USCA1 Opinion
June 5, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2113
STANLEY J. MALEK, JR.,
Plaintiff, Appellant,
v.
DEPUTY SHERIFF DAVID KNIGHTLY, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Stanley J. Malek, Jr. on brief pro se.
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Richard L. Barry, Jr. on brief for appellees.
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Per Curiam. Plaintiff-appellant Stanley J. Malek
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appeals from the dismissal of his amended civil rights
complaint for failure to state a claim. We affirm the
dismissal of appellant's federal claims, but modify the
dismissal of appellant's state law claims to reflect that
their dismissal is without prejudice to their being renewed
in state court.
BACKGROUND
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On April 7, 1994, appellant filed a complaint in
the district court. As amended, the complaint alleges
violations of 42 U.S.C. 1983, 1985, and 1986 against
deputy sheriffs David Knightly and Francis Cote, Sheriff
Robert Garvey, Hampshire County Sheriff's Department, and
Hampshire County Sheriff's, Inc. The amended complaint also
includes a variety of state common law claims.
Stripped to its essentials, the complaint alleges
that on February 23, 1994, at approximately 8:00 a.m., deputy
sheriffs Knightly and Cote came onto appellant's property,
entered his home without his consent, and arrested him.
Knightly and Cote then transported appellant to jail. On the
way there, the deputy sheriffs showed appellant a "purported"
capias. After being held for a short period of time,
appellant was released and given a court date to return.
Thereafter, appellant sent notices regarding this incident to
the Hampshire County Commissioners, the chairman of the Board
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of Commissioners, and appellee Sheriff Garvey. Appellant
received no response to these notices.
Based on these facts, appellant alleged violations
of his rights to due process of law and to be free from
unreasonable searches and seizures under the Fourth, Fifth,
Ninth, and Fourteenth Amendments. He also alleged a
conspiracy to deprive him of his civil rights in violation of
42 U.S.C. 1983, 1985, and 1986. Finally, he alleged state
law claims for false imprisonment, trespass, defamation,
invasion of privacy, and civil conspiracy. On May 31, 1994,
defendants-appellees filed a motion to dismiss the amended
complaint for failure to state a claim. The two deputy
sheriffs and the sheriff also asserted a defense of quasi-
judicial immunity. In support of the motion to dismiss,
appellees submitted copies of various court documents. These
documents included a copy of a capias issued by Ware District
Court commanding appellant's arrest for contempt based on his
failure to appear in court for a supplementary process
hearing. Appellant responded by moving to strike the motion
to dismiss. On August 25, 1994, the district court allowed
the motion to dismiss as to all claims. Judgment entered on
August 26, 1994. Appellant filed a timely motion for
reconsideration, which was denied. This appeal ensued.
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DISCUSSION
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I.
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Appellate review of a motion to dismiss is de novo.
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See, e.g., Armstrong v. Jefferson Smurfit Corp., 30 F.3d 11,
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12 (1st Cir. 1994). The standard for assessing the adequacy
of a civil rights claim is whether, accepting the factual
averments in the complaint as true, and construing them in
the light most favorable to the plaintiff, the pleading shows
any fact which could entitle the plaintiff to relief. See,
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e.g., Leatherman v. Tarrant County Narcotics Intelligence &
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Coordination Unit, 113 S. Ct. 1160, 1161-63 (1993); Gooley v.
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Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). Because
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appellant is pro se, we read his complaint with an extra
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degree of solicitude. Rodi v. Ventetuolo, 941 F.2d 22, 23
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(1st Cir. 1991). We are free to affirm on any basis
supported by the record. See Watterson v. Page, 987 F.2d 1,
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7 n.3 (1st Cir. 1993).
II.
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Appellant argues that his amended complaint should
not have been dismissed because it states a valid claim under
1983 for violation of his constitutional right to be free
from unreasonable searches and seizures.1 In particular, he
contends that a capias is not a warrant, and that he stated a
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1. Appellant does not raise on appeal the dismissal of his
claims under 42 U.S.C. 1985, 1986, and they are,
therefore, deemed waived.
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claim against deputy sheriffs Knightly and Cote under the
Fourth Amendment based on their unconsented to entry into his
home without a warrant. Appellant also contends that he has
stated a claim against Sheriff Garvey, in his individual and
official capacity, based on Garvey's failure to reprimand
Knightly and Cote after appellant sent him three notices
about the February 23, 1994 incident.
A. Deputy Sheriffs Knightly and Cote
Appellees urge, and the district court found, that
deputy sheriffs Knightly and Cote are entitled to quasi-
judicial immunity because they were executing a facially
valid warrant. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.
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1991). Appellant responds that the defense of absolute
immunity must fail because the deputies exceeded legal bounds
in executing the warrant. See Martin v. Board of County
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Comm'rs, 909 F.2d 402, 405 (10th Cir. 1990) ("[A] judicial
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warrant contains an implicit directive that the arrest . . .
be carried out in a lawful manner."). We need not resolve
the issue whether absolute immunity protects Knightly and
Cote, however, because we find that, in any event, they are
entitled to qualified immunity since they did not violate a
"clearly established" right. See Harlow v. Fitzgerald, 457
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U.S. 800, 818 (1982) (holding that qualified immunity shields
public officials performing discretionary functions from
liability for civil damages insofar as their conduct does not
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violate clearly established rights of which a reasonable
person should have known).
In Payton v. New York, 445 U.S. 573 (1980), the
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Supreme Court held that the Fourth Amendment prohibits the
police from effecting a warrantless and nonconsensual entry
into a suspect's home in order to make a routine felony
arrest. However, the Court also held that a criminal arrest
warrant alone was sufficient to authorize the entry into a
person's home to effect his arrest. Payton, 445 U.S. at 602-
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03; see also Steagald v. United States, 451 U.S. 204, 214 n.7
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(1981) (discussing Payton). Contrary to appellant's
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suggestion, the deputy sheriffs who entered his home had an
arrest warrant. The issue, as we see it, is whether a bench
warrant for civil contempt authorizes entry into the
arrestee's home to effect the arrest.
This latter issue has received surprisingly little
discussion in the case law, and we have found no
Massachusetts or federal cases directly on point. Because
the issue was inadequately briefed, we do not resolve it
here. Given the dearth of relevant case law, we cannot say
that Knightly or Cote (or more precisely, an objectively
reasonably police office in their position) knew or should
have known that their actions violated appellant's Fourth
Amendment rights, if, in fact, they did. See Wiley v. Doory,
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14 F.3d 993, 995 (4th Cir. 1994) (Powell, J.) (observing that
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in determining whether the plaintiff has asserted a violation
of a clearly established right, "`the proper focus is not
upon the right at its most general or abstract level, but at
the level of its application to the specific conduct being
challenged.'") (quoting Pritchett v. Alford, 973 F.2d 307,
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312 (4th Cir. 1992)).
B. Sheriff Garvey
Appellant failed to state a claim against Sheriff
Garvey even if we assume, arguendo, that his deputies
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violated a federally protected right. A supervisor may be
liable only on the basis of his own acts or omissions, and
there must be an affirmative link between the supervisor's
action or inaction and the street level misconduct. Bowen v.
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City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992);
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Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
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1989). In the instant case, appellant attempts to hold
Sheriff Garvey liable based on his failure to reprimand
deputy sheriffs Knightly and Cote for their actions on
February 23, 1994. However, the failure of a supervisor to
discipline his subordinates following a single instance of
"misconduct" is insufficient for a finding of supervisory
liability because the failure to act cannot have caused the
violation. See Febus-Rodriguez v. Batencourt-Lebron, 14 F.3d
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87, 93 (1st Cir. 1994) (no liability where supervisor was not
provided with requisite notice of behavior which was likely
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to result in constitutional violation). We add that, in any
event, Sheriff Garvey would also be entitled to a defense of
qualified immunity.
Appellant's claim against Sheriff Garvey in his
official capacity also fails. An official-capacity suit is
actually a suit against the entity of which the officer is an
agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). To
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establish municipal liability under 1983, the plaintiff
must show that municipal employees were acting pursuant to
some official policy or custom of the city when they violated
the plaintiff's rights. Oklahoma City v. Tuttle, 471 U.S.
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808, 810 (1985); Monell v. Department of Social Servs., 436
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U.S. 658, 694 (1978). Because the issue was not briefed, we
pass the question whether Sheriff Garvey, in the instant
case, should be considered an agent of the state (in which
case Eleventh Amendment immunity applies) or of the county
(in which case it does not). We will assume, without
deciding, that Sheriff Garvey should be considered a county
agent. Even so, appellant's claim fails because he does not
allege that deputy sheriffs Knightly and Cote acted in
conformity with official county policy, or that their actions
were caused by Sheriff Garvey's acquiescence in previous
"misconduct."
III.
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Because we affirm the district court's dismissal of
appellant's federal claims, we find that the district court
did not abuse its discretion in dismissing the state law
claims. United Mine Workers of America v. Gibbs, 383 U.S.
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715, 726 (1966). We modify the dismissal of the state law
claims, however, to the extent that they were dismissed with
prejudice. Appellant should not be barred by reason of the
impotence of his federal claims from bringing his common law
claims before a state tribunal.
We have carefully considered appellant's remaining
arguments and find them to be without merit. Accordingly, we
affirm the dismissal of appellant's claims but modify the
judgment to reflect that the state claims are dismissed
without prejudice to their renewal in state court.
Affirmed as modified.
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