
USCA1 Opinion

	




        September 30, 1992      [NOT FOR PUBLICATION]                                 ____________________        No. 92-1187                                ARTHUR D'AMARIO, III,                                Plaintiff, Appellant,                                          v.                       PROFESSIONAL SECURITY SERVICES, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Arthur D'Amario, III, on  Memorandum Supporting Motion for Summary            ____________________        Disposition, pro se.            John A. Davey, Jr.  and Olenn & Penza on Memorandum in Support  of            __________________      _____________        the Motion for Summary Disposition,  for appellees, Lonergan, Wahl and        Donley.            Robert M. Brady  on Memorandum in Opposition to Appellant's Motion            _______________        for Summary Disposition, for appellee, Aloysius Murphy.            James  E. O'Neil,  Attorney  General,  William M.  Kolb, Assistant            ________________                       ________________        Attorney  General, and  Kara M.  Fay, Assistant  Attorney General,  on                                ____________        Memorandum   in   Opposition  to   Appellant's   Motion  for   Summary        Disposition,  for appellees,  State of Rhode  Island and  Rhode Island        Department of Mental Health, Retardation and Hospitals.            Kevin F. McHugh on  Memorandum in Opposition to Appellant's Motion            _______________        for Summary Disposition, for appellee, City of Providence.             Andrew S. Richardson, on submissions to the Court, for  appellees,            ____________________        Stevie Nicks, Frank J. Russo, Gemini Concerts, and Concerts East.            Paul T. Jones, Jr. on brief  for appellee, Providence Civic Center            __________________        Authority.                                 ____________________                                 ____________________                      Per  Curiam.   Plaintiff-appellant  Arthur D'Amario                      ___________            filed a complaint on  February 4, 1987 in the  district court            for the District of Rhode Island against defendants-appellees            the  Providence  Civic Center  Authority  ("PROCCA"), various            security personnel  employed by PROCCA, the Providence Police            Department, and a number of other defendants.   The complaint            sought  injunctive relief and damages  under 42 U.S.C.   1983            and under  state law for alleged  infringements of D'Amario's            rights stemming from a  May 3, 1986 incident in  which PROCCA            security  personnel  denied  D'Amario  admittance  to  a rock            concert at  the  Providence  Civic  Center  because  D'Amario            insisted on bringing in a camera.                      The same PROCCA no-camera rule was the subject of a            previous suit brought by D'Amario.  In that case the district            court, affirmed by this court, ruled that D'Amario enjoyed no            constitutional right to bring  a camera into Providence Civic            Center  concerts.    D'Amario  v.  Providence  Civic   Center                                 ________      __________________________            Authority, 639  F.Supp. 1538  (D.R.I. 1986), aff'd,  815 F.2d            _________                                    _____            692 (1st Cir.) (unpublished  opinion), cert. denied, 484 U.S.                                                   _____ ______            859 (1987).                      In  the instant  case,  after D'Amario  had had  an            opportunity  for  some  discovery,  the magistrate  judge  on            November 30, 1987 granted  defendants' motions to dismiss the            complaint.   The  magistrate  judge  ruled that  (1)  by  the            doctrine of  stare decisis,  this court's ruling  in D'Amario                         _____ _______                           ________                                         -3-            foreclosed D'Amario's claims  that his constitutional  rights            were  violated  by enforcement  of  the  no-camera rule;  (2)            D'Amario's     1983  claims  against  the  Providence  Police            Department    charging    assault,   false    arrest,   false            imprisonment, and  malicious prosecution  did not allege  any            official departmental policy or custom that arguably violated            his rights;  (3) D'Amario's claims of  assault, false arrest,            false   imprisonment,   and  malicious   prosecution  against            Professional  Security Services, a  private company,  and its            employees  sounded only  in state  law; (4)  D'Amario's equal            protection   claim  was   defective  for  lack   of  adequate            allegations of arbitrary deprivation  of a protected right or            membership in a suspect class; and (5) D'Amario's allegations            against  the   Rhode  Island  Department  of   Mental  Health            Retardation and  Hospitals ("RIMHRH"), charging  that doctors            employed by  RIMHRH refused  to give D'Amario  sleeping pills            while he was in  an RIMHRH facility, failed to state  a claim            of  cruel and unusual punishment.   On October  22, 1991, the            district  court accepted  the magistrate  judge's  report and            recommendation and dismissed the complaint.                      Subsequently,  D'Amario filed  a  Fed.  R. Civ.  P.            59(e) motion to alter or amend the district court's judgment.            D'Amario argued that, in view of his pro se status, he should                                                 ______            be permitted  to file an amended complaint.  He also raised a            number of objections  to the merits  of the district  court's                                         -4-            dismissal.    On  December   20,  1991,  the  district  court            summarily denied  D'Amario's motion.   D'Amario appeals.   We            affirm.                      D'Amario argues on appeal that the district court's            refusal to  permit him to  file an amended  complaint, curing            the deficiencies of his  original complaint, was inconsistent            with this court's dictates  in Forte v. Sullivan, 935  F.2d 1                                           _____    ________            (1st  Cir. 1991), and Street v. Fair,  918 F.2d 269 (1st Cir.                                  ______    ____            1990).                      In Street, the district court dismissed plaintiff's                         ______            pro se, in forma pauperis   1983 complaint sua sponte, before                                                       ___ ______            defendants  had responded  to  the complaint.   The  district            court  found that  the  complaint  did  not allege  facts  to            support  its allegations  of civil  rights violations.   This            court  reversed the dismissal and remanded  the case to allow            plaintiff an opportunity  to amend his complaint.  We pointed            out  that sua sponte dismissal is appropriate only when an in                      ___ ______            forma  pauperis complaint  is "frivolous"  under 28  U.S.C.              1915(d).    We  found   that  plaintiff's  complaint,   while            factually deficient,  was not "frivolous" for  purposes of 28            U.S.C.     1915(d) because it would state a claim if adequate            supporting facts  were pleaded.  Mere  factual deficiency was            sufficient  to support  a dismissal  for failure  to state  a            claim under Fed.  R. Civ.  P. 12(b)(6), but  a Rule  12(b)(6)            dismissal could not be  ordered sua sponte, without affording                                            ___ ______                                         -5-            plaintiff  notice and an opportunity  to be heard.   Thus, we            held that the court's dismissal was in error, because neither            the substantive  requirements for  a   1915(d)  dismissal nor            the procedural  requirements for  a  Rule 12(b)(6)  dismissal            were met.                      In Forte, similarly, we reversed the dismissal of a                         _____            pro se, in forma pauperis complaint because the complaint was            ___ __            not "frivolous" under   1915(d)  and because -- although  the            complaint  may  have been  subject  to  dismissal under  Rule            12(b)(6)  as factually  deficient  --   sua sponte  dismissal                                                    ___ ______            without notice  was improper  under Rule 12(b)(6).   Although            defendant  had filed a motion  to dismiss, we  found that the            dismissal had, in effect,  been sua sponte because plaintiff,                                            ___ ______            a prison inmate, had not received the motion to dismiss until            it already had been granted.                      D'Amario's   situation  is   altogether  different.            D'Amario's  complaint was  not  dismissed under  28 U.S.C.               1915(d),  but under Rule 12(b)(6).   The dismissal  was by no            means  sua  sponte.   To  the  contrary,  the district  court                   ___  ______            granted motions to dismiss  and a motion for judgment  on the            pleadings submitted  by various  defendants.   D'Amario filed            numerous  objections  to  these  motions,   long  before  the            magistrate judge's report and recommendation.   D'Amario even            conducted  some discovery  during  that period.   The  record            reveals that in  none of these  filings did D'Amario  request                                         -6-            leave  to amend the complaint.   It was  after the magistrate            judge  issued  his  report  and  recommendation, recommending            dismissal of D'Amario's complaint, that D'Amario sought leave            to amend.                      Our decisions  in Street and Forte, therefore, have                                        ______     _____            no application  in these  circumstances.  D'Amario  had ample            opportunity to respond to  defendants' motions to dismiss his            complaint for factual deficiency under Rule 12(b)(6).                      Also,  we  can  find  no fault  with  the  district            court's implicit  denial, in adopting  the magistrate judge's            report and   recommendation,  of D'Amario's motions  to amend            his  complaint.   The district  court acted  well within  its            discretion,  see Fed.  R. Civ. P.  15(a), in  concluding that                         ___            D'Amario's motions to amend, filed only after issuance of the            magistrate judge's report, came too late.                      D'Amario  also challenges on  appeal the  merits of            the district court's dismissal of  his complaint.  We  affirm            that  dismissal  for the  reasons  stated  in the  magistrate            judge's November 30, 1987 report and recommendation.                      We have considered D'Amario's other  objections and            find them meritless.                      The judgment of the district court is affirmed.                                                            ________                                         -7-
