
USCA1 Opinion

	




          June 13, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2074                                            BENJAMIN HOOVER, JR.,                                Plaintiff, Appellant,                                          v.                        SUFFOLK UNIVERSITY LAW SCHOOL, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Benjamin Hoover, Jr. on brief pro se.               ____________________               Paul V. Lyons, Michael  L. Rosen and Foley, Hoag &  Eliot on               _____________  _________________     ____________________          brief for appellees.                                  __________________                                  __________________                      Per Curiam.    Plaintiff-appellant Benjamin Hoover,                      __________            Jr.,  proceeding  pro  se,  has appealed  from  the  district            court's order dismissing his complaint under 42 U.S.C.   1983            against  defendants-appellees  Suffolk University  Law School            ("Suffolk"), Suffolk Dean Paul Sugarman and Suffolk Registrar            Lorraine Cove.      Hoover's complaint alleged that, after he            had objected to a failing grade he had received in a  Suffolk            class  that  would prevent  him  from  graduating, defendants            denied him due process by  refusing to present his case to  a            faculty board of review.  On August 2, 1993, defendants moved            to  dismiss Hoover's complaint under Fed. R. Civ. P. 12(b)(6)            on  the ground  that  defendants were  not  state actors  and            therefore could  not be liable under    1983.   On August 19,            the  district court enlarged the  time for Hoover  to file an            opposition to the  motion to August  26.  On  August 30,  the            district  court,   noting   Hoover's  failure   to  file   an            opposition, granted  the motion to dismiss  the complaint for            the  reasons stated by defendants.  On September 7, 1993, the            district court issued  an order  dismissing the  case in  its            entirety.                 One  week  later,  on  September 14,  Hoover  filed  his            opposition  to the motion to  dismiss, a motion  for leave to            file an amended complaint,  a proposed amended complaint, and            a proposed  supplemental complaint.   Both of  these proposed            complaints  added claims of racial discrimination under Title                                         -2-            VI of  the Civil Rights Act  of 1964, 42 U.S.C.    2000d, and            added  as  a defendant  the  professor  who  gave Hoover  the            failing  grade.   The  proposed supplemental  complaint added            allegations arising out  of Hoover's dismissal  from Suffolk,            which occurred  after the  filing of the  original complaint.            Hoover  also  filed a  motion for  a change  of venue  to the            District of  Puerto Rico,  asserting that the  district judge            was  biased because he had once been a part-time professor at            Suffolk  and  that Suffolk's  influence  in  the Boston  area            precluded impartial treatment of Hoover's case there.                 The  district court  denied all  of  these motions  in a            September 17, 1993 order.  Hoover appeals.  We affirm.                                                State Action Under   1983                              _________________________                 Hoover's  appeal from the  district court's dismissal of            his original complaint lacks  merit.  That complaint asserted            claims under 42 U.S.C.    1983, which permits liability  only            for persons  acting "under  color of any  statute, ordinance,            regulation,  custom, or usage,  of any State  or Territory or            the District of  Columbia . . . ."   The district court ruled            that  defendants  were  private  entities and  therefore  not            subject to liability under   1983.  The only  basis for state            action  Hoover asserted  was  that Suffolk  receives  federal            funding.    It  is  well-settled, however,  that  receipt  of                                         -3-            federal funding does not  render an entity a state  actor for            purposes of   1983.  Rendell-Baker v. Kohn, 457 U.S. 830, 840                                 _____________    ____            (1982); Berrios v. Inter  American University, 535 F.2d 1330,                    _______    __________________________            1332 n.5 (1st  Cir. 1976).   Indeed, Hoover  concedes in  his            brief on appeal that he "asserted section 1983 in error."                        Disqualification of the District Judge                        ______________________________________                 Hoover  argues  that  the  district  judge  should  have            recused himself because of the judge's prior affiliation with            Suffolk.   At the onset of  the case on May  28, 1993, before            hearing Hoover's  motion for  a temporary restraining  order,            the district judge informed the parties as follows:                                    "You  should know  before we begin  that at                    one time --  perhaps five,  six, seven  years                    ago  --  I  was  a  part-time  instructor  at                    Suffolk Law  School.  I was  not there during                    the term  of Mr. Sugarman, but,  of course, I                    know  Mr. Sugarman  as an  attorney.   He has                    appeared in  this Court.  Other  than that, I                    have no connection with Mr. Sugarman.                                            I have had, naturally, some connection with                    Lorraine  Cove in the  sense that  I returned                    the  examination lists  to her  office.   But                    other than  that, I have  no connection  with                    her.  You should know that.                      Because the matter is  sufficiently remote,                    as  far as  I am  concerned, not to  draw any                    impartiality  into  question,  but   you  may                    differ -- in which  case I would be  happy to                    remove  myself  and  have  this  assigned  to                    another judge --  I kept it because I  do not                    see  any problem with it.  At the same time I                    am aware that it  might be a little difficult                                         -4-                    to find another judge on short notice.  It is                    up to you.  I will leave it to you."                 Hoover then stated that he would accept the district judge          hearing  the temporary restraining order.  As of the dismissal of          the case on  September 7, 1993,  Hoover had filed  no motion  for          disqualification.  Only in  his September 14, 1993 post-dismissal          motion for change of venue did Hoover raise the matter.                 We agree with defendants that Hoover's three-month delay -          -  until  after  dismissal  --  in  moving  for  disqualification          precludes him from raising the matter on appeal.  "[A] party must          raise its claim  of a  district court's  disqualification at  the          earliest possible  moment  after  obtaining  knowledge  of  facts          demonstrating  the  basis for  such a  claim."   Apple  v. Jewish                                                           _____     ______          Hospital & Medical Center, 829 F.2d 326, 333 (2nd Cir. 1987).  As          _________________________          the   court   in   Apple   aptly   stated,   "[A]   movant   [for                             _____          disqualification] may  not hold back  and wait, hedging  its bets          against the eventual outcome."  Id. at 334.                                          ___                 Even   were  we  to   consider  Hoover's  disqualification          argument, it lacks any  merit.  Hoover  has set forth no  factual          allegations to suggest that  the district judge had  any personal          or  financial stake in  the outcome  of the  case.   The district          court expressed no personal bias in his statements at the hearing          on  the temporary  restraining order.   There are  no allegations          that  the judge has ever had  a close or social relationship with          any  of  the individual  defendants, or  that  the judge  has any          current relationship with Suffolk at all.  There was no basis for                                         -5-          recusal  here.   See  Easley v.  University  of Michigan  Bd.  of                           ___  ______     ________________________________          Regents, 906 F.2d  1143 (6th  Cir. 1990) (judge  not required  to          _______          recuse  himself from suit against  law school where  judge was an          alumnus of the law school, served as a volunteer fund  raiser for          the  law school, and was on the law school's visiting committee),          cert. denied, 499 U.S.  947 (1991); Brody v. President  & Fellows          ____________                        _____    ____________________          of Harvard College,  664 F.2d  10, 11-12 (1st  Cir. 1981),  cert.          __________________                                          _____          denied, 455 U.S. 1027 (1982).          ______                Denial of Leave to Amend and Supplement the Complaint                _____________________________________________________                 Hoover's  notice of  appeal challenges  only  the district          court's  September 7,  1993  order  of  dismissal, and  does  not          mention  the district  court's  September 17  denial of  Hoover's          post-dismissal motions (which Hoover  challenges at length in his          brief).  For  that reason,  defendants argue that  under Fed.  R.          App. P. 3(c), which provides that "[a] notice of appeal also must          designate the  judgment, order,  or part thereof  appealed from,"          only Hoover's challenge to the September  7 dismissal is properly          before this court.  We  need not resolve this question.   Even if          we were to  consider Hoover's challenges to  the district court's          September 17 rulings, we would affirm the district court.                 The crux of  Hoover's argument is that  the district court          did  not have  discretion to deny  Hoover the right  to amend his               ___          complaint.  Hoover points to Fed.  R. Civ. P. 15(a), which states                                         -6-          that a "party may amend the party's pleading once as  a matter of          course at any time before a responsive pleading is served . . . .          Otherwise a party may amend the party's pleading only by leave of          court . .  . , and  leave shall be  freely given when  justice so          requires."   Hoover notes, correctly, that  defendants' motion to          dismiss did  not constitute a "responsive  pleading" for purposes          of Rule 15(a).   Dartmouth Review v. Dartmouth College,  889 F.2d                           ________________    _________________          13,  22 (1st  Cir.  1989); Wright,  Miller  and Kane,  6  Federal          Practice & Procedure   1483, at 585 (2nd ed. 1990).                 The point  Hoover overlooks, however, is  that when Hoover          filed his  motion  to  amend  and  supplement  the  complaint  on          September 12, the district court  had already dismissed the case.          "[T]he thrust of Rule  15(a) is aimed at the  pre-judgment phases          of litigation."   Dartmouth Review,  supra, 889  F.2d at 22.   We                            ________________   _____          have recently held that, although there is disagreement among the          circuits on this point, "a plaintiff's  time to amend his or  her          complaint  as  a  matter  of  right  within   the  First  Circuit          terminates upon  a district court's dismissal of the complaint."           Acevedo-Villalobos v.  Hernandez, no. 93-1544 (1st Cir. 4/28/94),          __________________     _________          slip. op. at 12, 1994  U.S. App. Lexis 8990.  Similarly,  we held          in  Jackson v.  Salon,  614 F.2d  15,  17 (1st  Cir.  1980), that              _______     _____          "[b]ecause  the motion  was received  by the  court after  it had          dismissed the complaint, it was too late for [plaintiff] to amend          as a matter of right."    These holdings govern the issue in this          case.   Following  the district  court's dismissal  of  the case,                                         -7-          Hoover's  only option -- other than  appeal -- was to "seek leave          to  amend under  Rule 15(a)  after  having the  judgment reopened          under either Rule 59 or 60."  Acevedo-Villalobos, supra, slip op.                                        __________________  _____          at 14.                 Even putting aside the fact  that Hoover did not accompany          his motion to  amend with the requisite Rule 59  or 60 motion, we          could not find that  the district court abused its  discretion in          denying  leave  to  amend or  supplement.    For  one thing,  the          proposed amended and supplemental complaints included no adequate          allegations of state  action on  the part of  any defendant,  and          thus  contained nothing that  would cure the  defects of Hoover's          claims under   1983.                 Hoover did propose to add new claims under Title VI of the          Civil Rights Act of 1964, 42  U.S.C.   2000d, which provides, "No          person in the United States shall, on the ground of  race, color,          or national origin,  be excluded from participation in, be denied          the benefits  of,  or be  subjected to  discrimination under  any          program or activity receiving  Federal financial assistance."  We          agree with  the district  court, however, that  Hoover's proposed          amended and  supplemental complaints  based these claims  "on the          bare  allegation   of  racial  discrimination  with   no  support          whatsoever."   All that  the  proposed complaints  alleged as  to          racial discrimination  was that  Hoover's dismissal from  the law          school  "was done without due process,  as a discrimination plot.          This  was done with intent and malice  to create and did create a                                         -8-          deliberate  indifference towards  plaintiff because  plaintiff is          black."  The proposed complaints did not "assemble . . . specific          facts  adequate  to show  or  raise  a plausible  inference  that          [Hoover  was] subjected to race-based discrimination."  Dartmouth                                                                  _________          Review, supra, 889  F.2d at 17.  These complaints might well have          ______  _____          been  subject to  dismissal under  Fed. R.  Civ. P.  12(b)(6) for          failure to state a  claim.  Thus,  the district court acted  well          within  its discretion in denying leave to amend or supplement as          futile.   See id.  at 23; Correa-Martinez  v. Arrillaga-Belendez,                    ___ ___         _______________     __________________          903 F.2d 49, 59 (1st Cir. 1990).                         The alleged change-of-address snafu                         ___________________________________                 Hoover  also  argues  that  the district  court  erred  in          granting  defendants'  motion  to  dismiss before  receiving  and          considering  Hoover's opposition to that  motion.  Hoover did not          timely  file his opposition.   Hoover  asserts, however,  that he          changed  his residence around this  time, and that  on August 13,          1993, he informed defendants and the district court of his change          of  address.  For some reason, Hoover alleges, the district court          failed  to make  proper note  of his change  of address,  so that          Hoover did not  receive timely  notice of the  court's August  19          order extending until August 26 the deadline for him  to file his          opposition  to  the  motion to  dismiss.    The  clerk of  court,                                         -9-          furthermore, allegedly told him orally on  September 7, 1993 that          he could file his opposition by September 14.                 There  is no  dispute that  Hoover did  receive a  copy of          defendants' motion to dismiss on August 11.  Even apart  from the          district court's extension  of the filing deadline  to August 26,          of  which  Hoover  allegedly  received no  notice,  the  district          court's local rules  require that  an opposition to  a motion  be          filed within fourteen days  after service of the motion  (in this          instance,  by August  25).   Loc.  R.  7.1(B)(2).   Hoover  filed          nothing before September 14, and did not contact the clerk of the          district court to discuss the matter until September 7.                 In any  event, this matter  is irrelevant to  this appeal.          Since Hoover  has now conceded that the  district court's grounds          for dismissing  his original  complaint were  correct, he  has in          effect conceded  that consideration  of his opposition  could not          have changed  the district court's September  7 ruling dismissing          the original complaint.                   Furthermore, as we have  said, once the original complaint          had been dismissed, amendment of that complaint required leave of          court.  The possibility  that Hoover might have filed  his motion          to amend  before dismissal,  had there been  no change-of-address          snafu,  does not change or lift that requirement.  The change-of-          address circumstance, of  course, was one factor  that could have          been  considered by the district court in weighing whether or not          to grant leave to amend.   Given the deficiencies of the proposed                                         -10-          amended and supplemental complaints, the district court certainly          did not  abuse its  discretion in nevertheless  denying leave  to          amend.                 We have considered all of Hoover's remaining arguments and          find them meritless.                 Hoover's  request,  in his  brief,  for  oral argument  is          denied.          ______                 The rulings of the district court are affirmed.                                                       ________                                         -11-
