USCA1 Opinion
December 14, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1733
ALFRED A. GALLANT, II,
Plaintiff, Appellant,
v.
THOMAS DELAHANTY, II, JUDGE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Alfred A. Gallant, Jr. on brief pro se.
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Per Curiam. A magistrate judge recommended that
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plaintiff's vague, verbose, and partially illegible civil
rights complaint be dismissed as frivolous under 28 U.S.C.
1915(d) because the allegations were "fanciful" and directed
at acts perpetrated by private individuals, rather than state
actors. The district court adopted the report and dismissed
the complaint.
We agree that much of plaintiff's complaint was
properly dismissed as frivolous under 28 U.S.C. 1915(d)
because the legal theory underlying the claims was
indisputably meritless. The claims properly dismissed
included the following: 1) plaintiff's complaint that police
had failed to investigate crimes, see Sattler v. Johnson, 857
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F.2d 224, 227 (4th Cir. 1988) (victims have no constitutional
right to have defendants criminally prosecuted); Slagel v.
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Shell Oil Refinery, 811 F. Supp. 378, 382 (C.D. Ill. 1993)
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(police officer had no constitutional duty to conduct
investigation of plaintiff's assault charge), aff'd, 23 F.3d
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410 (7th Cir. 1994), or protect plaintiff prior to his
incarceration, DeShaney v. Winnebago County Dep't of Social
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Services, 489 U.S. 189 (1989); 2) allegations concerning pre-
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incarceration stalkings and harassment, Yancey v. Carroll
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County, 876 F.2d 1238, 1245 (6th Cir. 1989) (investigation,
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without more, is not a constitutional violation);
Philadelphia Yearly Meeting v. Tate, 519 F.2d 1335, 1337 (3d
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Cir. 1975); Hickombottom v. Chicago, 739 F.Supp 1173, 1178
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(N.D. Ill. 1990) (police surveillance of apartment did not
violate the Fourth Amendment as plaintiff had no reasonable
expectation of privacy in his comings and goings); 3) denial
of workers' compensation benefits; 4) unconstitutional
conviction, Heck v. Humphrey, 114 S. Ct. 2364 (1994); 5) four-
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day denial of an attorney, United States v. Gouveia, 467 U.S.
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180, 187 (1984); Kirby v. Illinois, 406 U.S. 682, 688-89
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(1972); 6) deprivation of property without due process,
Hudson v. Palmer, 468 U.S. 517, 533 (1984); Daniels v.
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Williams, 474 U.S. 327 (1986); electronic surveillance while
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in prison, United States v. Willoughby, 860 F.2d 15, 22-23
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(2d Cir. 1988) (no reasonable expectation of privacy in
conversation conducted in a public area of a jail), cert.
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denied, 488 U.S. 1033 (1989); United States v. Harrelson, 754
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F.2d 1153, 1169-71 (5th Cir. 1985) (prisoner had no
reasonable expectation of privacy while conversing with his
wife in his cell), cert. denied, 474 U.S. 908, 1034 (1985);
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United States v. Hearst, 563 F.2d 1331, 1344-46 (9th Cir.
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1977) (monitoring and recording of prisoner-visitor
conversations was reasonable and therefore not violative of
the Fourth Amendment), cert. denied, 435 U.S. 1000 (1978);
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and 7) ineffective assistance of post-conviction counsel,
Pennsylvania v. Finley, 481 U.S. 551 (1987); Polk County v.
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Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th
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Cir. 1976). In a similar view, the denial of access to
courts claim was subject to dismissal under 1915(d) because
the restrictions described (e.g., delay in access to legal
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papers; rifling of papers; destruction of some papers; denial
of forms, paper clips, staples) were insufficiently
substantial.
Other allegations, however, although often lacking
enough detail to state constitutional claims which would
survive a Rule 12(b)(6) motion to dismiss, were not premised
on indisputably meritless legal theories and conceivably
could be cured by more specific factual allegations. Four
potential claims fall into this area.
First, plaintiff outlined conceivable Eighth
Amendment violations. He claimed he had been assaulted and
terrorized by both guards and inmates while in prison and
denied medical attention and nutrition. See Farmer v.
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Brennan, 114 S. Ct. 1920 (1994) (prison officials who
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knowingly disregard substantial risk of serious harm to
inmates may be held liable under the Eighth Amendment);
Estelle v. Gamble, 429 U.S. 97 (1976). While plaintiff's
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allegations are confusing and conclusory, enough was stated
to avoid a 1915(d) dismissal. Street v. Fair, 918 F.2d
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269, 272-73 (1st Cir. 1990).
Second, plaintiff complained that his mail was
tampered with, switched, and late and that legal mail was
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opened. Depending on how the facts were fleshed out,
conceivably a constitutional claim could exist, if, for
example, incoming legal mail were opened with some regularity
outside plaintiff's presence. Castillo v. Cook County Mail
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Room Dep't, 990 F.2d 304 (7th Cir. 1993) (reversing 1915(d)
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dismissal of inmate complaint, which alleged that three
letters from public officials received in an eight-month
period had been opened, because a colorable constitutional
claim had been stated). This claim, too, should not have
been dismissed under 1915(d).
Third, plaintiff should be afforded a further
opportunity to articulate his complaints concerning placement
in segregation for refusal to work. On the present record,
we cannot tell whether plaintiff had any liberty interest in
remaining out of segregation, and, if so, whether he was
accorded due process before being deprived of it. Rodi v.
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Ventetuolo, 941 F.2d 22 (1st Cir. 1991).
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Fourth, plaintiff outlined some contours of a
possible First Amendment retaliatory transfer claim. He
asserted that shortly after he tried to communicate with the
governor, a newspaper, an attorney, and the federal district
court in March 1994, he was transferred to high maximum
security in retaliation. See McDonald v. Hall, 610 F.2d 16
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(1st Cir. 1979) (prisoner who alleged that he had filed
actions against prison officials, that he was subsequently
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transferred, and that the transfer was in retaliation for
litigation activities, stated a claim even though the
allegations were conclusory); Ferranti v. Moran, 618 F.2d
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888, 891-92 (1st Cir. 1980) (retaliation claim stated by
allegations that officials denied plaintiff a transfer to
minimum security after plaintiff filed a suit complaining
about prison conditions). See also Mujahid v. Sumner, 807
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F.Supp. 1505 (D.Hawaii 1992) (rule forbidding prisoners to
correspond with the media was facially unconstitutional),
aff'd, 996 F.2d 1226 (9th Cir. 1993). Because plaintiff did
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not state the subject of his communication, he may not have
satisfied even McDonald's lenient pleading standard, Leonardo
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v. Moran, 611 F.2d 397, 398 (1st Cir. 1979), but since
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plaintiff may be able to fill in enough details to state a
claim, a sua sponte 1915(d) dismissal was not appropriate.
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We therefore remand for further proceedings. As a
result of this opinion, plaintiff is now on notice that in
order to state constitutional claims he may not rest on
vague, conclusory allegations, but must set factual
allegations respecting the material elements of his claims.
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514-15 (1st Cir.
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1988). Therefore, on remand, plaintiff should amend his
complaint.
Appellant's request for appellate counsel is
denied.
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Vacated and remanded.
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