USCA1 Opinion

September 27, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 93-1115

RASHID PIGOTT,
Plaintiff, Appellant,
v.
LYNN POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________

___________________
Rashid Pigott on brief pro se.
_____________

__________________
__________________

Per Curiam.
__________
a

district

court

Pro se prisoner Rashid Pigott appeals

___ __

order

sought declaratory relief and damages from thirtyallegedly violated

a separate

concerning Pigott's son.

Pigott's claims

to

Pigott failed

1983 and

protection proceeding

either

immunity, or because

allege state action.

because

barred by

The

and conviction for

The district court

were

limitations, witness

care and

1915(d).1

42 U.S.C.

connection with Pigott's arrest

manslaughter and

of

U.S.C.

rights

complaint

1985 in

28

civil

sua
___

defendants who

under

his

complaint

six

sponte
______

that dismissed

ruled that some

the statute

of

Pigott had failed

The remaining claims were dismissed

to state

a claim

upon which

relief

could be granted.

We affirm.
I.

We begin
November 4,

with the
1992,

rights complaint
(IFP)
States

relevant procedural background.

Pigott purportedly
and a

letter requesting in
__

application forms to the

District Court

submitted

for the

pro se clerk
___ __
District

his

On
civil

forma pauperis
_____ ________
for the United

of Massachusetts.2

____________________
1.

28 U.S.C.

1915(d) applies to complaints

pauperis. In relevant part, the statute

________
court, "may dismiss the case if...satisfied
is frivolous or malicious."
2.

filed in forma
__ _____
provides that a
that the action

The letter, in relevant part, read as follows:

Re: Filing of Civil Rights Complaint

Dear Pro Se Clerk:
Enclosed please
find
Pro se,
civil
rights
complaint.
I
request that you send me the required
-2-

By

letter dated

complaint

November 27,

with the standard

1992, Pigott

resubmitted his

IFP application

and supporting

affidavits.
filing

The

district

on December

district court
Pigott's

7,

1992.

issued a

application

court received
On

these items

December 31,

memorandum and order

to

proceed IFP

dismissing the complaint.

the

which allowed

while

Pigott filed

1992,

for

simultaneously

a timely notice

of

appeal.
Pigott thereafter

filed a motion to vacate the order of

dismissal with a supporting memorandum, a motion to amend his

complaint,

and an

amended complaint.3

the district court erred

first

affording

opportunity
submitted

to amend
evidence in

district court
1992.

him

Pigott

argued that

by dismissing his complaint without

notice

of

it to

its

deficiencies

state viable

support

first received

of his

claims.

and

He also

contention that

his complaint on

an

the

November 4,

That evidence consisted of a copy of Pigott's November

4, 1992 letter to the pro se clerk quoted above at n. 2 and a

___ __
photocopy of

a certified

mail return receipt

dated "11/4."

____________________
applications for filing this complaint in Forma Pauperis.
I also request that you send me the local rules for
filing pamphlet for future reference.
This letter bears a crossed out time stamp
court dated November 4, 1992.
3. The
(b)(6).

motion to vacate invoked

-3-

of the district

Fed. R. Civ.

P. 60(a) and

The district court denied both motions

on February 25, 1993.

Pigott did not file another notice of appeal.4

II.
The complaint asserted six
from

events which

1992.

An

causes of action which arose

transpired between

understanding

of

December 4,

the parties

is

1989 and

necessary

to

comprehend Pigott's claims.

The

complaint identified the

Pigott's
Lynn

criminal conviction as

police officers

David

defendants connected with

the Lynn Police Department,

Woumn, Chisholm,

Chris

Reddy,

Richard Carrow, Rawston, W. Conrad, Wentzell, L.E. Desmarais,

William

Foley, John

Lieutenant

Doe,

Sergeants

attorneys

and

Coppinger,

Dennis Flynn, Massachusetts state troopers Elaine

Condon, Mark Lynch, Mark Coleman,

chemist

Roach

Kenneth Gagnon,

Flemmings

Christopher Skinner, M.

Baler, defense

investigator

Roberta Lerner, probation

B. Windsor, and P. Zipper,

Towing Company,
Page Kelley,

Stephen Turner,

defense

and Jeffrey

social

officer Stephen Mulloy,

worker

and Essex

County superior court clerk James Leary.

The

defendants

named

in connection

with

the

events

concerning Pigott's son include three social workers employed

by the United Homes for Children foster care agency

(Marilyn

____________________
4. Generally, the denial of a Rule 60(b) motion must be
appealed separately.
See 7 Moore's
Federal Practice,
___
_________________
60.30[3], p. 137 (1992-1993 Supp.). Here, however, Pigott's
basic claims are inherent in Pigott's direct appeal of the
dismissal order.
-4-

Heathman, Mrs. Richardson

worker
(Pam

and Danielle Carviello), a

for the Massachusetts

Grey),

Salem

Department of

Hospital,

two

social

Social Services

unnamed

Salem

Hospital

security guards, and an unknown lawyer.

The complaint alleged the

following facts.

On December

4, 1989, while paying a business call to a residence in Lynn,

Massachusetts,
butcher

knife, and

escaped

his

contacted
Woumn,

Pigott was struck by

assaulted

assailants,

the Lynn

and Sergeant

Police

went

a glass, slashed with a

with other
to

another

Department.

Roach responded

weapons.

Pigott

address,

and

Officers Chisholm,

and arrested

Pigott -

allegedly

without cause.

As a result of Pigott's arrest and

immediate

incarceration,

Flemmings

Towing

Company

towed

Pigott's

car.

injuries,

the

treatment

Despite
police

for

what

did

not

approximately

Pigott

says

were

obvious

take

Pigott

for

medical

one

hour

and

forty-five

minutes.5
He

was then

returned

station and prevented from

to a

cell

in the

Lynn

making a telephone call

police
until he

had been booked, fingerprinted, relieved of his clothing, and

interviewed by

trooper Condon and Lieutenant

Flynn.

Pigott

alleged that Flynn and Condon threatened and coerced him into
____________________
5. The complaint does not describe Pigott's injuries.
It
simply alleges that Pigott was taken to the Atlantic Medical
Care Center in Lynn Hospital. Pigott's appellate brief says
that his injuries required sutures, although this was not
stated in the complaint.
-5-

signing

a statement, after which

telephone call.
the foregoing
arrested,

Pigott's first cause of

his property

deliberately denied

was

to place a

action alleged that

allegations established that

that

violation of

he was allowed

he was illegally

seized, and

that

he was

medical care and legal representation in

his Fourth,

Fifth, Sixth and

Eighth Amendment

rights.
Pigott
(December

further
5, 1989),

alleged

that

he was

on

the

following

arraigned in the

day

Lynn district

court on charges of first degree murder, assault and battery,

and

illegally carrying a firearm.

and met with attorney

He was

released on bail

Skinner, who assumed Pigott's defense.

Pigott's second cause of action alleged that the Lynn

Department

violated

involved in

his

constitutional

setting Pigott's bail.

rights

Police

by getting

The complaint

does not

specify how or by whom this was accomplished.

Pigott
December 5,
the

men

Pigott

returned

to

the

Lynn

1989 and attempted

who allegedly

Department

to do so.

alleged

Lynn Police

that the
right

of

on the

-6-

previous day.

refused to let

Pigott's third

access

him file his

him with bodily

cause of action

Department and
to the

on

complaint against

that officer Woumn threatened

injury for trying

violated his

to file a

assaulted him

alleged that the police

complaint and

Police

courts

officer Woumn
by

refusing

Pigott's application for a

criminal complaint and failing to

investigate the criminal activity Pigott tried to report.6

The complaint

suggests that the

pending against Pigott when

1990.

Pigott's

unwed

biological father

alleged

his son was born on

appellate brief

that, shortly

criminal charges

of

informs us that

Majid Taggert.

after the

The

birth, social

were

January 23,
he is

the

complaint
workers Pam

Grey and Marilyn Heathman forcibly took Pigott's son from him
while

two Salem Hospital

Thereafter,

security guards restrained Pigott.

social workers Heathman and Richardson allegedly

told Pigott that they determined he was an unfit parent after

consulting the Lynn Police Department.

While the allegations

on this point are particularly vague, Pigott alleges that

somehow became

involved in a care

he

and protection proceeding

wherein he demanded custody of his son.7

Defendants Heathman, Richardson and
denied

Pigott visitation

whereabouts of his
unknown

lawyer

rights and

son to him.
had

refused to

Pigott

conflict

Carviello allegedly

of

reveal the

also claimed that an

interest

when

she

represented a third party who had an interest in Pigott's son

____________________
6. Pigott's third cause of action further alleged that
defendant Stephen Turner, a private investigator hired on
Pigott's behalf, never met with him during the time Pigott's
criminal case was pending.
7.
to

Pigott may be referring to a proceeding to commit his son

the custody of the Massachusetts Department of Social

Services pursuant to M.G.L. c. 119,

24.

-7-

in the care

and protection

prosecuting

Pigott

ultimately
alleged

on

dismissed.

that the

proceeding while

other

criminal

Pigott's

conduct of

simultaneously

charges

fourth

that

cause

these defendants

of

were
action

violated his

Fourth, Fifth and Fourteenth Amendment rights.

Pigott's

criminal trial

The complaint
Reddy,

Carrow, Rawston,

Desmarais, William
state troopers

Pigott was

false

Wentzell, L.E.

Coppinger, Massachusetts

Mark Lynch, Mark Coleman,

civil rights

1991.

officers Christopher

W. Conrad,

Foley, and Sgt.

Paul Zipper, and chemist

submitting

September 19,

alleged that Lynn police

Richard

Pigott's

began on

Brian Windsor, and

Kenneth Gagnon conspired to violate

by knowingly

evidence

at

committing

Pigott's

convicted of manslaughter.

perjury and

criminal

He alleged

trial.8
that his

defense attorney (Skinner) fraudulently attempted to persuade

Pigott
remarks

to
and

conviction.

plead guilty

before

misrepresentations
Pigott's

fifth

trial
that

cause of

and made
resulted

slanderous
in Pigott's

action alleged

that

defense

attorney

Skinner's

malpractice

and

the

police

____________________
8.

See Complaint,
5-7, 34, 44. Paragraph 34 specifically
___
alleged that, "from December 4, 1989 up to and throughout
trial[,]" the aforementioned Lynn police officers, state
troopers, and chemist Gagnon, "all willfully and knowingly
committed perjury, fabricated and tampered with evidence, and
submitted and elicited
a preponderance of
maliciously
intended false or otherwise distortions of facts and events."
The complaint does not describe the witnesses' testimony nor
the evidence that was supposedly fabricated.
-8-

conspiracy at Pigott's

trial violated Pigott's Fifth,

Sixth

and Fourteenth Amendment rights.

Pigott

was

interviewed

by probation

Mulloy following his conviction.

officer

Stephen

The complaint alleged that

Mulloy

denied Pigott's

request for

counsel

Pigott

with indefinite

imprisonment

while

civil action that Pigott's family had filed.

and threatened
referring to

Roberta Lerner,

a social worker employed on Pigott's behalf, also interviewed

Pigott.
of

The complaint alleged that Lerner violated the terms

her employment, failed to

assist Pigott in

the care and

protection

case,

and

prepared

a libelous

report

of

her

interview with Pigott.

Pigott further alleged that
right

to appeal

knowledge.

his

criminal

attorney Skinner waived his

conviction without

Other defense attorneys (Kelley

Pigott's

and Baler) also

allegedly refused to pursue Pigott's direct appeal.

Baler

and Essex superior

court clerk

have procured the dismissal

complaint does
been hired
the

not state

alleged to

of Pigott's private counsel. The

what Pigott's private

counsel had

to do, nor what harm befell Pigott as a result of

alleged dismissal.

Leary

Leary are

Attorney

Pigott

further claimed

that clerk

violated his right of access to the courts by refusing

Pigott's
alleged

pro se
___ __
that

the

filings.
actions

Pigott's sixth

cause of

action

of

Mulloy,

Lerner,

defendants

-9-

Skinner,

Kelley, Baler,

and

Leary violated

his Sixth

and

Fourteenth Amendment rights.9

On October 15, 1991, Pigott

was sentenced to prison for

4-15

years.10

instant

Over one year

civil rights

claims presented
that

under

later, Pigott

action.

Faced

with

by the complaint, the

28

U.S.C.

1915(d),

instituted the
the barrage

of

district court noted

courts

may

dismiss

IFP

complaints sua sponte if the plaintiff's claim is based on an

___ ______
indisputably meritless legal theory or on factual allegations
that are clearly baseless.
112 S. Ct. 1728,
319, 327

See, e.g., Denton

___ ____ ______

v. Hernandez,
_________

1733 (1992); Neitzke v. Williams,

_______
________

(1989).

The

court then dismissed

490 U.S.

Pigott's claims

against the Lynn Police Department, Flemmings Towing Company,

and defendants

Woumn, Chisholm, Roach, Flynn,

time-barred under the three-year statute

applies to civil rights

and Condon as

of limitations that

actions in Massachusetts. See Street

___ ______

____________________
9. Mulloy allegedly violated Pigott's right to counsel by
refusing to accede to Pigott's request for an attorney during
his post-conviction interview.
He is said to have violated
Pigott's right of access to the courts by threatening Pigott
with indefinite imprisonment in connection with a civil
action Pigott's family had filed. Pigott's defense attorneys
allegedly violated Pigott's constitutional rights by refusing
to pursue a direct appeal of his criminal conviction and
procuring the dismissal of private counsel. And, as noted
above, clerk Leary allegedly violated Pigott's right of
access to the courts by refusing Pigott's pro se filings.
___ __
Pigott does not specify how social worker Lerner's libelous
interview report and failure to aid Pigott in the care and
protection case violated his constitutional rights.
10. He received
firearm charge.

a concurrent 2
-10-

1/2 - 3

year term for

the

v. Vose,
____

936 F.2d 38

(1st Cir. 1991), cert.

_____

denied, 112 S.
______

Ct. 948 (1992).

This
these

ruling

defendants

denied

him

wrongfully

seized his

care

were

without

and

property

legal

representation,

on December

thus brought three days

late.

that

4, 1989.

and
The

his complaint and

7, 1992, the

both items, and that

claims

cause, deliberately

reasoned that Pigott filed

application on December

court received

barred Pigott's

arrested him

medical

district court
IFP

effectively

date the district

these particular claims

The

district court did

not specifically address Pigott's claims that the Lynn Police

Department engaged in bail
Woumn,

violated Pigott's

December 5, 1989.

tampering and, along with officer

right of access

to the

We assume that the court

that these claims were time-barred as well.11

further

ruled that those

perjured testimony
under

implicitly held
The

court

defendants who allegedly presented

at Pigott's trial

Briscoe v. LaHue, 460

_______
_____

Pigott's claims against his

courts on

were absolutely immune

U.S. 320, 325

(1983), and that

defense attorneys were barred by

Polk County
___________

v. Dodson,
______

public defenders are

454 U.S. 312

(1981), (holding

not "state actors" for

that

42 U.S.C.

1983

____________________
11. Thus, the district court dismissed Pigott's first,
second, and part of Pigott's third cause of action as timebarred under the statute of limitations.
Pigott's claim
against investigator Turner for failure to keep appointments,
which was also part of his third cause of action, was
dismissed for failing to state a constitutional tort within
the meaning of 42 U.S.C. 1983.
-11-

purposes).

This ruling

eliminated Pigott's fifth

cause of

action and that part of his sixth cause of action that rested
on the alleged misconduct of Pigott's defense attorneys.
court also dismissed
action that

that part of

The

Pigott's fourth cause

asserted claims against Salem

of

Hospital, the two

unnamed security guards, and the unknown lawyer on the ground

that
court

Pigott failed
dismissed

to allege

Pigott's

state action.

allegations

Finally, the

against

probation

officer Mulloy, Pigott's social worker (Lerner), and the four

other

social

Grey)

for

workers (Heathman,

failing to

state

Richardson,

sufficient

Carviello and

claims upon

which

relief could be granted.

We
cure

note that

some of

the

Pigott's amended

complaint attempted

deficiencies identified

in the

to

district

court's dismissal order, largely by simply alleging that more

defendants
violate

conspired

with

Pigott's civil

the

rights.12

that defendants Heathman,

without cause.

Police Department

Pigott

further

to

alleged

Richardson and Carviello destroyed

his relationship with his son by

them visits

Lynn

illegally refusing to allow

Pigott sought

to remedy

other

____________________
12. The amended complaint charged that Flemmings Towing
Company, clerk Leary, probation officer Mulloy, attorney
Nancy Winn, who had been previously identified as the
"unknown lawyer" in Pigott's original complaint, and defense
attorneys Skinner, Kelley and Baler were all involved in such
a conspiracy. But it stated no facts in support of these
allegations.
-12-

claims

with

allegations

purporting

action.13
III.

to

establish

state

At the outset,
makes

no

we note that

reference

defendants

whatsoever

Mulloy, Lerner,

lawyer (attorney Winn).

and their dismissal

to

his

Turner, Leary,

appeal

claims

against

and the

unknown

He has therefore waived these claims

will be

with respect to Pigott's

cause.

Pigott's brief on

upheld.

The

same can be

claim that he was arrested

said

without

To the extent Pigott's claims against the Lynn Police

Department and officers Woumn,

Chisholm, and Sgt. Roach rely

on his December 4, 1989 arrest, his brief makes no mention of

this

claim, and we affirm

Pigott
920,

its dismissal on

the ground that

has waived it. See, e.g., Frazier v. Bailey, 957 F.2d

___ ____ _______
______
932

Zannino,
_______

n. 14

&

15 (1st

895 F.2d 1, 17

Cir.

1992);

(1st Cir.), cert.

_____

United States
_____________

v.

denied, 494 U.S.

______

1082 (1990).
As for

the remaining claims, we

dismissals for

abuse of

complaint that fails to

be

granted

is

review section 1915(d)

discretion, mindful that

state a claim upon which

subject

to

sua
___

sponte
______

not every
relief can

dismissal

for

____________________
13. For example, defendants Grey and Heathman were alleged
to have seized Pigott's son for the state, while Salem
Hospital was alleged to have violated Pigott's civil rights
through a
policy or custom when
its security guards
restrained Pigott.
-13-

frivolousness under 28 U.S.C.

112 S. Ct. at 1734; Neitzke v.
_______
complaint or
facts

1915(d).

Denton v. Hernandez,
______
_________

Williams, 490 U.S. at 331.

________

claim is "factually frivolous"

that

are

"'fantastic'"

"'clearly

when it alleges

baseless'",

or "'delusional'".

Denton,
______

1733, (quoting Neitzke, 490 U.S. at 327,

_______

"'fanciful'",
112

S. Ct.

325, 328).

at

A claim

may be said to be legally frivolous if it asserts a claim for

which

the defendant is

claim of infringement of
not exist.

clearly entitled

to immunity,

or a

a legal interest that clearly

does

Neitzke, 490 U.S. at 327.

_______

In addition, "[w]e have

which states a claim
applicable

statute

squarely held that 'a complaint

that appears to have expired

of

limitations

frivolous' under section 1915(d)."

F.2d 104,

may

be

dismissed

107 (1st Cir. 1991), cert.

_____

where

there

is

any

as

Johnson v. Rodriguez, 943

_______
_________
denied, 112 S. Ct. 948
______

(1992) (quoting Street v. Vose, 936 F.2d at 39).

______
____
least

under the

possible

doubt,

However, at
we

cautioned

district
plaintiff

courts to
whose

dismissing a
grounds.

issue

claims

an

order

appear

to

to
be

complaint sua sponte on

___ ______

show

cause

time-barred

to

before

statute of limitations

Street v. Vose, 936 F.2d at 41, n. 5.

______
____
IV.

Based on the principles just set forth, we conclude that

Pigott's

claims

reasoning differs

were

properly

dismissed,

somewhat from that of

although

our

the district court.

-14-

Insofar as Pigott alleged that the

and

other defendants

who

nine Lynn police officers

testified at

his criminal

trial

committed perjury, Pigott concedes,

as he must, that Briscoe

_______

v.

(1983),

LaHue,
_____

460

defendants to
42 U.S.C.
these

U.S.

325,

329-46

entitles

these

absolute immunity from damages liability under

1983.

However,

the complaint also

defendants

involved

themselves in

violate Pigott's

civil rights.

See Complaint,

alleged that
conspiracy
44.

to

Pigott

___
continues to

press this

claim on

appeal,

and argues

that

there was a general police conspiracy to "railroad" him under

which liability may
The

district

attach under 42 U.S.C.

court

did not

specifically

conspiracy claim, presumably because

to support it,

but we

1983

think

this

and

1985.

discuss Pigott's

Pigott alleged no facts

claim requires

separate

consideration.
We

have

allegations of

previously

observed

in

conspiracy might overcome

dicta

that

an immunity claim.

See Malachowski v. City of Keene, 787 F.2d 704,

___ ___________
______________
Cir.), cert. denied, 479
_____ ______
that

such

absolute

immunity,

juvenile

delinquency

proceedings might
filed

U.S. 828 (1986)(per

allegations

false

could

and

not

that

officer

city

prosecutorial
who

extend to

delinquency

conspiracy to deprive

overcome

petition

initiated

allegations
as

part

711-12 (1st

curiam)(noting
prosecutor's
immunity

of

delinquency
that

officer

of overarching

plaintiffs' of child custody).

-15-

proper

But "a

complaint, containing as it does both factual allegations and

legal conclusions,
basis either
______

is frivolous

in law

or fact."
________

(emphasis supplied).

Turning

note

complaint

that

where it lacks

Pigott's

Neitzke,
_______

fabricated

490 U.S.

contained

only

the

The

from Pigott's

throughout his September 1991

perjury and

December 4,

trial.

most

complaint

that the defendants committed

evidence

at 325.

to the factual allegations, we

conclusory allegations of conspiracy.

generally alleged

an arguable

1989 arrest

No description of

the

perjury is given and the allegedly fabricated evidence is not

identified.

The

only

relating to a possible
defendant Reddy
named

criminal

factual

allegation

even

conspiracy is Pigott's assertion that

and two

defendants)

(governing

specific

prosecution witnesses (who

violated

sequestration

of

trial, but

no detail

fact, Pigott

did not

Mass.

Rule

witnesses)

Crim.

Pro.

during

is provided.

are not
___
21

Pigott's

See Complaint,
___

34.
In
allegedly

committed by

conviction.

Rather, he

"maliciously

slandered

without giving
direct cause
this

defendants

of his

the perjury

resulted

in

his

claimed that defense counsel Skinner

and

misrepresented"

any specifics) and that this

mish-mash of

that the

these

even assert that

conviction.

Even

allegations fails

named defendants

agreed to

him

(again,

conduct was the

liberally construed,
to raise

an inference

deprive Pigott of

his

-16-

constitutional
F.2d

836,

rights.

844

(1st

See generally
___ _________
Cir.

conspiracy under 42 U.S.C.

Purely

31, 33

(1978).

(discussing

a claim.

(1st Cir.

of

dismissal

least

in those cases

elements

conspiracy

of

See Slotnick
___ ________

1977), cert.
_____

are

not

v. Stavisky,
________

560

denied, 434
______

Nevertheless, somewhat more caution

where

Benoit, 850
______

1983).14

conclusory allegations

adequate to state
F.2d

1988)

Earle v.
_____

is contemplated

U.S. 1077

is appropriate

under section

1915(d), at

not intended

to give the

where it is

plaintiff advance notice of the defect and the opportunity to

amend.

The

issue is one of abuse of

discretion and depends

upon the facts.

In this instance we do not think further proceedings are
warranted.
of

the

Pigott

Although we do not have to consider the propriety

district court's
did

not

appeal),

denial
we

of

note

reconsideration (since
that

Pigott's

amended

complaint,

filed

after

allegations but still does

support

conspiracy.

furnish any hint

dismissal,

makes

additional

not contain any facts that

Nor does

Pigott's brief

of facts that could support

would

on appeal

the conspiracy

claim.

____________________
14. And while the complaint cites 42 U.S.C.
1985, Pigott
has not alleged the requisite discriminatory animus to state
a claim under this statute.
See Landrigan v. City of
___ _________
________
Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980).
_______
-17-

Even
without
was

so, we

might

an opportunity to

any real risk of

hesitate to

sustain the

replead if we

injustice.

But

dismissal

thought that there

Pigott's complaint is

manifestly founded upon the delusion that anyone who has

had

any connection with the events described -- the arrest, postarrest treatment, trial, probation
custody

dispute

conspirator.

--

is a

office inquiry, and child

wrongdoer

fair portion

and

of these

in

most cases

charges have

to be

insupportable, and
the

if some nugget of truth lies buried under

rubble (and we stress

that no claim
__

is stated on these

allegations), Pigott has only himself to blame.

V.
Pigott

concedes

appointed attorneys

that

his claims

against

(Skinner, Kelley and Baler)

his

court

are fatally

deficient in that they failed to allege state action under 42

U.S.C.

1983.

See Polk County v. Dodson, 454 U.S.

___ ___________
______

4; Malachowski v. City of Keene, 787

___________
_____________
attorney who

is sued for

appointed counsel does

On

appeal, Pigott

argues that

this deficiency by charging

as well.

This charge was

reasons already stated,

F.2d at 710 ("A private

actions allegedly taken

not act under

at 317 n.

as court-

color of state

his amended

law.")

complaint cured

these defendants with conspiracy

also wholly conclusory.

we think the district

sustained.
VI.

-18-

For the

court must be

Pigott contends that his claims with

and protection

proceeding

notwithstanding the
jurisdiction.

are cognizable

See generally
___ _________

by the two

by

defendants

to federal

This claim challenges

defendants Grey and Heathman

unknown Salem Hospital

guards) and the frustration of Pigott's efforts

son

court

Ankenbrandt v. Richards, 112 S.

___________
________

seizure of Pigott's son by

(who were aided

in federal

domestic relations exception

Ct. 2206 (1992)(describing exception).

the

regard to the care

Heathman,

Carviello,

and

security

to visit his
Richardson.

Pigott does not contend that the facts he has alleged against
these defendants are
relief could be

sufficient to state a claim

granted.

As the

upon which

district court's dismissal

order notified Pigott that his complaint was so deficient

to

the

four

social

worker

allegations in

Pigott's amended

viable

against

claims

these

defendants,

and

even

complaint fail to
defendants,

we

as
the

make out

affirm

the

dismissal of Pigott's claims against social workers Pam Grey,

Marilyn Heathman, Danielle Carviello, and Mrs. Richardson.
The district court may have erred in dismissing Pigott's
claims against the two unnamed Salem Hospital security guards
for lack of state action.
Pam Grey as

an employee of

Social Services and

for 42

U.S.C.

Salem

Hospital

The complaint identified defendant

the Massachusetts Department

thus established her as

1983 purposes.
security guards

We may also
and

of

a "state actor"
assume that the

social worker

Marilyn

-19-

Heathman were also engaged in state action when they assisted

Grey in restraining

Pigott and

seizing his son.

See
___

Marie, Inc. v. Superior Court of Puerto Rico, 988

___________
______________________________
259

(1st Cir. 1993)("'To act

require that the accused be

enough that

he is a

"under color" of

F.2d 252,

law does not

an officer of the State.

willful participant

Casa
____

in joint

It is
activity

with the State or its agents.'" )(citations omitted)).

But the liability of the
predicated on
violated his

Pigott's claim

guards and Salem Hospital

was

that the

son

constitutional rights.

seizure

of his

Pigott's complaint and

amended complaint did little more than allege that Pigott had
a son who was taken from
be an unfit parent.

him after he had been determined to

Pigott has alleged no facts

that this determination was

Since Pigott
such a

wrong or procedurally defective.

failed to allege

violation even

to suggest

sufficient facts to

after the district

make out

court's dismissal

order notified him of this deficiency, his claims against the

security guards and Salem Hospital were properly dismissed.

VII.
Finally,

we turn to those claims that were dismissed as

legally frivolous because

statute

of

limitations.

continues to press
Police

The

on appeal

Department and

Roach

they appeared to be
only

claims

are his claims

officers

barred by the
that

Pigott

that the

Chisholm, Woumn,

and

Lynn
Sgt.

exhibited deliberate indifference to his medical needs

-20-

on

December

4, 1989

and his

Department engaged in bail

claims

that the

Lynn Police

tampering and, along with officer

Woumn, violated his right of access to the courts on December

5, 1989.15
Pigott's claims
in bail
the

and,

tampering and violated

courts by

complaint

that the Lynn Police Department engaged

refusing

to allow

were without basis.

in stark contrast to

Pigott's right of
him

to file

Pigott was

access to
a

criminal

released on bail

Wagenmann v. Adams,
_________
_____

829 F.2d 196

(1st Cir. 1987), on which Pigott relies on appeal, Pigott has

not alleged that the police arranged

high that
other

he could not

conduct

that

make it.

could

be

to have his bail set so

Nor has he

construed

to

described any
violate

his

rights.16
Similarly, the
import

right of access

an absolute right

Insofar as

Pigott contends

to the courts

does not

to institute criminal proceedings.

that the Lynn

Police Department

____________________
15. Pigott has presented no cogent argument with respect to
his claims against Flemmings Towing Company, Elaine Condon,
and Dennis Flynn.
Accordingly, his claims against these
defendants are waived.
See, e.g., Ramos v. Roche Products,
___ ____ _____
_______________
Inc., 936 F.2d 43, 51 (1st Cir.), cert. denied, 112 S. Ct.
____
_____ ______
339 (1991)(issue which is merely mentioned but not briefed is
waived on appeal).
16. Pigott's allegation that attorney Skinner informed him
that he was lucky to make bail because the Lynn police
generally would have opposed it due to his race does not
establish that the police violated his constitutional right
to be free from excessive bail, for Pigott says nothing to
show that his bail was excessive.
-21-

violated this right simply by refusing to accept his criminal

complaint, he has

alleged the violation of a

legal interest

that

does not

facts

exist.

which show

Pigott further

has not

that officer Woumn's

alleged any

threats to

harm him

that officers Chisholm, Woumn,

and Sgt.

violated his federal rights.

Pigott's claim

Roach exhibited deliberate indifference

is a closer case.
face

with

to his medical needs

Pigott claimed that he was struck

glass,

slashed

with

assaulted with other weapons.

butcher

in the

knife,

and

He allegedly suffered obvious

injuries and informed these officers that he needed immediate

medical

attention.

Pigott

was

incarcerated

at the

Lynn

police station for one hour and forty-five minutes before

was

taken for medical care.

Pigott's injuries.
required,
sutures.
if

although

The complaint does not describe

It also does
we are

now

not say what

told

Pigott as

a result

treatment was

that Pigott

Further, the complaint does not

any, befell

he

required

specify what harm,

of the

seemingly brief

delay between Pigott's arrest and treatment.

Compare Matzker
_______ _______

v. Herr, 748 F.2d 1142, 1147-48 (7th cir. 1984)(alleged three

____
month

delay

in procuring

medical

and

dental care

stated

viable claim).17

____________________
17. The reason for the delay is not alleged. However, since
Pigott alleged that he was not booked and fingerprinted until
after he returned from the hospital, we may assume that the
delay was not occasioned by these administrative procedures.
-22-

As we explained in Manarite v.
________
F.2d 953, 956 (1st Cir. 1992),

City of Springfield, 957

___________________

1983 liability in a case like

this requires proof of "'deliberate indifference'" by "(1) an

unusually

serious

knowledge

of

risk of

(or,

elevated risk,

at

and (3)

harm...

(2) defendant's

least, willful

blindness

defendant's failure to

steps to address that known, serious risk."

that the
More

facts

in the

important,

amendment

or

deficiency,

of

basis

that

unusual

would

solve

punishment.

think

elements.

believing

more

that

take obvious

We do not

that any

the

than

needed for a

a conscious refusal to

to)

out these

for

something

carelessness is

cruel and

required is

see no

particularization

namely,

inattention or
claim

we

complaint make

actual

central
temporary

constitutional
Rather,

what is

take reasonable measures

to deal in a timely fashion with very substantial harm or the

threat of such harm.
Here, Pigott by his

own version of events did

not seek

hospital care when he left the scene of the fight but went to
another
resulted

address.
from

the

There is no hint that any permanent injury

delay.

Individuals

arrive

at

police

stations and in

emergency rooms with cuts

day; but true emergencies,

instant's
ordinary
there

delay, are
tort suit

requiring medical care without an

less
and

and bruises every

commonplace.

If

negligence sufficed

might be an argument

this were

an

for liability,

for requiring leave

to amend --

-23-

although what is alleged does not itself indicate negligence.

But
cruel

there is virtually
and unusual

nothing in the

punishment, or

complaint to suggest

any benefit

from further

pleadings.
VIII.
Our conclusion makes it unnecessary to reach the statute
of limitations issue
decision
immediate

to

on which the

dismiss

claims

treatment of

district court based

relating

Pigott.

to

We think

the

arrest

that issue

its
and
is a

difficult one.
A number of circuits
is timely so long as
filing of the

have held that a pro

se complaint

the necessary affidavit accompanies the

complaint, one rationale

being that the

time

spent in reviewing
is

the affidavit and entering

the court's responsibility.

See,
___

the IFP order

e.g., Dean v. Veterans

____ ____
________

Admin. Regional Office, 943 F.2d 667, 668-71 (6th Cir. 1991),
______________________
vacated on other grounds, 112
_______ __ _____ _______
Schroeder,
_________

833 F.2d

Demma, 831
_____

F.2d 69, 71 (5th

the district court

S.Ct. 1255 (1992); Gilardi

_______

1226, 1233

(7th Cir. 1987);

Cir. 1987).

Local

Pigott, however, did

his

affidavit, and

the

treat the

if "accompanied by [the requisite]

. . . affidavit . . . ."
complaint with

Martin v.
______
Rule 4.5 in

suggests that that court would

complaint as timely filed

v.

not accompany

the rationale

just

described would have no application to his case.

-24-

On
the

the other hand, Fed.

R. Civ. P.

5(e) provides that

clerk is not to refuse papers for filing "solely because

. . . not presented in proper form . . . ."

One

could argue

that

the omission of the affidavit is merely a formal defect

-- although the opposite view of the matter is also possible.

One could

also

timeliness

argue

with

should be

although a plaintiff
three year

some force

construed in
who waits

that

doubts

favor of

about

the plaintiff,

till almost the

limitations period before filing

end of

the

anything can be

said to assume some risk.

In
decisive

all
in

events,
this

we do

case

gave

clearer

that

notice

do

the issue

is

decide

it.

not

might be better if the

to

complaint transmitted without

if accompanied

think

and therefore

However it is decided, it
4.5

not

litigants

as

to

Local Rule
whether

the affidavit is deemed

by a request for

IFP forms.

filed

copy of this

opinion will be transmitted to the appropriate authorities in

the

district court so that

it may be

amendment is desirable.
Affirmed.
________

-25-

considered whether an