
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1075                                   CHUKWU E. AZUBUKO,                                Plaintiff, Appellant,                                          v.                               ROBERT C. RUFO, SHERIFF,                         SUFFOLK COUNTY SHERIFF'S DEPARTMENT,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Chukwu E. Azubuko on brief pro se.            _________________            John  M.  Townsend,  General  Counsel,  Suffolk  County  Sheriff's            __________________        Department, on brief for appellee.                                 ____________________                                    MARCH 4, 1997                                 ____________________                      Per Curiam.   Appellant Chukwu  E. Azubuko  appeals                      __________            from  the  sua  sponte  dismissal,  under  Fed.  R.  Civ.  P.            12(b)(6), of  his complaint  against Sheriff Robert  C. Rufo.            The court dismissed the complaint, stating that it failed  to            state a claim against the Sheriff.                      It  is evident that appellant "can  prove no set of            facts  in support  of his  claim which  would entitle  him to            relief."  See  Conley v.  Gibson, 355 U.S.  41, 45-46  (1957)                      ___  ______     ______            (standard for a Rule 12(b)(6) dismissal).  First, it is plain            that appellant is premising  Sheriff Rufo's liability for the            alleged false imprisonment solely  on the Sheriff's status as            a  supervisor or employer.  That is, the only person directly                                                                 ________            involved  in the incident at the Roxbury District Court is an            attorney who  supposedly worked  for Sheriff  Rufo.   A claim            which  is  premised  solely  on  respondeat  superior  is  an            improper basis for  a   1983 action.  See Figueroa v. Aponte-                                                  ___ ________    _______            Rogue, 864 F.2d 947, 953 (1st Cir.  1989) (a defendant may be            _____            found liable only for his or her own acts or omissions).                      Second, appellant  cannot state  a claim for  false            imprisonment   under   the   Fourteenth   Amendment.      The            availability of  an adequate  remedy under  Massachusetts law            for such  a claim,  see,  e.g., Foley v. Polaroid  Corp., 400                                ___   ____  _____    _______________            Mass. 82,  508 N.E.2d 72  (1987), precludes a  procedural due            process  challenge.  See Roche v. John Hancock Mut. Life Ins.                                 ___ _____    ___________________________            Co., 81 F.3d 249, 256 (1st Cir. 1996).  Further, there exists            ___                                         -2-            no  substantive due  process right  to be  free from  such an            alleged  deprivation.  See  Albright v. Oliver,  510 U.S. 266                                   ___  ________    ______            (1994) (plurality opinion).                      Finally,  appellant cannot state a Fourth Amendment            claim in this case  because he never was arrested  or seized.            A   seizure  occurs  "only  if,   in  view  of   all  of  the            circumstances surrounding the  incident, a reasonable  person            would  have believed that he was not  free to leave."  United                                                                   ______            States v. Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J.).            ______    __________            The letter concerning the arrest warrant stated  specifically            that  appellant would be arrested only if he failed to appear                                                         ______            at a "voluntary" court appearance.  Thus, a reasonable person            reading this letter would understand that if he went to court            on his  own steam, he would  not be arrested.   In any event,                                         ___            appellant indicates that he, in fact, freely left the meeting            at the Roxbury District Court.                      The judgment of the district court is affirmed.                                                            ________                                         -3-
