April 2, 1993     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-1933

                      THOMAS P. BUDNICK,

                    Plaintiff, Appellant,

                              v.

            BARNSTABLE COUNTY BAR ADVOCATES, INC.,

                     Defendant, Appellee.

                                         

                         ERRATA SHEET

The opinion of this  Court issued on March 30, 1993 is amended  as
follows:

Page  2,  footnote   1,  line  16:     Change   "renumeration"  to
"remuneration."

March 30, 1993          [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-1933

                      THOMAS P. BUDNICK,

                    Plaintiff, Appellant,

                              v.

            BARNSTABLE COUNTY BAR ADVOCATES, INC.,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                         

                            Before

                     Breyer, Chief Judge,
                                        
                Selya and Cyr, Circuit Judges.
                                             

                                         

Thomas P. Budnick on brief pro se.
                 
Edward B. McGrath,  Thomas B. Farrey,  III, and Burns &amp;  Farrey on
                                                               
brief  for appellees  Town of  Harwich, Barry  M. Mitchell,  Estate of
Norman A. Fennell, Jonathan Mitchell, and Harwich Police Department.
Scott  Harshbarger, Attorney General,  and Stephen Dick, Assistant
                                                       
Attorney  General, on  Memorandum of  Law for  appellees Massachusetts
Department of Public Safety and Sidney Callis, M.D.

                                         

                                         

     Per  Curiam.    The   district  court  disposed  of  the
                

complaint  of  plaintiff/appellant,  Thomas  Budnick,  by the

following order:

               This  Court has  thoroughly reviewed
          the  plaintiff's Complaint.   It  is rife
          with    bizarre    factual   and    legal
          allegations   rendering   it    virtually
          incomprehensible.      This   Court   has
          concluded that  the plaintiff's Complaint
          fails to state a  claim upon which relief
          can be  granted.  Therefore,  this Court,
          acting sua sponte, ORDERS that the above-
                           
          entitled   action   be   DISMISSED   WITH
          PREJUDICE.
               SO ORDERED.

Budnick appeals the dismissal of his complaint with prejudice

and the denial  of his subsequent  motions seeking to  vacate

the  dismissal, to vacate  the "with  prejudice" designation,

and  to  amend his  complaint.   While  we disagree  with the

district  court's  characterization   of  the  complaint   as

virtually incomprehensible,1 we agree  that it fails to state

                    

1.  To be sure, Budnick's complaint contains references which
understandably may be characterized as bizarre.  Budnick is a
self-proclaimed  space  prospector,  who  believes  that  the
United  States ought  to continue  its "manifest  destiny" by
claiming  mineral  rights  on  heavenly bodies,  on  its  own
behalf, rather than allowing  space exploration to be pursued
on  behalf of "common mankind."   Using various resources, he
has mapped  out mining  claims to plots  on several  planets,
asteroids, and  the  moon,  which he  believes  are  rich  in
diamonds,  gold, platinum,  and other  strategic metals.   He
sought to file his mining claims in numerous county courts of
numerous states, but was rebuffed.  Since 1981, however,  the
Sabine County  Court, in rural  East Texas, has  accepted for
filing more than  60 of his mining  claims because, according
to the court clerk's office, the county needed the money from
the filing fees.   Budnick says  that he does  not expect  to
gain any financial  remuneration; he has filed his  claims in
the  names of the heirs of, among others, Sam Houston, Moses,

                             -2-

a  claim upon  which  relief can  be  granted.   Further,  we

conclude that any amendment would be futile.  With respect to

the pendent state  law claims, however, we  believe that they

should  have been  dismissed  without prejudice  for lack  of

                    

and Martin Luther.
     Fragmentary references to this hobby (and to field assay
work  which  he  has  done  here  on  Earth)  were  scattered
throughout  his  complaint.    A somewhat  clearer  frame  of
reference  emerged  when  Budnick  filed  his  opposition  to
Attorney Loesch's  motion to dismiss, see  footnote 4, infra,
                                                            
and he  submitted copies of several  newspaper accounts which
outlined this story.
     Although these factual allegations are odd, they suggest
that  Budnick  may  be  eccentric,  but  do  not  support  an
inference that  he is delusional.   And, while  these factual
allegations  arguably may  seem  bizarre, they  were not  the
basis  for any bizarre legal  allegations.  The complaint, as
described infra  at 7-8, alleged that  Budnick was unlawfully
               
arrested  for attempting to cut  down a tree  on his parents'
property  and then held  involuntarily for mental evaluation.
At  first blush, it is  puzzling why these  references to his
hobby  were included  at  all.   A  closer reading  suggests,
however,  that Budnick  proceeded on  the assumption  that he
must  present  his entire  case  when  filing his  complaint,
including resulting harm.   And, in his view,  his reputation
has  been damaged  by his  confinement for  mental evaluation
following  his arrest.   Budnick  concedes that  he has  been
scoffed at  by  many, but,  he  says, people  dismissed  this
country's purchases  of the Louisiana  Territory and  Alaska.
His credibility can only  be further weakened, he says,  when
those  who  disagree  with   his  support  for  a  continuing
"manifest  destiny" discover  his involuntary  commitment for
psychiatric  evaluation.   Damage  to  reputation  alone,  of
course,  does not  constitute a  viable  claim under    1983.
Paul v. Davis, 424  U.S. 693, 713 (1976); Watterson  v. Page,
                                                            
No.  92-1224, 1993  WL  23908, at  *6 n.4  (1st Cir.  Feb. 9,
1993).  But Budnick  did not allege damage to  his reputation
as  the basis  for his cause  of action.   He  asked that the
court consider that harm  in assessing damages resulting from
what  he  alleged  was  an unlawful  arrest  and  involuntary
commitment for mental evaluation.
     Construing this  inartful pro se complaint  in a liberal
fashion,  as we  must, Haines  v. Kerner,  404 U.S.  519, 520
                                        
(1972), we disagree that it is "virtually incomprehensible."

                             -3-

jurisdiction.  We vacate and remand to the district court for

entry of a judgment reflecting that conclusion.  In all other

respects, we affirm the district court's order.

                   I.  The Legal Standards

     The district  court did not  spell out the  statutory or

other  available basis  for  its sua  sponte dismissal.   The

order's language - "the  plaintiff's Complaint fails to state

a  claim upon  which relief  can be  granted" -  suggests the

dismissal  was  pursuant to  Fed. R.  Civ.  P. 12(b)(6).   We

proceed, therefore, on that basis.2

     The standard for a Rule 12(b)(6) dismissal is a familiar

and oft-repeated one.  "[A] complaint should not be dismissed

for failure to state  a claim unless it appears  beyond doubt

that the  plaintiff can prove no  set of facts in  support of

his  claim which  would entitle  him to  relief."   Conley v.
                                                          

Gibson,  355 U.S.  41,  45-46  (1957).    We  review  such  a
      

dismissal de novo.   Kale v.  Combined Ins.  Co. of Am.,  924
                                                       

F.2d  1161,  1165 (1st  Cir.), cert.  denied,  112 S.  Ct. 69
                                            

(1991); Gonzalez-Bernal  v. United States, 907  F.2d 246, 248
                                         

(1st Cir. 1990).

     The  Supreme Court, as yet, has had "no occasion to pass

judgment, however,  on the permissible scope, if  any, of sua

                    

2.  In any event, we rule out as a possible basis 28 U.S.C.  
1915(d), as  that statute applies  only to in  forma pauperis
actions, Street v. Fair,  918 F.2d 269, 272 (1st  Cir. 1990),
                       
which this was not.  Budnick paid the required filing fee.  

                             -4-

sponte dismissals under Rule 12(b)(6)."  Neitzke v. Williams,
                                                            

490 U.S. 319, 329 n.8 (1989).  The Court has pointed out that

"[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is

ordinarily accorded notice of a pending motion to dismiss for

failure  to state  a claim  and an  opportunity to  amend the

complaint before the  motion is ruled upon."  Id.  at 329.  A
                                                 

sua sponte dismissal preempts  that notice and opportunity to

amend before dismissal.

     We  have  suggested,  in   dictum,  that  a  sua  sponte

dismissal  on  the ground  that  a  complaint is  inadequate,

without notice  of the proposed dismissal  and an opportunity

to address  the issue,  might require reversal.   Literature,
                                                             

Inc.  v. Quinn, 482 F.2d 372, 374  (1st Cir. 1973).3  Even if
              

the district court  erred in failing to  provide Budnick with

pre-dismissal notice and opportunity to respond in this case,

however,  we decline to remand because it is evident that (1)

Budnick could not prevail  based on the facts alleged  in the

complaint, see Smith v.  Boyd, 945 F.2d 1041, 1043  (8th Cir.
                             

                    

3.  Some courts  have reversed  in such circumstances.   See,
                                                             
e.g., Morrison  v.  Tomano,  755  F.2d 515  (6th  Cir.  1985)
                          
(holding that a district court should not dismiss a complaint
for  failure to  state a  claim without  affording plaintiffs
notice   and  an   opportunity   to  address   the  perceived
shortcomings);  Jefferson  Fourteenth  Assoc.  v.  Wometco de
                                                             
Puerto  Rico, 695 F.2d 524  (11th Cir. 1983)  (holding that a
            
sua  sponte dismissal  without notice  and an  opportunity to
respond violated a plaintiff's  due process rights); see also
                                                             
Lewis v. N.Y., 547 F.2d 4, 6 n.4 (2d Cir.  1976) ("Failure to
             
afford plaintiffs  an opportunity to address  the court's sua
                                                             
sponte  motion   to  dismiss  is,  by   itself,  grounds  for
      
reversal.").

                             -5-

1991)  (holding  that  the  failure  to give  notice  and  an

opportunity to  respond  prior to  dismissal  is not  per  se

reversible error when it  is "patently obvious" the plaintiff

could  not  prevail  based  on  the  facts  alleged  in   the

complaint); Baker  v. Director, U.S. Parole  Comm'n, 916 F.2d
                                                   

725,  726 (D.C. Cir. 1990) (same), and (2) amendment would be

futile, see Shockley  v. Jones, 823  F.2d 1068, 1072-73  (7th
                              

Cir.  1987)  (holding that  a  sua  sponte dismissal  without

notice  or the  opportunity  to  be  heard  is  improper  but

reversal  is not  mandated when  amendment would  be futile);

Tyler v. Mmes.  Pasqua &amp; Toloso, 748 F.2d 283,  287 (5th Cir.
                               

1984) (similar), overruled on  other grounds by, Victorian v.
                                                          

Miller, 813 F.2d 718 (5th Cir. 1987).4
      

                    

4.  Although the order of  dismissal stated that the district
court was acting sua sponte, one  of the defendants, Attorney
Steven Loesch,  had filed a  motion to  dismiss, pursuant  to
Rule  12(b)(6), for failure to state a claim, and Budnick had
filed an opposition.  The grounds raised in Attorney Loesch's
motion, however, would not  have provided Budnick with notice
of any potential defects  in his complaint as  to any of  the
other  eight  defendants,  excepting  perhaps  the  defendant
Barnstable County Bar Advocates,  Inc., which Budnick alleged
was  Loesch's  employer.    We  treat  the  district  court's
dismissal, therefore, as it,  itself, characterized it - that
is, as a  sua sponte dismissal.   Our conclusion --  that the
failure to  provide  Budnick with  pre-dismissal  notice  and
opportunity to  respond does not warrant  reversal because it
is evident that  his complaint  failed to state  a claim  and
that no amendment could  remedy it -- necessarily encompasses
a conclusion that there was no error in dismissing  Budnick's
claim  against Loesch,  the deficiency  of which  Budnick, in
fact,  had  notice and  to which  he  had the  opportunity to
respond.
     We  are also aware that the sua sponte dismissal in this
case deprived Budnick  of his  right, under Fed.  R. Civ.  P.
15(a), to amend  his complaint "once as a matter of course at

                             -6-

                      II.  The Complaint

     Budnick's  complaint  is  written  in  a narrative,  and

somewhat  dramatic, form.   It  contains much  extraneous and

disjointed  information.     But  construing  this   inartful

pleading by  a pro  se litigant in  a liberal fashion,  as we

must,  Haines  v.  Kerner,  404  U.S.  519,  520 (1972),  and
                         

accepting  as  true the  factual  allegations  pled, Rodi  v.
                                                         

Ventetuolo, 941 F.2d 22,  23 (1st Cir. 1991), we  can distill
          

from the  complaint that Budnick's  claims stem from  what he

alleges was an  unlawful arrest.   The complaint alleges  the

following:

     On September  23, 1990, Budnick resided  at his parents'

home  on Division  Street  in Harwich,  Massachusetts.   That

house apparently is  in very close proximity  to the boundary

between Harwich, and Dennis, Massachusetts.   Budnick alleges

that,  on that date, he began to  cut down a pine tree on the

property,  which had been damaged  in a storm.   After making

two  cuts in the tree,  his mother called  the Harwich Police

Department.  Officer Jonathan Mitchell responded.

     Budnick left the  scene, putting away his chain  saw and

taking his  car out for a  ride, he says, to get  the oil hot

                    

any  time before a responsive  pleading is served."   Fed. R.
Civ.  P. 15(a);  Correa-Martinez  v. Arrillaga-Belendez,  903
                                                       
F.2d 49,  59 n.8 (1st Cir.  1990) (a Rule 12(b)(6)  motion to
dismiss is not  a responsive  pleading for  purposes of  Rule
15(a)).  Inasmuch as we have determined that  amendment would
be  futile, error, if it  be such, would  not warrant remand.
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d at 59.
                                     

                             -7-

for an oil  change.  He  returned in an  hour and started  to

change the  oil.  He was,  at that time, he  alleges, 35 feet

into  Dennis.   A  Dennis police  officer arrived,  following

which Harwich Police Officer Barry Mitchell arrived.  Officer

Barry Mitchell  spent a very  short time in  Budnick's house,

looking at  what Budnick says  was a leaking  washing machine

pipe.   Budnick had purchased  a new washing  machine the day

before and was  going to  replace the old  machine.   Officer

Barry  Mitchell  then  came  out  and  arrested  Budnick  for

malicious destruction  of property over  $250 [apparently the

tree and perhaps the pipe], Mass. Gen. L. ch. 266,   127, and

disorderly conduct, Mass. Gen. L. ch. 272,   53.  Budnick, at

the time, was standing in Dennis.  Budnick's mother protested

that she had only wanted the officer to talk to her son.

     Budnick spent  the night at the  Harwich police station.

The next day, he was taken to court, where he was examined by

Dr. Sidney  Callis, a court-appointed  psychiatrist.  Budnick

claims that Dr.  Callis deliberately misinterpreted Budnick's

statements  to   him.     The  court  committed   Budnick  to

Bridgewater  State Hospital  for psychological  testing.   On

October  1, 1990, Budnick was transferred to Cape Cod and the

Islands Community Mental Health Center.

     On  October 12, 1990, Budnick returned to court.  He was

represented  by  court-appointed  counsel,   Attorney  Steven

Loesch.    Trial was  set  for  November  6,  1990.   In  the

                             -8-

meantime,  according to  Budnick,  Loesch made  no effort  to

conduct discovery.

     On November  6th, the malicious  destruction of property

charges were  dismissed.   The disorderly conduct  charge was

continued  without  a finding  for  30  days, whereupon  that

charge also was dismissed.

     Budnick filed a twenty-one  page, eleven count complaint

seeking  damages against nine  defendants -  (1) the  Town of

Harwich, (2) the Harwich Police Department, (3) the estate of

Norman Fennell, the former  Harwich Police Chief, (4) Officer

Jonathan  Mitchell,  (5)  Officer  Barry  Mitchell,  (6)  the

Massachusetts Department of Public  Safety, alleged to be the

employer of Dr.  Callis, (7) Dr.  Callis, (8) the  Barnstable

County Bar  Advocates, Inc.,  alleged to  be the  employer of

Attorney  Loesch, and  (9)  Attorney Loesch.   The  complaint

alleged   claims   of  false   arrest,   false  imprisonment,

conspiracy,  intentional  infliction  of emotional  distress,

malicious prosecution, abuse of  process, and negligence.  It

alleged various bases for jurisdiction, including 42 U.S.C.  

1983 and  the Racketeer Influenced and  Corrupt Organizations

(RICO)  statute,  18  U.S.C.    1961  et  seq.,  and  pendent

jurisdiction over the state tort claims.

                       III.  Discussion

     Because  all  of  Budnick's  claims stem  from  what  he

alleges was  an unlawful warrantless arrest,  we begin there.

                             -9-

To state  a cause of  action under 42 U.S.C.    1983, Budnick

must  show that, in arresting him, Officer Barry Mitchell (1)

acted under color of state law; and (2) deprived Budnick of a

right secured by the Constitution or federal law.  Parratt v.
                                                          

Taylor, 451 U.S. 527, 535 (1981).   There is no dispute  that
      

Officer  Mitchell was  acting  under color  of  state law  in

arresting  Budnick.  Pittsley v.  Warish, 927 F.2d  3, 6 (1st
                                        

Cir.), cert. denied, 112 S. Ct. 226 (1991).  As to the second
                   

element  of a  cause  of action  under    1983,  the  federal

Constitution permits an officer to arrest a suspect without a

warrant  if  there is  probable  cause  to  believe that  the

suspect has committed or is  committing an offense.  Michigan
                                                             

v. DeFillippo, 443 U.S. 31, 36 (1979).
             

     Budnick says  that his mother called  the Harwich police

after he started to cut down a tree on his parents' property.

Officer Jonathan  Mitchell  responded and  Budnick  left  the

scene.   When  he returned,  Officer Barry  Mitchell arrived,

entered Budnick's  parents' home for  a brief time,  where he

apparently spoke to Budnick's mother, exited and arrested him

for malicious destruction of property and disorderly conduct.

These facts  show that,  at the  moment of  Budnick's arrest,

"the   facts  and   circumstances   within   [Officer   Barry

Mitchell's]  knowledge  and  of  which  [he]  had  reasonably

trustworthy information [was] sufficient to warrant a prudent

man  in  believing  that   [Budnick]  had  committed  or  was

                             -10-

committing  an offense."    Beck v.  Ohio,  379 U.S.  89,  91
                                         

(1964).5

     Budnick's allegation of unlawful arrest merely recites a

lack  of probable cause and,  in fact, seems  more focused on

another aspect of his arrest.   Budnick repeatedly points out

that  Officer Mitchell,  a Harwich  police officer,  arrested

him,  not in Harwich,  but in Dennis.   He says  that Officer

Mitchell, a  Harwich police officer, arrested  him outside of

the officer's  jurisdiction, in Dennis, on  felony charges (2

counts of malicious destruction of property  over $250) and a

misdemeanor charge (disorderly conduct) without a warrant and

not in "hot  pursuit."  But to proceed with  a   1983 action,

Budnick must show that  this extraterritorial arrest violates

a right secured by federal law, Constitutional or statutory.
                          

     "Whether  an officer  is  authorized to  make an  arrest

ordinarily  depends, in  the first  instance, on  state law."

Michigan v. DeFillippo, 443 U.S. at 36.  And in this case the
                      

arrest does not even  appear to be unlawful under  state law.

                    

5.  The mere  fact that Budnick's  mother had not  wished his
arrest  and/or  that  the  charges were  later  dismissed  or
continued without a  finding, of course, is irrelevant to the
validity of the arrest.  See Michigan v. DeFillippo, 443 U.S.
                                                   
at 36 (stating that "the mere fact that the suspect is  later
acquitted  of  the  offense  for  which  he  is  arrested  is
irrelevant  to  the  validity   of  the  arrest");  Baker  v.
                                                         
McCollan,  443  U.S. 137,  145  (1979)  (stating that  "[t]he
        
Constitution does not guarantee that only  the guilty will be
arrested.  If it did,    1983 would provide a cause of action
for  every defendant  acquitted -  indeed, for  every suspect
released.").

                             -11-

It is true  that, under Massachusetts  law, a police  officer

has no  power  to  make  a  warrantless  arrest  outside  the

boundaries of the governmental unit by which he was appointed

except for a fresh pursuit arrest for any arrestable offense,

whether it be a felony or misdemeanor, initially committed in

the arresting officer's presence and within his jurisdiction.

Commonwealth  v. LeBlanc, 407 Mass.  70, 72 (1990).   But, "a
                        

police  officer,  while unable  to act  as  an officer  in an

adjoining  jurisdiction, does  not cease  to be a  citizen in

that jurisdiction  ... and  may lawfully conduct  a citizen's

arrest  there  if he  has probable  cause  to believe  that a

felony has  been committed and  that the person  arrested has

committed  it."  Commonwealth v. Dise, 31 Mass. App. Ct. 701,
                                     

704 (1991),  further appellate review denied,  412 Mass. 1102
                                            

(1992) (footnote omitted).6  And, if there was  authority and

probable  cause  to  arrest   for  the  felony  of  malicious

destruction  of property  over $250,  the arrest  was lawful,

regardless of  whether there was authority  or probable cause

also to arrest for the misdemeanor.  See Barry v. Fowler, 902
                                                        

F.2d  770, 773  (9th  Cir.  1990)  (an  arrest  is  a  single

                    

6.  Cf. United States v. Foster, 566 F. Supp. 1403, 1411-12 &amp;
                               
n.9  (D.D.C. 1983)  (finding  a seizure  violated the  Fourth
Amendment where  a Metro Transit police  officer's Terry stop
                                                        
of  defendant  for an  offense  occurring  on a  city  street
exceeded the limits  of the officer's  authority to stop  for
offenses originating on or  in a Metro station and  since the
offense  was a misdemeanor, the officer's action could not be
justified as a citizen's arrest).

                             -12-

"seizure";  if  there is  probable  cause to  arrest  for one

crime, the  seizure is not unconstitutional  even if probable

cause is lacking for the second crime.).7

     In short, the allegations in Budnick's complaint suggest

a valid arrest under state law and nothing in that complaint,

or  reasonably inferred  from that  complaint, suggests  that

such an arrest,  nonetheless, violates federal  law so as  to

support the exercise of  federal jurisdiction.  Further, even

a  liberal reading of the complaint fails to reveal the seeds

of a viable  claim which  would indicate  that any  amendment

might be  fruitful.   Budnick described the  circumstances of

his arrest in detail.  The facts pled show probable cause and

lawful authority  to arrest consistent with federal  law.  We

fail to see how any additional facts (and he has not provided

any, either in  his motion  to amend, filed  in the  district

court, or even  in his appellate  brief) could be  compatible

with those already pled and also negate that showing.

                    

7.  We  assume, without  deciding,  that  a  police  officer,
although making  a  citizen's arrest,  would  nonetheless  be
acting under color  of state law in  making the arrest.   See
                                                             
Street v.  Surdyka, 492 F.2d  368, 374 (4th Cir.  1974).  The
                  
opposite  assumption, of course,  dooms the    1983 claim, in
any event.
     Moreover, while state  law might prohibit a  warrantless
arrest  for  a misdemeanor  not  committed  in the  officer's
presence, such a  prohibition is not  grounded in the  Fourth
Amendment.    Barry v.  Fowler, 902  F.2d  at 772;  Street v.
                                                          
Surdyka,  492 F.2d at 370-73;  2 Wayne R.  LaFave, Search and
       
Seizure   5.1(b), at 403-04 (2d ed. 1987).

                             -13-

     The  arrest  being   lawful,  those  claims  which,   as

described  in Budnick's  complaint, are  necessarily premised

upon an unlawful  arrest -  that is, his  claims against  the

Town of Harwich, its police department and police chief,  for

failure  properly  to  investigate,  for  failure  to  train,

discipline,  and/or supervise,  and  for negligent  training,

discipline and/or supervision  - fail as  well.  Pittsley  v.
                                                         

Warish, 927  F.2d at 9 n.4 ("In order to have a viable   1983
      

claim against a municipality, a state actor must first commit

an underlying constitutional violation.").

     Budnick's claim  that  Dr. Callis,  the  court-appointed

psychiatrist, misinterpreted his statements and, as a result,

Budnick  was committed  to a  state hospital  for a  week for

psychological testing  and then to a  community mental health

center for further  testing fares  no better.8   We pass  the

question whether Dr.  Callis is acting  under color of  state

law for purposes of    1983 in these circumstances.   Compare
                                                             

Watterson v. Page,  No. 92-1224,  1993 WL 23908,  at *5  (1st
                 

Cir. Feb. 9, 1993) (assuming, without  deciding, that a state

court  order  referring  child   for  counseling  to  private

psychologists   provided   a   sufficient   basis   for   the

psychologists  to be  acting under color  of state  law) with
                                                             

Hall  v. Quillen, 631 F.2d 1154 (4th Cir. 1980) (holding that
                

                    

8.  We assume here that  Budnick was suing Dr. Callis  in his
individual capacity.

                             -14-

a   court-appointed  physician   examining  a   plaintiff  in

connection  with a court-ordered  involuntary commitment to a

state hospital is  not acting  under color of  state law  for

purposes of    1983 liability), cert.  denied, 454 U.S.  1141
                                             

(1982).    At   best,  the  allegations  state   a  claim  of

negligence, which is an insufficient basis for a  claim under

  1983.  Watterson  v. Page, No.  92-1224, 1993 WL 23908,  at
                           

*6.  Budnick's allegation that  Dr. Callis' misinterpretation

was deliberate does not save this claim from dismissal.  As a

witness  at a  judicial proceeding,  Dr. Callis  has absolute

immunity  from     1983   damages  liability  even  were  his

testimony  false.  Id. at *7.   If false testimony is cloaked
                      

in immunity, certainly a  deliberate misinterpretation is, as

well.9

     The  claim  against Attorney  Loesch based  on Budnick's

dissatisfaction  with  his representation  also  was properly

dismissed.   A court-appointed attorney  when representing  a

defendant in a state  criminal proceeding does not act  under

color of state law within the meaning of   1983.  Polk County
                                                             

                    

9.  The    only    allegation   raised    against   defendant
Massachusetts   Department  of  Public  Safety  is  Budnick's
contention that  that entity is  the employer of  Dr. Callis.
No viable   1983 claim having been raised against Callis, any
claim  against the Massachusetts Department of Public Safety,
Callis' alleged employer, also fails.  See Watterson v. Page,
                                                            
No. 92-1224, 1993 WL 23908 at *7.  In any event, suit against
the department (and against Callis, in his official capacity)
is barred by  the Eleventh  Amendment as a  suit against  the
state.   Will v. Michigan Dep't of State Police, 491 U.S. 58,
                                               
66, 71 (1989).

                             -15-

v. Dodson, 454 U.S. 312 (1981); id. at 333 n.4 (Blackmun, J.,
                                   

dissenting); Jackson v.  Salon, 614 F.2d 15, 16-17  (1st Cir.
                              

1980).10

     There being no deprivation of a federal right, Budnick's

conclusory claim of conspiracy  among the various  defendants

evaporates.   Brennan v. Hendrigan,  888 F.2d  189, 195  (1st
                                  

Cir. 1989) (to be actionable under   1983, a plaintiff has to

show  not  only  an  agreement,   but  a  deprivation  of   a

constitutionally secured  right).   Finally,  there being  no

allegations  which  would  support  the  exercise  of federal

jurisdiction,11  those pendent claims  alleging violations of

the state  Tort Claims Act,  Mass. Gen. L. ch.  258, or which

otherwise arise  under state  tort law -  false imprisonment,

intentional  infliction  of  emotional   distress,  malicious

prosecution,12 abuse of  process, negligence - were  properly

                    

10.  Consequently,  Budnick's  claim  against the  Barnstable
County Bar  Advocates, Inc., alleged to  be Attorney Loesch's
employer,  was  properly  dismissed  as well.    Pittsley  v.
                                                         
Warish, 927  F.2d at 9 n.4;  see also Polk County  v. Dodson,
                                                            
454 U.S. at 325  (  1983 will not support a  claim based on a
respondeat superior theory of liability).

11.  Budnick's allegation  of a  cause of action  pursuant to
the  RICO  statute, 18  U.S.C.    1961  et seq.,  is patently
meritless and  warrants no discussion.   See Sedima, S.P.R.L.
                                                             
v.  Imrex Co.,  473 U.S.  479, 496  (1985) (listing  elements
             
required to state a claim).

12.  To the  extent that  Budnick may have  alleged malicious
prosecution  as itself a  constitutional violation actionable
under   1983, we note that malicious prosecution does not per
se abridge  rights secured by  the Constitution.   Morales v.
                                                          
Ramirez, 906 F.2d 784,  788 (1st Cir. 1990).   In addition to
       
showing  that  defendants  instituted   criminal  proceedings

                             -16-

dismissed.    Mine Workers  v.  Gibbs, 383  U.S.  715, 726-27
                                     

(1966).   Rather  than  dismiss with  prejudice, however,  we

think  the  preferable  course  is to  dismiss  these  claims

without prejudice for lack of jurisdiction.  Figueroa Ruiz v.
                                                          

Alegria, 896 F.2d 645,  650 (1st Cir. 1990).   We, therefore,
       

vacate  the order of the  district court with  respect to the

state  law claims and direct  that these be dismissed without

prejudice  for lack of jurisdiction.  In so doing, of course,

we express no opinion as to their viability.

                  IV.  Miscellaneous Motions

     Contemporaneously  with the denial  of Budnick's motions

to vacate the dismissal of the complaint, to vacate the "with

prejudice"  designation,  and  to amend  the  complaint,  the

district  court  judge  also denied  a  simultaneously  filed

motion  to  disqualify himself.    The  motion to  disqualify

alleged that  Budnick intended to file  a judicial misconduct

complaint  against the  judge.   Budnick claims  the district

court  erred in ruling on his motions after being notified of

his intent to  file a complaint.   There was  no error.   The

mere issuance of unfavorable rulings cannot form the basis of

                    

against  an innocent  person  without probable  cause for  an
improper  purpose,  Torres  v. Superintendent  of  Police  of
                                                             
Puerto  Rico, 893 F.2d 404,  409 (1st Cir.  1990), "a federal
            
constitutional  claim  under      1983  based  on   malicious
prosecution  requires  conduct  so  egregious  and conscience
shocking  that  it  violates  the  plaintiff's   due  process
rights."   Ayala-Martinez v. Anglero,  982 F.2d  26, 27  (1st
                                    
Cir. 1992).  The conduct in the present case does not, by any
measure, rise to this level.

                             -17-

a disqualification  or misconduct  claim.  Joseph  E. Bennett
                                                             

Co. v. Trio Indus., Inc., 306 F.2d 546, 549 (1st Cir. 1962).
                        

     Lastly, we  dispose of several pending  motions filed in

this court:   (1) In view of  the disposition of this appeal,

the motion  of the Massachusetts Department  of Public Safety

and Dr.  Callis for summary  disposition is  denied as  moot.

Their motion to  accept their memorandum  in support of  that

motion as their appellees' brief  is granted.  (2)  Budnick's

motions for default judgments against Attorney Loesch and the

Barnstable  County  Bar  Advocates,  Inc. are  denied.    (3)

Budnick's  "motion  to   add  clear  color   photographs  for

previously submitted black and white  photos" is denied.  The

record  on  appeal is  composed  of the  original  papers and

exhibits filed in the district court.  Fed. R. App. P. 10(a).

(4) Budnick's "motion  to add  recently revealed  defendants-

appellees  admission of Judge  Harrington's error" is denied.

In any event, appellant misunderstands the statement to which

he points.  It was not a concession.

                        V.  Conclusion

     For  the reasons discussed in this opinion, the order of

the  district court  is affirmed,  in part,  and vacated  and
                                                             

remanded, in part.
        

                             -18-
