
USCA1 Opinion

	




          December 16, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1381                                   PAUL N. PAPAS, II,                                Plaintiff, Appellant,                                          v.                             LINDA RANDO BAINES, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Paul N. Papas, II on brief pro se.            _________________            Harvey  Weiner, Mark E.  Young and  Peabody & Arnold  on brief for            ______________  ______________      ________________        appellees, Saugus Federal Credit Union and Kristin O'Brien Bambury.            Lisa A. Wallace and The First  National Bank of Boston-Law  Office            _______________     ______________________________________________        on brief for appellee John W. Shorrock.            Philip Burling, Anthony Mirenda and Foley,  Hoag & Eliot on  brief            ______________  _______________     ____________________        for appellee Arthur Cook.                                 ____________________                                 ____________________                      Per Curiam.   Pro  se plaintiff Paul  Papas appeals                      __________    ___  __            from a district court judgment dismissing his thirty-one (31)            page complaint because Papas failed to file a "concise, clear            statement of his claims against each defendant" in accordance            with a previous court order.  We affirm.                                    I.  BACKGROUND                                    ______________                      Papas  is presently  incarcerated at  the Southeast            Correctional Center in Bridgewater, Massachusetts.   He filed            the  instant  complaint  in  October  1991.    The  complaint            identified  eight  defendants: Linda  Rando  Baines (Baines),            Schooner    Broadcasting,    Inc.   (Schooner),    Marshfield            Broadcasting, Inc.  (Marshfield), Terre Marique  Realty Trust            (TMRT),  Saugus Federal  Credit Union  (SFCU), SFCU's  Member            Service  Manager -  Kristin O'Brien  Bambury (Bambury),  John            Shorrock (a Bank of Boston  Customer Service Representative),            and  Saugus  police officer  Arthur  Cook.1   A  multitude of            federal and  state claims for relief  are asserted, including            conspiracy  to violate  the Racketeer Influenced  and Corrupt            Organizations Act (RICO), the  Privacy Act, various state and            federal  civil rights  statutes, (e.g.,  42 U.S.C.   1983 and            M.G.L. c.  12,    11H and  11I) and other laws.   Stripped of            legalese, the complaint alleges the following facts.                                            ____________________            1.  The  complaint  also  purported  to  sue  "all  presently            unknown defendants."                       In 1991, Papas  was engaged  in mortgage  brokering            through  a business named  Capital Return Company. (Complaint             7).  In  some undisclosed fashion, Papas  allegedly became a            creditor  of Schooner, a Massachusetts corporation which owns            and operates  an FM radio  station (WFAL, Falmouth)  under an            FCC  license.   (Id.,   s  10, 27).   Linda  Rando  Baines is                             ___            Schooner's  President and  General Manager  and a  trustee of            Terre Marique Realty Trust  (TMRT), an entity which allegedly            holds  title to property that is the site of Schooner's radio            tower.  (Id.,   12).  Papas  alleged that Baines,  Marshfield                     ___            and TRMT schemed to  devalue Schooner and hide its  assets so            as to deny Papas and other creditors their money.   (Id.   9-                                                                 ___            12).   Toward that end, and to conceal allegedly false public            filings  and prevent  Papas  from  petitioning Schooner  into            involuntary bankruptcy,  Baines allegedly conspired  with the            SFCU,  Bambury, Shorrock,  and  Cook to  cause Papas's  false            arrest and imprisonment.  (Id.  9, 15).                                       ___                      Papas  alleged  the   following  additional   facts            regarding  his false  arrest claim.   On  May 2,  1991, Papas            opened a joint account at SFCU with his  minor daughter.2  On            May  18th, he deposited a  sight draft which  was accepted by                                            ____________________            2.  While  the  complaint   names  Papas's   daughter  as   a            plaintiff, this  court's May  22, 1992  order left  Papas the            sole  appellant.    See  Cheung v.  Orchestra  Foundation  of                                ___  ______     _________________________            Buffalo, Inc.,  906 F.2d  59, 61 (2d  Cir. 1990)(non-attorney            _____________            parent must be represented by counsel to sue on behalf of his            child).                                         -3-                                          3            the bank teller.   Papas then withdrew $50.00.   Bambury then            allegedly arrived  at the  bank and immediately  withdrew the            funds from  Papas's account without notice  to him, allegedly            violating  SFCU's   fiduciary  duties   to   Papas.     After            communicating with Shorrock and  Baines, Bambury resolved  to            treat the sight  draft as a  fraudulent check.   She did  not            notify  Papas of  her resolution.   Bambury  contacted police            officer Cook.  Papas attempted to make  another withdrawal on            May 21st, but was told the  funds had not cleared and that he            should return later.   On  May 23, 1991,  Bambury told  Papas            that  the funds were available.   Papas returned  to SFCU and            attempted to make a  withdrawal.  He was arrested  by officer            Cook  and  charged with  uttering  and  attempted larceny  by            fraudulent  check.   The complaint  ( 26) alleged  that these            charges were  later dismissed with prejudice.   Papas claimed            over  $9 million  in damages  for the  defendants' respective            roles in his demise.3                      On  December 10,  1991, SFCU  and Bambury  moved to            strike  the  complaint  under Fed.  R.  Civ.  12(e) and  (f),            contending  that it  was so  vague, ambiguous  and scandalous            that  they could not frame a responsive pleading and that the                                            ____________________            3.  After  the  district  court  allowed  Papas's  motion  to            proceed in  forma pauperis,  the eight named  defendants were            served  by  certified  mail.  Four of  the  eight  -  Baines,            Schooner,  TMRT,  and  Marshfield  -  have  not  acknowledged            service of  the complaint.   We note  that Baines  personally            signed the  certified mail return  receipt which  accompanied            the summons and complaint.                                         -4-                                          4            complaint generally did not appear to state claims upon which            relief  could be granted.  SFCU and Bambury acknowledged that            Papas opened an account at SFCU and subsequently attempted to            deposit a $3000 "sight draft" which Bambury determined to  be            fraudulent.    As  a  result, officer  Cook  arrested  Papas.            Contrary to the allegation in the complaint, SFCU and Bambury            contended  that Papas  was convicted  of forgery,  uttering a            forged instrument, and attempted larceny and sentenced to two            and  one-half  years in  prison.    They submitted  certified            copies  of records  of  Papas's criminal  proceedings in  the            Massachusetts state courts in support of their contention.4                       On December 11,  1991, Cook filed an  answer to the            complaint which  denied most  of the factual  allegations and            alleged, inter  alia, that  the complaint  failed to  state a                     _____  ____            claim  upon which relief could  be granted.   On December 18,            1991,  Shorrock  filed a  motion  for  summary judgment  with            supporting  affidavits  which  also  showed  that  Papas  was            convicted of the aforementioned offenses.  Shorrock contended                                            ____________________            4.  Papas was first convicted in the Lynn district court.  He            appealed  to  the  jury  of  six  session  in   Peabody,  but            ultimately  pled guilty.   Papas  submitted an  opposition to            SFCU's motion to strike wherein he claimed that he entered an            Alford plea  that is  inadmissible in  this civil  action and            ______            that he is presently incarcerated  on another matter.   Under            the applicable Massachusetts  law, Papas's guilty  plea could            be  treated as  an  admission in  the  instant civil  action,            although it would  not have collateral estoppel  effect.  See                                                                      ___            United States v. One  Parcel of Real Property, 900  F.2d 470,            _____________    ____________________________            473  (1st  Cir.  1990), (citing  Aetna  Cas.  &  Sur. Co.  v.                                             ________________________            Niziolek, 395  Mass. 737,  481 N.E. 2d  1356, 1363  (footnote            ________            omitted)).                                          -5-                                          5            that  the  complaint was  frivolous  because  Papas's arrest,            conviction and incarceration arose  from the very incident on            which the complaint was based.5                        On January  3, 1992,  the  district court  endorsed            SFCU's and Bambury's motion to strike as follows                        ALLOWED.    The present  complaint  is                        unintelligible.   The  plaintiff is to                        file  a  concise, clear  statement  of                        his  claims  against   each  defendant                        within  twenty  days  or  this  matter                        will be dismissed.            The court also  issued a separate scheduling  order which set            deadlines for discovery and dispositive motions.                      On  January  15, 1992,  Papas  filed  a motion  for            clarification of the court's order to file  a clear statement            of  his claims.    Papas queried  whether  the court's  order            pertained only to his  claims against SFCU and Bambury  or to            all defendants,  while pointing  out that defendant  Cook had            filed  an  answer.   Papas  also  sought additional  time  to            respond to  the court's order.6  The  district court endorsed                                            ____________________            5.  On  December  18,  1991,   Papas  filed  a  "Response  to            Defendants Shorrock, Bambury and Saugus Federal Credit Union"            which appended an incident report Bambury prepared describing            the events that led to Papas's arrest.  Papas argued that the            complaint was not  so vague  as to prevent  Bambury and  SFCU            from admitting the factual allegations set forth therein.  In            a  separate  opposition  to  Shorrock's  motion  for  summary            judgment, Papas argued that his complaint is not solely based            on his transactions at SFCU.  The district court did not rule            on Shorrock's motion for summary judgment.               6.  Cook  filed   an  opposition  to  Papas's   motion  which            construed  the court's January  3, 1992 order  as applying to            Papas's  claims against  all  defendants and  asked that  the                                     ___                                         -6-                                          6            this motion, "DENIED.  The court's order is clear and will be            strictly  enforced."    The  court  extended  Papas's  filing            deadline from January 23 to February 7, 1992.                       Papas  filed an  eight-page "Clearer  Statement" of            his claims on or about February 5, 1992.  While purporting to            relate only to Papas's claims against Bambury and  SFCU, this            document  alleged  (p. 2,   3)  that "[t]his  complaint  is a            result of a single scheme  devised and executed by  Defendant            Linda  Rando Baines to rest control and shares from a partner            of  Defendant Schooner  Broadcasting,  Inc., and  convert the            assets of that corporation for personal gain, make the shares            worthless, then sell the assets  (hiding the main asset), for            a devalued price and circumvent the lien . . . Papas has on .            . .  Schooner's FM radio  license."  The  "Clearer Statement"            further alleged that Baines purchased property for Schooner's            radio tower through a  straw, then placed that property  in a            realty trust (presumably, TRMT, although it is  not so pled),            with  the  specific intent  of  excluding  the property  from            Schooner's assets.   Papas claimed that  Baines, Schooner and            Marshfield  joined  in an  effort  to  deny  him payment  for            services he rendered  in securing financing for  TRMT.  Papas            reiterated  his claim  that Baines  and Schooner  filed false            public documents,  specifying as his grounds  that any public            filings that did not  show Papas as a lienholder  were false.                                            ____________________            complaint be dismissed.                                         -7-                                          7            Papas also claimed that  SFCU and Bambury violate  RICO every            time   they   file  reports   without   showing   him  as   a            shareholder.7 In  short, the "Clearer  Statement" essentially            realleged that Baines, Schooner and Marshfield enlisted SFCU,            Bambury,  Shorrock and Cook to deny Papas monies he claims to            have rightfully deposited in SFCU.                          On  March 11,  1992,  the district  court issued  a            memorandum and order dismissing  the suit for Papas's failure            to file  a more  definite statement  in  accordance with  the            court's previous order.8  The court  noted that the complaint            was  predicated  on   Papas's  arrest,  while   the  "Clearer            Statement"  was based on an alleged struggle for control of a            corporation  (i.e.,  Schooner).    The court  held  that  the            "Clearer Statement"  was not "clear, concise  and direct" and            did not plead fraud with particularity as required by Fed. R.            Civ. P. 9(b).   The court accorded Papas's filings  a liberal            construction  under Haines  v.  Kerner, 404  U.S. 519  (1972)                                ______      ______            (reversing dismissal  of pro  se  prisoner's complaint  under                                     ___  __                                            ____________________            7.  Papas attached  a copy of the  Saugus Police Department's            May  23, 1991  booking sheet  to  his "Clearer  Statement" to            support  his   claim  that  the  charges   against  him  were            dismissed.  However, no such  disposition is recorded on this            document.            8.  As the  "Memorandum and Order" was followed by a separate            "Order  of Dismissal,"  the district  court  properly entered            judgment on a  "separate   document" as required  by Fed.  R.            Civ.  P. 58.  See Fiore v. Washington County Community Mental                          ___ _____    __________________________________            Health  Center,   960  F.2d  229,  236   (1st  Cir.  1992)(en            ______________            banc)(noting order on separate document satisfies Rule 58).                                          -8-                                          8            Fed.  R.  Civ.  P.  12(b)(6)),  and  held  that  neither  the            complaint  nor the "clearer  statement" passed muster because            they were "prolix, confusing, and contain[ed] material  which            is vague, scandalous and even unnecessary."  The court  noted            that "no connection  among the defendants is  drawn; no roles            in the  conspiracy are assigned.  . . .   If there  were some            basis to the plaintiff's  allegations that certain defendants            were engaged  in  a struggle  for control  of a  corporation,            there is  no basis  to conclude  that  those same  defendants            engaged  in  that struggle  to deprive  the plaintiff  of his            fee."  As the  order of dismissal did not  specify otherwise,            we presume it to be with prejudice.  Velazquez-Rivera v. Sea-                                                 ________________    ____            Land  Service, Inc.,  920  F.2d 1073,  1075  n. 5  (1st  Cir.            ___________________            1990).9                                     II. ANALYSIS                                     ____________                      The sole  issue on  appeal is whether  the district            court abused its discretion in dismissing this action because            Papas failed to comply with the court's order to file a  more            definite statement of his  claims.  "The choice  of sanctions                                            ____________________            9.  Papas  filed  a motion  to  strike  the district  court's            memorandum  and  order under  Fed. R.  Civ.  P. 12(e)  on the            ground that it contained "immaterial, impertinent, defamatory            and  scandalous matter."  The district court  did not  act on            this motion. We conclude that this motion, which Papas served            before he filed his notice of appeal, poses no jurisdictional            bar.  Rule 12(e) applies to pleadings, not court orders.  The            motion  was frivolous  on its  face, and  it did  not warrant            treatment under Fed. R. Civ. P. 59(e).  We do not regard this            motion as undermining Papas's notice of appeal.                                             -9-                                          9            for  failing to  comply  with a  court  order lies  with  the            district  court, and we may not lightly disturb a decision to            dismiss."  Velazquez-Rivera, 920 F.2d  at 1075.  "A complaint                       ________________            that  fails to  comply  with Rule  8  may be  dismissed  with            prejudice pursuant  to Fed. R.  Civ. P. 41(b)  after allowing            time to file an  amended complaint."   Mangan  v. Weinberger,                                                   ______     __________            848 F.2d 909,  911 (8th  Cir. 1988), cert.  denied, 488  U.S.                                                 _____  ______            1013  (1989).   However,  we have  repeatedly cautioned  that            dismissal with prejudice is a severe sanction that "should be            employed  only  when  the  district  court,  in  the  careful            exercise  of  its discretion,  determines  that  none of  the            lesser sanctions available to it would truly be appropriate."            Zavala Santiago v.  Gonzalez Rivera, 553  F.2d 710, 712  (1st            _______________     _______________            Cir. 1977).  A  second opportunity to amend may  be warranted            where  a pro  se plaintiff has  made a  good faith  effort to                     ___  __            comply with an order  for a more definite statement,  but has            fallen short.  See, e.g., Pardee v. Moses, 605 F.2d 865, 866-                           ___  ____  ______    _____            67 (5th Cir. 1979).            In this case, we hold that the            district court did not abuse its discretion in dismissing the            present action, notwithstanding the fact that Papas is pro se                                                                   ___ __            and was  given only one  opportunity to amend  his complaint.            The  complaint was long and confusing.  The order requiring a            clearer statement  of  Papas's claims  was wholly  justified.            That  order  squarely warned  Papas  that  his complaint  was            "unintelligible" and  that a clearer statement  of his claims                                         -10-                                          10            against "each defendant" was  required or his complaint would            be dismissed.   In  addition, both Cook's  answer and  SFCU's            motion to strike asserted that  the complaint failed to state            a claim upon which relief could be granted, while  Shorrock's            motion  for summary  judgment argued  that the  complaint was            frivolous.    Faced  with these  warnings,  Papas's  "Clearer            Statement" essentially reiterated his initial allegations and            failed to  identify  a viable  basis for  relief.10   Rather,            Papas simply  appears to be trying to relitigate the criminal            charges  that  resulted  in  his  arrest  and  conviction  by            accusing the  defendants  of  committing  fraud  and  perjury            during the course of the events that led to his arrest.                        To be sure, the fact that Papas attempted to comply            with  the court's order, as evidenced by his timely filing of            the  "Clearer  Statement," militates  against dismissal.   In            addition, this case was  not long pending (5 months).   There            was no  pattern of delay.  However, in this case not only did            the "Clearer  Statement" fail  to rectify the  original fault            but the record suggests  that Papas is attempting to  use the            judicial process to harass  those parties who participated in                                            ____________________            10.  We  reject Papas's  claim  that the  order of  dismissal            applies  only to  those defendants  who moved  to strike  his            complaint  in  the  first  place  (SFCU and  Bambury).    The            district court  had inherent power to  dismiss Papas's claims            against the  non-moving defendants.  Link  v. Wabash Railroad                                                 ____     _______________            Co., 370 U.S. 626, 629-30 (1961).            ___                                         -11-                                          11            the events which led  to his arrest and conviction.11   Under            these circumstances, we think that dismissal  without further            leave to amend  was justified.   See Ruth  v. First  National                                             ___ ____     _______________            Bank of New  Jersey, 410  F. Supp. 1233,  1234 (D.N.J.  1976)            ___________________            (dismissing  complaint for  bank  funds  as  frivolous  where            complaint was  based on same transaction  for which plaintiff            had been convicted of fraud).                        Papas  argues  that  the  district court  erred  in            dismissing his  case before all the named defendants had been            served,  particularly where  the  district court  denied  his            request  for clarification of  the order for  a more definite            statement.  That some  of the defendants had not  been served            effectively did not  deprive the district  court of power  to            dismiss the complaint  as to these defendants.  Cf.   Diaz v.                                                            ___   ____            Stathis,  440 F. Supp. 634,  637 (D. Mass.  1977), aff'd, 576            _______                                            _____            F.2d 9 (1st Cir.  1978) ("[W]here presented with a  motion to            dismiss  filed by some  defendants to  an action,  the court,            where  appropriate,  may  consider  the  sufficiency  of  the            complaint as  against all  defendants.")  And,  where Papas's            "Clearer Statement" contained  allegations regarding  Baines,                                            ____________________            11.  While the district court did not expressly refer to this            as  a  reason for  dismissal,  "[u]nless  the district  court            explicitly limits  its rationale for dismissing  the case, it            is proper  in reviewing for 'extreme'  misconduct to consider            all  of  the  aggravating circumstances  together."    Enlace                                                                   ______            Mercantil Internacional  v. Senior Industries,  848 F.2d 315,            _______________________     _________________            317 (1st Cir. 1988).                                          -12-                                          12            Schooner  and  Marshfield, he  does not  appear to  have been            prejudiced by the denial of his request for clarification.                     Papas   further   argues   that  his   complaint   and            supplemental    filings    pled    fraud   with    sufficient            particularity, in that he essentially claims that the all the            statements of  Bambury, Shorrock, Cook and  Baines were false            and, to the  extent that these defendants communicated by FAX            or telephone, in violation of RICO.  Apart from the fact that            Papas's  claims  appear  to be  no  more  than  a transparent            attempt  to  impose  RICO  liability on  the  defendants  who            participated in  the events  that led to  Papas's arrest  and            prosecution, such broad assertions do not plead a "pattern of            racketeering" for  RICO purposes.  See Fleet  Credit Corp. v.                                               ___ ___________________            Sion,  893 F.2d  441, 444  (1st Cir.  1990).   Finally, Papas            ____            argues that  the court's order is  wholly ineffective because            it lacks  the appropriate  54(b) certification and  the court            could  not have dismissed his claims against all parties.  As            the order  of dismissal embraced  all claims and  parties, no            54(b) certification was required.                           Judgment affirmed.                      __________________                                         -13-                                          13
