
USCA1 Opinion

	




          September 27, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1115                                                RASHID PIGOTT,                                Plaintiff, Appellant,                                          v.                           LYNN POLICE DEPARTMENT, 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                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                    ______________                                 ___________________               Rashid Pigott on brief pro se.               _____________                                  __________________                                  __________________                                       Per Curiam.   Pro se prisoner Rashid Pigott appeals                      __________    ___ __            a  district  court  order  that dismissed  his  civil  rights            complaint  sua  sponte  under   28  U.S.C.   1915(d).1    The                       ___  ______            complaint  sought declaratory relief and damages from thirty-            six  defendants who  allegedly violated  42 U.S.C.   1983 and             1985 in  connection with Pigott's arrest  and conviction for            manslaughter and  a separate  care and  protection proceeding            concerning Pigott's son.  The district court  ruled that some            of  Pigott's claims  were  barred by  either  the statute  of            limitations, witness  immunity, or because  Pigott had failed            to  allege state action.  The remaining claims were dismissed            because  Pigott failed  to state  a claim  upon which  relief            could be granted.  We affirm.                                          I.                 We begin  with the  relevant procedural background.   On            November 4,  1992,  Pigott purportedly  submitted  his  civil            rights complaint  and a  letter requesting in  forma pauperis                                                       __  _____ ________            (IFP)  application forms to the  pro se clerk  for the United                                             ___ __            States  District Court  for the  District  of Massachusetts.2                                            ____________________            1.  28 U.S.C.   1915(d) applies to complaints  filed in forma                                                                 __ _____            pauperis.  In  relevant part,  the  statute  provides that  a            ________            court, "may  dismiss the case if...satisfied  that the action            is frivolous or malicious."             2.  The letter, in relevant part, read as follows:                      Re: Filing of Civil Rights Complaint                 Dear Pro Se Clerk:                      Enclosed  please   find   Pro  se,   civil   rights            complaint.    I   request  that  you  send  me  the  required                                         -2-            By  letter dated  November 27,  1992, Pigott  resubmitted his            complaint  with the standard  IFP application  and supporting            affidavits.   The  district  court received  these items  for            filing  on December  7,  1992.   On  December 31,  1992,  the            district court  issued a  memorandum and order  which allowed            Pigott's  application  to  proceed IFP  while  simultaneously            dismissing the complaint.   Pigott filed  a timely notice  of            appeal.                   Pigott thereafter  filed a motion to vacate the order of            dismissal with a supporting memorandum, a motion to amend his            complaint,  and an  amended complaint.3   Pigott  argued that            the district court erred  by dismissing his complaint without            first  affording  him  notice  of  its  deficiencies  and  an            opportunity  to amend  it to  state viable  claims.   He also            submitted  evidence in  support  of his  contention that  the            district court  first received  his complaint on  November 4,            1992.  That evidence consisted of a copy of Pigott's November            4, 1992 letter to the pro se clerk quoted above at n. 2 and a                                  ___ __            photocopy of  a certified  mail return receipt  dated "11/4."                                            ____________________            applications for filing this complaint in Forma Pauperis.                      I also request that you send me the local rules for            filing pamphlet for future reference.            This  letter bears a crossed  out time stamp  of the district            court dated November 4, 1992.                                   3.  The  motion to vacate invoked  Fed. R. Civ.  P. 60(a) and            (b)(6).                                         -3-            The district court denied both motions  on February 25, 1993.            Pigott did not file another notice of appeal.4                                         II.                 The complaint asserted six  causes of action which arose            from  events which  transpired between  December 4,  1989 and            1992.   An  understanding  of  the parties  is  necessary  to            comprehend Pigott's claims.                   The  complaint identified the  defendants connected with            Pigott's  criminal conviction as  the Lynn Police Department,            Lynn  police officers  David  Woumn, Chisholm,  Chris  Reddy,            Richard Carrow, Rawston, W. Conrad, Wentzell, L.E. Desmarais,            William  Foley, John  Doe,  Sergeants  Roach  and  Coppinger,            Lieutenant  Dennis Flynn, Massachusetts state troopers Elaine            Condon, Mark Lynch, Mark Coleman,  B. Windsor, and P. Zipper,            chemist  Kenneth Gagnon,  Flemmings  Towing Company,  defense            attorneys  Christopher Skinner, M.  Page Kelley,  and Jeffrey            Baler, defense  investigator  Stephen Turner,  social  worker            Roberta Lerner, probation  officer Stephen Mulloy,  and Essex            County superior court clerk James Leary.                   The  defendants  named  in connection  with  the  events            concerning Pigott's son include three social workers employed            by the United Homes for Children foster care agency  (Marilyn                                            ____________________            4.  Generally,  the denial  of a  Rule 60(b)  motion must  be            appealed  separately.    See  7  Moore's   Federal  Practice,                                     ___               _________________             60.30[3], p. 137 (1992-1993 Supp.).  Here, however, Pigott's            basic  claims are inherent  in Pigott's direct  appeal of the            dismissal order.                                            -4-            Heathman, Mrs. Richardson  and Danielle Carviello), a  social            worker  for the Massachusetts  Department of  Social Services            (Pam  Grey),  Salem  Hospital,  two  unnamed  Salem  Hospital            security guards, and an unknown lawyer.                   The complaint alleged the  following facts.  On December            4, 1989, while paying a business call to a residence in Lynn,            Massachusetts,  Pigott was struck by  a glass, slashed with a            butcher  knife, and  assaulted  with other  weapons.   Pigott            escaped   his  assailants,  went   to  another  address,  and            contacted  the Lynn  Police  Department.   Officers Chisholm,            Woumn,  and Sergeant  Roach responded  and arrested  Pigott -            allegedly  without cause.  As a result of Pigott's arrest and            immediate  incarceration,  Flemmings  Towing   Company  towed            Pigott's  car.    Despite   what  Pigott  says  were  obvious            injuries,  the  police  did   not  take  Pigott  for  medical            treatment   for   approximately  one   hour   and  forty-five            minutes.5                   He  was then  returned  to a  cell  in the  Lynn  police            station and prevented from  making a telephone call  until he            had been booked, fingerprinted, relieved of his clothing, and            interviewed by  trooper Condon and Lieutenant  Flynn.  Pigott            alleged that Flynn and Condon threatened and coerced him into                                            ____________________            5.  The complaint  does not  describe Pigott's injuries.   It            simply alleges that Pigott was taken  to the Atlantic Medical            Care Center in Lynn Hospital.  Pigott's appellate  brief says            that  his injuries  required sutures,  although this  was not            stated in the complaint.                                         -5-            signing  a statement, after which  he was allowed  to place a            telephone call.  Pigott's first cause of  action alleged that            the foregoing  allegations established that  he was illegally            arrested,  that  his property  was  seized, and  that  he was            deliberately denied  medical care and legal representation in            violation of  his Fourth,  Fifth, Sixth and  Eighth Amendment            rights.                   Pigott  further  alleged  that  on   the  following  day            (December  5, 1989),  he was  arraigned in the  Lynn district            court on charges of first degree murder, assault and battery,            and  illegally carrying a firearm.   He was  released on bail            and met with attorney  Skinner, who assumed Pigott's defense.            Pigott's second cause of action alleged that the Lynn  Police            Department  violated  his  constitutional  rights  by getting            involved in  setting Pigott's bail.   The complaint  does not            specify how or by whom this was accomplished.                 Pigott  returned  to  the  Lynn  Police  Department   on            December 5,  1989 and attempted  to file a  complaint against            the  men  who allegedly  assaulted him  on the  previous day.            Pigott  alleged that the police  refused to let  him file his            complaint and  that officer Woumn threatened  him with bodily            injury for trying  to do so.  Pigott's third  cause of action            alleged  that the  Lynn Police  Department and  officer Woumn            violated his  right  of  access  to the  courts  by  refusing                                         -6-            Pigott's application for a  criminal complaint and failing to            investigate the criminal activity Pigott tried to report.6                 The complaint  suggests that the  criminal charges  were            pending against Pigott when  his son was born on  January 23,            1990.  Pigott's  appellate brief  informs us that  he is  the            unwed  biological father  of  Majid Taggert.   The  complaint            alleged  that, shortly  after the  birth, social  workers Pam            Grey and Marilyn Heathman forcibly took Pigott's son from him            while  two Salem Hospital  security guards restrained Pigott.            Thereafter,  social workers Heathman and Richardson allegedly            told Pigott that they determined he was an unfit parent after            consulting the Lynn Police Department.  While the allegations            on this point are particularly vague, Pigott alleges that  he            somehow became  involved in a care  and protection proceeding            wherein he demanded custody of his son.7                   Defendants Heathman, Richardson and  Carviello allegedly            denied  Pigott visitation  rights and  refused to  reveal the            whereabouts of his  son to him.  Pigott  also claimed that an            unknown  lawyer   had  a   conflict  of  interest   when  she            represented a third party who had an interest in Pigott's son                                            ____________________            6.  Pigott's  third  cause  of action  further  alleged  that            defendant Stephen  Turner, a  private  investigator hired  on            Pigott's behalf,  never met with him during the time Pigott's            criminal case was pending.            7.  Pigott may be referring to a proceeding to commit his son            to  the custody  of  the Massachusetts  Department of  Social            Services pursuant to M.G.L. c. 119,  24.                                         -7-            in the care  and protection  proceeding while  simultaneously            prosecuting  Pigott  on  other  criminal  charges  that  were            ultimately  dismissed.    Pigott's  fourth  cause  of  action            alleged  that the  conduct of  these defendants  violated his            Fourth, Fifth and Fourteenth Amendment rights.                  Pigott's  criminal trial  began on  September 19,  1991.            The complaint  alleged that Lynn police  officers Christopher            Reddy,  Richard  Carrow, Rawston,  W. Conrad,  Wentzell, L.E.            Desmarais, William  Foley, and Sgt.  Coppinger, Massachusetts            state troopers  Mark Lynch, Mark Coleman,  Brian Windsor, and            Paul Zipper, and chemist  Kenneth Gagnon conspired to violate            Pigott's  civil rights  by knowingly  committing  perjury and            submitting   false  evidence  at  Pigott's  criminal  trial.8            Pigott was  convicted of manslaughter.   He alleged  that his            defense attorney (Skinner) fraudulently attempted to persuade            Pigott  to  plead guilty  before  trial  and made  slanderous            remarks  and  misrepresentations  that  resulted  in Pigott's            conviction.   Pigott's  fifth  cause of  action alleged  that            defense  attorney  Skinner's   malpractice  and  the   police                                            ____________________            8.  See Complaint,    5-7, 34, 44.  Paragraph 34 specifically                ___            alleged  that, "from December  4, 1989  up to  and throughout            trial[,]"  the aforementioned  Lynn  police  officers,  state            troopers, and chemist  Gagnon, "all  willfully and  knowingly            committed perjury, fabricated and tampered with evidence, and            submitted  and  elicited   a  preponderance  of   maliciously            intended false or otherwise distortions of facts and events."            The complaint does not  describe the witnesses' testimony nor            the evidence that was supposedly fabricated.                                            -8-            conspiracy at Pigott's  trial violated Pigott's Fifth,  Sixth            and Fourteenth Amendment rights.                 Pigott  was  interviewed  by probation  officer  Stephen            Mulloy following his conviction.   The complaint alleged that            Mulloy  denied Pigott's  request for  counsel  and threatened            Pigott  with indefinite  imprisonment  while  referring to  a            civil action that Pigott's family had filed.  Roberta Lerner,            a social worker employed on Pigott's behalf, also interviewed            Pigott.  The complaint alleged that Lerner violated the terms            of  her employment, failed to  assist Pigott in  the care and            protection  case,  and  prepared  a libelous  report  of  her            interview with Pigott.                   Pigott further alleged that  attorney Skinner waived his            right  to appeal  his  criminal  conviction without  Pigott's            knowledge.   Other defense attorneys (Kelley  and Baler) also            allegedly refused to pursue Pigott's direct appeal.  Attorney            Baler  and Essex superior  court clerk  Leary are  alleged to            have procured the dismissal  of Pigott's private counsel. The            complaint does  not state  what Pigott's private  counsel had            been hired  to do, nor what harm befell Pigott as a result of            the  alleged dismissal.   Pigott  further claimed  that clerk            Leary  violated his right of access to the courts by refusing            Pigott's  pro se  filings.   Pigott's sixth  cause of  action                      ___ __            alleged  that  the  actions  of  defendants  Mulloy,  Lerner,                                         -9-            Skinner,  Kelley, Baler,  and  Leary violated  his Sixth  and            Fourteenth Amendment rights.9                  On October 15, 1991, Pigott  was sentenced to prison for            4-15  years.10   Over one year  later, Pigott  instituted the            instant  civil rights  action.   Faced  with  the barrage  of            claims presented  by the complaint, the  district court noted            that  under  28  U.S.C.   1915(d),  courts  may  dismiss  IFP            complaints sua sponte if the plaintiff's claim is based on an                       ___ ______            indisputably meritless legal theory or on factual allegations            that are clearly baseless.   See, e.g., Denton  v. Hernandez,                                         ___  ____  ______     _________            112 S. Ct. 1728,  1733 (1992); Neitzke v. Williams,  490 U.S.                                           _______    ________            319, 327  (1989).  The  court then dismissed  Pigott's claims            against the Lynn Police Department, Flemmings Towing Company,            and defendants  Woumn, Chisholm, Roach, Flynn,  and Condon as            time-barred under the three-year statute  of limitations that            applies to civil rights  actions in Massachusetts. See Street                                                               ___ ______                                            ____________________            9.  Mulloy allegedly  violated Pigott's  right to  counsel by            refusing to accede to Pigott's request for an attorney during            his post-conviction interview.   He is said to have  violated            Pigott's right of access to  the courts by threatening Pigott            with  indefinite  imprisonment  in  connection with  a  civil            action Pigott's  family had filed. Pigott's defense attorneys            allegedly violated Pigott's constitutional rights by refusing            to  pursue a  direct appeal  of his  criminal  conviction and            procuring the  dismissal of private  counsel.  And,  as noted            above,  clerk  Leary  allegedly violated  Pigott's  right  of            access  to the  courts by refusing  Pigott's pro  se filings.                                                         ___  __            Pigott does  not specify how social  worker Lerner's libelous            interview  report and failure to  aid Pigott in  the care and            protection case violated his constitutional rights.                 10.  He received  a concurrent 2  1/2 - 3  year term for  the            firearm charge.                                         -10-            v. Vose,  936 F.2d 38  (1st Cir. 1991), cert.  denied, 112 S.               ____                                 _____  ______            Ct. 948 (1992).                   This  ruling  effectively  barred Pigott's  claims  that            these  defendants  arrested him  without  cause, deliberately            denied  him   medical  care  and  legal  representation,  and            wrongfully  seized his  property  on December  4, 1989.   The            district court  reasoned that Pigott filed  his complaint and            IFP  application on December  7, 1992, the  date the district            court received  both items, and that  these particular claims            were  thus brought three days  late.  The  district court did            not specifically address Pigott's claims that the Lynn Police            Department engaged in bail  tampering and, along with officer            Woumn,  violated Pigott's  right of access  to the  courts on            December 5, 1989.   We assume that the court  implicitly held            that these claims were time-barred as well.11  The      court            further  ruled that those  defendants who allegedly presented            perjured testimony  at Pigott's trial  were absolutely immune            under  Briscoe v. LaHue, 460  U.S. 320, 325  (1983), and that                   _______    _____            Pigott's claims against his  defense attorneys were barred by            Polk County  v. Dodson,  454 U.S. 312  (1981), (holding  that            ___________     ______            public defenders are  not "state actors" for  42 U.S.C.  1983                                            ____________________            11.  Thus,  the  district  court  dismissed  Pigott's  first,            second, and part of  Pigott's third cause of action  as time-            barred  under the  statute  of limitations.   Pigott's  claim            against investigator Turner for failure to keep appointments,            which  was  also  part of  his  third  cause  of action,  was            dismissed for  failing to state a  constitutional tort within            the meaning of 42 U.S.C.  1983.                                            -11-            purposes).   This ruling  eliminated Pigott's fifth  cause of            action and that part of his sixth cause of action that rested            on the alleged misconduct of Pigott's defense attorneys.  The            court also dismissed  that part of  Pigott's fourth cause  of            action that  asserted claims against Salem  Hospital, the two            unnamed security guards, and the unknown lawyer on the ground            that  Pigott failed  to allege  state action.    Finally, the            court  dismissed  Pigott's   allegations  against   probation            officer Mulloy, Pigott's social worker (Lerner), and the four            other  social  workers (Heathman,  Richardson,  Carviello and            Grey)  for  failing to  state  sufficient  claims upon  which            relief could be granted.                   We  note that  Pigott's amended  complaint attempted  to            cure  some of  the  deficiencies identified  in the  district            court's dismissal order, largely by simply alleging that more            defendants  conspired  with  the  Lynn  Police Department  to            violate  Pigott's civil  rights.12   Pigott  further  alleged            that defendants Heathman,  Richardson and Carviello destroyed            his relationship with his son by  illegally refusing to allow            them visits  without cause.   Pigott sought  to remedy  other                                            ____________________            12.  The  amended complaint  charged  that  Flemmings  Towing            Company,  clerk  Leary,  probation officer  Mulloy,  attorney            Nancy  Winn,  who  had  been  previously  identified  as  the            "unknown lawyer" in Pigott's original complaint,  and defense            attorneys Skinner, Kelley and Baler were all involved in such            a  conspiracy. But  it stated  no facts  in support  of these            allegations.                                         -12-            claims  with  allegations   purporting  to  establish   state            action.13                                           III.                  At the outset,  we note that  Pigott's brief on  appeal            makes  no   reference  whatsoever   to  his  claims   against            defendants  Mulloy, Lerner,  Turner, Leary,  and the  unknown            lawyer (attorney Winn).  He has therefore waived these claims            and their dismissal  will be  upheld.  The  same can be  said            with respect to Pigott's  claim that he was arrested  without            cause.  To the extent Pigott's claims against the Lynn Police            Department and officers Woumn,  Chisholm, and Sgt. Roach rely            on his December 4, 1989 arrest, his brief makes no mention of            this  claim, and we affirm  its dismissal on  the ground that            Pigott  has waived it. See, e.g., Frazier v. Bailey, 957 F.2d                                   ___  ____  _______    ______            920,  932  n. 14  &  15 (1st  Cir.  1992);  United States  v.                                                        _____________            Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.            _______                               _____  ______            1082 (1990).                  As for  the remaining claims, we  review section 1915(d)            dismissals for  abuse of  discretion, mindful that  not every            complaint that fails to  state a claim upon which  relief can            be   granted  is   subject  to   sua  sponte   dismissal  for                                             ___  ______                                            ____________________            13.  For example, defendants  Grey and Heathman were  alleged            to  have  seized Pigott's  son  for  the state,  while  Salem            Hospital was  alleged to have violated  Pigott's civil rights            through  a   policy  or  custom  when   its  security  guards            restrained Pigott.                                         -13-            frivolousness under 28 U.S.C.  1915(d).  Denton v. Hernandez,                                                     ______    _________            112 S. Ct. at 1734; Neitzke v.  Williams, 490 U.S. at 331.  A                                _______     ________            complaint or  claim is "factually frivolous"  when it alleges            facts   that   are   "'clearly    baseless'",   "'fanciful'",            "'fantastic'"  or "'delusional'".   Denton,  112   S. Ct.  at                                                ______            1733, (quoting Neitzke, 490 U.S. at 327,  325, 328).  A claim                           _______            may be said to be legally frivolous if it asserts a claim for            which  the defendant is  clearly entitled  to immunity,  or a            claim of infringement of  a legal interest that clearly  does            not exist.  Neitzke, 490 U.S. at 327.                          _______                 In addition, "[w]e have  squarely held that 'a complaint            which states a claim  that appears to have expired  under the            applicable  statute  of  limitations   may  be  dismissed  as            frivolous' under section 1915(d)."  Johnson v. Rodriguez, 943                                                _______    _________            F.2d 104,  107 (1st Cir. 1991), cert.  denied, 112 S. Ct. 948                                            _____  ______            (1992) (quoting Street v. Vose, 936 F.2d at 39).  However, at                            ______    ____            least  where  there  is  any  possible  doubt,  we  cautioned            district  courts to  issue  an  order  to  show  cause  to  a            plaintiff  whose  claims  appear  to  be  time-barred  before            dismissing a  complaint sua sponte on  statute of limitations                                    ___ ______            grounds.  Street v. Vose, 936 F.2d at 41, n. 5.                      ______    ____                                         IV.                 Based on the principles just set forth, we conclude that            Pigott's  claims   were  properly  dismissed,   although  our            reasoning differs  somewhat from that of  the district court.                                         -14-            Insofar as Pigott alleged that the  nine Lynn police officers            and  other defendants  who  testified at  his criminal  trial            committed perjury, Pigott concedes,  as he must, that Briscoe                                                                  _______            v.  LaHue,  460  U.S.  325,  329-46  (1983),  entitles  these                _____            defendants to  absolute immunity from damages liability under            42 U.S.C.   1983.  However,  the complaint also  alleged that            these  defendants  involved  themselves in  a  conspiracy  to            violate Pigott's  civil rights.  See Complaint,  44.   Pigott                                             ___            continues to  press this  claim on  appeal,  and argues  that            there was a general police conspiracy to "railroad" him under            which liability may  attach under 42 U.S.C.  1983  and  1985.            The  district  court  did not  specifically  discuss Pigott's            conspiracy claim, presumably because  Pigott alleged no facts            to support it,  but we  think  this  claim requires  separate            consideration.                  We  have  previously  observed  in  dicta   that  proper            allegations of  conspiracy might overcome  an immunity claim.            See Malachowski v. City  of Keene, 787 F.2d 704,  711-12 (1st            ___ ___________    ______________            Cir.), cert. denied, 479  U.S. 828 (1986)(per  curiam)(noting                   _____ ______            that  such  allegations  could  overcome   city  prosecutor's            absolute  immunity,   and  that  prosecutorial   immunity  of            juvenile  delinquency  officer   who  initiated   delinquency            proceedings might  not  extend to  allegations  that  officer            filed  false  delinquency  petition  as  part  of overarching            conspiracy to deprive  plaintiffs' of child custody).  But "a                                         -15-            complaint, containing as it does both factual allegations and            legal conclusions,  is frivolous  where it lacks  an arguable            basis either  in law  or fact."   Neitzke,  490 U.S.  at 325.                  ______          ________    _______            (emphasis supplied).  Turning  to the factual allegations, we            note  that  Pigott's  complaint   contained  only  the   most            conclusory allegations of conspiracy.    The        complaint            generally alleged  that the defendants committed  perjury and            fabricated  evidence  from Pigott's  December 4,  1989 arrest            throughout his September 1991  trial.  No description of  the            perjury is given and the allegedly fabricated evidence is not            identified.    The  only  specific  factual  allegation  even            relating to a possible  conspiracy is Pigott's assertion that            defendant Reddy  and two  prosecution witnesses (who  are not                                                                      ___            named  defendants)   violated  Mass.   Rule  Crim.   Pro.  21            (governing  sequestration  of   witnesses)  during   Pigott's            criminal  trial, but  no detail  is provided.  See Complaint,                                                           ___             34.                   In  fact, Pigott  did not  even assert that  the perjury            allegedly  committed by  these  defendants  resulted  in  his            conviction.  Rather, he  claimed that defense counsel Skinner            "maliciously  slandered  and   misrepresented"  him   (again,            without giving  any specifics) and that this  conduct was the            direct cause  of his  conviction.  Even  liberally construed,            this  mish-mash of  allegations fails  to raise  an inference            that the  named defendants  agreed to  deprive Pigott of  his                                         -16-            constitutional  rights.  See generally  Earle v.  Benoit, 850                                     ___ _________  _____     ______            F.2d  836,  844  (1st  Cir.  1988)  (discussing  elements  of            conspiracy under 42 U.S.C.  1983).14                 Purely  conclusory allegations  of  conspiracy  are  not            adequate to state  a claim.   See Slotnick  v. Stavisky,  560                                          ___ ________     ________            F.2d  31, 33  (1st Cir.  1977), cert.  denied, 434  U.S. 1077                                            _____  ______            (1978).   Nevertheless, somewhat more caution  is appropriate            where  dismissal  is contemplated  under section  1915(d), at            least  in those cases  where it is  not intended  to give the            plaintiff advance notice of the defect and the opportunity to            amend.  The  issue is one of abuse of  discretion and depends            upon the facts.                 In this instance we do not think further proceedings are            warranted.  Although we do not have to consider the propriety            of  the  district court's  denial  of  reconsideration (since            Pigott  did  not  appeal),  we  note  that  Pigott's  amended            complaint,   filed   after   dismissal,    makes   additional            allegations but still does  not contain any facts that  would            support  a  conspiracy.   Nor does  Pigott's brief  on appeal            furnish any hint  of facts that could support  the conspiracy            claim.                                            ____________________            14.  And while  the complaint  cites 42 U.S.C.   1985, Pigott            has not alleged the  requisite discriminatory animus to state            a  claim  under  this statute.    See  Landrigan  v. City  of                                              ___  _________     ________            Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980).            _______                                         -17-                 Even  so, we  might  hesitate to  sustain the  dismissal            without  an opportunity to  replead if we  thought that there            was  any real risk of  injustice.  But  Pigott's complaint is            manifestly founded upon the delusion that anyone who has  had            any connection with the events described -- the arrest, post-            arrest treatment, trial, probation  office inquiry, and child            custody  dispute  --  is a  wrongdoer  and  in  most cases  a            conspirator.   A  fair portion  of these  charges have  to be            insupportable, and  if some nugget of truth lies buried under            the  rubble (and we stress  that no claim  is stated on these                                             __            allegations), Pigott has only himself to blame.                                        V.                     Pigott  concedes  that  his claims  against  his  court            appointed attorneys  (Skinner, Kelley and Baler)  are fatally            deficient in that they failed to allege state action under 42            U.S.C.  1983.  See Polk County v. Dodson, 454 U.S.  at 317 n.                           ___ ___________    ______            4; Malachowski v. City of Keene, 787  F.2d at 710 ("A private               ___________    _____________            attorney who  is sued for  actions allegedly taken  as court-            appointed counsel does  not act under  color of state  law.")            On  appeal, Pigott  argues that  his amended  complaint cured            this deficiency by charging  these defendants with conspiracy            as well.   This charge was  also wholly conclusory.   For the            reasons already stated,  we think the district  court must be            sustained.                                         VI.                                         -18-                 Pigott contends that his claims with  regard to the care            and protection  proceeding  are cognizable  in federal  court            notwithstanding the  domestic relations exception  to federal            jurisdiction.  See generally  Ankenbrandt v. Richards, 112 S.                           ___ _________  ___________    ________            Ct. 2206 (1992)(describing exception).  This claim challenges            the  seizure of Pigott's son by  defendants Grey and Heathman            (who were aided  by the two  unknown Salem Hospital  security            guards) and the frustration of Pigott's efforts  to visit his            son  by  defendants   Heathman,  Carviello,  and  Richardson.            Pigott does not contend that the facts he has alleged against            these defendants are  sufficient to state a claim  upon which            relief could be  granted.  As the  district court's dismissal            order notified Pigott that his complaint was so deficient  as            to  the   four  social   worker  defendants,  and   even  the            allegations in  Pigott's amended  complaint fail to  make out            viable  claims  against  these  defendants,  we   affirm  the            dismissal of Pigott's claims against social workers Pam Grey,            Marilyn Heathman, Danielle Carviello, and Mrs. Richardson.                   The district court may have erred in dismissing Pigott's            claims against the two unnamed Salem Hospital security guards            for lack of state action.  The complaint identified defendant            Pam Grey as  an employee of  the Massachusetts Department  of            Social Services and  thus established her as  a "state actor"            for 42  U.S.C.  1983 purposes.   We may also  assume that the            Salem  Hospital  security guards  and  social worker  Marilyn                                         -19-            Heathman were also engaged in state action when they assisted            Grey in restraining  Pigott and  seizing his son.   See  Casa                                                                ___  ____            Marie, Inc. v. Superior  Court of Puerto Rico, 988  F.2d 252,            ___________    ______________________________            259  (1st Cir. 1993)("'To act  "under color" of  law does not            require that the accused be  an officer of the State.   It is            enough that  he is a  willful participant  in joint  activity            with the State or its agents.'" )(citations omitted)).                   But the liability of the  guards and Salem Hospital  was            predicated on  Pigott's claim  that the  seizure  of his  son            violated his  constitutional rights.   Pigott's complaint and            amended complaint did little more than allege that Pigott had            a son who was taken from  him after he had been determined to            be an unfit parent.   Pigott has alleged no facts  to suggest            that this determination was  wrong or procedurally defective.            Since Pigott  failed to allege  sufficient facts to  make out            such a  violation even  after the district  court's dismissal            order notified him of this deficiency, his claims against the            security guards and Salem Hospital were properly dismissed.                                          VII.                 Finally,  we turn to those claims that were dismissed as            legally frivolous because  they appeared to be  barred by the            statute  of  limitations.     The  only  claims  that  Pigott            continues to press  on appeal  are his claims  that the  Lynn            Police  Department and  officers  Chisholm, Woumn,  and  Sgt.            Roach  exhibited deliberate indifference to his medical needs                                         -20-            on  December  4, 1989  and his  claims  that the  Lynn Police            Department engaged in bail  tampering and, along with officer            Woumn, violated his right of access to the courts on December            5, 1989.15                   Pigott's claims  that the Lynn Police Department engaged            in bail  tampering and violated  Pigott's right of  access to            the  courts by  refusing  to allow  him  to file  a  criminal            complaint  were without basis.   Pigott was  released on bail            and,  in stark contrast to  Wagenmann v. Adams,  829 F.2d 196                                        _________    _____            (1st Cir. 1987), on which Pigott relies on appeal, Pigott has            not alleged that the police arranged  to have his bail set so            high that  he could not  make it.   Nor has he  described any            other  conduct  that  could   be  construed  to  violate  his            rights.16                   Similarly, the  right of access  to the courts  does not            import  an absolute right  to institute criminal proceedings.            Insofar as  Pigott contends  that the Lynn  Police Department                                            ____________________            15.  Pigott has presented no  cogent argument with respect to            his claims against  Flemmings Towing Company, Elaine  Condon,            and  Dennis Flynn.    Accordingly, his  claims against  these            defendants are waived.   See, e.g., Ramos v.  Roche Products,                                     ___  ____  _____     _______________            Inc., 936 F.2d  43, 51 (1st Cir.),  cert. denied, 112 S.  Ct.            ____                                _____ ______            339 (1991)(issue which is merely mentioned but not briefed is            waived on appeal).               16.  Pigott's allegation  that attorney Skinner  informed him            that  he was  lucky  to make  bail  because the  Lynn  police            generally  would have  opposed it  due to  his race  does not            establish that  the police violated his  constitutional right            to  be free from excessive  bail, for Pigott  says nothing to            show that his bail was excessive.                                         -21-            violated this right simply by refusing to accept his criminal            complaint, he has  alleged the violation of a  legal interest            that  does not  exist.   Pigott further  has not  alleged any            facts  which show  that officer Woumn's  threats to  harm him            violated his federal rights.                   Pigott's claim  that officers Chisholm, Woumn,  and Sgt.            Roach exhibited deliberate indifference  to his medical needs            is a closer case.   Pigott claimed that he was struck  in the            face  with  a  glass,  slashed  with  a  butcher  knife,  and            assaulted with other weapons.   He allegedly suffered obvious            injuries and informed these officers that he needed immediate            medical  attention.   Pigott  was  incarcerated  at the  Lynn            police station for one hour and forty-five minutes before  he            was  taken for medical care.  The complaint does not describe            Pigott's injuries.  It also does  not say what  treatment was            required,  although  we are  now  told  that Pigott  required            sutures.  Further, the complaint does not  specify what harm,            if  any, befell  Pigott as  a result  of the  seemingly brief            delay between Pigott's arrest and treatment.  Compare Matzker                                                          _______ _______            v. Herr, 748 F.2d 1142, 1147-48 (7th cir. 1984)(alleged three               ____            month  delay  in procuring  medical  and  dental care  stated            viable claim).17                                              ____________________            17.  The reason for the delay is  not alleged. However, since            Pigott alleged that he was not booked and fingerprinted until            after he returned from  the hospital, we may assume  that the            delay was not occasioned by these administrative procedures.                                          -22-                 As we explained in Manarite v.  City of Springfield, 957                                    ________     ___________________            F.2d 953, 956 (1st Cir. 1992),  1983 liability in a case like            this requires proof of "'deliberate indifference'" by "(1) an            unusually  serious  risk of  harm...  (2) defendant's  actual            knowledge  of  (or,  at  least, willful  blindness  to)  that            elevated risk,  and (3)  defendant's failure to  take obvious            steps to address that known, serious risk."  We do not  think            that the  facts  in the  complaint make  out these  elements.            More  important,  we  see no  basis  for  believing  that any            amendment   or  particularization  would  solve  the  central            deficiency,  namely,  that  something  more   than  temporary            inattention or  carelessness is  needed for a  constitutional            claim  of  cruel and  unusual  punishment.   Rather,  what is            required is  a conscious refusal to  take reasonable measures            to deal in a timely fashion with very substantial harm or the            threat of such harm.                 Here, Pigott by his  own version of events did  not seek            hospital care when he left the scene of the fight but went to            another  address.  There is no hint that any permanent injury            resulted  from  the  delay.   Individuals  arrive  at  police            stations and in  emergency rooms with cuts  and bruises every            day; but true emergencies,  requiring medical care without an            instant's  delay, are  less  commonplace.   If  this were  an            ordinary  tort suit  and  negligence sufficed  for liability,            there  might be an argument  for requiring leave  to amend --                                         -23-            although what is alleged does not itself indicate negligence.            But  there is virtually  nothing in the  complaint to suggest            cruel  and unusual  punishment, or  any benefit  from further            pleadings.                                        VIII.                 Our conclusion makes it unnecessary to reach the statute            of limitations issue  on which the  district court based  its            decision  to  dismiss  claims  relating  to  the  arrest  and            immediate  treatment of  Pigott.   We think  that issue  is a            difficult one.                 A number of circuits  have held that a pro  se complaint            is timely so long as  the necessary affidavit accompanies the            filing of the  complaint, one rationale  being that the  time            spent in reviewing  the affidavit and entering  the IFP order            is  the court's responsibility.  See,  e.g., Dean v. Veterans                                             ___   ____  ____    ________            Admin. Regional Office, 943 F.2d 667, 668-71 (6th Cir. 1991),            ______________________            vacated on other grounds, 112  S.Ct. 1255 (1992); Gilardi  v.            _______ __ _____ _______                          _______            Schroeder,  833 F.2d  1226, 1233  (7th Cir. 1987);  Martin v.            _________                                           ______            Demma, 831  F.2d 69, 71 (5th  Cir. 1987).  Local  Rule 4.5 in            _____            the district court  suggests that that court would  treat the            complaint as timely filed  if "accompanied by [the requisite]            . . . affidavit . . . ."  Pigott, however, did  not accompany            his  complaint with  the  affidavit, and  the rationale  just            described would have no application to his case.                                         -24-                 On  the other hand, Fed.  R. Civ. P.  5(e) provides that            the  clerk is not to refuse papers for filing "solely because            . . . not presented in proper form . . . ."  One  could argue            that  the omission of the affidavit is merely a formal defect            -- although the opposite view of the matter is also possible.            One could  also  argue  with  some force  that  doubts  about            timeliness  should be  construed in  favor of  the plaintiff,            although a plaintiff  who waits  till almost the  end of  the            three year  limitations period before filing  anything can be            said to assume some risk.                 In  all  events,  we do  not  think  that  the issue  is            decisive  in  this  case  and therefore  do  not  decide  it.            However it is decided, it  might be better if the  Local Rule            4.5  gave  clearer  notice  to  litigants  as  to  whether  a            complaint transmitted without  the affidavit is deemed  filed            if accompanied  by a request for  IFP forms.  A  copy of this            opinion will be transmitted to the appropriate authorities in            the  district court so that  it may be  considered whether an            amendment is desirable.                 Affirmed.                 ________                                         -25-
