Murray v. Penobscot County DA

July 12, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2024
GREGORY T. MURRAY,
Plaintiff, Appellant,
v.
PENOBSCOT COUNTY DISTRICT ATTORNEY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Torruella, Boudin and Stahl,
Circuit Judges.
Gregory T. Murray on brief pro se.
Jeffrey M. Silverstein, Assistant District Attorney, on brief for
appellee R. Christopher Almy, District Attorney County of Penobscot.
Paul W. Chaiken, Michael A. Hodgins, and Rudman & Winchell on
brief for appellee Bangor Police Department.
Per Curiam. Murray appeals from the dismissal of
his 1983 complaint filed against the Penobscot County
District Attorney and the Bangor Police Department. We
affirm substantially for the reasons stated in the magistrate
judge's August 23, 1933 recommended decision, adding these
comments.
1. We agree that the district attorney was immune
from damages liability with respect to his decision not to
prosecute appellant. Harrington v. Almy, 977 F.2d 37, 40
(1st Cir. 1992).
2. We turn to appellant's false arrest, illegal
detainment, and illegal search and seizure claims against the
police department. Citing to Monell v. Department of Social
Services, 436 U.S. 658, 690 (1978), the magistrate's report
correctly informed Murray that these claims were subject to
dismissal because liability could not be imposed absent
allegations that the harm was inflicted pursuant to an
official policy or custom. Despite that notice, Murray made
no attempt to correct the complaint's deficiency. There
simply are no allegations, as there must be to sustain a
1983 suit, linking a department policy or custom with any
constitutional violation. Monell, 436 U.S. at 691-94; see
also Canton v. Harris, 489 U.S. 378, 385 (1989); Bordanaro v.
McLeod, 871 F.2d 1151, 1157 (1st Cir.), cert. denied, 493
U.S. 820 (1989). Because the magistrate's report provided
appellant with sufficient notice of his complaint's
deficiencies, and because appellant failed timely to correct
those inadequacies, the complaint was properly dismissed.
Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991) (
1915(d) dismissal did not violate Neitzke v. Williams, 490
U.S. 319 (1989), where magistrate's report gave plaintiff
notice of his complaint's factual deficiencies and an
opportunity to cure).
Affirmed.
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