USCA1 Opinion

December 14, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1733
ALFRED A. GALLANT, II,
Plaintiff, Appellant,
v.
THOMAS DELAHANTY, II, JUDGE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Alfred A. Gallant, Jr. on brief pro se.

______________________

____________________
____________________

Per Curiam.
__________
plaintiff's vague,

A magistrate

verbose,

and partially

rights complaint be dismissed as

1915(d)

judge recommended
illegible

that
civil

frivolous under 28 U.S.C.

because the allegations were "fanciful" and directed

at acts perpetrated by private individuals, rather than state

actors.

The district court adopted the report

and dismissed

the complaint.
We

agree

that much

properly

dismissed as

because

the

indisputably

legal

of plaintiff's

frivolous under
theory

meritless.

The

28 U.S.C.

underlying
claims

complaint was

the
properly

1915(d)
claims

was

dismissed

included the following:

1) plaintiff's complaint that police

had failed to investigate crimes, see Sattler v. Johnson, 857

___ _______
_______
F.2d 224, 227 (4th Cir. 1988) (victims have no constitutional
right to have

defendants criminally

Shell Oil Refinery, 811

___________________
(police

officer

investigation
410

(7th

had

prosecuted); Slagel
______

F.Supp. 378,

no

382 (C.D. Ill.

constitutional

duty

to

v.

1993)
conduct

of plaintiff's assault charge), aff'd, 23 F.3d

_____

Cir.

1994), or

incarceration, DeShaney
________

protect

plaintiff

prior to

his

v. Winnebago County Dep't of Social

_________________________________

Services, 489 U.S. 189 (1989); 2) allegations concerning pre________

incarceration
County, 876
______
without

stalkings

and harassment,

F.2d 1238, 1245 (6th

more,

is

not

Philadelphia Yearly Meeting

___________________________

Yancey
______

v. Carroll
_______

Cir. 1989) (investigation,

constitutional

violation);

v. Tate, 519 F.2d 1335, 1337 (3d

____

Cir. 1975);

Hickombottom v.
____________

(N.D. Ill.

1990) (police

violate the

Chicago, 739 F.Supp

_______

1173, 1178

surveillance of apartment

Fourth Amendment as plaintiff

did not

had no reasonable

expectation of privacy in his comings and goings); 3)

of

workers'

compensation

benefits;

4)

denial

unconstitutional

conviction, Heck v. Humphrey, 114 S.Ct. 2364 (1994); 5) four____

________
day denial of an attorney, United States v. Gouveia, 467 U.S.
_____________
_______
180, 187

(1984);

(1972);
Hudson
______

6)
v.

Williams,
________
in prison,
(2d

Cir.

Kirby v.
_____

deprivation
Palmer,
______

Illinois, 406
________

of

property

468 U.S.

517,

U.S. 682,

without due

533

688-89
process,

(1984); Daniels
_______

v.

474 U.S. 327 (1986); electronic surveillance while

United States v.
_____________
1988) (no

Willoughby, 860 F.2d

__________

reasonable

conversation conducted

in a

expectation

public area

15, 22-23

of privacy

of a

in

jail), cert.
_____

denied, 488 U.S. 1033 (1989); United States v. Harrelson, 754

______
_____________
_________
F.2d

1153,

1169-71

reasonable expectation
wife in his cell),
United States v.
_____________
1977)

(5th

Cir.

1985)

(prisoner

of privacy while

(monitoring

and

F.2d 1331,

recording

no

conversing with his

cert. denied, 474 U.S. 908,

____________
Hearst, 563
______

had

of

1034 (1985);

1344-46 (9th

Cir.

prisoner-visitor

conversations was
the Fourth
and 7)

reasonable and therefore not

violative of

Amendment), cert. denied, 435 U.S.

_____________

1000 (1978);

ineffective

Pennsylvania
____________

assistance of

post-conviction

v. Finley, 481 U.S. 551

______

counsel,

(1987); Polk County v.

___________

Dodson, 454 U.S. 312 (1981); Deas v. Potts, 547 F.2d 800 (4th
______
____
_____

-3-

Cir.

1976).

In

a similar

view, the

denial of

courts claim was subject to dismissal under

the restrictions

described (e.g.,
____

access to

1915(d) because

delay in access

to legal

papers; rifling of papers; destruction of some papers; denial

of

forms,

paper

clips,

staples)

were

insufficiently

substantial.
Other allegations, however, although
enough

detail

survive a
on

to state

constitutional

claims

often lacking
which would

Rule 12(b)(6) motion to dismiss, were not premised

indisputably meritless

legal

theories

and

conceivably

could

be cured by

more specific factual

allegations.

Four

potential claims fall into this area.

First,

plaintiff

Amendment violations.
terrorized by
denied

114

attention
S.

Ct.

knowingly disregard
inmates

may

Estelle v.
_______

to avoid

Gamble, 429
______

and

1920

nutrition.

(1994)

liable

under

of

in prison
See
___

(prison

risk

Farmer
______

officials

serious

the Eighth

U.S. 97 (1976).

While

dismissal.

harm

and
v.
who
to

Amendment);
plaintiff's

confusing and conclusory, enough

1915(d)

Eighth

been assaulted and

inmates while

substantial

be held

allegations are

conceivable

He claimed he had

both guards and

medical

Brennan,
_______

outlined

Street v. Fair,
______
____

was stated
918 F.2d

269, 272-73 (1st Cir. 1990).

Second,
tampered with,

plaintiff

switched, and

complained
late and

-4-

that his

mail

was

that legal mail

was

opened.

Depending

conceivably

on

how

the facts

constitutional

claim

were

could

fleshed

out,

exist, if,

for

example, incoming legal mail were opened with some regularity

outside plaintiff's

presence.

Castillo v.
________

Cook County Mail

________________

Room Dep't, 990 F.2d 304 (7th Cir. 1993) (reversing

__________
dismissal
letters

of

inmate

from public

period had been

claim had been

complaint, which
officials

received

opened, because
stated).

been dismissed under

Third,

alleged

that

in an

a colorable

This claim, too,

1915(d)
three

eight-month

constitutional
should not

have

1915(d).

plaintiff

should

be

afforded

further

opportunity to articulate his complaints concerning placement

in segregation for refusal

to work.

we cannot tell whether plaintiff

remaining
accorded

out of

segregation,

On the

present record,

had any liberty interest in

and, if

due process before being

so, whether

deprived of it.

he was
Rodi v.
____

Ventetuolo, 941 F.2d 22 (1st Cir. 1991).

__________
Fourth,

plaintiff
Amendment

outlined

some

contours

First

asserted

that shortly after he tried to communicate with the

court

in

March 1994,

Cir. 1979)

actions

he

was transferred

to

high maximum

See McDonald v. Hall, 610

___ ________
____

(prisoner

against prison

He

attorney, and the federal district

security in retaliation.
(1st

claim.

possible

governor, a newspaper, an

retaliatory transfer

of

who alleged

that

officials, that he

he had

F.2d 16
filed

was subsequently

-5-

transferred,
litigation

and that
activities,

allegations
888,

stated

were conclusory);

891-92 (1st

allegations
minimum

the transfer

Cir.

security after

aff'd,
_____

with the

Ferranti
________

1992) (rule
media

though

the

618 F.2d

claim stated

by

transfer to

a suit

complaining

Mujahid v. Sumner,
_______
______

807

forbidding prisoners

to

was facially

996 F.2d 1226 (9th Cir. 1993).

not state the subject

even

denied plaintiff

See also
___ ____

retaliation for

v. Moran,
_____

plaintiff filed

about prison conditions).

correspond

claim

1980) (retaliation

that officials

F.Supp. 1505 (D.Hawaii

was in

unconstitutional),

Because plaintiff did

of his communication, he may

not have

satisfied even McDonald's lenient pleading standard, Leonardo

__________
________
v.

Moran, 611
_____

plaintiff may

F.2d

397, 398

be able to fill

(1st

Cir. 1979),

but

in enough details to

since
state a

claim, a sua sponte

___ ______

1915(d) dismissal was not appropriate.

We therefore remand for

result
order
vague,

of this opinion, plaintiff

to state

constitutional

conclusory

on

but

851 F.2d 513,

remand, plaintiff

As a

notice that in

may
must

the material elements of

Gooley v. Mobil Oil Corp.,

______
________________
Therefore,

is now on

claims he

allegations,

allegations respecting

1988).

further proceedings.

not rest
set

on

factual

his claims.

514-15 (1st

Cir.

should amend

his

complaint.
Appellant's

request

denied.

-6-

Vacated and remanded.

____________________

for

appellate

counsel

is

-7-