
USCA1 Opinion

	




          March 24, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1873                                             ANTHONY SOLIMINE,                                Plaintiff, Appellant,                                          v.                           FEDERAL BUREAU OF INVESTIGATION,                                 Defendant, Appellee.                                 ____________________        No. 94-1995                                  ANTHONY SOLIMINE,                                Plaintiff, Appellant,                                          v.                UNITED STATES FEDERAL BUREAU OF INVESTIGATIONS, CIVIL                       RIGHTS, DIRECTOR AGENT MORRILL, ET AL.,                                Defendants, Appellees.                                   ________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Anthony Solimine on brief pro se.            ________________            Donald K. Stern,  United States Attorney,  and Gwendolyn  R. Tyre,            _______________                                __________________        Assistant United States Attorney, on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.  The  district court correctly dismissed, as                 __________            frivolous,  pursuant  to 28  U.S.C.     1915(d), the  actions            underlying  each   of  these   appeals.     The   complaints,            essentially  identical,  were   based  on  "an   indisputably            meritless  legal theory."  Neitzke v. Williams, 490 U.S. 319,                                       _______    ________            327 (1989).  Appellant's proffered amendment, submitted after            dismissal in one  action and before  dismissal in the  second            action,  did  not cure  the  defective  pleading.   Appellant            attempts  to  contort  his  allegations  into  a  claim of  a            negligently-done  voluntary  undertaking,   not  within   the            discretionary function exception to  the Federal Tort  Claims            Act, 28  U.S.C.    2680.   It  is clear,  however, that  what            appellant  alleges  is not  a  voluntary  undertaking, but  a            failure  to undertake what  appellant concedes is  a duty not            _______            within defendants' authority.                 The orders of dismissal are affirmed.                                             _________
