
USCA1 Opinion

	




          April 6, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1916                                 RAYMOND F. BRIERLY,                                Plaintiff, Appellant,                                          v.                              VIRGINIA BRIERLY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Raymond F. Brierly on brief pro se.            __________________            Chappell & Chappell on brief for appellee Virginia Brierly.            ___________________            James  E. O'Neil,  Attorney  General, and  Jacqueline  G.  Kelley,            ________________                           ______________________        Special  Assistant  Attorney General,  on  brief  for appellee  Robert        Fallon, Director, State of Rhode Island Department of Human Services.                                 ____________________                                 ____________________                      Per Curiam.    Plaintiff  appellant challenges  the                      __________            dismissal of his First Amended Complaint for failure to state            a claim,1  denial of his  motion for  leave to file  a Second            Amended Complaint, and the award of attorneys' fees and costs            to defendant Virginia Brierly.                      Although  plaintiff appears  here  pro  se, he  was                                                         ___  __            represented by  counsel below.  His  First Amended Complaint,            styled as an action for damages and equitable relief under 42            U.S.C.    1983,  named  as defendants  his ex-wife,  Virginia            Brierly,  and  the  Acting Director  of  the  State of  Rhode            Island's Department of Human Services ["DHS"], Robert Fallon.                                   Plaintiff's pleadings are  difficult to recap  with            precision.  We set out here the core facts distilled from the            First Amended  Complaint.  Count One  appears directed solely            at  Virginia Brierly.  It recites that after his divorce from            Virginia  Brierly in  1981,  plaintiff failed  to make  child            support payments  in accordance with  the terms of  the Rhode            Island Family Court's decree.  In  March, 1986, plaintiff was                                            ____________________            1.  Both defendants  filed motions to dismiss.   Although one            of the  motions was couched as  a motion for  judgment on the            pleadings under Fed.  R. Civ.  P. 12(c), it  in essence  also            raised  a Rule  12(b)(6) objection  by challenging  the legal            foundation  for the complaint.  It was properly dealt with on            this  basis  by  the  district  court.    See   Amersbach  v.                                                      ___   _________            Cleveland, 598 F.2d 1033 (6th Cir. 1979), cited with approval            _________                                 ___________________            in Whiting v. Maiolini,  921 F.2d 5 (1st Cir.  1990); Charles            __ _______    ________            A. Wright et. al.,  5A Federal Practice and Procedure    1369                                   ______________________________            at n.6 (2d ed. Supp. 1992).            personally served with notice of a motion brought by Virginia            Brierly  to  adjudge him  in contempt.    The hearing  on the            motion   was  continued  beyond  its  first  scheduled  date.            Allegedly due to Virginia  Brierly's "failure to properly and            lawfully serve  any kind of  notice [of  the continued  date]            upon plaintiff,"  plaintiff was  absent when the  hearing was            eventually  held  on  September  30,  1986.    As  a  result,            plaintiff states,  he was adjudged in contempt for failure to            pay some  $58,640 in arrearages.   Also allegedly unbeknownst            to plaintiff, a bench warrant issued for his arrest, pursuant            to which  he was arrested  in February,  1988.   He was  then            required to execute  a deed  in blank to  the former  marital            residence  to  secure  his  release.     He  states  that  he            petitioned  for  review  of  the contempt  order,  apparently            without  success, and  appealed to  the Rhode  Island Supreme            Court, which  "after hearing, argument,  and presentation  of            briefs" refused to grant  a writ of certiorari in  September,            1990.                        Count Two appears directed  solely at Robert Fallon            in  his capacity as Acting  Director of the  DHS.  It alleges            that DHS announced  an amnesty program "whereby  arrangements            for the  payment of  child support  arrearages could  be made            without  fear of  arrest  or interest  payments."   Plaintiff            sought, through counsel, to take advantage of this program by                                         -3-            opening negotiations with  DHS toward establishing a  payment            schedule  and other  terms.   The  amnesty period  terminated            while  plaintiff  was  awaiting  a response  from  DHS  about            certain terms,2 but DHS  allegedly represented that it "would            honor the terms of  the amnesty" until a final  agreement had            been reached.  Nevertheless, plaintiff says that DHS filed an            "unlawful petition" causing his  arrest and incarceration for            seven  days  in  September,  1991.    He was  allegedly  then            required  to  execute  a promissory  note  in  the  amount of            $58,640.00,  and  was found  liable by  the Family  Court for            additional  interest  on  arrearages.    He  states  that  he            objected on the  basis of DHS's alleged  amnesty promise, but            the Family Court failed to "recognize" the amnesty program.                      Our standard on review  of dismissal of a complaint            under Rule  12(b)(6) is whether, construing  the complaint in            the  light  most favorable  to  the  plaintiff, dismissal  is            appropriate  because  "it  appears  beyond  doubt  that   the            plaintiff can prove  no set of facts in  support of his claim            which  would entitle him to relief."  Roeder v. Alpha Indus.,                                                  ______    _____________            Inc.,  814 F.2d  22, 25  (1st Cir.  1987) (quoting  Conley v.            ____                                                ______            Gibson,  355 U.S.  41,  45-46 (1957));  see  also Finnern  v.            ______                                  _________ _______                                            ____________________            2.  The  amnesty time  period is not  mentioned in  the First            Amended  Complaint, but for the sake of clarity, we note that            the proposed Second Amended Complaint states that the program            was  announced in April, 1990  and ran through  May 25, 1990,            while plaintiff's appeal from his first contempt citation was            pending.   The authority  for, and mechanics  of, the amnesty            program are not disclosed in the pleadings.                                         -4-            Sunday  River Skiway Corp., 984 F.2d 530, 537 (1st Cir. 1993)            __________________________            ("If a trial court accepts plaintiff's facts and can envision            no  reasonable  application of  the  law  that would  entitle            plaintiff  to  relief,  the  court may  rightly  dismiss  the            case.").                      The Supreme  Court recently reaffirmed  the Federal            Rules' "liberal system  of notice pleading" in a civil rights            action brought under 42 U.S.C.   1983 against a municipality.            Leatherman  v.   Tarrant  County  Narcotics   Intelligence  &            __________       ____________________________________________            Coordination  Unit, 61  U.S.L.W.  4205 (U.S.  Mar. 3,  1993).            __________________            However,   "minimal  requirements   are  not   tantamount  to            nonexistent requirements."   Gooley  v. Mobil Oil  Corp., 851                                         ______     ________________            F.2d 513, 514 (1st Cir.  1988).  The court need  not "conjure            up unpled allegations or contrive elaborately arcane scripts"            in  order to craft a cognizable legal theory where none seems            to exist.  Gooley, 851 F.2d at 514.                         ______                     Plaintiff's First Amended Complaint is  deficient in            numerous ways, most of which were well described by the trial            judge.   In line with his rulings, we interpret the complaint            as asserting that each defendant's separate conduct reflected            a  deviation  from  an  established  state  rule,  policy  or            statute.   It may well be,  as the district court  held, that            the claim  asserted  against defendant  Virginia  Brierly  is            infirm  because  it  does   not  charge  any  conduct  fairly            attributable to the State.   Lugar v. Edmondson Oil  Co., 457                                         _____    __________________                                         -5-            U.S.  922,  937, 940  (1982).   Likewise,  the  damages claim            asserted against the  defendant Fallon may well be  barred by            the Eleventh Amendment, which proscribes suits against  State            officials  which must  be paid  from State  funds.   Hafer v.                                                                 _____            Melo, 112 S. Ct. 358, 362  (1991); Will v. Michigan Dep't  of            ____                               ____    __________________            State  Police,  491 U.S.  58,  65 (1989).   But  we  think it            _____________            unnecessary here  to reach  these issues because  both claims            are infirm for another reason:  there are no facts indicating            that the remedies available from the State were inadequate.                       It  is well  established that  unauthorized conduct            which cannot be  foreseen and controlled in advance  does not            constitute a violation of  the procedural requirements of the            Due Process  Clause "until and unless [the  State] refuses to            provide  a  suitable  postdeprivation  remedy."    Hudson  v.                                                               ______            Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor,            ______                            ________ _______    ______            451 U.S. 527  (1981); Zinermon  v. Burch, 494  U.S. 113,  125                                  ________     _____            (1990); Lowe v. Scott,  959 F.2d 323 (1st Cir. 1992).   Since                    ____    _____            inadequacy of the state's remedy is a material element of the            claim,  plaintiff  had the  burden  to  set forth  supporting            factual allegations, either direct or inferential, to sustain            an actionable legal theory.  Gooley, 851 F.2d at 515.                                         ______                 Plaintiff's  vague  allegations  reflect, instead,  that            there was a state process for challenging both of the alleged            due process deprivations.  Plaintiff even states that he used            the  process, appealing at least one of his objections as far                                         -6-            as the Rhode Island Supreme Court.   That plaintiff disagreed            with  the result  does not  show that  the process  itself is            inadequate.   To the extent  that plaintiff is  attempting by            this  suit to overturn those state court judgments, he is not            entitled to any  relief in the district court or here.  Lower            federal courts have no power to sit  in review of state court            orders.  District  of Columbia Court  of Appeals v.  Feldman,                     _______________________________________     _______            460 U.S. 462, 476  (1983); Rooker v. Fidelity Trust  Co., 263                                       ______    ___________________            U.S. 413 (1923);  Lancellotti v.  Fay, 909 F.2d  15, 17  (1st                              ___________     ___            Cir. 1990).                           We  also see no  reason to disagree  with the trial            court's  decisions  to  grant Virginia  Brierly's  motion for            attorney's  fees and  costs, and  to deny  plaintiff's second            motion to amend the complaint.   Both decisions are entrusted            to the sound discretion of the district court,  whose rulings            will not be  disturbed except  on a clear  showing of  abuse.            See  Coyne v. Somerville, 972  F.2d 440, 446  (1st Cir. 1992)            ___  _____    __________            (denial of motion to amend); Finnern, 984 F.2d at 537 (same);                                         _______            Christiansburg Garment Co. v. EEOC, 434  U.S. 412 (1978) (fee            __________________________    ____            awards under 42 U.S.C.    1988); Lancellotti, 909 F.2d  at 15                                             ___________            (sanctions under Rule 11).                       The  district  court  awarded  costs  and  fees  to            Virginia Brierly when it dismissed the claim asserted against            her in  plaintiff's First Amended  Complaint.  The  order ran            jointly against plaintiff and his attorney under Rule 11, and                                         -7-            against  plaintiff alone under 42  U.S.C.   1988.   The court            pointedly found that plaintiff's purpose in bringing the suit            included  an  effort  to   harass  Virginia  Brierly  and  to            retaliate against  her for the losses  plaintiff had suffered            in the state courts.   Moreover, the court reasoned  that the            claim  as pleaded was so frivolous  and lacking in foundation            that neither a  competent attorney nor a party could believe,            after a reasonable inquiry, that it was well-grounded in fact            or in law.                      These findings more than satisfied the requirements            of Rule 11 and 42 U.S.C.    1988, which, though not identical            to one another,  permit fee awards either  where the pleading            falls below an objective  standard of reasonableness or where                                                                 __            there  is a  showing  of subjective  bad  faith.   Here  both            standards were violated.  See Hughes v. Rowe, 449 U.S.  5, 14                                      ___ ______    ____            (1980)  (applying  the criteria  announced  in Christiansburg                                                           ______________            Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978) to awards of            ___________    ____            fees  to  prevailing  defendants  under 42  U.S.C.     1988);            Lancellotti,  909  F.2d  at  19  (observing  the  alternative            ___________            standards for Rule 11 awards); Foster v. Mydas  Assoc., Inc.,                                           ______    _____  ____________            943  F.2d  139  (1st  Cir.  1991)  (discussing  criteria  and            findings necessary under each authority).                      In   light   of   these   detailed   findings,  and            plaintiff's  first two  futile  attempts to  plead a  legally            cognizable claim,  we  see  no abuse  of  discretion  in  the                                         -8-            district  court's  denial  of  leave  to  file  yet  a  third            complaint "for reasons cited  in connection with dismissal of            the First Amended Complaint."   See Foman v. Davis,  371 U.S.                                            ___ _____    _____            178, 182  (1962) (while  leave  to amend  is usually  "freely            given,"  denial  will  be  upheld where  there  is  stated  a            "justifying reason,"  such as  "bad faith or  dilatory motive            ... repeated  failure to cure deficiencies  by amendments ...            undue  prejudice to the  opposing party [or]  futility of the            amendment").                          Accordingly,  the  district  court's   judgment  is            affirmed.               ________                                         -9-
