
USCA1 Opinion

	




          March 15, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2258                                    MELVIN A. BROWN,                                Plaintiff, Appellant,                                          v.                  CHICOPEE FIRE FIGHTERS, LOCAL 1710, IAFF, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Melvin A. Brown on brief pro se.            _______________            Marshall T. Moriarty,  Craig D. Robinson,  and Maskell & Moriarty,            ____________________   _________________       __________________        on brief for appellees.                                 ____________________                                 ____________________                      Per Curiam.    Melvin A. Brown appeals pro  se from                      __________                             ___  __            the  district court's  dismissal  of his  claims against  the            Trial  Court  of  Massachusetts, District  Court  Department,            Springfield Division, Small  Claims Department and  the Trial            Court  of  Massachusetts,  District  Court  Department, Small            Claims   Sessions,   Chicopee   Trial  Court,   state   court            defendants,   for  lack   of  subject   matter  jurisdiction,            dismissal  of  his  federal  constitutional   claims  against            Chicopee  Fire Fighters  Local  1710 (the  "Union") as  time-            barred,  and dismissal  without  prejudice of  his state  law            claims  against  the Union.    The  district court  dismissed            appellant's claims in two thorough and well-reasoned opinions            dated  October 8,  1991 and  September 17,  1992.   We affirm            based on those opinions.  We add only the following comments.                      On appeal, Brown's  central contention is that  the            district court mischaracterized his fair representation claim            as a state law claim.  The district court determined that the            National Labor Relations Act did not apply to appellant, as a            municipal   employee,   and   that,   therefore,   the   fair            representation claim could only  be brought pursuant to Mass.            Gen.  L.  ch.  150E.   Appellant  argues,  however,  that  by            breaching   its  statutory   obligation   to   provide   fair            representation, the Union violated his  constitutional rights            to  due process of law.  Therefore, he contends, the district            court has  jurisdiction over  the claim.   Furthermore, since            the failure to represent  is a "continuing event," continuing            into  the  present time,  appellant  argues,  the statute  of            limitations  period  has not  yet  begun  to run,  much  less            expired.                      Appellant has failed to  state a federal claim with            respect   to  his   assertion   that  he   was  denied   fair            representation by  the Union.  Therefore,  the district court            did not err in dismissing  his fair representation claim  for            lack of subject matter jurisdiction once it had dismissed all            of  appellant's federal  claims.   The Union's  obligation to            fairly represent appellant, if any, derives solely from state            statutory law.  As the district court stated in its September            17, 1991 Memorandum and Order:                      The   rights   of  public   employees  in                      Massachusetts are governed by  the Public                      Employee  Collective Bargaining  statute,                      Mass. Gen.  L. ch.  150E.  Under  chapter                      150E,   public  employees   may  initiate                      failure to represent actions  with either                      the    Massachusetts   Labor    Relations                      Commission  or  in the  state  court. See                                                            ___                      Graham  v.  Quincy  Food Serv.  Employees                      _________________________________________                      Ass'n, 407  Mass.  601 (1990);  Leahy  v.                      _____                           _________                      Local  1526,  American  Fed'n  of  State,                      _________________________________________                      County  & Mun.  Employees, 399  Mass. 341                      _________________________                      (1987).            There   is   no   federal  constitutional   right   to   fair            representation.1  Therefore, appellant  has failed to state a                                            ____________________            1.   As the district court correctly concluded, appellant, as            a municipal employee,  and the Union,  as a municipal  union,            are excluded from the National Labor Relations Act, 29 U.S.C.              185(a),  and therefore  appellant does not  have a  federal            statutory right to fair representation.                                          -3-            claim pursuant to    1983 of deprivation of  a constitutional            right by the  Union's alleged breach of its  obligation under            state law to fairly  represent him.  "Mere alleged  misuse or            disregard of state law by state officials does not constitute            a deprivation  of property without constitutional due process            of law." Malachowski v. City of Keene, 787 F.2d 704, 708 (1st                     ___________    _____________            Cir.)  (citations  omitted),  cert.  denied,  479  U.S.  1022                                          _____________            (1986).  Thus, the  district court did not err  in dismissing            appellant's fair  representation claim as a  state law claim.            Because  we  find that  appellant failed  to state  a federal            claim, we  need not  decide when the  statute of  limitations            begins to run on appellant's failure to represent claim.                      Affirmed.                      _________                                         -4-                                          4
