
USCA1 Opinion

	




        October 17, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1064                                   MAURICE D. YOUNG,                                Plaintiff, Appellant,                                          v.                             KNOX COUNTY DEPUTY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                    [Hon. Gene Carter, Chief U.S. District Judge]                                       _________________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Maurice D. Young on brief pro se.            ________________            William R. Fisher and Monaghan, Leahy,  Hochadel & Libby on  brief            _________________     __________________________________        for appellees.                                 ____________________                                 ____________________                      Per Curiam.  Pro se plaintiff Maurice Young appeals                      __________   ___ __            a  district court  judgment that  dismissed his  complaint as            frivolous  within the meaning of 28 U.S.C.  1915(d).  We have            thoroughly  reviewed the  record and  the parties'  briefs on            appeal.  We are persuaded  that the district court's judgment            was correct.  The  plaintiff's amended complaint purported to            state  claims under  42 U.S.C.   1983 for  violations  of the            Fifth and Fourteenth Amendments' due  process requirement and            the  Fourth Amendment  right  to be  free from  "unreasonable            seizures."  These claims were based on the alleged actions of            defendant Hansen, the  deputy sheriff who  arrested plaintiff            and allegedly  committed perjury while testifying against the            plaintiff at his state criminal trial.                      Insofar as plaintiff seeks  to recover for Hansen's            alleged perjury, his claim is barred by Briscoe v. LaHue, 460                                                    _______    _____            U.S.  325 (1983)(holding all  witnesses are absolutely immune            from  civil  suit  under   1983,  including  those  who  give            perjured testimony).  Insofar  as the complaint seeks damages            for violation of plaintiff's  Fifth and Fourteenth  Amendment            rights to procedural due process, the claim is barred because            the  plaintiff  has  adequate  remedies at  state  law.  "[A]            procedural  due  process claim  may  not  be redressed  under            section 1983 where an adequate state remedy exists."  Reid v.                                                                  ____            New Hampshire,  56 F.3d 332, 341  (1st Cir. 1995).   As Maine            _____________            recognizes the common law torts of false arrest and malicious                                         -2-            prosecution, see, e.g.,  Nadeau v. State,  395 A.2d 107,  116                         ___  ____   ______    _____            (Me.  1978);  Qualey v.  Town of  Wilton,  540 A.2d  479 (Me.                          ______     _______________            1988), plaintiff  has adequate post-deprivation  remedies and            may not  recover for the alleged violation  of procedural due            process under 42 U.S.C.  1983.  See Reid, 56 F.3d at 341.  To                                            ___ ____            the extent  that plaintiff alleges violations  of substantive            due  process, Albright v. Oliver, 114 S. Ct. 807 (1994), bars                          ________    ______            his claim.                                    Plaintiff's            claim  for the  alleged violation  of the  Fourth Amendment's            prohibition  against unreasonable  seizures  is barred  as  a            matter of law  for different reasons.  The  plaintiff alleged            that defendant Hansen arrested him without probable cause for            operating under  the influence (OUI) and  operating after his            license had been  revoked (OAR).  Plaintiff  has submitted an            arrest report which indicates that Hansen arrested him on the            foregoing  charges  and  for  illegal  attachment of  license            plates.  The plaintiff claims that after a jury deadlocked at            his  criminal trial  on the  OUI and  OAR charges,  the state            reduced these charges to  illegally attaching license  plates            and allowing his motor vehicle to be driven (presumably, with            the  illegal plates).    The plaintiff does  not contend that            probable  cause  was   lacking  for  these  latter   charges.            "Probable  cause need only exist as to any offense that could            be  charged under the circumstances." Barna  v. City of Perth                                                  _____     _____________            Amboy,  42 F.3d 809, 819 (3rd Cir.  1994).  See also Barry v.            _____                                       ___ ____ _____                                         -3-            Fowler, 902  F.2d 770, 773  n. 5 (9th Cir.  1990); Edwards v.            ______                                             _______            City   of  Philadelphia,   860  F.2d   568,  576   (3rd  Cir.            _______________________            1988)(similar).    Where  plaintiff  does  not  contend  that            probable  cause  was  lacking  for  his  arrest  for  illegal            attachment  of  license  plates,  he cannot  recover  for  an            unreasonable seizure,  even if probable cause  was lacking on            the OUI and OAR charges.  Accordingly, as plaintiff's federal            claims lack  an  arguable basis  in law,  they were  properly            dismissed as  frivolous.  See  Neitzke v. Williams,  490 U.S.                                      ___  _______    ________            319, 325 (1989).                        There was  no separate discussion of  the state law            claims by the  district court.   As plaintiff  has failed  to            allege claims  that would  support federal  jurisdiction, his            state law claims were  also subject to dismissal for  lack of            jurisdiction.   See United Mine  Workers v.  Gibbs, 383  U.S.                            ___ ____________________     _____            715,  726-27 (1966).  However,  these claims should have been            dismissed without  prejudice.  See Figueroa  Ruiz v. Alegria,                                           ___ ______________    _______            896 F.2d 645, 650 (1st Cir. 1990).  Accordingly, the judgment            of the district  court is  affirmed insofar  as it  dismisses                                       ________            plaintiff's federal  claims (i.e., counts 1-4  of plaintiff's            amended complaint) as frivolous.   We vacate the dismissal of                                                  ______            plaintiff's  state  law  claims  (i.e., counts  5-13  of  the            amended  complaint) and remand  with instructions  that these                                    ______            claims  be dismissed  without prejudice  for lack  of federal            jurisdiction.                                         -4-                      It is so ordered.                      ________________                                         -5-
