
USCA1 Opinion

	




        November 8, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1585                                   DERRICK ANDERSON,                                Plaintiff, Appellant,                                          v.                                TOWER RECORDS, 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                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Derrick Anderson on brief pro se.            ________________                                 ____________________                                 ____________________                      Per Curiam.   Derrick  Anderson appeals pro  se the                      __________                              ___  __            dismissal  of his  in forma  pauperis complaint  as frivolous                               __ _____  ________            under 28  U.S.C.    1915(d).   We affirm  in part,  vacate in            part, and remand other claims for further proceedings.                      The  complaint alleges  that on  October  28, 1991,            Anderson was  arrested  by  two  security guards  as  he  was            leaving Tower  Records.   The guards allegedly  searched him,            seized compact discs for which he had a receipt, and detained            him until Boston Police  officers arrived and transported him            to a "lock-up."  Anderson was later tried for shoplifting and            acquitted.   He seeks declaratory relief  and damages against            Tower  Records, the  two guards,  their supervisor,  and "any            other  respondeat  superiors"  for violations  of  his  civil            rights  under 42  U.S.C.      1983,  1985,  as  well  as  for            violations of 18 U.S.C.    241, 242.                      We affirm  the dismissal of Anderson's  42 U.S.C.              1985  and  18 U.S.C.      241,  242 claims,  as  well  as the            dismissal of his  claim for  damages under 42  U.S.C.    1983            based on  defendants' testimony at Anderson's criminal trial.            Anderson makes no reference to these claims in his brief, and            we  affirm their dismissal on  the ground that  he has waived            them.  See,  e.g., Frazier v. Bailey, 957 F.2d  920, 932 n.14                   ___   ____  _______    ______            (1st Cir. 1992).  We  add that, in any event, we  think these            claims were properly dismissed for the reasons stated  by the            district court.                                         -2-                      Anderson's remaining claims allege  unlawful search            and seizure, false arrest, and malicious prosecution under 42            U.S.C.    1983.  The district court dismissed these claims on            the ground  that Anderson failed to state  facts showing that            the  defendants  acted under  color of  law.   See  Alexis v.                                                           ___  ______            McDonald's  Restaurants of Mass., Inc., 1995  WL 584187 at *7            ______________________________________            (1st   Cir.  Oct.   10,   1995)   (discussing  state   action            requirement).   We think  that the dismissal  of these claims            under     1915(d),  without  an  opportunity  to  amend,  was            precipitous.1   Since  there  are circumstances  under  which            security guards  and their  employers have been  found to  be            state actors, see,  e.g., Murray v. Wal-Mart,  Inc., 874 F.2d                          ___   ____  ______    _______________            555,  558-59  (8th Cir.  1989);  Rojas  v. Alexander's  Dep't                                             _____     __________________            Store, Inc., 654 F. Supp. 856, 858 (E.D.N.Y. 1987), we cannot            ___________            say that Anderson would  be unable to cure any  deficiency in            his  allegations by  more specific  pleading, see  Neitzke v.                                                          ___  _______            Williams, 490 U.S. 319, 331 (1989) (complaint  which fails to            ________            state  a cause  of  action is  not automatically  frivolous).            Accordingly, we vacate the dismissal of these claims.                      We stress that  at this stage Anderson has  not met            the "color-of-law" requirement  through adequate  allegations                                            ____________________            1.  We note  that although the  district court issued  a show            cause  order allowing  Anderson twenty  days within  which to            explain why his complaint should not be dismissed, the record            discloses that this order  was returned, undelivered, because            Anderson,  an inmate, had been transferred from one prison to            another.                                           -3-            of fact (let alone proof), and it may well be  that he cannot            do so.  But this is an area of law in which the precedents do            not provide a simple bright-line test, and there are at least            hints that Anderson might  have more to allege on  the color-            of-law  issue  if  afforded   an  opportunity.    Because  of            circumstances outside the control  of both the district court            and  Anderson,  that  opportunity has  not  been  effectively            afforded, and we think that it should  be, without intimating            any view about the ultimate result in this case.                 Affirmed, in  part; vacated,  in part; and  remanded for                 ________________________________________________________            further proceedings.            ____________________                                         -4-
