
USCA1 Opinion

	




          April 2, 1993     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1933                                  THOMAS P. BUDNICK,                                Plaintiff, Appellant,                                          v.                        BARNSTABLE COUNTY BAR ADVOCATES, INC.,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET            The opinion of this  Court issued on March 30, 1993 is amended  as        follows:            Page  2,  footnote   1,  line  16:     Change   "renumeration"  to        "remuneration."        March 30, 1993          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1933                                  THOMAS P. BUDNICK,                                Plaintiff, Appellant,                                          v.                        BARNSTABLE COUNTY BAR ADVOCATES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Thomas P. Budnick on brief pro se.            _________________            Edward B. McGrath,  Thomas B. Farrey,  III, and Burns &  Farrey on            _________________   ______________________      _______________        brief  for appellees  Town of  Harwich, Barry  M. Mitchell,  Estate of        Norman A. Fennell, Jonathan Mitchell, and Harwich Police Department.            Scott  Harshbarger, Attorney General,  and Stephen Dick, Assistant            __________________                         ____________        Attorney  General, on  Memorandum of  Law for  appellees Massachusetts        Department of Public Safety and Sidney Callis, M.D.                                 ____________________                                 ____________________                 Per  Curiam.    The   district  court  disposed  of  the                 ___________            complaint  of  plaintiff/appellant,  Thomas  Budnick,  by the            following order:                           This  Court has  thoroughly reviewed                      the  plaintiff's Complaint.   It  is rife                      with    bizarre    factual   and    legal                      allegations   rendering   it    virtually                      incomprehensible.      This   Court   has                      concluded that  the plaintiff's Complaint                      fails to state a  claim upon which relief                      can be  granted.  Therefore,  this Court,                      acting sua sponte, ORDERS that the above-                             ___ ______                      entitled   action   be   DISMISSED   WITH                      PREJUDICE.                           SO ORDERED.            Budnick appeals the dismissal of his complaint with prejudice            and the denial  of his subsequent  motions seeking to  vacate            the  dismissal, to vacate  the "with  prejudice" designation,            and  to  amend his  complaint.   While  we disagree  with the            district  court's  characterization   of  the  complaint   as            virtually incomprehensible,1 we agree  that it fails to state                                            ____________________            1.  To be sure, Budnick's complaint contains references which            understandably may be characterized as bizarre.  Budnick is a            self-proclaimed  space  prospector,  who  believes  that  the            United  States ought  to continue  its "manifest  destiny" by            claiming  mineral  rights  on  heavenly bodies,  on  its  own            behalf, rather than allowing  space exploration to be pursued            on  behalf of "common mankind."   Using various resources, he            has mapped  out mining  claims to plots  on several  planets,            asteroids, and  the  moon,  which he  believes  are  rich  in            diamonds,  gold, platinum,  and other  strategic metals.   He            sought to file his mining claims in numerous county courts of            numerous states, but was rebuffed.  Since 1981, however,  the            Sabine County  Court, in rural  East Texas, has  accepted for            filing more than  60 of his mining  claims because, according            to the court clerk's office, the county needed the money from            the filing fees.   Budnick says  that he does  not expect  to            gain any financial  remuneration; he has filed his  claims in            the  names of the heirs of, among others, Sam Houston, Moses,                                         -2-            a  claim upon  which  relief can  be  granted.   Further,  we            conclude that any amendment would be futile.  With respect to            the pendent state  law claims, however, we  believe that they            should  have been  dismissed  without prejudice  for lack  of                                            ____________________            and Martin Luther.                 Fragmentary references to this hobby (and to field assay            work  which  he  has  done  here  on  Earth)  were  scattered            throughout  his  complaint.    A somewhat  clearer  frame  of            reference  emerged  when  Budnick  filed  his  opposition  to            Attorney Loesch's  motion to dismiss, see  footnote 4, infra,                                                  ___              _____            and he  submitted copies of several  newspaper accounts which            outlined this story.                 Although these factual allegations are odd, they suggest            that  Budnick  may  be  eccentric,  but  do  not  support  an            inference that  he is delusional.   And, while  these factual            allegations  arguably may  seem  bizarre, they  were not  the            basis  for any bizarre legal  allegations.  The complaint, as            described infra  at 7-8, alleged that  Budnick was unlawfully                      _____            arrested  for attempting to cut  down a tree  on his parents'            property  and then held  involuntarily for mental evaluation.            At  first blush, it is  puzzling why these  references to his            hobby  were included  at  all.   A  closer reading  suggests,            however,  that Budnick  proceeded on  the assumption  that he            must  present  his entire  case  when  filing his  complaint,            including resulting harm.   And, in his view,  his reputation            has  been damaged  by his  confinement for  mental evaluation            following  his arrest.   Budnick  concedes that  he has  been            scoffed at  by  many, but,  he  says, people  dismissed  this            country's purchases  of the Louisiana  Territory and  Alaska.            His credibility can only  be further weakened, he says,  when            those  who  disagree  with   his  support  for  a  continuing            "manifest  destiny" discover  his involuntary  commitment for            psychiatric  evaluation.   Damage  to  reputation  alone,  of            course,  does not  constitute a  viable  claim under    1983.            Paul v. Davis, 424  U.S. 693, 713 (1976); Watterson  v. Page,            ____    _____                             _________     ____            No.  92-1224, 1993  WL  23908, at  *6 n.4  (1st Cir.  Feb. 9,            1993).  But Budnick  did not allege damage to  his reputation            as  the basis  for his cause  of action.   He  asked that the            court consider that harm  in assessing damages resulting from            what  he  alleged  was  an unlawful  arrest  and  involuntary            commitment for mental evaluation.                 Construing this  inartful pro se complaint  in a liberal            fashion,  as we  must, Haines  v. Kerner,  404 U.S.  519, 520                                   ______     ______            (1972), we disagree that it is "virtually incomprehensible."                                         -3-            jurisdiction.  We vacate and remand to the district court for            entry of a judgment reflecting that conclusion.  In all other            respects, we affirm the district court's order.                               I.  The Legal Standards                 The district  court did not  spell out the  statutory or            other  available basis  for  its sua  sponte dismissal.   The            order's language - "the  plaintiff's Complaint fails to state            a  claim upon  which relief  can be  granted" -  suggests the            dismissal  was  pursuant to  Fed. R.  Civ.  P. 12(b)(6).   We            proceed, therefore, on that basis.2                 The standard for a Rule 12(b)(6) dismissal is a familiar            and oft-repeated one.  "[A] complaint should not be dismissed            for failure to state  a claim unless it appears  beyond doubt            that the  plaintiff can prove no  set of facts in  support of            his  claim which  would entitle  him to  relief."   Conley v.                                                                ______            Gibson,  355 U.S.  41,  45-46  (1957).    We  review  such  a            ______            dismissal de novo.   Kale v.  Combined Ins.  Co. of Am.,  924                                 ____     _________________________            F.2d  1161,  1165 (1st  Cir.), cert.  denied,  112 S.  Ct. 69                                           _____________            (1991); Gonzalez-Bernal  v. United States, 907  F.2d 246, 248                    _______________     _____________            (1st Cir. 1990).                 The  Supreme Court, as yet, has had "no occasion to pass            judgment, however,  on the permissible scope, if  any, of sua                                            ____________________            2.  In any event, we rule out as a possible basis 28 U.S.C.              1915(d), as  that statute applies  only to in  forma pauperis            actions, Street v. Fair,  918 F.2d 269, 272 (1st  Cir. 1990),                     ______    ____            which this was not.  Budnick paid the required filing fee.                                           -4-            sponte dismissals under Rule 12(b)(6)."  Neitzke v. Williams,                                                     _______    ________            490 U.S. 319, 329 n.8 (1989).  The Court has pointed out that            "[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is            ordinarily accorded notice of a pending motion to dismiss for            failure  to state  a claim  and an  opportunity to  amend the            complaint before the  motion is ruled upon."  Id.  at 329.  A                                                          ___            sua sponte dismissal preempts  that notice and opportunity to            amend before dismissal.                 We  have  suggested,  in   dictum,  that  a  sua  sponte            dismissal  on  the ground  that  a  complaint is  inadequate,            without notice  of the proposed dismissal  and an opportunity            to address  the issue,  might require reversal.   Literature,                                                              ___________            Inc.  v. Quinn, 482 F.2d 372, 374  (1st Cir. 1973).3  Even if            ____     _____            the district court  erred in failing to  provide Budnick with            pre-dismissal notice and opportunity to respond in this case,            however,  we decline to remand because it is evident that (1)            Budnick could not prevail  based on the facts alleged  in the            complaint, see Smith v.  Boyd, 945 F.2d 1041, 1043  (8th Cir.                       ___ _____     ____                                            ____________________            3.  Some courts  have reversed  in such circumstances.   See,                                                                     ____            e.g., Morrison  v.  Tomano,  755  F.2d 515  (6th  Cir.  1985)            ____  ________      ______            (holding that a district court should not dismiss a complaint            for  failure to  state a  claim without  affording plaintiffs            notice   and  an   opportunity   to  address   the  perceived            shortcomings);  Jefferson  Fourteenth  Assoc.  v.  Wometco de                            _____________________________      __________            Puerto  Rico, 695 F.2d 524  (11th Cir. 1983)  (holding that a            ____________            sua  sponte dismissal  without notice  and an  opportunity to            respond violated a plaintiff's  due process rights); see also                                                                 ________            Lewis v. N.Y., 547 F.2d 4, 6 n.4 (2d Cir.  1976) ("Failure to            _____    ____            afford plaintiffs  an opportunity to address  the court's sua                                                                      ___            sponte  motion   to  dismiss  is,  by   itself,  grounds  for            ______            reversal.").                                         -5-            1991)  (holding  that  the  failure  to give  notice  and  an            opportunity to  respond  prior to  dismissal  is not  per  se            reversible error when it  is "patently obvious" the plaintiff            could  not  prevail  based  on  the  facts  alleged  in   the            complaint); Baker  v. Director, U.S. Parole  Comm'n, 916 F.2d                        _____     _____________________________            725,  726 (D.C. Cir. 1990) (same), and (2) amendment would be            futile, see Shockley  v. Jones, 823  F.2d 1068, 1072-73  (7th                    ___ ________     _____            Cir.  1987)  (holding that  a  sua  sponte dismissal  without            notice  or the  opportunity  to  be  heard  is  improper  but            reversal  is not  mandated when  amendment would  be futile);            Tyler v. Mmes.  Pasqua & Toloso, 748 F.2d 283,  287 (5th Cir.            _____    ______________________            1984) (similar), overruled on  other grounds by, Victorian v.                             ______________________________  _________            Miller, 813 F.2d 718 (5th Cir. 1987).4            ______                                            ____________________            4.  Although the order of  dismissal stated that the district            court was acting sua sponte, one  of the defendants, Attorney            Steven Loesch,  had filed a  motion to  dismiss, pursuant  to            Rule  12(b)(6), for failure to state a claim, and Budnick had            filed an opposition.  The grounds raised in Attorney Loesch's            motion, however, would not  have provided Budnick with notice            of any potential defects  in his complaint as  to any of  the            other  eight  defendants,  excepting  perhaps  the  defendant            Barnstable County Bar Advocates,  Inc., which Budnick alleged            was  Loesch's  employer.    We  treat  the  district  court's            dismissal, therefore, as it,  itself, characterized it - that            is, as a  sua sponte dismissal.   Our conclusion --  that the            failure to  provide  Budnick with  pre-dismissal  notice  and            opportunity to  respond does not warrant  reversal because it            is evident that  his complaint  failed to state  a claim  and            that no amendment could  remedy it -- necessarily encompasses            a conclusion that there was no error in dismissing  Budnick's            claim  against Loesch,  the deficiency  of which  Budnick, in            fact,  had  notice and  to which  he  had the  opportunity to            respond.                 We  are also aware that the sua sponte dismissal in this            case deprived Budnick  of his  right, under Fed.  R. Civ.  P.            15(a), to amend  his complaint "once as a matter of course at                                         -6-                                  II.  The Complaint                 Budnick's  complaint  is  written  in  a narrative,  and            somewhat  dramatic, form.   It  contains much  extraneous and            disjointed  information.     But  construing  this   inartful            pleading by  a pro  se litigant in  a liberal fashion,  as we            must,  Haines  v.  Kerner,  404  U.S.  519,  520 (1972),  and                   ______      ______            accepting  as  true the  factual  allegations  pled, Rodi  v.                                                                 ____            Ventetuolo, 941 F.2d 22,  23 (1st Cir. 1991), we  can distill            __________            from the  complaint that Budnick's  claims stem from  what he            alleges was an  unlawful arrest.   The complaint alleges  the            following:                 On September  23, 1990, Budnick resided  at his parents'            home  on Division  Street  in Harwich,  Massachusetts.   That            house apparently is  in very close proximity  to the boundary            between Harwich, and Dennis, Massachusetts.   Budnick alleges            that,  on that date, he began to  cut down a pine tree on the            property,  which had been damaged  in a storm.   After making            two  cuts in the tree,  his mother called  the Harwich Police            Department.  Officer Jonathan Mitchell responded.                 Budnick left the  scene, putting away his chain  saw and            taking his  car out for a  ride, he says, to get  the oil hot                                            ____________________            any  time before a responsive  pleading is served."   Fed. R.            Civ.  P. 15(a);  Correa-Martinez  v. Arrillaga-Belendez,  903                             _______________     __________________            F.2d 49,  59 n.8 (1st Cir.  1990) (a Rule 12(b)(6)  motion to            dismiss is not  a responsive  pleading for  purposes of  Rule            15(a)).  Inasmuch as we have determined that  amendment would            be  futile, error, if it  be such, would  not warrant remand.            Correa-Martinez v. Arrillaga-Belendez, 903 F.2d at 59.            _______________    __________________                                         -7-            for an oil  change.  He  returned in an  hour and started  to            change the  oil.  He was,  at that time, he  alleges, 35 feet            into  Dennis.   A  Dennis police  officer arrived,  following            which Harwich Police Officer Barry Mitchell arrived.  Officer            Barry Mitchell  spent a very  short time in  Budnick's house,            looking at  what Budnick says  was a leaking  washing machine            pipe.   Budnick had purchased  a new washing  machine the day            before and was  going to  replace the old  machine.   Officer            Barry  Mitchell  then  came  out  and  arrested  Budnick  for            malicious destruction  of property over  $250 [apparently the            tree and perhaps the pipe], Mass. Gen. L. ch. 266,   127, and            disorderly conduct, Mass. Gen. L. ch. 272,   53.  Budnick, at            the time, was standing in Dennis.  Budnick's mother protested            that she had only wanted the officer to talk to her son.                 Budnick spent  the night at the  Harwich police station.            The next day, he was taken to court, where he was examined by            Dr. Sidney  Callis, a court-appointed  psychiatrist.  Budnick            claims that Dr.  Callis deliberately misinterpreted Budnick's            statements  to   him.     The  court  committed   Budnick  to            Bridgewater  State Hospital  for psychological  testing.   On            October  1, 1990, Budnick was transferred to Cape Cod and the            Islands Community Mental Health Center.                 On  October 12, 1990, Budnick returned to court.  He was            represented  by  court-appointed  counsel,   Attorney  Steven            Loesch.    Trial was  set  for  November  6,  1990.   In  the                                         -8-            meantime,  according to  Budnick,  Loesch made  no effort  to            conduct discovery.                 On November  6th, the malicious  destruction of property            charges were  dismissed.   The disorderly conduct  charge was            continued  without  a finding  for  30  days, whereupon  that            charge also was dismissed.                 Budnick filed a twenty-one  page, eleven count complaint            seeking  damages against nine  defendants -  (1) the  Town of            Harwich, (2) the Harwich Police Department, (3) the estate of            Norman Fennell, the former  Harwich Police Chief, (4) Officer            Jonathan  Mitchell,  (5)  Officer  Barry  Mitchell,  (6)  the            Massachusetts Department of Public  Safety, alleged to be the            employer of Dr.  Callis, (7) Dr.  Callis, (8) the  Barnstable            County Bar  Advocates, Inc.,  alleged to  be the  employer of            Attorney  Loesch, and  (9)  Attorney Loesch.   The  complaint            alleged   claims   of  false   arrest,   false  imprisonment,            conspiracy,  intentional  infliction  of emotional  distress,            malicious prosecution, abuse of  process, and negligence.  It            alleged various bases for jurisdiction, including 42 U.S.C.              1983 and  the Racketeer Influenced and  Corrupt Organizations            (RICO)  statute,  18  U.S.C.    1961  et  seq.,  and  pendent            jurisdiction over the state tort claims.                                   III.  Discussion                 Because  all  of  Budnick's  claims stem  from  what  he            alleges was  an unlawful warrantless arrest,  we begin there.                                         -9-            To state  a cause of  action under 42 U.S.C.    1983, Budnick            must  show that, in arresting him, Officer Barry Mitchell (1)            acted under color of state law; and (2) deprived Budnick of a            right secured by the Constitution or federal law.  Parratt v.                                                               _______            Taylor, 451 U.S. 527, 535 (1981).   There is no dispute  that            ______            Officer  Mitchell was  acting  under color  of  state law  in            arresting  Budnick.  Pittsley v.  Warish, 927 F.2d  3, 6 (1st                                 ________     ______            Cir.), cert. denied, 112 S. Ct. 226 (1991).  As to the second                   ____________            element  of a  cause  of action  under    1983,  the  federal            Constitution permits an officer to arrest a suspect without a            warrant  if  there is  probable  cause  to  believe that  the            suspect has committed or is  committing an offense.  Michigan                                                                 ________            v. DeFillippo, 443 U.S. 31, 36 (1979).               __________                 Budnick says  that his mother called  the Harwich police            after he started to cut down a tree on his parents' property.            Officer Jonathan  Mitchell  responded and  Budnick  left  the            scene.   When  he returned,  Officer Barry  Mitchell arrived,            entered Budnick's  parents' home for  a brief time,  where he            apparently spoke to Budnick's mother, exited and arrested him            for malicious destruction of property and disorderly conduct.            These facts  show that,  at the  moment of  Budnick's arrest,            "the   facts  and   circumstances   within   [Officer   Barry            Mitchell's]  knowledge  and  of  which  [he]  had  reasonably            trustworthy information [was] sufficient to warrant a prudent            man  in  believing  that   [Budnick]  had  committed  or  was                                         -10-            committing  an offense."    Beck v.  Ohio,  379 U.S.  89,  91                                        ____     ____            (1964).5                 Budnick's allegation of unlawful arrest merely recites a            lack  of probable cause and,  in fact, seems  more focused on            another aspect of his arrest.   Budnick repeatedly points out            that  Officer Mitchell,  a Harwich  police officer,  arrested            him,  not in Harwich,  but in Dennis.   He says  that Officer            Mitchell, a  Harwich police officer, arrested  him outside of            the officer's  jurisdiction, in Dennis, on  felony charges (2            counts of malicious destruction of property  over $250) and a            misdemeanor charge (disorderly conduct) without a warrant and            not in "hot  pursuit."  But to proceed with  a   1983 action,            Budnick must show that  this extraterritorial arrest violates            a right secured by federal law, Constitutional or statutory.                               _______                 "Whether  an officer  is  authorized to  make an  arrest            ordinarily  depends, in  the first  instance, on  state law."            Michigan v. DeFillippo, 443 U.S. at 36.  And in this case the            ________    __________            arrest does not even  appear to be unlawful under  state law.                                            ____________________            5.  The mere  fact that Budnick's  mother had not  wished his            arrest  and/or  that  the  charges were  later  dismissed  or            continued without a  finding, of course, is irrelevant to the            validity of the arrest.  See Michigan v. DeFillippo, 443 U.S.                                     ___ ________    __________            at 36 (stating that "the mere fact that the suspect is  later            acquitted  of  the  offense  for  which  he  is  arrested  is            irrelevant  to  the  validity   of  the  arrest");  Baker  v.                                                                _____            McCollan,  443  U.S. 137,  145  (1979)  (stating that  "[t]he            ________            Constitution does not guarantee that only  the guilty will be            arrested.  If it did,    1983 would provide a cause of action            for  every defendant  acquitted -  indeed, for  every suspect            released.").                                         -11-            It is true  that, under Massachusetts  law, a police  officer            has no  power  to  make  a  warrantless  arrest  outside  the            boundaries of the governmental unit by which he was appointed            except for a fresh pursuit arrest for any arrestable offense,            whether it be a felony or misdemeanor, initially committed in            the arresting officer's presence and within his jurisdiction.            Commonwealth  v. LeBlanc, 407 Mass.  70, 72 (1990).   But, "a            ____________     _______            police  officer,  while unable  to act  as  an officer  in an            adjoining  jurisdiction, does  not cease  to be a  citizen in            that jurisdiction  ... and  may lawfully conduct  a citizen's            arrest  there  if he  has probable  cause  to believe  that a            felony has  been committed and  that the person  arrested has            committed  it."  Commonwealth v. Dise, 31 Mass. App. Ct. 701,                             ____________    ____            704 (1991),  further appellate review denied,  412 Mass. 1102                         _______________________________            (1992) (footnote omitted).6  And, if there was  authority and            probable  cause  to  arrest   for  the  felony  of  malicious            destruction  of property  over $250,  the arrest  was lawful,            regardless of  whether there was authority  or probable cause            also to arrest for the misdemeanor.  See Barry v. Fowler, 902                                                 ___ _____    ______            F.2d  770, 773  (9th  Cir.  1990)  (an  arrest  is  a  single                                            ____________________            6.  Cf. United States v. Foster, 566 F. Supp. 1403, 1411-12 &                ___ _____________    ______            n.9  (D.D.C. 1983)  (finding  a seizure  violated the  Fourth            Amendment where  a Metro Transit police  officer's Terry stop                                                               _____            of  defendant  for an  offense  occurring  on a  city  street            exceeded the limits  of the officer's  authority to stop  for            offenses originating on or  in a Metro station and  since the            offense  was a misdemeanor, the officer's action could not be            justified as a citizen's arrest).                                         -12-            "seizure";  if  there is  probable  cause to  arrest  for one            crime, the  seizure is not unconstitutional  even if probable            cause is lacking for the second crime.).7                 In short, the allegations in Budnick's complaint suggest            a valid arrest under state law and nothing in that complaint,            or  reasonably inferred  from that  complaint, suggests  that            such an arrest,  nonetheless, violates federal  law so as  to            support the exercise of  federal jurisdiction.  Further, even            a  liberal reading of the complaint fails to reveal the seeds            of a viable  claim which  would indicate  that any  amendment            might be  fruitful.   Budnick described the  circumstances of            his arrest in detail.  The facts pled show probable cause and            lawful authority  to arrest consistent with federal  law.  We            fail to see how any additional facts (and he has not provided            any, either in  his motion  to amend, filed  in the  district            court, or even  in his appellate  brief) could be  compatible            with those already pled and also negate that showing.                                            ____________________            7.  We  assume, without  deciding,  that  a  police  officer,            although making  a  citizen's arrest,  would  nonetheless  be            acting under color  of state law in  making the arrest.   See                                                                      ___            Street v.  Surdyka, 492 F.2d  368, 374 (4th Cir.  1974).  The            ______     _______            opposite  assumption, of course,  dooms the    1983 claim, in            any event.                 Moreover, while state  law might prohibit a  warrantless            arrest  for  a misdemeanor  not  committed  in the  officer's            presence, such a  prohibition is not  grounded in the  Fourth            Amendment.    Barry v.  Fowler, 902  F.2d  at 772;  Street v.                          _____     ______                      ______            Surdyka,  492 F.2d at 370-73;  2 Wayne R.  LaFave, Search and            _______            Seizure   5.1(b), at 403-04 (2d ed. 1987).                                         -13-                 The  arrest  being   lawful,  those  claims  which,   as            described  in Budnick's  complaint, are  necessarily premised            upon an unlawful  arrest -  that is, his  claims against  the            Town of Harwich, its police department and police chief,  for            failure  properly  to  investigate,  for  failure  to  train,            discipline,  and/or supervise,  and  for negligent  training,            discipline and/or supervision  - fail as  well.  Pittsley  v.                                                             ________            Warish, 927  F.2d at 9 n.4 ("In order to have a viable   1983            ______            claim against a municipality, a state actor must first commit            an underlying constitutional violation.").                 Budnick's claim  that  Dr. Callis,  the  court-appointed            psychiatrist, misinterpreted his statements and, as a result,            Budnick  was committed  to a  state hospital  for a  week for            psychological testing  and then to a  community mental health            center for further  testing fares  no better.8   We pass  the            question whether Dr.  Callis is acting  under color of  state            law for purposes of    1983 in these circumstances.   Compare                                                                  _______            Watterson v. Page,  No. 92-1224,  1993 WL 23908,  at *5  (1st            _________    ____            Cir. Feb. 9, 1993) (assuming, without  deciding, that a state            court  order  referring  child   for  counseling  to  private            psychologists   provided   a   sufficient   basis   for   the            psychologists  to be  acting under color  of state  law) with                                                                     ____            Hall  v. Quillen, 631 F.2d 1154 (4th Cir. 1980) (holding that            ____     _______                                            ____________________            8.  We assume here that  Budnick was suing Dr. Callis  in his            individual capacity.                                         -14-            a   court-appointed  physician   examining  a   plaintiff  in            connection  with a court-ordered  involuntary commitment to a            state hospital is  not acting  under color of  state law  for            purposes of    1983 liability), cert.  denied, 454 U.S.  1141                                            _____________            (1982).    At   best,  the  allegations  state   a  claim  of            negligence, which is an insufficient basis for a  claim under              1983.  Watterson  v. Page, No.  92-1224, 1993 WL 23908,  at                     _________     ____            *6.  Budnick's allegation that  Dr. Callis' misinterpretation            was deliberate does not save this claim from dismissal.  As a            witness  at a  judicial proceeding,  Dr. Callis  has absolute            immunity  from     1983   damages  liability  even  were  his            testimony  false.  Id. at *7.   If false testimony is cloaked                               ___            in immunity, certainly a  deliberate misinterpretation is, as            well.9                 The  claim  against Attorney  Loesch based  on Budnick's            dissatisfaction  with  his representation  also  was properly            dismissed.   A court-appointed attorney  when representing  a            defendant in a state  criminal proceeding does not act  under            color of state law within the meaning of   1983.  Polk County                                                              ___________                                            ____________________            9.  The    only    allegation   raised    against   defendant            Massachusetts   Department  of  Public  Safety  is  Budnick's            contention that  that entity is  the employer of  Dr. Callis.            No viable   1983 claim having been raised against Callis, any            claim  against the Massachusetts Department of Public Safety,            Callis' alleged employer, also fails.  See Watterson v. Page,                                                   ___ _________    ____            No. 92-1224, 1993 WL 23908 at *7.  In any event, suit against            the department (and against Callis, in his official capacity)            is barred by  the Eleventh  Amendment as a  suit against  the            state.   Will v. Michigan Dep't of State Police, 491 U.S. 58,                     ____    ______________________________            66, 71 (1989).                                         -15-            v. Dodson, 454 U.S. 312 (1981); id. at 333 n.4 (Blackmun, J.,               ______                       ___            dissenting); Jackson v.  Salon, 614 F.2d 15, 16-17  (1st Cir.                         _______     _____            1980).10                 There being no deprivation of a federal right, Budnick's            conclusory claim of conspiracy  among the various  defendants            evaporates.   Brennan v. Hendrigan,  888 F.2d  189, 195  (1st                          _______    _________            Cir. 1989) (to be actionable under   1983, a plaintiff has to            show  not  only  an  agreement,   but  a  deprivation  of   a            constitutionally secured  right).   Finally,  there being  no            allegations  which  would  support  the  exercise  of federal            jurisdiction,11  those pendent claims  alleging violations of            the state  Tort Claims Act,  Mass. Gen. L. ch.  258, or which            otherwise arise  under state  tort law -  false imprisonment,            intentional  infliction  of  emotional   distress,  malicious            prosecution,12 abuse of  process, negligence - were  properly                                            ____________________            10.  Consequently,  Budnick's  claim  against the  Barnstable            County Bar  Advocates, Inc., alleged to  be Attorney Loesch's            employer,  was  properly  dismissed  as well.    Pittsley  v.                                                             ________            Warish, 927  F.2d at 9 n.4;  see also Polk County  v. Dodson,            ______                       ________ ___________     ______            454 U.S. at 325  (  1983 will not support a  claim based on a            respondeat superior theory of liability).            11.  Budnick's allegation  of a  cause of action  pursuant to            the  RICO  statute, 18  U.S.C.    1961  et seq.,  is patently            meritless and  warrants no discussion.   See Sedima, S.P.R.L.                                                     ___ ________________            v.  Imrex Co.,  473 U.S.  479, 496  (1985) (listing  elements                _________            required to state a claim).            12.  To the  extent that  Budnick may have  alleged malicious            prosecution  as itself a  constitutional violation actionable            under   1983, we note that malicious prosecution does not per            se abridge  rights secured by  the Constitution.   Morales v.                                                               _______            Ramirez, 906 F.2d 784,  788 (1st Cir. 1990).   In addition to            _______            showing  that  defendants  instituted   criminal  proceedings                                         -16-            dismissed.    Mine Workers  v.  Gibbs, 383  U.S.  715, 726-27                          ____________      _____            (1966).   Rather  than  dismiss with  prejudice, however,  we            think  the  preferable  course  is to  dismiss  these  claims            without prejudice for lack of jurisdiction.  Figueroa Ruiz v.                                                         _____________            Alegria, 896 F.2d 645,  650 (1st Cir. 1990).   We, therefore,            _______            vacate  the order of the  district court with  respect to the            state  law claims and direct  that these be dismissed without            prejudice  for lack of jurisdiction.  In so doing, of course,            we express no opinion as to their viability.                              IV.  Miscellaneous Motions                 Contemporaneously  with the denial  of Budnick's motions            to vacate the dismissal of the complaint, to vacate the "with            prejudice"  designation,  and  to amend  the  complaint,  the            district  court  judge  also denied  a  simultaneously  filed            motion  to  disqualify himself.    The  motion to  disqualify            alleged that  Budnick intended to file  a judicial misconduct            complaint  against the  judge.   Budnick claims  the district            court  erred in ruling on his motions after being notified of            his intent to  file a complaint.   There was  no error.   The            mere issuance of unfavorable rulings cannot form the basis of                                            ____________________            against  an innocent  person  without probable  cause for  an            improper  purpose,  Torres  v. Superintendent  of  Police  of                                ______     ______________________________            Puerto  Rico, 893 F.2d 404,  409 (1st Cir.  1990), "a federal            ____________            constitutional  claim  under      1983  based  on   malicious            prosecution  requires  conduct  so  egregious  and conscience            shocking  that  it  violates  the  plaintiff's   due  process            rights."   Ayala-Martinez v. Anglero,  982 F.2d  26, 27  (1st                       ______________    _______            Cir. 1992).  The conduct in the present case does not, by any            measure, rise to this level.                                         -17-            a disqualification  or misconduct  claim.  Joseph  E. Bennett                                                       __________________            Co. v. Trio Indus., Inc., 306 F.2d 546, 549 (1st Cir. 1962).            ___    _________________                 Lastly, we  dispose of several pending  motions filed in            this court:   (1) In view of  the disposition of this appeal,            the motion  of the Massachusetts Department  of Public Safety            and Dr.  Callis for summary  disposition is  denied as  moot.            Their motion to  accept their memorandum  in support of  that            motion as their appellees' brief  is granted.  (2)  Budnick's            motions for default judgments against Attorney Loesch and the            Barnstable  County  Bar  Advocates,  Inc. are  denied.    (3)            Budnick's  "motion  to   add  clear  color   photographs  for            previously submitted black and white  photos" is denied.  The            record  on  appeal is  composed  of the  original  papers and            exhibits filed in the district court.  Fed. R. App. P. 10(a).            (4) Budnick's "motion  to add  recently revealed  defendants-            appellees  admission of Judge  Harrington's error" is denied.            In any event, appellant misunderstands the statement to which            he points.  It was not a concession.                                    V.  Conclusion                 For  the reasons discussed in this opinion, the order of            the  district court  is affirmed,  in part,  and vacated  and                                    ________                 ____________            remanded, in part.            ________                                         -18-
