April 6, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-1916

                     RAYMOND F. BRIERLY,

                    Plaintiff, Appellant,

                              v.

                  VIRGINIA BRIERLY, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]
                                                    

                                         

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

Raymond F. Brierly on brief pro se.
                  
Chappell &amp; Chappell on brief for appellee Virginia Brierly.
                   
James  E. O'Neil,  Attorney  General, and  Jacqueline  G.  Kelley,
                                                                 
Special  Assistant  Attorney General,  on  brief  for appellee  Robert
Fallon, Director, State of Rhode Island Department of Human Services.

                                         

                                         

          Per Curiam.    Plaintiff  appellant challenges  the
                    

dismissal of his First Amended Complaint for failure to state

a claim,1  denial of his  motion for  leave to file  a Second

Amended Complaint, and the award of attorneys' fees and costs

to defendant Virginia Brierly.

          Although  plaintiff appears  here  pro  se, he  was
                                                    

represented by  counsel below.  His  First Amended Complaint,

styled as an action for damages and equitable relief under 42

U.S.C.    1983,  named  as defendants  his ex-wife,  Virginia

Brierly,  and  the  Acting Director  of  the  State of  Rhode

Island's Department of Human Services ["DHS"], Robert Fallon.

          Plaintiff's pleadings are  difficult to recap  with

precision.  We set out here the core facts distilled from the

First Amended  Complaint.  Count One  appears directed solely

at  Virginia Brierly.  It recites that after his divorce from

Virginia  Brierly in  1981,  plaintiff failed  to make  child

support payments  in accordance with  the terms of  the Rhode

Island Family Court's decree.  In  March, 1986, plaintiff was

                    

1.  Both defendants  filed motions to dismiss.   Although one
of the  motions was couched as  a motion for  judgment on the
pleadings under Fed.  R. Civ.  P. 12(c), it  in essence  also
raised  a Rule  12(b)(6) objection  by challenging  the legal
foundation  for the complaint.  It was properly dealt with on
this  basis  by  the  district  court.    See   Amersbach  v.
                                                         
Cleveland, 598 F.2d 1033 (6th Cir. 1979), cited with approval
                                                             
in Whiting v. Maiolini,  921 F.2d 5 (1st Cir.  1990); Charles
                      
A. Wright et. al.,  5A Federal Practice and Procedure    1369
                                                     
at n.6 (2d ed. Supp. 1992).

personally served with notice of a motion brought by Virginia

Brierly  to  adjudge him  in contempt.    The hearing  on the

motion   was  continued  beyond  its  first  scheduled  date.

Allegedly due to Virginia  Brierly's "failure to properly and

lawfully serve  any kind of  notice [of  the continued  date]

upon plaintiff,"  plaintiff was  absent when the  hearing was

eventually  held  on  September  30,  1986.    As  a  result,

plaintiff states,  he was adjudged in contempt for failure to

pay some  $58,640 in arrearages.   Also allegedly unbeknownst

to plaintiff, a bench warrant issued for his arrest, pursuant

to which  he was arrested  in February,  1988.   He was  then

required to execute  a deed  in blank to  the former  marital

residence  to  secure  his  release.     He  states  that  he

petitioned  for  review  of  the contempt  order,  apparently

without  success, and  appealed to  the Rhode  Island Supreme

Court, which  "after hearing, argument,  and presentation  of

briefs" refused to grant  a writ of certiorari in  September,

1990.  

          Count Two appears directed  solely at Robert Fallon

in  his capacity as Acting  Director of the  DHS.  It alleges

that DHS announced  an amnesty program "whereby  arrangements

for the  payment of  child support  arrearages could  be made

without  fear of  arrest  or interest  payments."   Plaintiff

sought, through counsel, to take advantage of this program by

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opening negotiations with  DHS toward establishing a  payment

schedule  and other  terms.   The  amnesty period  terminated

while  plaintiff  was  awaiting  a response  from  DHS  about

certain terms,2 but DHS  allegedly represented that it "would

honor the terms of  the amnesty" until a final  agreement had

been reached.  Nevertheless, plaintiff says that DHS filed an

"unlawful petition" causing his  arrest and incarceration for

seven  days  in  September,  1991.    He was  allegedly  then

required  to  execute  a promissory  note  in  the  amount of

$58,640.00,  and  was found  liable by  the Family  Court for

additional  interest  on  arrearages.    He  states  that  he

objected on the  basis of DHS's alleged  amnesty promise, but

the Family Court failed to "recognize" the amnesty program.

          Our standard on review  of dismissal of a complaint

under Rule  12(b)(6) is whether, construing  the complaint in

the  light  most favorable  to  the  plaintiff, dismissal  is

appropriate  because  "it  appears  beyond  doubt  that   the

plaintiff can prove  no set of facts in  support of his claim

which  would entitle him to relief."  Roeder v. Alpha Indus.,
                                                             

Inc.,  814 F.2d  22, 25  (1st Cir.  1987) (quoting  Conley v.
                                                          

Gibson,  355 U.S.  41,  45-46 (1957));  see  also Finnern  v.
                                                         

                    

2.  The  amnesty time  period is not  mentioned in  the First
Amended  Complaint, but for the sake of clarity, we note that
the proposed Second Amended Complaint states that the program
was  announced in April, 1990  and ran through  May 25, 1990,
while plaintiff's appeal from his first contempt citation was
pending.   The authority  for, and mechanics  of, the amnesty
program are not disclosed in the pleadings.

                             -4-

Sunday  River Skiway Corp., 984 F.2d 530, 537 (1st Cir. 1993)
                          

("If a trial court accepts plaintiff's facts and can envision

no  reasonable  application of  the  law  that would  entitle

plaintiff  to  relief,  the  court may  rightly  dismiss  the

case.").

          The Supreme  Court recently reaffirmed  the Federal

Rules' "liberal system  of notice pleading" in a civil rights

action brought under 42 U.S.C.   1983 against a municipality.

Leatherman  v.   Tarrant  County  Narcotics   Intelligence  &amp;
                                                             

Coordination  Unit, 61  U.S.L.W.  4205 (U.S.  Mar. 3,  1993).
                  

However,   "minimal  requirements   are  not   tantamount  to

nonexistent requirements."   Gooley  v. Mobil Oil  Corp., 851
                                                        

F.2d 513, 514 (1st Cir.  1988).  The court need  not "conjure

up unpled allegations or contrive elaborately arcane scripts"

in  order to craft a cognizable legal theory where none seems

to exist.  Gooley, 851 F.2d at 514.  
                 

         Plaintiff's First Amended Complaint is  deficient in

numerous ways, most of which were well described by the trial

judge.   In line with his rulings, we interpret the complaint

as asserting that each defendant's separate conduct reflected

a  deviation  from  an  established  state  rule,  policy  or

statute.   It may well be,  as the district court  held, that

the claim  asserted  against defendant  Virginia  Brierly  is

infirm  because  it  does   not  charge  any  conduct  fairly

attributable to the State.   Lugar v. Edmondson Oil  Co., 457
                                                        

                             -5-

U.S.  922,  937, 940  (1982).   Likewise,  the  damages claim

asserted against the  defendant Fallon may well be  barred by

the Eleventh Amendment, which proscribes suits against  State

officials  which must  be paid  from State  funds.   Hafer v.
                                                          

Melo, 112 S. Ct. 358, 362  (1991); Will v. Michigan Dep't  of
                                                             

State  Police,  491 U.S.  58,  65 (1989).   But  we  think it
             

unnecessary here  to reach  these issues because  both claims

are infirm for another reason:  there are no facts indicating

that the remedies available from the State were inadequate. 

          It  is well  established that  unauthorized conduct

which cannot be  foreseen and controlled in advance  does not

constitute a violation of  the procedural requirements of the

Due Process  Clause "until and unless [the  State] refuses to

provide  a  suitable  postdeprivation  remedy."    Hudson  v.
                                                         

Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor,
                                                            

451 U.S. 527  (1981); Zinermon  v. Burch, 494  U.S. 113,  125
                                        

(1990); Lowe v. Scott,  959 F.2d 323 (1st Cir. 1992).   Since
                     

inadequacy of the state's remedy is a material element of the

claim,  plaintiff  had the  burden  to  set forth  supporting

factual allegations, either direct or inferential, to sustain

an actionable legal theory.  Gooley, 851 F.2d at 515.
                                   

     Plaintiff's  vague  allegations  reflect, instead,  that

there was a state process for challenging both of the alleged

due process deprivations.  Plaintiff even states that he used

the  process, appealing at least one of his objections as far

                             -6-

as the Rhode Island Supreme Court.   That plaintiff disagreed

with  the result  does not  show that  the process  itself is

inadequate.   To the extent  that plaintiff is  attempting by

this  suit to overturn those state court judgments, he is not

entitled to any  relief in the district court or here.  Lower

federal courts have no power to sit  in review of state court

orders.  District  of Columbia Court  of Appeals v.  Feldman,
                                                            

460 U.S. 462, 476  (1983); Rooker v. Fidelity Trust  Co., 263
                                                        

U.S. 413 (1923);  Lancellotti v.  Fay, 909 F.2d  15, 17  (1st
                                     

Cir. 1990).     

          We  also see no  reason to disagree  with the trial

court's  decisions  to  grant Virginia  Brierly's  motion for

attorney's  fees and  costs, and  to deny  plaintiff's second

motion to amend the complaint.   Both decisions are entrusted

to the sound discretion of the district court,  whose rulings

will not be  disturbed except  on a clear  showing of  abuse.

See  Coyne v. Somerville, 972  F.2d 440, 446  (1st Cir. 1992)
                        

(denial of motion to amend); Finnern, 984 F.2d at 537 (same);
                                    

Christiansburg Garment Co. v. EEOC, 434  U.S. 412 (1978) (fee
                                  

awards under 42 U.S.C.    1988); Lancellotti, 909 F.2d  at 15
                                            

(sanctions under Rule 11). 

          The  district  court  awarded  costs  and  fees  to

Virginia Brierly when it dismissed the claim asserted against

her in  plaintiff's First Amended  Complaint.  The  order ran

jointly against plaintiff and his attorney under Rule 11, and

                             -7-

against  plaintiff alone under 42  U.S.C.   1988.   The court

pointedly found that plaintiff's purpose in bringing the suit

included  an  effort  to   harass  Virginia  Brierly  and  to

retaliate against  her for the losses  plaintiff had suffered

in the state courts.   Moreover, the court reasoned  that the

claim  as pleaded was so frivolous  and lacking in foundation

that neither a  competent attorney nor a party could believe,

after a reasonable inquiry, that it was well-grounded in fact

or in law.

          These findings more than satisfied the requirements

of Rule 11 and 42 U.S.C.    1988, which, though not identical

to one another,  permit fee awards either  where the pleading

falls below an objective  standard of reasonableness or where
                                                       

there  is a  showing  of subjective  bad  faith.   Here  both

standards were violated.  See Hughes v. Rowe, 449 U.S.  5, 14
                                            

(1980)  (applying  the criteria  announced  in Christiansburg
                                                             

Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978) to awards of
                   

fees  to  prevailing  defendants  under 42  U.S.C.     1988);

Lancellotti,  909  F.2d  at  19  (observing  the  alternative
           

standards for Rule 11 awards); Foster v. Mydas  Assoc., Inc.,
                                                            

943  F.2d  139  (1st  Cir.  1991)  (discussing  criteria  and

findings necessary under each authority).

          In   light   of   these   detailed   findings,  and

plaintiff's  first two  futile  attempts to  plead a  legally

cognizable claim,  we  see  no abuse  of  discretion  in  the

                             -8-

district  court's  denial  of  leave  to  file  yet  a  third

complaint "for reasons cited  in connection with dismissal of

the First Amended Complaint."   See Foman v. Davis,  371 U.S.
                                                  

178, 182  (1962) (while  leave  to amend  is usually  "freely

given,"  denial  will  be  upheld where  there  is  stated  a

"justifying reason,"  such as  "bad faith or  dilatory motive

... repeated  failure to cure deficiencies  by amendments ...

undue  prejudice to the  opposing party [or]  futility of the

amendment").    

          Accordingly,  the  district  court's   judgment  is

affirmed.   
        

                             -9-
