-
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June 13, 1994 [NOT FOR PUBLICATION]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. Plaintiff-appellant Benjamin Hoover,
__________
Jr., proceeding pro se, has appealed from the district
court's order dismissing his complaint under 42 U.S.C. 1983
against defendants-appellees Suffolk University 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 Suffolk
class that would prevent him from graduating, defendants
denied him due process by refusing to present his case to a
faculty board of review. 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 not be liable under 1983. On August 19,
the district court enlarged the time for Hoover to file an
opposition to the motion to August 26. On August 30, the
district court, noting Hoover's failure to file an
opposition, granted the motion to dismiss the complaint for
the reasons stated by defendants. On September 7, 1993, the
district court issued an order dismissing the case in its
entirety.
One week later, on September 14, Hoover filed his
opposition to the motion to dismiss, a motion for leave to
file an amended complaint, 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. 2000d, and
added as a defendant the professor who gave Hoover the
failing grade. The proposed supplemental complaint added
allegations arising out of Hoover's dismissal from Suffolk,
which occurred after the filing of the original complaint.
Hoover also filed a motion for a change of venue to the
District of Puerto Rico, asserting that the district judge
was 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 of these motions in a
September 17, 1993 order. Hoover appeals. We affirm.
State Action Under 1983
_________________________
Hoover's appeal from the district court's dismissal of
his original complaint lacks merit. That complaint asserted
claims under 42 U.S.C. 1983, which permits liability only
for persons acting "under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia . . . ." The district court ruled
that defendants were private entities and therefore not
subject to liability under 1983. The only basis for state
action Hoover asserted was that Suffolk receives federal
funding. It is well-settled, however, that receipt of
-3-
federal funding does not render an entity a state actor for
purposes of 1983. 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 the case on May 28, 1993, before
hearing Hoover's motion for a temporary restraining order,
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
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. As of the dismissal of
the case on September 7, 1993, Hoover had filed no motion for
disqualification. Only in 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 disqualification
precludes him from raising the matter on appeal. "[A] party must
raise its claim of a district court's disqualification at the
earliest possible moment after obtaining knowledge of facts
demonstrating the basis for such a claim." Apple v. Jewish
_____ ______
Hospital & Medical Center, 829 F.2d 326, 333 (2nd Cir. 1987). As
_________________________
the court in Apple aptly stated, "[A] movant [for
_____
disqualification] may not hold back and wait, hedging its bets
against the eventual outcome." Id. at 334.
___
Even were we to consider Hoover's disqualification
argument, it lacks any merit. Hoover has set forth no factual
allegations to suggest that the district judge had any personal
or financial stake in the outcome of the case. The district
court expressed no personal bias in his statements at the hearing
on the temporary restraining order. There are no allegations
that the judge has ever had a close or social relationship with
any of the individual defendants, or that the judge has any
current relationship with Suffolk at all. There was no basis for
-5-
recusal here. See Easley v. University of Michigan Bd. of
___ ______ ________________________________
Regents, 906 F.2d 1143 (6th Cir. 1990) (judge not required to
_______
recuse himself from suit against law school where judge was an
alumnus of the law school, served as a volunteer fund raiser for
the 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 only the district
court's September 7, 1993 order of dismissal, and does not
mention the district court's September 17 denial of Hoover's
post-dismissal motions (which Hoover challenges at length in his
brief). For that reason, 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 appealed from,"
only Hoover's challenge to the September 7 dismissal is properly
before this court. We need not resolve this question. Even if
we were to consider Hoover's challenges to the district court's
September 17 rulings, we would affirm the district court.
The crux of Hoover's argument is that the district court
did not have discretion to deny Hoover the right to amend his
___
complaint. Hoover points to Fed. R. Civ. P. 15(a), which states
-6-
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). Dartmouth Review v. Dartmouth College, 889 F.2d
________________ _________________
13, 22 (1st Cir. 1989); Wright, Miller and Kane, 6 Federal
Practice & Procedure 1483, at 585 (2nd ed. 1990).
The point Hoover overlooks, however, is that when Hoover
filed his motion to amend and supplement the complaint on
September 12, the district court had already dismissed the case.
"[T]he thrust of Rule 15(a) is aimed at the pre-judgment phases
of litigation." Dartmouth Review, supra, 889 F.2d at 22. We
________________ _____
have recently held that, although there is disagreement among the
circuits on this point, "a plaintiff's time to amend his or her
complaint as a matter of right within the First Circuit
terminates upon 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. Similarly, we held
in Jackson v. Salon, 614 F.2d 15, 17 (1st Cir. 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." These holdings govern the issue in this
case. Following the district court's dismissal of the case,
-7-
Hoover's only option -- other than appeal -- was to "seek leave
to amend under Rule 15(a) after having the judgment reopened
under either Rule 59 or 60." Acevedo-Villalobos, supra, slip op.
__________________ _____
at 14.
Even putting aside the fact that Hoover did not accompany
his motion to amend with the requisite Rule 59 or 60 motion, we
could not find that the district court abused its discretion in
denying leave to amend or supplement. For one thing, the
proposed amended and supplemental complaints included no adequate
allegations of state action on the part of any defendant, and
thus contained nothing that would cure the defects of Hoover's
claims under 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 race, color,
or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance." We
agree with the district court, however, that Hoover's proposed
amended and supplemental complaints based these claims "on the
bare allegation of racial discrimination with no support
whatsoever." All that the proposed complaints alleged as to
racial discrimination was that Hoover's dismissal from the law
school "was done without due process, as a discrimination plot.
This was done with intent and malice to create and did create a
-8-
deliberate indifference towards plaintiff because plaintiff is
black." The proposed complaints did not "assemble . . . specific
facts adequate to show or raise a plausible inference that
[Hoover was] subjected to race-based discrimination." Dartmouth
_________
Review, supra, 889 F.2d at 17. These complaints might well have
______ _____
been subject to dismissal under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. Thus, the district court acted well
within 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 also argues that the district court erred in
granting defendants' motion to dismiss before receiving and
considering Hoover's opposition to that motion. Hoover did not
timely file his opposition. Hoover asserts, however, that he
changed his residence around this time, and that on August 13,
1993, he informed defendants and the district court of his change
of address. For some reason, Hoover alleges, the district court
failed to make proper note of his change of address, so that
Hoover did not receive timely notice of the court's August 19
order extending until August 26 the deadline for him to file his
opposition to the motion to dismiss. The clerk of court,
-9-
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 receive a copy of
defendants' motion to dismiss on August 11. Even apart from the
district court's extension of the filing deadline to August 26,
of which Hoover allegedly received no notice, the district
court's local rules require that an opposition to a motion be
filed within fourteen days after service of the motion (in this
instance, by August 25). Loc. R. 7.1(B)(2). 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 event, this matter is irrelevant to this appeal.
Since Hoover has now conceded that the district court's grounds
for dismissing his original complaint were correct, he has in
effect conceded that consideration of his opposition could not
have changed the district court's September 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 that Hoover might have filed his motion
to amend before dismissal, had there been no change-of-address
snafu, does not change or lift that requirement. The change-of-
address circumstance, of course, was one factor that could have
been 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 is
denied.
______
The rulings of the district court are affirmed.
________
-11-
Document Info
Docket Number： 93-2074
Filed Date： 6/13/1994
Precedential Status： Precedential
Modified Date： 9/21/2015