Académique Documents
Professionnel Documents
Culture Documents
April 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1916
RAYMOND F. BRIERLY,
Plaintiff, Appellant,
v.
VIRGINIA BRIERLY, 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
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Per Curiam.
__________
Plaintiff
appellant challenges
the
denial of his
motion for
leave to file
a Second
plaintiff appears
counsel below.
His
here
pro
___
se, he
__
was
1983,
Brierly,
and
named
the
as defendants
Acting Director
his ex-wife,
of
the
Virginia
State of
Rhode
Complaint.
Virginia Brierly.
Virginia
with
First Amended
at
difficult to recap
Brierly in
support payments
Count One
plaintiff failed
in accordance with
In
to make
the terms of
child
the Rhode
____________________
1. Both defendants filed motions to dismiss.
Although one
of the motions was couched as a motion for judgment on the
pleadings under Fed. R. Civ. P. 12(c), it in essence also
raised a Rule 12(b)(6) objection by challenging the legal
foundation for the complaint. It was properly dealt with on
this basis by the district court.
See
Amersbach v.
___
_________
Cleveland, 598 F.2d 1033 (6th Cir. 1979), cited with approval
_________
___________________
in Whiting v. Maiolini, 921 F.2d 5 (1st Cir. 1990); Charles
__ _______
________
A. Wright et. al., 5A Federal Practice and Procedure
1369
______________________________
at n.6 (2d ed. Supp. 1992).
Brierly
to
adjudge him
motion
was
continued
in contempt.
beyond
its
The hearing
first
scheduled
notice [of
the continued
upon plaintiff,"
plaintiff was
eventually
on
30,
plaintiff states,
pay some
date.
any kind of
held
on the
September
1986.
date]
hearing was
As
result,
$58,640 in arrearages.
he was arrested
required to execute
residence
to
petitioned
without
a deed
secure
for
his
review
success, and
Court, which
in February,
in blank to
release.
of
He
states
order,
the Rhode
He was
the former
the contempt
appealed to
1988.
then
marital
that
he
apparently
Island Supreme
and presentation
a writ of certiorari in
of
September,
1990.
Count Two appears directed
in
Director of the
DHS.
for the
payment of
without
fear of
child support
arrest
It alleges
arrangements
arrearages could
or interest
payments."
be made
Plaintiff
-3-
and other
plaintiff
terms.
was
been reached.
The
awaiting
days
required
to
$58,640.00,
additional
a response
from
terminated
DHS
about
agreement had
amnesty period
payment
in
September,
execute
and
objected on the
1991.
He was
a promissory
was found
interest
on
note
liable by
arrearages.
in
then
the
amount of
the Family
Court for
He
allegedly
states
that
he
of dismissal of a complaint
under Rule
the
most favorable
light
appropriate
because
"it
to
the
appears
plaintiff, dismissal
beyond
no set of facts in
which
Inc.,
____
814 F.2d
22, 25
(1st Cir.
the complaint in
doubt
that
is
the
Conley v.
______
Gibson,
______
355 U.S.
41,
45-46 (1957));
v.
____________________
2. The amnesty time period is not mentioned in the First
Amended Complaint, but for the sake of clarity, we note that
the proposed Second Amended Complaint states that the program
was announced in April, 1990 and ran through May 25, 1990,
while plaintiff's appeal from his first contempt citation was
pending.
The authority for, and mechanics of, the amnesty
program are not disclosed in the pleadings.
-4-
Sunday River Skiway Corp., 984 F.2d 530, 537 (1st Cir. 1993)
__________________________
("If a trial court accepts plaintiff's facts and can envision
no
reasonable
plaintiff
to
application of
relief,
the
the
law
court may
that would
rightly
entitle
dismiss
the
case.").
The Supreme
v.
Coordination Unit, 61
__________________
However,
the Federal
"minimal
U.S.L.W.
requirements
4205 (U.S.
are
not
Mar. 3,
1993).
tantamount
to
nonexistent requirements."
F.2d 513, 514 (1st Cir.
Gooley
______
1988).
not "conjure
to exist.
deficient in
deviation
from
an
established
statute.
the claim
asserted
infirm
because
it
state
against defendant
does
rule,
not
Virginia
charge
any
policy
or
held, that
Brierly
conduct
is
fairly
-5-
U.S.
922,
937, 940
(1982).
Likewise,
the
damages claim
barred by
which must
be paid
funds.
Hafer v.
_____
491 U.S.
unnecessary here
from State
State
58,
to reach
65 (1989).
But
we
think it
both claims
is well
which cannot be
established that
constitute a violation of
Due Process
provide
unauthorized conduct
does not
postdeprivation
State] refuses to
remedy."
Hudson
______
v.
Palmer, 468 U.S. 517, 533 (1984); see also Parratt v. Taylor,
______
________ _______
______
451 U.S. 527
(1981); Zinermon
________
v. Burch, 494
_____
U.S. 113,
125
Since
plaintiff
had the
burden
to
set forth
supporting
vague
allegations
reflect, instead,
that
-6-
the result
inadequate.
this
does not
show that
To the extent
the process
that plaintiff is
itself is
attempting by
entitled to any
Lower
Feldman,
_______
15, 17
(1st
Cir. 1990).
We
court's
also see no
decisions
attorney's
fees and
to
reason to disagree
grant Virginia
costs, and
Brierly's
to deny
See
disturbed except
motion for
plaintiff's second
on a clear
whose rulings
showing of
abuse.
___
_____
__________
at 15
district
court
awarded
costs
and
fees
to
Complaint.
The
order ran
jointly against plaintiff and his attorney under Rule 11, and
-7-
against
U.S.C.
1988.
The court
an
effort
retaliate against
harass
Brierly
and
to
that neither a
Virginia
to
that the
or in law.
These findings more than satisfied the requirements
of Rule 11 and 42 U.S.C.
to one another,
is a
showing
of subjective
(applying
bad
faith.
Here
both
the criteria
announced
5, 14
in Christiansburg
______________
to
prevailing
Lancellotti,
___________
909
defendants
F.2d
at
19
under 42
U.S.C.
(observing
the
1988);
alternative
Assoc., Inc.,
____________
943
criteria
and
findings,
and
F.2d
139
(1st
Cir.
1991)
(discussing
light
first two
cognizable claim,
we
of
these
futile
see
attempts to
no abuse
-8-
detailed
of
plead a
discretion
legally
in
the
district
court's
denial
of
leave
to
file
yet
178, 182
to amend
given,"
denial
will
"justifying reason,"
... repeated
undue
leave
be
upheld where
such as
is usually
there
"bad faith or
prejudice to the
third
is
371 U.S.
"freely
stated
dilatory motive
by amendments ...
futility of the
amendment").
Accordingly,
affirmed.
________
the
district
court's
judgment
is
-9-