
USCA1 Opinion

	




          December 7, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1084                                   LEROY H. JOHNSON,                                Plaintiff, Appellant,                                          v.                             CHARLES O. WALGREEN, ET AL.,                                Defendants, Appellees.                                                                                      ____________________        No. 92-1085                                  LEROY H. JOHNSON,                                Plaintiff, Appellant,                                          v.                              STANLEY GOLDSTEIN, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Leroy H. Johnson, Jr. on briefs pro se.            _____________________            Arthur P.  Menard, Duncan  S. Payne and  Cuddy, Lynch  & Bixby  on            _________________  ________________      _____________________        brief  for  appellees, Charles  R. Walgreen,  III, Larry  Fixler, Mark        Murzyn, John Carver and Walgreen Eastern Co., Inc.            Scott  Harshbarger, Attorney  General, and Amy  Spector, Assistant            __________________                         ____________        Attorney  General,  on briefs  for  appellee,  Massachusetts Board  of        Registration in Pharmacy.            Peter A.  Biagetti,  Kathleen  D.H.  Pawlowski and  Mintz,  Levin,            __________________   _________________________      ______________        Cohn, Ferris, Glovsky and Popeo, P.C., on brief for appellees, Stanley        _____________________________________        Goldstein,  Harvey  Rosenthal,  Donna Donarovitch,  David  Woods,  Jim        DeVita, Dave  Sencebaugh,  Melville  Corporation  and  Consumer  Value        Stores.                                 ____________________                                 ____________________                      Per  Curiam.   This is  a pro  se appeal  from the                      ___________               ___  __             district court's judgments dismissing plaintiff-appellant's             amended  complaints  in  two  companion  civil  rights  and             employment discrimination  actions.  Finding  no error,  we             affirm.                      Appellant Leroy  H. Johnson, Jr., a  black man and             disabled  veteran, was 56 years  old when he graduated from             the Massachusetts  College of  Pharmacy (the  "College") in             December,  1987.    He  became  licensed  as  a  registered             pharmacist in Nevada in 1988 and  in Massachusetts in 1989.             In   January  1991,   after   repeated  attempts   to  gain             employment,  Johnson sued  an assortment of  individual and             corporate  Walgreen  Drug Corp.  ("Walgreen")  and Consumer             Value  Stores ("CVS")  defendants  alleging  that they  had             refused  to hire him as a  registered pharmacist because of             his race and his age.  In addition, the Massachusetts Board             of Registration  in  Pharmacy1 (the  "Board")  was  charged             with depriving  him, and conspiring  "with private entities             and [their] agents" to deprive him,  of equal protection of             the laws  and other  rights secured by  the Thirteenth  and             Fourteenth Amendments to the  Constitution, and of refusing             to act so  as prevent  such deprivations.2   The facts  and             their logical consequents, as gleaned from the original and                                            ____________________            1.  The Board  of Pharmacy is  an agency of  the Commonwealth            responsible for the regulation of the practice of pharmacy.              2.  The  College was also named in the amended complaint, but            the record does  not show that they were served, nor did they            enter  an appearance  below or  otherwise respond.   We  deem            those claims waived.             amended complaints, and which, at this stage, we take to be             true, see  Dartmouth Review v. Dartmouth  College, 889 F.2d                   ___  ________________    __________________             13, 16 (1st Cir. 1989), indicate the following.                                          I.                                          I.             A. Background.             A. Background.                       During   his   senior   year  at   the   College,             prospective   employers   held  on-campus   interviews  for             applicants interested in employment.   Johnson responded to             Walgreen's   and   CVS's   advertisements  for   pharmacist             positions, and, in the Spring of 1987, an interview was set             up with  Walgreen.   However, on the  appointed day,  after             waiting more than an  hour and a half beyond  the scheduled             time  for the  interview,  Johnson left  when the  Walgreen             representative ignored  him and chose to  interview a later             arrival instead.  Between 1988 and 1991   Johnson responded             several  times  to Walgreen's  advertisements  for pharmacy             positions; he  also  contacted Walgreen's  chief  executive             officer at  least twice with requests for interviews.  None             were forthcoming.                      Johnson  was  interviewed  three  times   by  CVS.             First,  on  campus  in  the Spring  of  1987,  next,  after             graduation, and again  after registration as a  pharmacist.             In addition to  refusing to hire him,  Johnson alleges that             CVS  failed to  interview  him when  he responded  to their             advertisements for pharmacist  positions in the  same 1988-                                         -4-             1990 time frame.   Johnson claims that, during the  time in             question, both companies  employed no more than one  or two             black pharmacists  at the locations in  the Commonwealth to             which Johnson had applied for work.                      In August 1990 Johnson  filed a complaint with the             Board of Pharmacy charging  that Walgreen and CVS exhibited             race and  age discrimination by their  repeated failures to             consider him for a  pharmacist position.  Johnson requested             a  hearing, but,  after an  informal conference,  the Board             recommended   that   Johnson's  employment   discrimination             charges  be filed with the Massachusetts Commission Against             Discrimination  (the "MCAD").   Without  deciding Johnson's             complaint, the Board stated  that if the MCAD substantiated             the allegations, the Board  would "aggressively pursue" the             matter.3             B. Proceedings below.             B. Proceedings below.                      In January 1991 Johnson filed these pro se actions                                                          ___ __             against Walgreen, CVS, and the Board.  He alleged that both             Walgreen  and CVS  had followed  a  policy and  practice of                                            ____________________            3.  Johnson's complaint  in district court would  charge that            1)  prior to  graduation from  the College,  an agent  of the            Board entered a pharmacy where the plaintiff worked part-time            and  publicly  stated  that  Johnson  would  never  become  a            registered pharmacist in Massachusetts, and 2) another member            of the  Board tried to stop  him from taking one  part of the            pharmacist certifying exam and, in so doing, subjected him to            public humiliation and intimidation.                                           -5-             employment discrimination on the  basis of age and  race in             violation of several civil rights and statutory provisions:             Title VII  of the  Civil Rights  Act of  1964, 42  U.S.C.               2000e; the Age Discrimination  in Employment Act, 29 U.S.C.               621 et seq. ("ADEA"); 42  U.S.C.    1981, 1982, 1983  and                   _______             1985;  and the Veterans Reemployment Act,  38 U.S.C.   2021             et seq.  Johnson alleged that the Board, by failing to give             _______             him a meaningful hearing or act on  his complaint, deprived             him of his right  to equal protection and due  process, and             conspired with the other defendants to ensure that he never             worked  as a pharmacist,  in violation of  his civil rights             under  42 U.S.C.    1981, 1983 and 1985(3).4  Also asserted             were   various  state   common-law   claims   against   all             defendants.   The complaint  sought exemplary, compensatory             and  punitive damages and a remedial  order allowing him to             work as a pharmacist for 90 days.                      After  some  discovery,  all  defendants  moved to             dismiss or for summary judgment.  The district court held a             hearing and  dismissed the federal claims  in both actions,             declining to reach the state common-law counts.                                            ____________________            4.  While not unambiguous, we do not read Johnson's complaint            to assert Title VII or ADEA claims against the Board.  In any            event,  as  noted  by  the  district  court,  the  Board,  in            performing licensing  activities, is  not an employer  within            the meaning of either statute.  See, e.g., EEOC v. Waterfront                                            ___  ____  ____    __________            Comm. of New  York Harbor,  665 F. Supp.  197, 200  (S.D.N.Y.            _________________________            1987)  (ADEA); Haddock v. Board of Dental Examiners, 777 F.2d                           _______    _________________________            462, 463 (9th Cir. 1985) (Title VII).                                            -6-                      The  court found  Johnson's  civil  rights  claims             against  the Board --  premised upon the  assertion that it             had  a statutory  duty to  act as  a "watch  dog" over  the             practice of  pharmacy -- barred by  the Eleventh Amendment.             In addition, the  court decided that Johnson  had failed to             state a factual basis for any of  the claims under    1981,             1983 and 1985, also warranting dismissal under Fed. R. Civ.             P. 12(b)(6).                        The Title VII and ADEA claims against Walgreen and             CVS  were  dismissed as  untimely  for  failure to  exhaust             administrative remedies.   The    1983 claims  against both             defendants were dismissed for  failure to allege any action             which   could  fairly   be   attributed   to  the   state.5             Similarly,  the court  decided that  Johnson had  failed to             show  the existence  of  any conspiracy  (   1985), or  the             deprivation  of any  contract right  (  1981),  or property             right (  1982) in support of the other civil rights claims.             The   Veteran's   Reemployment   Act   was   found   simply                                            ____________________            5.  The district  court also stated  that the    1983  claims            appeared  to have been filed beyond the applicable three year            statute of limitations.   This, in  turn, was premised upon a            subsidiary finding that  "the time frame of  the events which            underlay the  case  was between  1986  and 1987."    However,            Johnson claimed that he continued to apply for employment  as            a pharmacist  into 1990, and contended that both Walgreen and            CVS committed  a "continuing violation."   See Mack  v. Great                                                       ___ ____     _____            Atlantic  & Pacific Tea Co.,  871 F.2d 179,  182-83 (1st Cir.            ___________________________            1989).    Since  the  dismissal  of  the     1983  claims  is            adequately supported  for other  reasons, we need  not decide            whether Johnson's facts fit the framework of that theory.                                         -7-             inapplicable, in that it applied only to the re-hiring of a             former employee.6                                           II.                                         II.             A. Walgreen and CVS              A. Walgreen and CVS                       a) The Title VII and ADEA claims.                      a) The Title VII and ADEA claims                      The appellant has conceded, contrary to assertions             in  his  complaint, that  he  has  never  resorted  to  any             administrative remedy within the time-frame mandated either             by Title VII, 42 U.S.C.   2000e-5(e) or the ADEA, 29 U.S.C.               626(d).   While the  appellant correctly  notes that  the             failure  to  make  such  filings is  not  a  jurisdictional             prerequisite to suit, Zipes  v. Trans World Airlines, Inc.,                                   _____     __________________________             455  U.S. 385,  393  (1982), they,  nonetheless, cannot  be             waived at the  plaintiff's option.   Oscar Mayer  & Co.  v.                                                  __________________             Evans, 441 U.S. 750,  757 (1979) (under both Title  VII and             _____             the  ADEA, "resort to  administrative remedies  in deferral             states   [such   as   Massachusetts]   is   mandatory,  not             optional").  Johnson attempts to excuse his failure to file             on the basis of  futility: that the relevant  state agency,             the MCAD, simply takes too long to resolve these matters.                      The   ADEA,   however,   only  requires   that   a             Massachusetts  claimant  commence an  appropriate grievance                                      ________             before proceeding to  federal court, 29 U.S.C.    633(a); a                                            ____________________            6.  This  ruling  is clearly  correct  and  does not  warrant            further discussion.                                         -8-             Title  VII  claimant must  first receive  a "right  to sue"             letter, 42 U.S.C.   2000e-5(f)(1).  We take a "narrow view"             of  equitable exceptions  to  these prerequisites  to suit.             Mack  v. Great Atlantic &  Pacific Tea Co.,  Inc., 871 F.2d             ____     ________________________________________             179,  185 (1st  Cir. 1989)  (Title VII);  Castro v.  United                                                       ______     ______             States,  775 F.2d 399, 403-04 & n.4 (1st Cir. 1985) (ADEA).             ______             Having, admittedly,  made no  attempt whatsoever  to comply             with the statutory  preconditions which mandate an  attempt             to  conciliate   differences,7  or  shown   "special  facts             justifying an equitable tolling," Ciccone v. Textron, Inc.,                                               _______    _____________             616 F.2d 1216,  1217 (1st Cir.), vacated on  other grounds,                                              _________________________             449 U.S.  914 (1980),  the appellant  cannot rely  upon the             excuse  of futility  for failing  to pursue  administrative             relief.   The district  court properly dismissed  the Title             VII and ADEA claims.                      b) The Civil Rights claims.                      b) The Civil Rights claims.                                            ____________________            7.  There  is no  question but  that the  appellant  was well            aware of  these requirements.   In Johnson v.  Rodriguez, 943                                               _______     _________            F.2d  104 (1st  Cir.  1991), cert.  denied,  112 S.  Ct.  948                                         _____________            (1992),  the  appellant   asserted,  in  another   employment            discrimination suit, that  the MCAD's  delay in  adjudicating            the  merits of  his claim  had denied  him due  process.   In            finding the belated complaint  in federal court frivolous, we            stated:  "[Mere]  slowness  in  the  [MCAD's]  decisionmaking            process, without more, did not infract state law or otherwise            impinge on a protected interest."  Id. at 110.                                               ___                                         -9-                      1.   1983.   Title VII, like the ADEA,  creates an                         ______             exclusive remedy for a  violation of its terms.   Polson v.                                                               ______             Davis, 895 F.2d 705, 710 (10th Cir. 1990); Izquierdo Prieto             _____                                      ________________             v.  Mercado Rosa, 894 F.2d  467, 469 (1st  Cir. 1990) (ADEA                 ____________             provides a "comprehensive statutory  remedy that may not be             bypassed through the means  of an action under 42  U.S.C.               1983").  In  Izquierdo Prieto,  894 F.2d at  470, we  found                          ________________             that the  plaintiff  had failed  to  establish at  trial  a             violation  of  any  constitutional  right  to  be  free  of             discrimination  based on  age,  and reserved  the  question             whether  the  ADEA's statutory  scheme  preempted a  remedy             under   1983 for alleged violations arising out of the same             conduct.                      Johnson's assorted civil  rights claims,  however,             focus exclusively upon discrimination on the basis of race.             The complaint, fairly read,  asserts the deprivation of two             independent rights: the right, under Title VII,  to be free             from  discriminatory  hiring   practices,  and  the  right,             grounded in  the equal protection clause  of the Fourteenth             Amendment,  to be  free of race discrimination.8   We agree                                            ____________________            8.  Although Johnson has attempted to assert a claim that the            refusal to hire deprived him of a protected property interest            without due process of law, such interests are clearly absent            here.   A pharmacist  license does  not  bestow an  automatic            right to employment.   Coyne v. City of Somerville,  972 F.2d                                   _____    __________________            440,  443  (1st  Cir.  1992)  (state   teacher  certification            requirement  does not  confer  a job  "entitlement" upon  any            particular applicant); see Board of Regents v. Roth, 408 U.S.                                  ____ ________________    ____            564,  577-78  (1972)  (the "need",  "desire"  or  "unilateral                                         -10-             with  the  district court's  implicit conclusion  that when             employment practices  violate Title VII and  a separate and                                                     ___             independent constitutional or statutory right, an aggrieved             individual is  not necessarily limited to Title  VII in the             search for relief, and may pursue additional remedies under               1983.  Bradley  v. Pittsburgh Bd. of Education,  913 F.2d                      _______     ___________________________             1064, 1078-79  (3d Cir. 1990) (collecting  cases); Johnston                                                                ________             v. Harris County Flood Control Dist., 869  F.2d 1565, 1573-                _________________________________             76 (5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990); see                                 ____  ______                        ___             also  Alexander  v. Gardner-Denver  Co.,  415  U.S. 36,  48             ____  _________     ___________________             (1974).                       Nonetheless, the district court  correctly decided             that Johnson's  claim for  relief  under    1983 failed  to             allege facts  indicating that  Walgreen's or  CVS's conduct             implicated state action.  "That a private entity performs a             function which  serves the  public does  not make its  acts             state actions."  Rendell-Baker v.  Kohn, 457 U.S. 830,  842                              _____________     ____             (1982) (employment  decision made  by  private school  that             receives public money and  is subject to certain regulatory             constraints is not "state action").                      Nor are Johnson's  largely conclusory  allegations             that  Walgreen and CVS acted  in concert with  the Board to             deprive him  of federal rights adequate  to categorize such                                            ____________________            expectation"  of future employment does not  give rise to the            level of an entitlement protected by procedural due process);            see also note 10 infra, at 13.            ___ ____         _____                                         -11-             conduct  as "under color of" state law for   1983 purposes.             See  Rendell-Baker, 457 U.S. at  838 n.6 ("[T]he  acts of a             ___  _____________             private  party are fairly attributable  to the state  . . .             [only] when  the private party acted in  concert with state             actors"); Dennis v. Sparks, 449 U.S. 24, 28 (1980).  Merely                       ______    ______             refusing  to   interview  or  hire  an   applicant  for  an             advertised pharmacist  position, does not, per  se, convert             Walgreen or CVS into  conspiratorial actors with the Board.             Johnson does  not allege, for example,  that the employment             decision not to interview  or hire him was based  upon some             "understanding" reached with the  Board, and no other facts             are detailed to support an  inference that the Board played             any role  in Walgreen's or CVS's  personnel decisions.9 See                                                                     ___             Coyne  v. City of Somerville,  972 F.2d 440,  444 (1st Cir.             _____     __________________             1992).                        On the contrary,  the Board entertained  Johnson's             discrimination  complaint  against  Walgreen  and  CVS, and             recommended  that the MCAD be contacted.  The fact that the                                            ____________________            9.  The  only specific  allegation  by Johnson  to bolster  a            conspiracy claim  is the  unadorned statement: "Did  you send            that  Black Flunkie to me  for a pharmacist position?", made,            apparently to a member of the Board, by one of the individual            CVS  defendants.  There  are no hints  as to what  any of the            other  defendants  may  have  done  to  further  the  alleged            conspiracy.   It is a rule of long-standing that civil rights            conspiracy complaints must,  in order to survive  a motion to            dismiss,   be  supported  by   specific  facts   showing  the            "existence and scope of the alleged conspiracy."  Slotnick v.                                                              ________            Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434            _________                                   _____ ______            U.S. 1077 (1978).                                         -12-             Board licenses pharmacists  in the  Commonwealth and  takes             certain  actions,  i.e.,   investigating  complaints   with             respect  to the  practice of  pharmacy, is  insufficient to             transform a  hiring decision  by a private  party otherwise             subject  to regulation by the Board into state action.  See                                                                     ___             Rendell-Baker, 457  U.S. at  841-42; Mendez v.  Belton, 739             _____________                        ______     ______             F.2d  15, 17-18  (1st Cir.  1984).   Johnson has  failed to             state a  claim  of race  discrimination under  42 U.S.C.                1983.                        2.    1985(3)   Private  conspiracies that  do not                          _________             involve  the  state are  within  the  remedial  reach of                1985(3). Griffin v. Breckenridge,  403 U.S. 88, 104 (1971).                      _______    ____________             However, rights created by Title VII cannot be the basis of             a    1985(3) claim, Great  American Federal Savings  & Loan                                 _______________________________________             Ass'n v. Novotny, 442 U.S. 366, 378 (1979), which "requires             _____    _______             proof of  a  conspiracy to  violate independent  rights."10             Rice  v.  New England  College, 676  F.2d  9, 11  (1st Cir.             ____      ____________________             1982).   To the extent  that Johnson attempts  to vindicate             some other "independent" federal  right, Novotny, 442  U.S.                                                      _______             at 376, Johnson has, as discussed above, failed to show any             factual  basis  for  the   charge  that  Walgreen  and  CVS             conspired  with each  other,  or  with  the Board,  or  its                                            ____________________            10.  As Justice Powell observed,  concurring in Novotny,  the                                                            _______            "Court  has  never  held that  the  right  to any  particular            private  employment is  a right  of national  citizenship, or            derives from  any other  right created by  the Constitution."            Novotny, 442 U.S. at 380 (punctuation and citation omitted).            _______                                         -13-             officials  or  agents, to  deprive  Johnson  of a  pharmacy             position  on  the  basis  of  race.    Johnson's  amorphous             allegations fail to establish,  or even suggest, that which             Title  VII does  not require: a  conspiracy between  two or             more   persons,   plus   the   existence   of   class-based             discriminatory motive.  Id.; see Griffin, 403 U.S.  at 102-                                     ___  ___ _______             103.   The    1985(3)  claims were  properly  dismissed for             failure to allege detailed facts  upon which relief can  be             granted.  Mendez, 739 F.2d at 19.                          ______                      3.   1981  Johnson also alleges purposeful refusal                         ______             to hire  on the basis of  race in violation of  42 U.S.C.               1981.   That section, which  extends to private  conduct as             well as state action, prohibits, inter alia, "when based on                                              _____ ____             race, the refusal to enter into a contract with someone, as             well as the offer to make a contract only on discriminatory             terms."  Patterson  v. McLean Credit  Union, 491 U.S.  164,                      _________     ____________________             175,  177 (1989).  When,  as here, wrongful  conduct in the             making  of a contract is alleged, Title VII remedies do not             preempt  those available under   1981.  Id. at 182; Johnson                                                     ___         _______             v. Railway Express  Agency, Inc., 421 U.S. 454,  459 (1975)                _____________________________             (Title  VII  and    1981 "augment  each  other and  are not             mutually exclusive").                        Thus, while a  racially motivated  refusal-to-hire             claim is  actionable under    1981, an  examination of  the             complaint  here reveals  that Johnson  has failed  to state                                         -14-             facts  which  are  sufficient  to  lead  to  the  "reasoned             inference" that Walgreen or CVS failed to hire him "because             of"  his  race,  or  that those  defendants  possessed  any             particular  animus  toward  black  applicants.    Dartmouth                                                               _________             Review, 889  F.2d at 18 &  n.4.  On the  contrary, the fact             ______             that  the  defendants  had hired  other  black  pharmacists             suggests that the  failure to interview or hire Johnson was             for  objective reasons.   In  any event,  "unfairness alone             does  not invoke the  statute."  Id. at  19.  Without "some                                              ___             meaningful, fact-specific . .  . causal link" upon  which a             permissible inference of race-based discrimination could be             premised, id., Johnson has failed  to make out a cognizable                       ___               1981 claim.                      4.     1982   While 42  U.S.C.    1982  applies to                          _______             private actors, and does  not require state action, Johnson             has  not   shown  that  the  defendant's actions  adversely             affected  any interest  in  "real" or  "personal"  property             within  the intended reach of that statute.  See Memphis v.                                                          ___ _______             Greene,  451  U.S. 100,  122 &  n.35  (1981).   The alleged             ______             violation of    1982 was properly dismissed for  failure to             state a claim.             B. The Board             B. The Board                      Johnson's  civil rights claims  against the Board,             which,  at bottom,  seek the  recovery of  monetary damages             from the  Commonwealth, are clearly barred  by the Eleventh                                         -15-             Amendment.  Edelman v. Jordan, 415 U.S. 651, 668-69 (1974);                         _______    ______             Fred v. Roque, 916 F.2d 37, 39 (1st Cir. 1990).  As an "arm             ____    _____             of  the  state", the  Board is  not  a "person"  within the             meaning of    1983  and shares the  Commonwealth's immunity             from suit for  damages.   Wilson v. Brown,  889 F.2d  1195,                                       ______    _____             1197  (1st Cir.  1989)  (citing Will  v. Michigan  Dep't of                                             ____     __________________             State  Police,   491  U.S.   58,  70-71  (1989)).     "This             _____________             jurisdictional bar applies regardless  of the nature of the             relief  sought" against  a state  agency.   Pennhurst State                                                         _______________             School & Hospital  v. Halderman,  465 U.S.  89, 100  (1984)             _________________     _________             (citations omitted).         Although the amended complaint             vaguely  suggests  claims  against Board  members  in their             individual  capacities  (intimating that  Johnson  seeks to             hold certain  state actors  personally liable  for monetary             damages, thus avoiding the Eleventh Amendment bar, Kentucky                                                                ________             v. Graham, 473  U.S. 159, 166-67 (1985)), no state official                ______             is a named party,  no Board members are identified  by name             in the complaint, none were served, and the complaint makes             no  allegations whatsoever  as  what  role  such  officials             played  so  that the  action could  fairly  be read  as one                                         -16-             against   a   state   official.11     Johnson   had   ample             opportunity to correct any defects along this line.                       Since it is evident that  the Board has not waived             its  immunity or  otherwise consented  to suit,  the claims             under    1981  and 1985(3) were also  properly dismissed as             proscribed by the Eleventh  Amendment.  Freeman v. Michigan                                                     _______    ________             Dep't of State, 808  F.2d 1174, 1178-79 (6th Cir.  1987) (              ______________             1981);  True  v.  New  York  State  Dep't  of  Correctional                     ____      _________________________________________             Services, 613 F. Supp. 27, 31 (W.D.N.Y. 1984) (  1985(3)).             ________                                         III.                                         III.                                         ____                      Because  all of  the federal claims  were properly             dismissed,  the  district  court  correctly  dismissed  the             pendent state-law  claims without  prejudice.   United Mine                                                             ___________             Workers  v. Gibbs,  383  U.S. 715,  726  (1966) ("[I]f  the             _______     _____             federal claims  are dismissed  before trial, ...  the state             claims  should be  dismissed  as  well.");  Carnegie-Mellon                                                         _______________             Univ. v. Cohill, 484 U.S. 343, 350 (1987).               _____    ______                      The judgments of the district court are affirmed.                                                              ________                      Appellant's motion to a single judge is denied.                                            ____________________            11.  Johnson  assertions that on two occasions unnamed agents            or members  of the  Board publicly humiliated  or intimidated            him, allege, at most, mere negligence  or lack of due care by            those officials in the conduct of their duties, and, as such,            do not state a claim under    1983.  Daniels v. Williams, 474                                                 _______    ________            U.S.  327, 330-32 (1986);  Davidson v. Cannon,  474 U.S. 344,                                       ________    ______            347 (1986).                                         -17-
