
USCA1 Opinion

	




          May 11, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1021                                                   HO WONG,                                Plaintiff, Appellant,                                          v.                           THOMAS MATERAZZO, ETC., ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Ho Wong on brief pro se.               _______               Albert W.  Wallis, City  of Boston Corporation  Counsel, and               _________________          William J.  Pidgeon, Jr., Assistant Corporation  Counsel, City of          ________________________          Boston, Law Department on brief for appellee.                                  __________________                                  __________________                      Per Curiam.  Plaintiff  appellant states that he is                      __________            a  homeless veteran who resides  in Boston.   He brought this            action  under 42  U.S.C.    1983 claiming  that the  Veterans            Services   Department  for  the  City  of  Boston  wrongfully            suspended the benefits  to which he was  entitled under Mass.            Gen.  L. ch.  115, when  he failed  to provide  a residential            address within the City.  Plaintiff's request for restoration            of  benefits was denied  and he appealed  to the Commonwealth            Office of  Veterans' Services.   Shortly after he  filed that            appeal, he  filed this  complaint in district  court alleging            that  the  suspension  of  benefits violated  state  law  and            regulations1   and    the   Due   Process   Clause   of   the            Constitution.2                       The  district court granted  the defendants' motion            to dismiss for  failure to  exhaust administrative  remedies.            Plaintiff  argues  that the  dismissal  was  error under  the                                            ____________________            1.  Massachusetts veterans' benefits are made payable by  the            municipality where  the veteran  "resides," meaning  that the            veteran  is  "present   within  a   city  or  town   .  .   .            notwithstanding the lack of a present  abode, with no present            intention of definite or early removal . . . . "   Mass. Gen.            L. ch. 115,    1, 5; 108 CMR 2:02(7).               2.  Plaintiff  also   charged  a  violation   of  the  Eighth            Amendment and  a deprivation  of the constitutional  right to            equal  protection of  the  laws.   We  treat both  claims  as            surplusage.   There are no facts alleged to support an Eighth            Amendment   claim,  and   the  equal   protection   claim  is            contradicted  by plaintiff's allegations  that state  law and            policy  require equal treatment.  Any  violation of state law            would  be correctable in state court. See discussion infra at                                                  ___            _____            3.                                          -2-            general  principal  that exhaustion  of  state administrative            remedies is not a prerequisite to maintenance of a suit under              1983.   Patsy  v. Board  of Regents,  457 U.S.  496 (1982);                      _____     _________________            Miller v.  Town of Hull, 878 F.2d  523, 530 (1st Cir.), cert.            ______     ____________                                 _____            denied, 493 U.S. 976 (1989).   To maintain his claim under               ______            1983,  however,  the  plaintiff   must  allege  a  cognizable            violation  of the  Due Process  Clause.   "The constitutional            violation  actionable under    1983 is not  complete when the            deprivation occurs; it is  not complete unless and until  the            State fails to provide [suitable post deprivation remedies]."            Zinermon v. Burch, 494  U.S. 113, 126 (1990).   Moreover, the            ________    _____            crux  of  plaintiff's  complaint   is  that  the   defendants            disregarded state law and regulations when they suspended his            benefits.    Ordinarily, an  "alleged misuse or  disregard of            state  law   by  state   officials  does  not   constitute  a            deprivation of property without constitutional due process. .            .  .   Such  deficiencies, if  they  exist, are  readily  and            adequately correctable  under  state  law  in  state  court."            Malachowski v. Keene, 787 F.2d 704  (1st Cir.), cert. denied,            ___________    _____                            ____________            479 U.S. 828 (1986) (citing Pennhurst State School & Hospital                                        _________________________________            v. Halderman, 465 U.S. 89, 104 (1984)).                _________                      We  do  not   here  consider   the  assertions   in            plaintiff's motion  to amend  the complaint, filed  after the            district  court  ordered  dismissal  of  the  action "without            prejudice."  The  motion was denied  because this appeal  was                                         -3-            pending.    New matters  must  be properly  presented  to the            district  court for decision;  they may not  be addressed for            the first time on appeal.                      Affirmed.                      ________                                         -4-
