
USCA1 Opinion

	




          May 5, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1953                                             CHARLES J. OROPALLO,                                Plaintiff, Appellant,                                          v.                             RICHARD L. PARRISH, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Charles J. Oropallo on brief pro se.               ___________________               Jeffrey  R. Howard,  Attorney General,  and Lucy  C. Hodder,               __________________                          _______________          Assistant Attorney General, on brief for appellees.                                  __________________                                  __________________                 Per Curiam.  Plaintiff-appellant Charles  J. Oropallo, a                 __________            New  Hampshire inmate, appeals  pro se from  the dismissal of            his amended  civil rights  complaint for  failure to  state a            claim.  For the reasons stated below, we modify the dismissal            in part, and, otherwise, affirm.                                      BACKGROUND                 On June 8,  1993, appellant filed  an in forma  pauperis            complaint  in the  district court  alleging violations  of 42            U.S.C.     1983,  1985 against  various prison  employees and            officials,  as  well  as against  two  fellow  inmates.   The            complaint also included two pendent state law claims.                 The  following facts  were alleged  by Oropallo,  and we            assume for purposes of this  opinion that they are true.   In            early 1991,  defendant  Viola Lunderville,  Administrator  of            Security,  terminated appellant  from his  job at  the prison            recreation   department.    Appellant   filed  a  civil  suit            regarding this  termination.1  In  April 1991,  approximately            six   weeks  after   terminating  appellant  from   his  job,            Lunderville  allegedly  conspired with  defendant  Richard L.            Parrish,  a prison  official,  to  fabricate charges  against            appellant.      Parrish   subsequently   authored   a   false            disciplinary report stating that he  had received information                                            ____________________            1.  The complaint does not state when this suit was filed.                                         -2-            from  two inmates  leading  him to  search appellant's  hobby            craft locker where Parrish found state property.2                  After  what Oropallo  alleges  was a  sham  disciplinary            hearing, he was found guilty of unlawful possession of  state            property.  The guilty finding was upheld by defendant Michael            Cunningham, the  prison warden, and defendant  Ronald Powell,            Commissioner of the New  Hampshire Department of Corrections.            Thereafter,  Oropallo  filed  a  civil suit  challenging  the            disciplinary proceeding.                 Since   April  1991,   and   in  connection   with   the            "fabricated"  charge, Oropallo allegedly has been banned from            entering  the North  Yard  area of  the  prison.   Defendants            Donald G.  Robb and George R. Sasser,  both prison employees,            have allegedly  participated in  banning him from  this area.            Oropallo  avers that  he has  been denied  use of  the prison            gymnasium,  hobby  craft  shop,  North Yard  ball  field  and            attendance at  a  jazz concert  and  a power  lifting  event.            Oropallo further avers that this "punishment" is in excess of            that normally handed down for disciplinary violations.3                                            ____________________            2.  The  complaint alleges that  these two inmate informants,            identified  as  defendants John  Doe  #1  and  John  Doe  #2,            conspired  with Parrish  to  deprive appellant  of his  civil            rights.            3.  Although the complaint is  far from clear on this  point,            it appears that the ban from  entering the North Yard area of            the prison and from participating in  recreational activities            was  imposed prior to the  disciplinary hearing.   The ban is            allegedly  still in effect.  It appears from Oropallo's brief            that the sanctions imposed following the disciplinary hearing                                         -3-                 In May  1992, Oropallo made inquiries  of various prison            officials,  including defendant  Powell, regarding  his being            banned from the North Yard area  of the prison.  Several days            later,   appellant's   typewriter  and   legal   papers  were            confiscated by defendant Loran  Ackerman, a prison  official.            Appellant filed  a civil suit contesting  the confiscation of            his legal materials.                 Based on these facts,  the complaint alleged a violation            of Oropallo's constitutional rights  to due process and equal            protection, citing the Fifth, Ninth and Fourteenth Amendments            to the Constitution.  In addition, the complaint alleged that            Oropallo has been unconstitutionally  subjected to cruel  and            unusual punishment in violation  of the Eighth and Fourteenth            Amendments.                 The  complaint  was initially  referred to  a magistrate            judge (hereinafter,  magistrate)  who reviewed  it  prior  to            completing service.    See 28  U.S.C.    1915(d); Neitzke  v.                                   ___                        _______            Williams,  490 U.S.  319,  327-28 (1989)  (to avoid  wasteful            ________            litigation,  under    1915(d)  the court  may dismiss  claims            which are  based on indisputably meritless  legal theories or            delusional factual scenarios).  The magistrate concluded that            Oropallo's "claims concerning attendance at  the jazz concert            and special  event and use  of the hobby craft  shop and ball                                            ____________________            and guilty  finding  were suspended  loss  of good  time  and            suspended punitive segregation time.                                          -4-            field  are  frivolous,"   and  that   his  claim   concerning            deprivation  of  exercise  is  insufficient to  make  out  an            actionable constitutional violation.   The magistrate granted            Oropallo  thirty days in which to amend his complaint or face            a recommendation of dismissal.                   Oropallo filed an amended complaint which restated his              1983 causes of action  as claims for harassment, constituting            cruel   and  unusual   punishment,  and   discrimination,  in            violation of  his rights to due process and equal protection.            The amended complaint was otherwise identical to the original            complaint.     Oropallo  did   not  aver  that   the  alleged            discrimination  was directed  towards him  as a  member of  a            particular class,  or offer any other reason  for the alleged            disparate treatment.                 After  reviewing  Oropallo's   amended  complaint,   the            magistrate  recommended that the  complaint be  dismissed for            failure to state a  claim.4  See Forte v. Sullivan,  935 F.2d                                         ___ _____    ________            1, 3 (1st Cir. 1991) (a district court may sua sponte dismiss            an in forma pauperis  complaint for failure to state  a claim            following notice and an opportunity to amend in a manner that            would satisfy  the procedural safeguards  of Fed. R.  Civ. P.            12(b)(6)).  In support  of his recommendation, the magistrate            stated:                                            ____________________            4.  The magistrate  did not state whether  this dismissal was            intended to  be pursuant  to    1915(d)  or Fed.  R. Civ.  P.            12(b)(6).                                         -5-                 In his original  complaint, plaintiff alleged  that                 he  had  been   deprived  of  certain  recreational                 activities.   Plaintiff  was ordered  to amend  his                 complaint to  state facts  that show  an indefinite                 limitation on exercise that could be harmful to his                 health.   However,  the amended  complaint does  no                 more  than repeat  the  conclusory  allegations  of                 plaintiff's initial complaint,  namely, that he has                 been deprived of "various recreational activities."                 Amended Complaint at paras. 29, and  30.  Thus, the                 court finds that plaintiff  has failed to show that                 he has suffered any constitutional deprivation.                 Oropallo filed a timely  objection in which he disavowed            ever making  a claim concerning lack of  exercise, and argued            that  he  had  stated  a   valid  claim  for  harassment  and            discrimination in  violation of    1983.   In his  objection,            Oropallo, for the  first time, articulated  a motive for  the            alleged discrimination.   Oropallo  stated that he  was being            discriminated against in retaliation  for the exercise of his            first amendment right to file complaints.                   The district court reviewed the matter, and approved the            magistrate's  report  without  stating   additional  reasons.            Judgment  of  dismissal entered  on  August 12,  1993.   This            appeal ensued.                                      DISCUSSION                 Oropallo argues  that his amended  complaint should  not            have  been dismissed because  it states valid  claims under              1983 for violations of  his constitutional rights to be  free                                         -6-            from cruel  and unusual  punishment, to equal  protection, to            proceduraldue process,and topetition thecourts.5 We disagree.                 Since appellant  was placed on notice  of the inadequacy            of  his complaint  and has  had an  opportunity to  amend, we            construe the  dismissal of his amended  complaint for failure            to state a claim as a Rule 12(b)(6) dismissal.  See Guglielmo                                                            ___ _________            v.  Cunningham, 811  F. Supp.  31 (D.N.H.  1993).   Appellate                __________            review of a dismissal  under Rule 12(b)(6) is plenary.   See,                                                                     ___            e.g., Miranda v. Ponce Fed.  Bank, 948 F.2d 41, 44 (1st  Cir.            ____  _______    ________________            1991).   The standard for  assessing the adequacy  of a civil            rights claim is whether, accepting the factual allegations in            the  complaint as  true, and  construing these  facts in  the            light most favorable to the plaintiff, the pleading shows any            fact which could entitle the plaintiff to relief.  See, e.g.,                                                               ___  ____            Leatherman  v.   Tarrant  County  Narcotics   Intelligence  &            __________       ____________________________________________            Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.            _________________                                   ______            Mobil Oil Corp., 851 F.2d 513, 514  (1st Cir. 1988).  Because            _______________            appellant appears pro se, we read his complaint with an extra                                            ____________________            5.  Oropallo does not raise on appeal the dismissal of his 42            U.S.C.    1985  claim  and it  is, therefore,  deemed waived.            Even if  we were to  address this  issue, we would  hold that            this  claim  was  properly  dismissed.   Appellant  does  not            specify  the  subsection of     1985  upon which  he  relies.            However, the  complaint can only conceivably  be construed as            asserting   a   claim  under       1985(3)  which   prohibits            conspiracies   to   interfere  with   the  civil   rights  of            individuals.  As so construed, the complaint fails to state a            cause  of  action  because  plaintiff does  not  allege  that            defendants' actions were directed at a protected class.   See                                                                      ___            Bray  v. Alexandria  Women's Health  Clinic,  113 S.  Ct. 753            ____     __________________________________            (1993).                                         -7-            degree  of solicitude.  Rodi  v. Ventetuolo, 941  F.2d 22, 23                                    ____     __________            (1st Cir. 1991).                 Oropallo's  procedural due  process  claim is  far  from            clear.  The disciplinary hearing that appellant claims was  a            sham  is the  subject  of an  independent  complaint, and  he            disavows  any  intent to  challenge  that  proceeding in  the            instant  amended  complaint.    Instead,  appellant's  theory            appears  to be that  since the  deprivations he  complains of            were not  imposed  as sanctions  following this  disciplinary            hearing,   or  following   any   other  hearing,   they  were            unconstitutionally imposed without any process.                   This claim,  however, must fail  if there is  no liberty            interest  in the  activities he alleges  he has  been denied.            See,  e.g., Kentucky  Dep't of  Corrections v.  Thompson, 490            ___   ____  _______________________________     ________            U.S. 454 (1989) (holding  that visitation privileges could be            suspended  without  hearing  where  no  liberty  interest  in            receiving  visitors existed).    Appellant has  abandoned any            allegation that  he has  been deprived of  adequate exercise,            and the Constitution does  not create an enforceable interest            in recreational  programs designed to relieve  the boredom of            prison life.   Although  liberty interests  may be  rooted in            state  law, none of the prison rules invoked by the appellant            could  conceivably be interpreted  as creating an entitlement            to recreation.                                         -8-                 We need  not devote much attention  to Oropallo's Eighth            Amendment claim.  The  deprivations Oropallo complains of are            not sufficiently weighty to implicate the Eighth  Amendment's            ban  on  cruel  and  unusual  punishment.    See  Hudson   v.                                                         ___  ______            McMillian, 112  S. Ct.  995, 1000  (1992) (stating  that only            _________            those deprivations  denying the minimal civilized  measure of            life's necessities  are sufficiently grave to  form the basis            of an Eighth Amendment violation).                  Appellant's   claim  that  he   has  been  denied  equal            protection because prison officials imposed harsher sanctions            on him than  on others  "similarly situated" also  fails.   A            person bringing  an action under the  equal protection clause            of the Fourteenth Amendment must either show a violation of a            fundamental right or "intentional discrimination  against him            because  of his membership in a  particular class, not merely            that he was treated unfairly as an individual."  Huebschen v.                                                             _________            Department of Health & Social  Services, 716 F.2d 1167,  1171            _______________________________________            (7th  Cir.  1983).     There  is  no  fundamental  right   to            recreational  activities,  and Oropallo  makes  no allegation            that race, religion or the like were at work here.                   Finally, we  address plaintiff's retaliation claim.   It            is  well  established that  conduct  which  is not  otherwise            constitutionally deficient is actionable under   1983 if done            in retaliation for the exercise of constitutionally protected            first amendment freedoms.   See Ferranti  v. Moran, 618  F.2d                                        ___ ________     _____                                         -9-            888,   892   n.4  (1st   Cir.  1980)   ("[A]ctions  otherwise            supportable lose  their legitimacy  if designed to  punish or            deter  an exercise  of  constitutional freedoms.");  see also                                                                 ________            Goff  v.  Burton, 7  F.3d 734,  738  (8th Cir.  1993) (prison            ____      ______            officials  cannot  lawfully  impose  a  disciplinary sanction            against a prisoner in retaliation for the prisoner's exercise            of  his constitutional right).  In McDonald v. Hall, 610 F.2d                                               ________    ____            16,  18 (1st Cir. 1979), we held that an inmate's allegations            that he  was transferred to another prison in retaliation for            having  earlier  filed   actions  against  prison   officials            sufficed to state a cause of action.                  However,   even  if   we  construe   Oropallo's  amended            complaint  liberally  to  include  his  later  allegation  of            retaliation, we think his complaint  falls short of stating a            cause of action.  In contrast to Ferranti and McDonald, where                                             ________     ________            we  found that the allegations  were sufficient, it cannot be            said that Oropallo has set forth a chronology of events which            warrants  an inference  of retaliation.    See  Ferranti, 618                                                       ___  ________            F.2d  at 892  (inference  of retaliation  warranted from  the            chronology  of events  recited and  from the  allegation that            appellant's first suit complains  of prison conditions and is            directed  at  prison officials);  McDonald,  610  F.2d at  18                                              ________            (chronology  of  events  provided  support  for inference  of            retaliation).    Admittedly,  Oropallo  does  detail  in  his            complaint various  lawsuits he  has filed directed  at prison                                         -10-            officials.  However, it  is unclear, based on  the complaint,            whether any of Oropallo's  lawsuits antedates the decision to            ban  him from  the North  Yard area  of the  prison and  from            participating  in recreational  activities.   If the  ban was            imposed   prior  to   the  lawsuits,   Oropallo's   claim  of            retaliation is seemingly without basis.                 Although we  are persuaded  that Oropallo has  failed to            state a claim for  retaliation, the defect is one  that might            easily be cured by amendment.  In light of appellant's pro se            status, and because the  district court did not  address this            claim,  we  think the  dismissal  should  be  modified to  be            without prejudice to the  plaintiff's filing a second amended            complaint   realleging  this   claim.     Furthermore,  since            appellant's pendent state claims were not addressed below, he            should be permitted to reallege these claims.   The dismissal            of plaintiff's remaining claims is affirmed with prejudice.                   Affirmed as modified.                    ________    ________                                         -11-
