D'Amario v. Collins , 43 F. App'x 394 ( 2002 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1042
ARTHUR D’AMARIO, III,
Plaintiff, Appellant,
v.
KENNETH D. COLLINS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Arthur D’Amario on brief pro se.
Marvin C. Moos, Nathan M. Rymer and Smith, Rymer, Moore &
Moos, P.C. on brief for appellee Alan T. Robillard.
John J. Cloherty, III, John J. Davis and Pierce, Davis &
Perritano, LLP on brief for appellees Kenneth D. Collins, George
Bussiere, Arthur Brillon and City of Attleboro.
August 8, 2002
Per Curiam. Arthur D'Amario, III, appeals a district
court judgment that dismissed his complaint on the ground that
his current claims are barred by a release that settled a prior
lawsuit ("the Dufort lawsuit" or "the Dufort release") and/or
by Heck v. Humphrey, 512 U.S. 477 (1994). We affirm.
D'Amario contended that he was falsely arrested in
September 1998 on a fugitive from justice warrant and
subsequently "falsely imprisoned" during court-ordered
psychiatric evaluations in retaliation for his bringing of the
Dufort lawsuit. He claims that both were "proceedings" that
"terminated in his favor" and that, contrary to the district
court's conclusion, these claims were not encompassed within
the Dufort release, but had been specifically reserved. Even
if not barred by the Dufort release, however, these contentions
fail to state a claim upon which relief can be granted and,
thus, dismissal pursuant to Fed. R. Civ. P. 12(b)(6) was
warranted.
The classification of fugitive from justice does not
constitute a substantive criminal offense and, thus, D'Amario's
characterization of the resolution of this status as a
"proceeding" which was resolved in his favor (because that
fugitive warrant was dismissed) is dubious. The fugitive
warrant was simply used to secure D'Amario's attendance at
court proceedings intended to determine whether D'Amario had
violated the Sellers' protective order. Rather than "terminate
in his favor," the fugitive warrant was presumably dismissed
when he, in fact, appeared. Similarly, that D'Amario was
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determined to be competent, in terms of both ability to stand
trial on, and criminal responsibility for, charges of violating
the Sellers' protective order, is also hardly a termination in
his favor. Moreover, the proceedings did not terminate in
D'Amario's favor; he was convicted of violating that protective
order and placed on probation. From aught that appears,
D'Amario was validly convicted of violating the Sellers'
protective order. He, thus, suffered no injury as a result of
a conspiracy to retaliate against him for filing the Dufort
lawsuit. See Haddle v. Garrison, 525 U.S. 121, 124-25 (1998)
(plaintiff must allege an injury by defendants in violation of
42 U.S.C. § 1985(2)). D'Amario "does not state a cause of
action by merely adding a subjective assertion that the conduct
[which is constitutionally unobjectionable] was improperly
motivated." Lyons v. Sullivan, 602 F.2d 7, 11 (1st Cir.) (per
curiam), cert. denied, 444 U.S. 876 (1979).
D'Amario also alleged that the February 1999 search
of his apartment was conducted without probable cause. He
argues that this claim is not barred by Heck because he is not
challenging his federal felon-in-possession conviction.
Assuming, dubitante, that this claim is not barred by Heck,
D'Amario nonetheless does not prevail. He raised the issue of
probable cause in his criminal appeal. We rejected that claim
then, concluding there was probable cause for the warrant,
United States v. D'Amario, 2 Fed. Appx. 25, 2001WL120055 (1st
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Cir. 2001) (unpublished per curiam), and D'Amario may not
relitigate it now.
We have considered the rest of the arguments raised
by D'Amario in his appellate brief. They have no merit and do
not warrant further mention.
The motion for recusal is denied.
The renewed motion for counsel is denied.
Affirmed.
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