
USCA1 Opinion

	




        September 29, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2368                                   KIMBALL S. HALL,                                Plaintiff, Appellant,                                          v.                              R. SCOTT GONFRADE ET AL.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Kimball S. Hall on brief pro se.            _______________            John H. LaChance, LaChance & Whatley on brief for appellee.            ________________  __________________                                 ____________________                                 ____________________                 Per  Curiam.   Plaintiff/appellant Kimball  Hall appeals                 ___________            the dismissal of his complaint against  defendant/appellee R.            Scott Gonfrade  by the United  States District Court  for the            District  of Massachusetts.   We  affirm, albeit  for reasons            other than those on which the district court relied.                                          I                 According  to the  allegations in  Hall's complaint,  on            April  5,  1989,  Hall  and his  brother  attempted  to serve            Gonfrade,  a  Deputy  Sheriff  of Middlesex  County,  with  a            summons and complaint stemming from Gonfrade's alleged  false            arrest   and  prosecution  of  Hall  in  1985.1      Gonfrade            allegedly responded by assaulting  Hall's brother, seizing  a            camera  from   Hall  and   destroying  the  film,   and  then            fraudulently arresting  Hall and  charging him  with assault.            Hall further alleges  that Gonfrade  submitted false  reports            about  the incident.   A  jury found  Hall not guilty  of the            assault charge on May 11, 1990.                 On April 29, 1993, Hall filed a pro se complaint against            Gonfrade and others.2   As amended on July 1,  the complaint,            liberally  construed,  asserts  claims  against  Gonfrade for            violations of  Hall's civil rights,  pursuant to 42  U.S.C.                                              ____________________            1.  Although   Hall's   complaint  contains   several  counts            stemming from the 1985 incident, these claims are time barred            and have not been pressed on appeal.            2.  Hall  does  not appeal  the  dismissal  of the  complaint            against any of the defendants except Gonfrade.            1983,  for  false arrest  and malicious  prosecution stemming            from  the 1989  incident.   He  also asserts  several pendant            state law claims.                   On  July 8, 1993, Gonfrade filed a motion to dismiss the            complaint on  statute of  limitations grounds.   On  July 22,            Hall  filed a  motion  to enlarge  the  time for  filing  his            opposition  to  the  motion   to  dismiss  to  and  including            September  16, 1993.  This  motion was granted  on August 19,            1993.  Nevertheless, Hall failed to file an opposition to the            motion to dismiss.  He now asserts that he was never informed            that his motion to  extend the time for filing  an opposition            had been granted.   On November 19, 1993, the  district court            granted  the  motion  to  dismiss  on  the  ground  that  "no            opposition ha[d] been filed."                                            II                 A litigant's "pro  se status [does not] absolve him from            compliance  with the  Federal  Rules of  Procedure."   United                                                                   ______            States  v. Heller, 957 F.2d  26, 31 (1st  Cir. 1992) (quoting            ______     ______            Feinstein v. Moses, 951  F.2d 16, 21 (1st Cir. 1991)).  Thus,            _________    _____            pursuant to Local  Rule 7.1(B)(2), Hall was required  to file            any opposition to  Gonfrade's motion to dismiss  on or before            September 16.  Nor can Hall  be excused from this deadline by            lack  of awareness that the  court had granted  his motion to            extend  the  time  for filing  his  opposition.    It is  "an            abecedarian  rule  of civil  practice  [that]  parties to  an                                         -3-            ongoing case  have an  independent obligation to  monitor all            developments in  the  case and  cannot  rely on  the  clerk's            office to do  their homework for them."  Witty  v. Dukakis, 3                                                     _____     _______            F.3d 517, 520  (1st Cir. 1993).   Hence, when Hall  failed to            respond to the motion  to dismiss by September 16,  he waived            his right to oppose the motion.                   Nevertheless, nothing  in Local Rule 7.1  indicates that            failure  to  oppose  a  motion is  grounds  for  granting the            unopposed motion.  This  court has recently held that  in the            case  of  failure to  oppose a  motion for  summary judgment,            "[t]he consequence .  . . of failing to comply  with the rule            is that the party may lose the right to  file an opposition."            Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446, 451-            ______    ______________________________            52  (1st  Cir.  1992) (interpreting  Local  Rule  7.1(A)(2)).            However,  the court is still obliged  to consider whether, in            light  of the record, the  motion should be granted according            to  the  appropriate  legal  standard.     See  id.  at   452                                                       ___  __            (discussing unopposed  motion for summary judgment).   We see            no reason why the rule should be any different in regard to a            motion  to dismiss.3   See also Local  Rule 7.1(F) (providing                                   ___ ____                                            ____________________            3.  This court's opinion in Mangual v. General Battery Corp.,                                        _______    ____________________            710 F.2d  15  (1st Cir.  1983), is  distinguishable from  the            instant case.  In Mangual, the district court had ordered the                              _______            plaintiffs to  file their opposition to the motion to dismiss            within  30 days of the  completion of discovery.   It granted            the unopposed motion  to dismiss  only after  this order  was            ignored.   In  reviewing  the district  court decision,  this            court  likewise relied on cases  in which an  action had been            dismissed for failure to comply with a district court order.                                         -4-            that motions which are  to be decided without  hearings "will                                                                     ____            be decided on the papers submitted after an opposition to the            __________________________________            motion  has been filed, or  if no opposition  is filed, after            the  time for  filing an  opposition has  elapsed") (emphasis            added).                 In the instant case, we agree with Gonfrade  that Hall's            claim for false arrest is time barred.  A civil rights  claim            pursuant to     1983 must  be brought  within the  applicable            statute of limitations period  of the state within which  the            incident occurred, see  Wilson v. Garcia,  471 U.S. 261,  275                               ___  ______    ______            (1985), in this case, three years,  see Mass. Gen. L. c. 260,                                                ___              2A;  Street v. Vose,  936 F.2d 38,  39-40 (1st  Cir. 1991),                   ______    ____            cert. denied,  112 S.Ct. 948 (1992).   Hall's arrest occurred            ____  ______            in 1989.   Since a claim for false arrest accrues on the date            of the  arrest, see, e.g., Rose v.  Bartle, 871 F.2d 331, 351                            ___  ___   ____     ______            (3d Cir. 1989);  McCune v.  Grand Rapids, 842  F.2d 903,  907                             ______     ____________            (6th  Cir. 1988); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th                              _______    ______            Cir. 1983); Singleton v. New York, 632 F.2d 185, 191 (2d Cir.                        _________    ________            1980), cert. denied, 450  U.S. 920 (1981), Hall's  April 1993                   ____  ______            claim was time barred.                 Hall's claim for malicious prosecution, however, did not            accrue until he was found not guilty of the assault charge in            May 1990.  See, e.g., Heck v. Humphrey, 114  S.Ct. 2364, 2371                       ___  ___   ____    ________            (1994); Brummett v. Camble, 946 F.2d 1178, 1183-84  (5th Cir.                    ________    ______            1991), cert. denied, 112 S.Ct. 2323 (1992); Rose, 871 F.2d at                   ____  ______                         ____                                         -5-            348;  McCune, 842  F.2d at  907; Venegas,  704 F.2d  at 1146;                  ______                     _______            Singleton, 632 F.2d  at 198.   Hence, this  claim was  timely            _________            filed.  Nonetheless, it must be dismissed because it fails to            state  a claim for which relief can  be granted.  See Fed. R.                                                              ___            Civ. P. 12(b)(6).                   Malicious prosecution standing  alone does not implicate            federally protected rights.   See Torres v. Superintendent of                                          ___ ______    _________________            Police, 893 F.2d 404, 409 (1st Cir. 1990).  Hence, to state a            ______            federal  claim  under    1983  for  malicious prosecution,  a            plaintiff must allege that  he suffered a deprivation  of his            constitutional   right  to  substantive   or  procedural  due            process.  Id.  at 409-10.   Hall has  not alleged  sufficient                      __            facts to support a claim that he was deprived of either.                 A  substantive  due  process  deprivation   must  allege            "conscience  shocking" conduct by the defendant.   See id. at                                                               ___ __            410.  Such conduct rarely has been found absent a plaintiff's            having been  "physically abused, detained,  prosecuted due to            racial or political motivation or otherwise deprived of equal            protection  of the law."  Id. (citing cases); see also Ayala-                                      __                  ___ ____ ______            Martinez v.  Anglero,  982 F.2d  26,  27-28 (1st  Cir.  1992)            ________     _______            (affirming grant  of summary judgment where  evidence did not            show prosecution was "for  racial or political motivation, or            otherwise deprived  [plaintiff]  of equal  protection").   No            similar conduct has been alleged by Hall.  Rather, he alleges                                         -6-            simple  misuse of  the legal  process.   This alone  will not            sustain a claim under   1983.4  See id.                                            ___ __                 To support  a claim for  malicious prosecution due  to a            violation of  procedural due process, a  plaintiff must show,            inter  alia, that state tort  law remedy does  not furnish an            _____  ____            adequate  remedy.  Id.   The existence of  an adequate remedy                               __            for malicious prosecution under  Massachusetts law, see Smith                                                                ___ _____            v.  Massachusetts Dep't  of Correction,  936 F.2d  1390, 1402                __________________________________            (1st Cir.  1991), is fatal  to Hall's procedural  due process            claim.                   Finally, our determination that Hall has failed to plead            an  actionable claim  of malicious  prosecution and  that his            claim  for false  arrest is time  barred precludes  any claim            that he  has been the  victim of a  continuing constitutional            violation.  See Perez-Ruiz, 25 F.3d at 41 n.1.                         ___ __________                 The order of the district court dismissing Hall's claims            is affirmed.                ________                                            ____________________            4.  Moreover, the  recent Supreme  Court case of  Albright v.                                                              ________            Oliver,  114 S.Ct.  807  (1994), "would  appear virtually  to            ______            foreclose reliance  on substantive  due process as  the basis            for a viable malicious prosecution claim under section 1983."            Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).            __________    ______________                                         -7-
