Jones v. City of Boston , 135 F. App'x 439 ( 2005 )


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  •                 Not for Publication in West's Federal Reporter
    Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
    United States Court of Appeals
    For the First Circuit
    No. 04-1975
    ERICK J. JONES,
    Plaintiff, Appellant,
    v.
    CITY OF BOSTON, ET AL.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Richard G. Stearns, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Lipez and Howard, Circuit Judges.
    Erick J. Jones on brief pro se.
    Thomas F. Reilly, Attorney General, and Eva M. Badway,
    Assistant Attorney General, on brief for appellees Suffolk County
    District Attorney and Suffolk County District Attorney's Office.
    Kenneth J. Forton, Assistant Corporation Counsel, on brief for
    appellees, City of Boston, John Doe and John Foe.
    June 14, 2005
    Per Curiam.     Appellant Erick Jones appeals from the
    dismissal of his civil rights complaint under Fed. R. Civ. P.
    12(b)(6) and the district court's denial of his motion to amend his
    complaint.         For the reasons given below, we affirm.
    Jones asserts that his federal and state malicious
    prosecution claims were timely and that he should have been allowed
    to amend his complaint to add related fact allegations.1                     As
    indicated below, however, Jones failed to plead specific facts
    tending to show that the state criminal proceedings terminated in
    his favor.           As a result, his malicious prosecution claims are
    neither presently cognizable (they have not yet accrued), nor
    substantively viable (one of the prerequisites for that cause of
    action is lacking).2            Lambert v. Williams, 
    223 F.3d 257
    , 262 n.3
    (4th       Cir.    2000)   (discussing   significance   of   failure   to   show
    favorable termination) (relying ultimately on Heck v. Humphrey, 
    512 U.S. 477
    , 483-84 (1994)); Nieves v. McSweeney, 
    241 F.3d 46
    , 53 (1st
    Cir. 2001) (describing key elements of the common-law cause of
    action in Massachusetts).           Hence, we affirm.
    1
    On appeal, Jones concedes that his remaining claims were
    untimely, and he does not challenge the court's conclusion that his
    suit against the Suffolk County District Attorney's Office and
    associated defendants was barred by immunity or otherwise.
    2
    For present purposes, we assume that Jones may assert a
    malicious prosecution claim under 
    42 U.S.C. § 1983
     based on the
    Fourth Amendment. See Nieves v. McSweeney, 
    241 F.3d 46
    , 54 (1st
    Cir. 2001) (stating that it is an "open question" whether the
    Constitution permits the assertion of such a claim)(citations
    omitted).
    -2-
    The complaint and proposed amendment thereto made only
    conclusory allegations on the favorable termination question.                 On
    appeal, Jones explains that the Commonwealth dismissed the criminal
    charges against him, offering a state court docket summary in
    support.        But he does not allege facts that would permit an
    inference that the charges were dismissed because of his innocence
    or   the   Commonwealth's      lack    of    reasonable    grounds      for   the
    prosecution.       See Wynne v. Rosen, 
    391 Mass. 797
    , 800-01 (1984)
    (defining the circumstances when a state dismissal of charges
    constitutes a favorable termination).            Moreover, the state court
    docket indicates that the dismissal occurred after Jones completed
    a period of pretrial probation under Mass. Gen. Laws c. 276, § 87.
    If anything, this suggests that dismissal was a compromise solution
    as defendants maintain, in which neither party conceded guilt or
    innocence.      See Commonwealth v. Tim T., 
    437 Mass. 592
    , 596 (2002)
    (describing the implications of pretrial probation when used as a
    prelude    to    dismissal).    A     disposition   of    this   kind    is   not
    "favorable."      Wynne, 
    391 Mass. at 801
     (agreeing that a dismissal
    based on the parties' compromise bars a malicious prosecution
    claim).
    Jones acknowledges that his attorney assented to his
    pretrial probation.       But he suggests that neither he nor his
    attorney were present at the dismissal hearing and "thus" did not
    -3-
    consent to dismissal of the charges.3          An oblique contention of
    this kind is an insufficient basis for a remand to the district
    court.     See Correa-Martinez v. Arrillaga-Belendez, 
    903 F.2d 49
    , 52
    (1st Cir. 1990) (in evaluating a motion to dismiss, the court is
    not       obliged   to   credit    "bald      assertions,   periphrastic
    circumlocutions,     [or]   unsubstantiated    conclusions").   For   one
    thing, neither the original complaint nor the proposed amendment
    alleges affirmatively that Jones did not consent to the dismissal.
    In addition, the course of events described in the state court
    docket all tend to support the opposite conclusion that Jones
    acquiesced in the dismissal, if not directly, then through his
    attorney.      In any event, this indirect claim of lack of consent
    does not solve the basic flaw in this case -- Jones' failure to
    plead specific facts permitting the inference that the charges
    against him were dismissed because he was innocent and there were
    no reasonable grounds to prosecute him.4
    Affirmed.
    3
    The docket shows that Jones was not present at the dismissal
    hearing, but that his attorney was.     To the extent that Jones
    relied on the docket for his claim that his attorney was not
    present, he apparently misread the docket.
    4
    In fact, Jones' record appendix contains materials which
    seriously undermine his malicious prosecution claims. For example,
    a grand jury transcript indicates that the grand jury had access to
    a videotaped statement by Jones' alleged victim. Jones claimed
    that the defendants had withheld that statement from the grand
    jury.
    -4-
    

Document Info

Docket Number: 04-1975

Citation Numbers: 135 F. App'x 439

Judges: Boudin, Howard, Lipez, Per Curiam

Filed Date: 6/14/2005

Precedential Status: Precedential

Modified Date: 8/3/2023