USCA1 Opinion
November 6, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2243
DANNY M. ROSS,
Plaintiff, Appellant,
v.
MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Danny M. Ross on brief pro se.
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Per Curiam. Plaintiff-appellant Danny M. Ross
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filed a 42 U.S.C. 1983 action pro se and in forma pauperis
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against the Massachusetts Commission Against Discrimination
(MCAD) alleging that MCAD had deprived him of due process of
the law by mishandling his complaint of employment
discrimination. He sought damages in the amount of $500,000
for alleged monetary losses, emotional and mental distress.
The district court dismissed the complaint as
frivolous under 28 U.S.C. 1915(d), inasmuch as the Eleventh
Amendment indisputably bars actions for money damages against
an arm of the Commonwealth in the absence of a waiver. See
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Will v. Michigan Dep't of State Police, 491 U.S. 58, 66
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(1989); Johnson v. Rodriguez, 943 F.2d 104, 109 (1st Cir.
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1991) (as a state agency, MCAD is immune from a 1983
action), cert. denied, 502 U.S. 1063 (1992); see also Neitzke
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v. Williams, 490 U.S. at 319, 325 (1989) (a district court
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should dismiss a claim as frivolous under 1915(d) where the
defendant is clearly immune from suit). The court also
denied, as "moot," a motion to amend the complaint which Ross
filed almost a month after the dismissal. This appeal
followed.1
Ross argues that the court did not read his
complaint liberally enough because his additional prayer, for
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1. In light of the disposition of this appeal, we need not
inquire into the timeliness of Ross' challenge to the initial
dismissal.
"such other relief as this court deems fit," might have
included an injunction. He also challenges the denial of an
opportunity to amend the complaint.
Dismissals for frivolousness under 28 U.S.C.
1915(d) are reviewed only for abuse of discretion, "taking
into account the liberal pleading standards applicable to
complaints filed by pro se plaintiffs." Watson v. Caton, 984
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F.2d 537, 539 (1st Cir. 1993) (citing Denton v. Hernandez,
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504 U.S. 25 (1992)). There was no abuse in the court's
failure to conjure up all conceivable unpled allegations to
save a legally baseless complaint. See McDonald v. Hall, 610
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F.2d 16, 19 (1st Cir. 1979). Nor was the court required to
provide an opportunity to amend prior to dismissing a
complaint which had no arguable basis in the law. See Street
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v. Fair, 918 F.2d 269, 272 (1st Cir. 1990). Dismissal of a
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complaint for frivolousness due to a lack of subject matter
jurisdiction is not a dismissal "on the merits." Id. Under
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1915(d), too, it does not prejudice the filing of a "paid"
complaint. Denton, 504 U.S. at 34.
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The judgment is affirmed. Appellant's "Motion for
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review by U.S. Attorney General and for allowance of
Supplemental Reading" is denied.
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