
USCA1 Opinion

	




          December 14, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1733                                ALFRED A. GALLANT, II,                                Plaintiff, Appellant,                                          v.                         THOMAS DELAHANTY, II, JUDGE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Alfred A. Gallant, Jr. on brief pro se.            ______________________                                 ____________________                                 ____________________                      Per Curiam.   A magistrate  judge recommended  that                      __________            plaintiff's vague,  verbose,  and partially  illegible  civil            rights complaint be dismissed as  frivolous under 28 U.S.C.              1915(d)  because the allegations were "fanciful" and directed            at acts perpetrated by private individuals, rather than state            actors.  The district court adopted the report  and dismissed            the complaint.                      We  agree  that much  of plaintiff's  complaint was            properly  dismissed as  frivolous under  28 U.S.C.    1915(d)            because   the  legal   theory   underlying  the   claims  was            indisputably  meritless.    The  claims   properly  dismissed            included the following:  1) plaintiff's complaint that police            had failed to investigate crimes, see Sattler v. Johnson, 857                                              ___ _______    _______            F.2d 224, 227 (4th Cir. 1988) (victims have no constitutional            right to have  defendants criminally  prosecuted); Slagel  v.                                                               ______            Shell Oil  Refinery, 811  F.Supp. 378,  382 (C.D. Ill.  1993)            ___________________            (police  officer  had  no  constitutional  duty  to   conduct            investigation  of plaintiff's assault charge), aff'd, 23 F.3d                                                           _____            410  (7th  Cir.  1994), or  protect  plaintiff  prior to  his            incarceration, DeShaney  v. Winnebago County Dep't  of Social                           ________     _________________________________            Services, 489 U.S. 189 (1989); 2) allegations concerning pre-            ________            incarceration  stalkings  and harassment,  Yancey  v. Carroll                                                       ______     _______            County, 876  F.2d 1238, 1245 (6th  Cir. 1989) (investigation,            ______            without   more,   is   not   a   constitutional   violation);            Philadelphia Yearly Meeting  v. Tate, 519 F.2d 1335, 1337 (3d            ___________________________     ____            Cir. 1975);  Hickombottom v.  Chicago, 739 F.Supp  1173, 1178                         ____________     _______            (N.D. Ill.  1990) (police  surveillance of apartment  did not            violate the  Fourth Amendment as plaintiff  had no reasonable            expectation of privacy in his comings and goings); 3)  denial            of  workers'  compensation   benefits;  4)   unconstitutional            conviction, Heck v. Humphrey, 114 S.Ct. 2364 (1994); 5) four-                        ____    ________            day denial of an attorney, United States v. Gouveia, 467 U.S.                                       _____________    _______            180, 187  (1984);  Kirby v.  Illinois, 406  U.S. 682,  688-89                               _____     ________            (1972);  6)  deprivation  of  property  without due  process,            Hudson  v.  Palmer,  468 U.S.  517,  533  (1984); Daniels  v.            ______      ______                                _______            Williams,  474 U.S. 327 (1986); electronic surveillance while            ________            in prison,  United States v.  Willoughby, 860 F.2d  15, 22-23                        _____________     __________            (2d  Cir.  1988) (no  reasonable  expectation  of privacy  in            conversation conducted  in a  public area  of a  jail), cert.                                                                    _____            denied, 488 U.S. 1033 (1989); United States v. Harrelson, 754            ______                        _____________    _________            F.2d  1153,   1169-71  (5th  Cir.  1985)   (prisoner  had  no            reasonable expectation  of privacy while  conversing with his            wife in his cell),  cert. denied, 474 U.S. 908,  1034 (1985);                                ____________            United States v.  Hearst, 563  F.2d 1331,  1344-46 (9th  Cir.            _____________     ______            1977)   (monitoring   and   recording   of   prisoner-visitor            conversations was  reasonable and therefore not  violative of            the Fourth  Amendment), cert.  denied, 435 U.S.  1000 (1978);                                    _____________            and 7)  ineffective  assistance of  post-conviction  counsel,            Pennsylvania  v. Finley, 481 U.S. 551  (1987); Polk County v.            ____________     ______                        ___________            Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th            ______                       ____    _____                                         -3-            Cir.  1976).   In  a similar  view, the  denial of  access to            courts claim was subject to dismissal under   1915(d) because            the restrictions  described (e.g.,  delay in access  to legal                                         ____            papers; rifling of papers; destruction of some papers; denial            of  forms,   paper   clips,  staples)   were   insufficiently            substantial.                      Other allegations, however, although  often lacking            enough  detail  to state  constitutional  claims  which would            survive a  Rule 12(b)(6) motion to dismiss, were not premised            on  indisputably meritless  legal  theories  and  conceivably            could  be cured by  more specific factual  allegations.  Four            potential claims fall into this area.                      First,   plaintiff   outlined  conceivable   Eighth            Amendment violations.   He claimed he had  been assaulted and            terrorized by  both guards and  inmates while  in prison  and            denied  medical  attention  and  nutrition.   See  Farmer  v.                                                          ___  ______            Brennan,  114  S.  Ct.  1920  (1994)  (prison  officials  who            _______            knowingly disregard  substantial  risk  of  serious  harm  to            inmates  may  be held  liable  under  the Eighth  Amendment);            Estelle v.  Gamble, 429  U.S. 97 (1976).   While  plaintiff's            _______     ______            allegations are  confusing and conclusory, enough  was stated            to avoid  a   1915(d)  dismissal.   Street v. Fair,  918 F.2d                                                ______    ____            269, 272-73 (1st Cir. 1990).                      Second,  plaintiff  complained  that his  mail  was            tampered with,  switched, and  late and  that legal mail  was                                         -4-            opened.    Depending  on  how  the facts  were  fleshed  out,            conceivably  a  constitutional  claim  could  exist, if,  for            example, incoming legal mail were opened with some regularity            outside plaintiff's  presence.  Castillo v.  Cook County Mail                                            ________     ________________            Room Dep't, 990 F.2d 304 (7th Cir. 1993) (reversing   1915(d)            __________            dismissal  of  inmate  complaint, which  alleged  that  three            letters  from public  officials  received  in an  eight-month            period had been  opened, because  a colorable  constitutional            claim had been  stated).   This claim, too,  should not  have            been dismissed under   1915(d).                      Third,  plaintiff  should  be  afforded  a  further            opportunity to articulate his complaints concerning placement            in segregation for refusal  to work.  On the  present record,            we cannot tell whether plaintiff  had any liberty interest in            remaining  out of  segregation,  and, if  so, whether  he was            accorded  due process before being  deprived of it.   Rodi v.                                                                  ____            Ventetuolo, 941 F.2d 22 (1st Cir. 1991).            __________                      Fourth,  plaintiff  outlined  some  contours  of  a            possible  First  Amendment  retaliatory transfer  claim.   He            asserted  that shortly after he tried to communicate with the            governor, a newspaper, an  attorney, and the federal district            court  in  March 1994,  he  was transferred  to  high maximum            security in retaliation.   See McDonald v. Hall, 610  F.2d 16                                       ___ ________    ____            (1st  Cir. 1979)  (prisoner  who alleged  that  he had  filed            actions  against prison  officials, that he  was subsequently                                         -5-            transferred,  and that  the transfer  was in  retaliation for            litigation  activities,  stated  a  claim  even   though  the            allegations  were conclusory);  Ferranti  v. Moran,  618 F.2d                                            ________     _____            888,  891-92 (1st  Cir.  1980) (retaliation  claim stated  by            allegations  that officials  denied plaintiff  a  transfer to            minimum  security after  plaintiff filed  a suit  complaining            about prison conditions).   See also  Mujahid v. Sumner,  807                                        ___ ____  _______    ______            F.Supp. 1505 (D.Hawaii  1992) (rule  forbidding prisoners  to            correspond  with the  media  was facially  unconstitutional),            aff'd,  996 F.2d 1226 (9th Cir. 1993).  Because plaintiff did            _____            not state the subject  of his communication, he may  not have            satisfied even McDonald's lenient pleading standard, Leonardo                           __________                            ________            v.  Moran, 611  F.2d  397, 398  (1st  Cir. 1979),  but  since                _____            plaintiff may  be able to fill  in enough details to  state a            claim, a sua sponte   1915(d) dismissal was not appropriate.                     ___ ______                      We therefore remand for  further proceedings.  As a            result  of this opinion, plaintiff  is now on  notice that in            order  to state  constitutional  claims he  may  not rest  on            vague,   conclusory   allegations,  but   must   set  factual            allegations respecting  the material elements of  his claims.            Gooley v. Mobil  Oil Corp.,  851 F.2d 513,  514-15 (1st  Cir.            ______    ________________            1988).   Therefore,  on  remand, plaintiff  should amend  his            complaint.                      Appellant's  request  for   appellate  counsel   is            denied.                                         -6-                      Vacated and remanded.                      ____________________                                         -7-
