USCA1 Opinion

June 13, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-2074

BENJAMIN HOOVER, JR.,

Plaintiff, Appellant,
v.
SUFFOLK UNIVERSITY LAW SCHOOL, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
___________________
Before
Torruella, Boudin and Stahl,
Circuit Judges.
______________
___________________

Benjamin Hoover, Jr. on brief pro se.

____________________
Paul V. Lyons, Michael L. Rosen and Foley, Hoag & Eliot on
_____________ _________________
____________________
brief for appellees.

__________________
__________________

Per Curiam.
__________
Jr.,

proceeding

pro

Plaintiff-appellant Benjamin Hoover,

se,

has appealed

from

the

district

court's order dismissing his complaint under 42 U.S.C.

against

defendants-appellees

Suffolk University

1983

Law School

("Suffolk"), Suffolk Dean Paul Sugarman and Suffolk Registrar

Lorraine Cove.

Hoover's complaint alleged that, after he

had objected to a failing grade he had received in a

class

that

would prevent

denied him due process by

faculty board of review.

him

from

Suffolk

graduating, defendants

refusing to present his case to

On August 2, 1993, defendants moved

to

dismiss Hoover's complaint under Fed. R. Civ. P. 12(b)(6)

on

the ground

that

defendants were

not

state actors

and

therefore could
the

not be liable under

district court enlarged the

motion to August

district

noting

opposition, granted
the

26.

Hoover's

On

reasons stated by defendants.

an order

to file an

August 30,

failure

the motion to dismiss

district court issued

On August 19,

time for Hoover

opposition to the
court,

1983.

to

file

the
an

the complaint for

On September 7, 1993, the

dismissing the

case in

its

filed

his

entirety.
One

week

opposition

later,

on

September 14,

to the motion to

file an amended complaint,

Hoover

dismiss, a motion

for leave to

a proposed amended complaint, and

a proposed

supplemental complaint.

Both of

these proposed

complaints

added claims of racial discrimination under Title

-2-

VI of

the Civil Rights Act

of 1964, 42 U.S.C.

added

as

professor

failing

a defendant
grade.

The

the

gave Hoover

proposed supplemental

allegations arising out

which occurred

who

after the

of Hoover's dismissal
filing of the

2000d, and
the

complaint added
from Suffolk,

original complaint.

Hoover

also

filed a

District of
was

motion for

Puerto Rico,

a change

of venue

asserting that the

to the

district judge

biased because he had once been a part-time professor at

Suffolk

and

that Suffolk's

influence

in

the Boston

area

precluded impartial treatment of Hoover's case there.

The

district court

denied all

September 17, 1993 order.

of

these motions

Hoover appeals.

in a

We affirm.

State Action Under

1983
_________________________

Hoover's

appeal from the

his original complaint lacks

claims under 42 U.S.C.

merit.

acting "under

regulation,

custom, or usage,

that

were

funding.

Hoover asserted
It

is

was

The district court ruled

The only

that Suffolk

well-settled, however,

-3-

or Territory or

entities and

1983.

only

statute, ordinance,

of any State

private

subject to liability under

action

color of any

Columbia . . . ."

defendants

That complaint asserted

1983, which permits liability

for persons

the District of

district court's dismissal of

therefore

not

basis for state

receives
that

federal

receipt

of

federal funding does not

purposes of

1983.

render an entity a state

actor for

Rendell-Baker v. Kohn, 457 U.S. 830, 840

_____________
____

(1982); Berrios v. Inter American University, 535 F.2d 1330,

_______
__________________________
1332 n.5 (1st

Cir. 1976).

Indeed, Hoover

concedes in

his

brief on appeal that he "asserted section 1983 in error."

Disqualification of the District Judge

______________________________________

Hoover

argues

that

the

district

judge

should

have

recused himself because of the judge's prior affiliation with

Suffolk.

At the onset of

hearing Hoover's

motion for

the case on May

28, 1993, before

a temporary restraining

the district judge informed the parties as follows:

"You should know before we begin that at
one time -- perhaps five, six, seven years
ago -- I was a part-time instructor at
Suffolk Law School. I was not there during
the term of Mr. Sugarman, but, of course, I
know Mr. Sugarman as an attorney.
He has
appeared in this Court. Other than that, I
have no connection with Mr. Sugarman.
I have had, naturally, some connection with
Lorraine Cove in the sense that I returned
the examination lists to her office.
But
other than that, I have no connection with
her. You should know that.
Because the matter is sufficiently remote,
as far as I am concerned, not to draw any
impartiality into question, but
you may

order,

differ -- in which case I would be happy to

remove myself and have this assigned to
another judge -- I kept it because I do not
see any problem with it. At the same time I
am aware that it might be a little difficult
-4-

to find another judge on short notice. It is

up to you. I will leave it to you."
Hoover then stated that he would accept the district judge
hearing

the temporary restraining order.

the case on

September 7, 1993,

disqualification.

Only in

As of the dismissal of

Hoover had filed

no motion

for

his September 14, 1993 post-dismissal

motion for change of venue did Hoover raise the matter.

We agree with defendants that Hoover's three-month delay -

until

after

dismissal

--

in

moving

for

precludes him from raising the matter on appeal.

raise its claim

of a

earliest possible
demonstrating

the

district court's

moment

after

basis for

"[A] party must

disqualification at

obtaining

such a

disqualification

knowledge

claim."

Apple
_____

of

the

facts

v. Jewish
______

Hospital & Medical Center, 829 F.2d 326, 333 (2nd Cir. 1987).
_________________________
the

court

in

Apple
_____

aptly

stated,

"[A]

movant

As

[for

disqualification] may

not hold back

against the eventual outcome."

Even

were

we

to

argument, it lacks any

or

financial stake in

its bets

Id. at 334.
___

consider

merit.

allegations to suggest that

and wait, hedging

Hoover's

Hoover

disqualification

has set forth no

the district judge had

the outcome

of the

factual

any personal

case.

The district

court expressed no personal bias in his statements at the hearing

on

the temporary

that
any

restraining order.

the judge has ever had

of

the individual

There are

no allegations

a close or social relationship with

defendants, or

current relationship with Suffolk at all.

that

the judge

has any

There was no basis for

-5-

recusal

here.

Regents, 906 F.2d

_______
recuse

See
___

Easley v.
______

1143 (6th

University of Michigan Bd. of

________________________________

Cir. 1990) (judge

himself from suit against

not required

law school where

judge was an

alumnus of the law school, served as a volunteer fund

the

to

raiser for

law school, and was on the law school's visiting committee),

cert. denied, 499 U.S.

947 (1991); Brody v. President

& Fellows

____________

_____

of Harvard College,
__________________

664 F.2d

____________________

10, 11-12 (1st

Cir. 1981),

cert.
_____

denied, 455 U.S. 1027 (1982).

______

Denial of Leave to Amend and Supplement the Complaint

_____________________________________________________

Hoover's

notice of

appeal challenges

court's

September 7,

1993

order

mention

the district

court's

of

brief).

For

that reason,

the district

dismissal, and

September 17

post-dismissal motions (which Hoover

only

does

denial of

not

Hoover's

challenges at length in his

defendants argue that

under Fed.

R.

App. P. 3(c), which provides that "[a] notice of appeal also must
designate the

judgment, order,

or part thereof

only Hoover's challenge to the September

before this court.
we were to

We

appealed from,"

7 dismissal is properly

need not resolve this question.

consider Hoover's challenges to

Even if

the district court's

September 17 rulings, we would affirm the district court.

The crux of
did

not have
___

complaint.

Hoover's argument is that

discretion to deny

Hoover points to Fed.

-6-

the district court

Hoover the right

to amend his

R. Civ. P. 15(a), which states

that a "party may amend the party's pleading once as

a matter of

course at any time before a responsive pleading is served . . . .

Otherwise a party may amend the party's pleading only by leave of

court . .

. , and

leave shall be

freely given when

justice so

requires."

Hoover notes, correctly, that

defendants' motion to

dismiss did

not constitute a "responsive

pleading" for purposes

of Rule 15(a).
13,

22 (1st

Dartmouth Review v. Dartmouth College,

________________
_________________
Cir.

1989); Wright,

Practice & Procedure

The point
filed his

and Kane,

to

amend

and

September 12, the district court

"[T]he thrust of Rule

Federal

1483, at 585 (2nd ed. 1990).

Hoover overlooks, however, is

motion

of litigation."

Miller

889 F.2d

supplement

that when Hoover

the

complaint

on

had already dismissed the case.

15(a) is aimed at the

Dartmouth Review,
________________

pre-judgment phases

supra, 889
_____

F.2d at 22.

We

have recently held that, although there is disagreement among the

circuits on this point, "a plaintiff's
complaint

as

terminates upon

matter

of

right

time to amend his or

within

the

First

her

Circuit

a district court's dismissal of the complaint."

Acevedo-Villalobos v.
__________________

Hernandez, no. 93-1544 (1st Cir. 4/28/94),

_________

slip. op. at 12, 1994

U.S. App. Lexis 8990.

in

Jackson v.
_______

Salon,
_____

614 F.2d

15,

17 (1st

Similarly,
Cir.

we held

1980), that

"[b]ecause

the motion

was received

by the

court after

it had

dismissed the complaint, it was too late for [plaintiff] to amend

as a matter of right."
case.

Following

These holdings govern the issue in this

the district

court's dismissal

of

the case,

-7-

Hoover's
to

only option -- other than

amend under

Rule 15(a)

under either Rule 59 or 60."

after

appeal -- was to "seek leave

having the

judgment reopened

Acevedo-Villalobos, supra, slip op.

__________________ _____

at 14.
Even putting aside the fact
his motion to

amend with the requisite Rule 59

could not find that

denying

leave

that Hoover did not accompany

to

or 60 motion, we

the district court abused its

amend or

supplement.

For

discretion in
one thing,

the

proposed amended and supplemental complaints included no adequate

allegations of state
thus

action on

contained nothing that

claims under

the part of

would cure the

any defendant,

and

defects of Hoover's

1983.

Hoover did propose to add new claims under Title VI of the

Civil Rights Act of 1964, 42

U.S.C.

2000d, which provides, "No

person in the United States shall, on the ground of

or national origin,
the benefits

of,

be excluded from participation in, be denied

or be

subjected to

program or activity receiving

agree with
amended and
bare

the district

whatsoever."

of

racial discrimination
school
This

court, however, that

racial

All that

discrimination under

Federal financial assistance."

supplemental complaints

allegation

race, color,

the

with

proposed complaints

was that

no

was done with intent and malice

"on the

support

alleged as

Hoover's dismissal from

"was done without due process,

We

Hoover's proposed

based these claims

discrimination

any

to

the law

as a discrimination plot.

to create and did create a

-8-

deliberate
black."
facts

indifference towards

to show

or

raise

a plausible

inference

was] subjected to race-based discrimination."

Review, supra, 889

______ _____
been

plaintiff is

The proposed complaints did not "assemble . . . specific

adequate

[Hoover

plaintiff because

subject to

F.2d at 17.
dismissal under

that

Dartmouth
_________

These complaints might well have

Fed. R.

Civ. P.

12(b)(6) for

failure to state a
within

claim.

Thus,

the district court acted

well

its discretion in denying leave to amend or supplement as

futile.

See id.
___ ___

at 23; Correa-Martinez
_______________

v. Arrillaga-Belendez,
__________________

903 F.2d 49, 59 (1st Cir. 1990).

The alleged change-of-address snafu

___________________________________

Hoover
granting

defendants'

considering
timely
changed

also

argues

that

motion

to

the district
dismiss before

Hoover's opposition to that

file his opposition.

Hoover

his residence around this

court

erred

receiving

motion.

in

and

Hoover did not

asserts, however,

time, and that

that he

on August 13,

1993, he informed defendants and the district court of his change

of

address.

failed

For some reason, Hoover alleges, the district court

to make

Hoover did not

proper note
receive timely

of his change

of address,

notice of the

court's August

order extending until August 26 the deadline for him

opposition

to

the

motion to

dismiss.

-9-

The

so that

19

to file his

clerk of

court,

furthermore, allegedly told him orally on

September 7, 1993 that

he could file his opposition by September 14.

There

is no

dispute that

Hoover did

defendants' motion to dismiss on August 11.

district court's extension
of

which

Hoover

require that

filed within fourteen days

instance,

by August

received no

copy of

Even apart

of the filing deadline

allegedly

court's local rules

receive a

from the

to August 26,

notice,

the

an opposition to

district

a motion

after service of the motion

25).

Loc.

R.

7.1(B)(2).

be

(in this

Hoover

filed

nothing before September 14, and did not contact the clerk of the
district court to discuss the matter until September 7.
In any
Since Hoover

event, this matter

has now conceded that the

for dismissing

his original

effect conceded
have changed

is irrelevant to

district court's grounds

complaint were

that consideration

this appeal.

correct, he

of his opposition

the district court's September

has in

could not

7 ruling dismissing

the original complaint.

Furthermore, as we have

said, once the original complaint

had been dismissed, amendment of that complaint required leave of

court.

The possibility

to amend
snafu,

before dismissal,

had there been

his motion

no change-of-address

does not change or lift that requirement.

address circumstance, of
been

that Hoover might have filed

course, was one factor

The change-of-

that could have

considered by the district court in weighing whether or not

to grant leave to amend.

Given the deficiencies of the proposed

-10-

amended and supplemental complaints, the district court certainly

did not

abuse its

discretion in nevertheless

denying leave

to

amend.

We have considered all of Hoover's remaining arguments and

find them meritless.
Hoover's

request,

in his

brief,

for

oral argument

denied.
______
The rulings of the district court are affirmed.
________

is

-11-