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Bane v. RMV, 95-1701 (1995)

Court: Court of Appeals for the First Circuit Number: 95-1701 Visitors: 29
Filed: Dec. 11, 1995
Latest Update: Mar. 02, 2020
Summary: Bernard M. Bane on brief pro se.postdeprivation tort remedies. The conduct here involved is hardly conscience, shocking, should plaintiff be attempting to assert a, substantive due process claim. see also Rumford, ____________ ___ ____ _______, Pharmacy, 970 F.2d at 1000 n.9.
USCA1 Opinion




December 11, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


____________________


No. 95-1701

BERNARD M. BANE,

Plaintiff, Appellant,

v.

REGISTRY OF MOTOR VEHICLES,

Defendant, Appellee.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge] ___________________

____________________

Before

Selya, Cyr and Boudin,
Circuit Judges. ______________

____________________

Bernard M. Bane on brief pro se. _______________


____________________


____________________


























Per Curiam. The district court dismissed ____________

plaintiff's complaint as frivolous under 28 U.S.C. 1915(d),

after informing plaintiff that his complaint was deficient

and giving him an opportunity to supply applicable legal

authority to support why his action should proceed. We

affirm the dismissal.

Plaintiff has failed to show a deprivation of any

federal or constitutional right, an essential element of a

1983 cause of action. None of plaintiff's filings allege

facts indicating that Massachusetts fails to provide a

constitutionally adequate remedy to redress the purported due

process deprivation, here, the non-renewals of plaintiff's

license to operate and automobile registration. Such an

allegation is critical to a procedural due process claim, and

its omission warrants dismissal of that claim. Rumford _______

Pharmacy v. City of East Providence, 970 F.2d 996, 999 (1st ________ ________________________

Cir. 1992).

Mass. Gen. L. ch. 90, 20A 1/2, clearly provides

predeprivation safeguards to avert erroneous non-renewals.

It is the issuance of parking tickets that triggers a

potential non-renewal. Aside from the unelaborated and

conclusory assertion that 20A 1/2 is unconstitutional,

plaintiff failed completely to indicate in what way those

statutory safeguards are inadequate or what additional

process is required to challenge the ticketing in the first



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instance. Given the express provisions of ch. 20A 1/2,

adequate predeprivation process was available. See Lowe v. ___ ____

Scott, 959 F.2d 323, 344 (1st Cir. 1992). _____

Further, Massachusetts appears to provide adequate

postdeprivation tort remedies. Smith v. Massachusetts Dep't _____ ___________________

of Correction, 936 F.2d 1390, 1402 (1st Cir. 1991). ______________

Plaintiff has failed to allege that a state-law tort remedy

could not adequately cure the alleged wrong. Without facts

showing the inadequacy of the Massachusetts predeprivation

and postdeprivation remedies, plaintiff cannot state a 1983

procedural due process claim.1 Rumford Pharmacy, 970 F.2d ________________

at 1000; see also Campo v. New York City Employee's ___ ____ _____ ___________________________

Retirement System, 843 F.2d 96, 101-02 (2d Cir.), cert. __________________ _____

denied, 488 U.S. 889 (1988) (plaintiffs cannot manufacture a ______

1983 claim by pointing to allegedly defective agency

procedure while ignoring other state process that serves to

redress administrative error). Because plaintiff has failed

to plead an actionable claim of deprivation of due process,

his ancillary 1985 conspiracy claim necessarily fails as








____________________

1. The conduct here involved is hardly "conscience
shocking", should plaintiff be attempting to assert a
substantive due process claim. See, Senra v. Cunningham, 9 ___ _____ __________
F.3d 168, 173 (1st Cir. 1993).

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well. Rumford Pharmacy, 970 F.2d at 1000 n.7; Torres v. _________________ ______

Superintendent of Police,893 F.2d404, 410 n.8(1st Cir.1990).2 ________________________

In short, despite an opportunity to supply

additional substance to the due process claim, see Purvis v. ___ ______

Ponte, 929 F.2d 822, 826 (1st Cir. 1991), the complaint _____

lacked sufficient allegations that constitutionally adequate

state law remedies were not available, and was properly

dismissed.

Affirmed. ________






















____________________

2. To the extent that plaintiff's conspiracy theory attempts
to rely on grounds other than due process, such as equal
protection or the First Amendment, plaintiff's speculative
and improbable conspiracy claim--that he has been singled out
by defendants because of his previous litigation or political
views--fails to identify facts that could support the kind of
racial or class-based animus required to obtain 1985(3)
relief, and is plainly without merit. Griffin v. _______
Breckenridge, 403 U.S. 88, 102 (1971); see also Rumford ____________ ___ ____ _______
Pharmacy, 970 F.2d at 1000 n.9. ________

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Source:  CourtListener

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