
USCA1 Opinion

	




          June 5, 1995          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2113                                 STANLEY J. MALEK, JR.,                                Plaintiff, Appellant,                                          v.                        DEPUTY SHERIFF DAVID KNIGHTLY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Stanley J. Malek, Jr. on brief pro se.            _____________________            Richard L. Barry, Jr. on brief for appellees.            _____________________                                 ____________________                                 ____________________                      Per Curiam.   Plaintiff-appellant Stanley J.  Malek                      __________            appeals  from  the  dismissal  of his  amended  civil  rights            complaint  for failure  to  state a  claim.   We  affirm  the            dismissal of  appellant's  federal  claims,  but  modify  the            dismissal  of appellant's  state law  claims to  reflect that            their dismissal  is without prejudice to  their being renewed            in state court.                                        BACKGROUND                                      __________                      On April  7, 1994,  appellant filed a  complaint in            the  district  court.    As amended,  the  complaint  alleges            violations of  42  U.S.C.     1983,  1985, and  1986  against            deputy  sheriffs  David  Knightly and  Francis  Cote, Sheriff            Robert  Garvey,  Hampshire County  Sheriff's  Department, and            Hampshire County Sheriff's, Inc.   The amended complaint also            includes a variety of state common law claims.                      Stripped to its  essentials, the complaint  alleges            that on February 23, 1994, at approximately 8:00 a.m., deputy            sheriffs  Knightly and  Cote came onto  appellant's property,            entered  his  home without  his  consent,  and arrested  him.            Knightly and Cote then transported appellant to jail.  On the            way there, the deputy sheriffs showed appellant a "purported"            capias.    After  being held  for  a  short  period of  time,            appellant  was released  and given  a court  date to  return.            Thereafter, appellant sent notices regarding this incident to            the Hampshire County Commissioners, the chairman of the Board                                         -3-                                          3            of  Commissioners,  and appellee  Sheriff Garvey.   Appellant            received no response to these notices.                        Based on these  facts, appellant alleged violations            of  his rights  to due  process of  law and  to be  free from            unreasonable searches and seizures  under the Fourth,  Fifth,            Ninth,  and  Fourteenth  Amendments.     He  also  alleged  a            conspiracy to deprive him of his civil rights in violation of            42 U.S.C.   1983,  1985, and 1986.  Finally, he alleged state            law  claims  for  false imprisonment,  trespass,  defamation,            invasion of privacy, and civil conspiracy.   On May 31, 1994,            defendants-appellees  filed a  motion to dismiss  the amended            complaint  for  failure to  state a  claim.   The  two deputy            sheriffs and the  sheriff also asserted  a defense of  quasi-            judicial  immunity.   In support  of the  motion to  dismiss,            appellees submitted copies of various court documents.  These            documents included a copy of a capias issued by Ware District            Court commanding appellant's arrest for contempt based on his            failure  to  appear  in  court for  a  supplementary  process            hearing.  Appellant responded by moving  to strike the motion            to dismiss.  On  August 25, 1994, the district  court allowed            the  motion to dismiss as to all claims.  Judgment entered on            August  26,  1994.    Appellant  filed  a  timely  motion for            reconsideration, which was denied.  This appeal ensued.                                         -4-                                          4                                      DISCUSSION                                      __________                                          I.                                          _                      Appellate review of a motion to dismiss is de novo.                                                                 __ ____            See, e.g., Armstrong v. Jefferson Smurfit Corp., 30 F.3d  11,            ___  ____  _________    _______________________            12  (1st Cir. 1994).  The standard for assessing the adequacy            of a  civil rights claim  is whether,  accepting the  factual            averments in the  complaint as true,  and construing them  in            the light most favorable to the plaintiff, the pleading shows            any fact which could  entitle the plaintiff to relief.   See,                                                                     ___            e.g., Leatherman  v. Tarrant County  Narcotics Intelligence &            ____  __________     ________________________________________            Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.            _________________                                   ______            Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.  1988).  Because            _______________            appellant  is pro  se, we  read his  complaint with  an extra                          ___  __            degree  of solicitude.  Rodi  v. Ventetuolo, 941  F.2d 22, 23                                    ____     __________            (1st  Cir. 1991).    We  are  free to  affirm  on  any  basis            supported by the  record.  See Watterson v. Page, 987 F.2d 1,                                       ___ _________    ____            7 n.3 (1st Cir. 1993).                                         II.                                         __                      Appellant  argues that his amended complaint should            not have been dismissed because it states a valid claim under              1983 for violation  of his constitutional right to  be free            from unreasonable searches and  seizures.1  In particular, he            contends that a capias is not a warrant, and that he stated a                                            ____________________            1.  Appellant  does not raise on appeal  the dismissal of his            claims   under  42  U.S.C.      1985,  1986,  and  they  are,            therefore, deemed waived.                                           -5-                                          5            claim  against deputy  sheriffs Knightly  and Cote  under the            Fourth Amendment based on their unconsented to entry into his            home  without a warrant.  Appellant also contends that he has            stated a claim against Sheriff Garvey, in his individual  and            official  capacity, based  on Garvey's  failure  to reprimand            Knightly  and Cote  after  appellant sent  him three  notices            about the February 23, 1994 incident.              A.  Deputy Sheriffs Knightly and Cote                      Appellees urge, and the district court  found, that            deputy  sheriffs Knightly  and  Cote are  entitled to  quasi-            judicial  immunity  because they  were  executing a  facially            valid warrant. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.                           ___ _____    ________            1991).    Appellant responds  that  the  defense of  absolute            immunity must fail because the deputies exceeded legal bounds            in  executing the  warrant.   See Martin  v. Board  of County                                          ___ ______     ________________            Comm'rs, 909 F.2d  402, 405 (10th  Cir. 1990) ("[A]  judicial            _______            warrant  contains an implicit directive that the arrest . . .            be carried out in  a lawful manner.").   We need not  resolve            the  issue whether  absolute immunity  protects  Knightly and            Cote, however, because we  find that, in any event,  they are            entitled to qualified  immunity since they did  not violate a            "clearly established"  right.  See Harlow  v. Fitzgerald, 457                                           ___ ______     __________            U.S. 800, 818 (1982) (holding that qualified immunity shields            public  officials  performing  discretionary  functions  from            liability for civil damages insofar as their conduct does not                                         -6-                                          6            violate  clearly  established rights  of  which  a reasonable            person should have known).                      In Payton  v. New  York, 445  U.S. 573  (1980), the                         ______     _________            Supreme Court  held that  the Fourth Amendment  prohibits the            police from effecting a  warrantless and nonconsensual  entry            into  a  suspect's home  in order  to  make a  routine felony            arrest.   However, the Court also held that a criminal arrest            warrant  alone was sufficient  to authorize the  entry into a            person's home to effect his arrest.  Payton, 445 U.S. at 602-                                                 ______            03; see also Steagald v. United States, 451 U.S. 204, 214 n.7                ________ ________    _____________            (1981)   (discussing  Payton).     Contrary   to  appellant's                                  ______            suggestion, the deputy  sheriffs who entered his  home had an            arrest warrant.  The issue, as we see it, is  whether a bench            warrant  for   civil  contempt  authorizes  entry   into  the            arrestee's home to effect the arrest.                        This  latter issue has received surprisingly little            discussion   in  the  case   law,  and   we  have   found  no            Massachusetts or  federal cases  directly on point.   Because            the  issue  was inadequately  briefed, we  do not  resolve it            here.  Given the dearth  of relevant case law, we cannot  say            that  Knightly or  Cote  (or more  precisely, an  objectively            reasonably police  office in  their position) knew  or should            have known  that  their actions  violated appellant's  Fourth            Amendment rights, if, in fact, they did.  See Wiley v. Doory,                                                      ___ _____    _____            14 F.3d 993, 995 (4th Cir. 1994) (Powell, J.) (observing that                                         -7-                                          7            in determining whether the plaintiff has asserted a violation            of a  clearly established  right, "`the proper  focus is  not            upon the right at its most  general or abstract level, but at            the level of  its application to  the specific conduct  being            challenged.'") (quoting  Pritchett v.  Alford, 973 F.2d  307,                                     _________     ______            312 (4th Cir. 1992)).             B.  Sheriff Garvey                      Appellant failed to  state a claim against  Sheriff            Garvey  even  if  we  assume,  arguendo,  that  his  deputies                                           ________            violated a federally  protected right.   A supervisor may  be            liable only  on the basis of  his own acts or  omissions, and            there must  be an  affirmative link between  the supervisor's            action or inaction and the street level misconduct.  Bowen v.                                                                 _____            City  of  Manchester,  966  F.2d  13,  20  (1st  Cir.  1992);            ____________________            Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.            ___________________    _________            1989).    In the  instant  case, appellant  attempts  to hold            Sheriff  Garvey  liable based  on  his  failure to  reprimand            deputy  sheriffs  Knightly  and  Cote for  their  actions  on            February 23, 1994.   However, the failure of a  supervisor to            discipline his  subordinates following  a single  instance of            "misconduct"  is insufficient  for a  finding of  supervisory            liability because  the failure to act cannot  have caused the            violation.  See Febus-Rodriguez v. Batencourt-Lebron, 14 F.3d                        ___ _______________    _________________            87, 93 (1st Cir. 1994) (no liability where supervisor was not            provided with  requisite notice of behavior  which was likely                                         -8-                                          8            to  result in constitutional violation).  We add that, in any            event,  Sheriff Garvey would also be entitled to a defense of            qualified immunity.                      Appellant's  claim  against Sheriff  Garvey  in his            official capacity  also fails.  An  official-capacity suit is            actually a suit against the entity of which the officer is an            agent.   Kentucky v.  Graham, 473 U.S.  159, 165 (1985).   To                     ________     ______            establish  municipal  liability under    1983,  the plaintiff            must show  that municipal  employees were acting  pursuant to            some official policy or custom of the city when they violated            the  plaintiff's rights.   Oklahoma City v.  Tuttle, 471 U.S.                                       _____________     ______            808, 810 (1985);  Monell v. Department of  Social Servs., 436                              ______    ____________________________            U.S. 658,  694 (1978).  Because the issue was not briefed, we            pass  the question  whether  Sheriff Garvey,  in the  instant            case,  should be considered an  agent of the  state (in which            case Eleventh  Amendment immunity  applies) or of  the county            (in  which  case  it does  not).    We  will assume,  without            deciding, that  Sheriff Garvey should be  considered a county            agent.   Even so, appellant's claim fails because he does not            allege  that  deputy  sheriffs  Knightly and  Cote  acted  in            conformity with official county policy, or that their actions            were  caused  by Sheriff  Garvey's  acquiescence  in previous            "misconduct."                                           III.                                         ___                                         -9-                                          9                      Because we affirm the district court's dismissal of            appellant's federal  claims, we find that  the district court            did  not abuse  its discretion  in dismissing  the state  law            claims.   United Mine Workers  of America v.  Gibbs, 383 U.S.                      _______________________________     _____            715, 726 (1966).   We modify the  dismissal of the  state law            claims, however, to the extent that they were  dismissed with            prejudice.  Appellant should  not be barred by reason  of the            impotence of his federal claims from bringing  his common law            claims before a state tribunal.                       We have carefully considered  appellant's remaining            arguments and find them to be without merit.  Accordingly, we            affirm  the dismissal  of appellant's  claims but  modify the            judgment  to  reflect that  the  state  claims are  dismissed            without prejudice to their renewal in state court.                      Affirmed as modified.                      ____________________                                         -10-                                          10
