
USCA1 Opinion

	




          February 24, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1696                                  ANGEL LUIS FIGUEROA,                                Plaintiff, Appellant,                                          v.                        SPECIAL AGENT JAMES J. DOYLE, ET AL.,                                Defendants, Appellees.                                 ____________________                     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 Stahl, Circuit Judges.                                            ______________                                 ____________________            Angel Figueroa on brief pro se.            ______________            Donald  K. Stern, United States Attorney, and Susan M. Poswistilo,            ________________                              ___________________        Assistant United States Attorney, on brief for appellees.                                 ____________________                                 ____________________                 Per  Curiam.  On October 12, 1993, we remanded this case                 ___________            so  that plaintiff  (as he  had  requested) might  attempt to            amend  his complaint  to state  a claim  under Bivens  v. Six                                                           ______     ___            Unknown Named Agents, 403  U.S. 388 (1971).  See  Figueroa v.            ____________________                         ___  ________            DEA,  7  F.3d  218  (1st Cir.  1993)  (table)  (per  curiam).            ___            Plaintiff  thereafter failed  to  do so,  and  took no  other            action  apart from submitting a change of address form to the            district court.  On April 21, 1994, defendants filed a motion            to  dismiss  under  Fed. R.  Civ.  P.  41(b)  for failure  to            prosecute.   Plaintiff filed no opposition,  and the district            court  granted  the  motion on  May  19,  1994.   Having  now            appealed from  this ruling,  plaintiff makes no  reference to            the Rule 41(b) dismissal in his principal brief.  Only in his            reply brief does he attempt an explanation, alleging that (1)            he  had  assumed  the   district  court  would  initiate  the            necessary further  proceedings, and  (2) he never  received a            copy  of  the  defendants'  motion to  dismiss  (despite  the            appearance therein of a proper certificate of service).                 We affirm.  By failing to  seek reconsideration below (a            measure he has  employed earlier in this litigation),  and by            failing  to  challenge  the   Rule  41(b)  dismissal  in  his            principal brief  on appeal,  plaintiff has waived  the issue.            See,  e.g., Rivera-Muriente v.  Agosto-Alicea, 959  F.2d 349,            ___   ____  _______________     _____________            354 (1st  Cir. 1992) ("It is  well settled in  this court ...            that  a  legal  argument  made  for  the  first  time  in  an            appellant's  reply  brief  comes too  late  and  need not  be            addressed.").  We add that invocation of the waiver rule here            would work no injustice, inasmuch as plaintiff's  substantive            claim (upon which he has elaborated in his appellate  papers)            appears  entirely meritless.  By way of the instant attack on            the forfeiture of his assets, plaintiff is seeking  simply to            challenge  the sufficiency  of  the  evidence supporting  his            underlying   conviction--a   challenge  we   have  decisively            rejected in the past.  See Figueroa v. United States, 19 F.3d                                   ___ ________    _____________            7  (1st  Cir. 1994)  (table) (per  curiam); United  States v.                                                        ______________            Figueroa, 976 F.2d 1446 (1st Cir. 1992), cert. denied, 113 S.            ________                                 ____________            Ct. 1346 (1993).                 Affirmed.                 _________                                         -3-
