinez v. Anglero, 982 F.2d 26, 27-28 (1st Cir. 1992)
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(affirming grant of summary judgment where evidence did not
show prosecution was "for racial or political motivation, or
otherwise deprived [plaintiff] of equal protection"). No
similar conduct has been alleged by Hall. Rather, he alleges
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simple misuse of the legal process. This alone will not
sustain a claim under 1983.4 See id.
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To support a claim for malicious prosecution due to a
violation of procedural due process, a plaintiff must show,
inter alia, that state tort law remedy does not furnish an
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adequate remedy. Id. The existence of an adequate remedy
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for malicious prosecution under Massachusetts law, see Smith
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v. Massachusetts Dep't of Correction, 936 F.2d 1390, 1402
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(1st Cir. 1991), is fatal to Hall's procedural due process
claim.
Finally, our determination that Hall has failed to plead
an actionable claim of malicious prosecution and that his
claim for false arrest is time barred precludes any claim
that he has been the victim of a continuing constitutional
violation. See Perez-Ruiz, 25 F.3d at 41 n.1.
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The order of the district court dismissing Hall's claims
is affirmed.
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4. Moreover, the recent Supreme Court case of Albright v.
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Oliver, 114 S. Ct. 807 (1994), "would appear virtually to
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foreclose reliance on substantive due process as the basis
for a viable malicious prosecution claim under section 1983."
Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).
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Witty v. Dukakis , 3 F.3d 517 ( 1993 )
Energy Mgt. P 26,666 United States of America v. Glenn ... , 957 F.2d 26 ( 1992 )
Roberto Ayuso Mangual v. General Battery Corporation , 710 F.2d 15 ( 1983 )
James X. Mullen and Mullen Advertising, Inc. v. St. Paul ... , 972 F.2d 446 ( 1992 )
Perez Ruiz v. Crespo Guillen , 25 F.3d 40 ( 1994 )
Heriberto Ayala-Martinez v. Humberto Anglero , 982 F.2d 26 ( 1992 )
rose-joseph-in-no-88-1634-v-bartle-paul-asher-robert-smyth-joseph , 871 F.2d 331 ( 1989 )
James L. McCune v. The City of Grand Rapids, a Municipal ... , 842 F.2d 903 ( 1988 )
Guy L. Smith, Jr. v. Massachusetts Department of Correction , 936 F.2d 1390 ( 1991 )
Richard A. Street v. George Vose, Etc. , 936 F.2d 38 ( 1991 )
Frederick Feinstein v. Morris and Joyce Moses, D/B/A Sun-... , 951 F.2d 16 ( 1991 )
Jerome Singleton v. City of New York, Ronald Salzer and ... , 632 F.2d 185 ( 1980 )
Jose Antonio Torres v. Superintendent of the Police of ... , 893 F.2d 404 ( 1990 )
juan-francisco-venegas-v-kenneth-b-wagner-james-a-borsos-john-r , 704 F.2d 1144 ( 1983 )
Wilson v. Garcia , 105 S. Ct. 1938 ( 1985 )
Albright v. Oliver , 114 S. Ct. 807 ( 1994 )