
USCA1 Opinion

	




          August 24, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1211                                   KEVIN RICUPERO,                                Plaintiff, Appellant,                                          v.                           DAVID E. MANCINI, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Kevin Ricupero on brief pro se.            ______________            Russell F. Hilliard, Beth George-Kane and Upton, Sanders & Smith             ___________________  ________________     ______________________        on brief for appellees.                                 ____________________                                 ____________________                                   Per Curiam.  Plaintiff  appeals the denial of leave                      __________            to amend his civil rights complaint.  We affirm.                       The events  leading to the  denial of  plaintiff's            motion  for   leave  to  amend  are,   briefly,  as  follows.            Plaintiff's  complaint  initially  asserted  claims  under 42            U.S.C.   1983, and state law, against five defendants.  After            a  screening  by  the  magistrate  revealed  defects  in  the            statement  of some of  the claims, plaintiff  was afforded an            opportunity  to amend  or face  a dismissal of  the defective            claims. Plaintiff chose not to amend  at that time, resulting            in dismissal of the case against three of the defendants.                      The  remaining two  defendants  were  the  Town  of            Bennington, New  Hampshire, and David E.  Mancini, the Town's            Chief of Police.   The federal claims against them  fell into            two groups.   First, there  were claims  stemming from  Chief            Mancini's alleged failure to obtain a search warrant prior to            conducting  a  search  of  plaintiff's  property.     Second,            plaintiff  claimed that  Mancini, acting  in the  capacity of            town  prosecutor, wrongfully initiated and prosecuted certain            misdemeanor charges against plaintiff.                        At a pretrial conference  in July, 1993, defendants            indicated  that  they expected  to  file  a summary  judgment            motion on various grounds.   The district judge set September            15,  1993 as  the  last  date for  the  filing of  a  summary            judgment motion, and  December 15, 1993  as the closing  date            for discovery.                        Defendants  filed  their  summary judgment  motion,            replete with affidavits and  exhibits, on the scheduled date.            Plaintiff offered voluminous materials in opposition, much of            it irrelevant.  Summary judgment was awarded to defendants on            a  showing that in fact Mancini had obtained a facially valid            search warrant from a neutral and detached  state judge prior            to the challenged search.  As to the  second group of claims,            Mancini was insulated from civil liability by the doctrine of            absolute prosecutorial immunity, see Buckley  v. Fitzsimmons,                                             ___ _______     ___________            113 S. Ct. 2606, 2615 (1993), and there were no facts showing            that the  Town had  pursued  an unlawful  policy or  practice            causally  related  to  any  constitutional  violation.    The            pendent   state   claims   were   simultaneously   dismissed.            Plaintiff does not  here renew his  challenge to the  summary            judgment.                        Plaintiff  filed the  subject motion to  amend nine            days after  defendants filed  their summary judgment  motion.            The  amendment was apparently designed to avoid the thrust of            defendants' summary  judgment arguments.  It  added three new            federal  claims based on the  new premise that  even if there            was a  warrant for the  search, the underlying  affidavit was            false  and  the  warrant  invalid.   In  addition,  plaintiff                                         -3-            included constitutional challenges to the manner in which the            search and arrest were effected.                       A  decision to grant or  deny a motion  to amend is            committed  to  the  sound  discretion  of  the  trial  court.            Colmenares Vivas  v. Sun  Alliance Ins.  Co., 807  F.2d 1102,            ________________     _______________________            1108 (1st Cir.  1986).  It will be disturbed  only on a clear            showing of  abuse, meaning that "no  sufficient justification            appears."   Correa-Martinez  v. Arrillaga-Belendez,  903 F.2d                        _______________     __________________            49, 59 (1st Cir. 1990) (citing Foman v.  Davis, 371 U.S. 178,                                           _____     _____            182 (1962)); accord Clair Recreation Ctr., Inc. v. Flynn, 897                         ______ ___________________________    _____            F.2d  623, 625 (1st Cir. 1990); see also Colmenares, 807 F.2d                                            ___ ____ __________            at 1108.  While Fed. R. Civ. P. 15(a) provides that "leave to            amend shall be  freely given when  justice so requires,"  the            court need not "grant every request to amend, come what may."            Correa-Martinez,  903 F.2d  at  59; Colmenares,  807 F.2d  at            _______________                     __________            1108.     Rather  the  court   may,  indeed  must,  give  due            consideration to  factors such  as the substantive  merits of            the amendment,  the need to  prevent undue delay,  bad faith,            and prejudice to  the opposing  party.  Foman  v. Davis,  371                                                    _____     _____            U.S. 178, 182 (1962).                      We see  no abuse here.   The magistrate  found that            while the  amendments might  not be substantively  futile, on            balance leave to amend should be denied because,                 The delay exercised by plaintiff is significant, as                 he filed  the motion  after defendants  filed their                 motion for summary  judgment.  Plaintiff  was aware                 of the factual  allegations underlying these claims                                         -4-                 when    the    original   complaint    was   filed.                 Furthermore,   this  case   is  ready   for  trial.                 Allowing leave  to amend to add  new legal theories                 at this  time would likely require  the retaking of                 several depositions and other discovery delays.            Order  at 3-4 (Feb. 18,  1994).  The  district court affirmed            the magistrate's  decision.  While plaintiff correctly points            out that when  he filed  his motion to  amend, the  discovery            closing date  was actually  several weeks  away,1 we find  no            fault with the balance struck by the magistrate.                        The amendment offered substantially different legal            theories  and  raised  new  factual  issues at  a  time  when            defendants   had   already   finished   their   own  pretrial            preparation.   Plaintiff had delayed in  filing the amendment            for almost two months after the pretrial conference at  which            the substance of  defendant's objections had been  aired.  In            the meantime, defendants  had prepared for summary  judgment,            and possibly  a trial,  on the  basis of plaintiff's  initial            theories.           Plaintiff's explanation for his delay was            that he  had misplaced his previous attorney's notes.  Though            we do not gainsay  the magistrate's finding of no  bad faith,            nevertheless plaintiff knew the basis for the claims from the            outset,  and had already pleaded two of them in a state civil                                            ____________________            1.  There was  still pending a motion by  plaintiff to compel            discovery.    The  magistrate  was also  mistaken  about  the            retaking of depositions, since  apparently neither party  had            __            noticed any depositions.   This too,  is of marginal  import,            the material point being that the amendment raised new issues            that  would  have  required  additional  discovery, including            depositions.                                           -5-            suit  which  he was  simultaneously pursuing.   A  perusal of            plaintiff's various  filings shows too, that  despite his pro                                                                      ___            se status, he is adept at pleading and motion practice.            __                      Finding no abuse of discretion in the lower court's            determination  that it  would have  been unjust  to belatedly            burden  the  defendants with  new  discovery  and delay,  the            judgment below is affirmed.                                  _________                                         -6-
