Azubuko v. Rufo ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1075



                                  CHUKWU E. AZUBUKO,



                                Plaintiff, Appellant,



                                          v.



                               ROBERT C. RUFO, SHERIFF,

                         SUFFOLK COUNTY SHERIFF'S DEPARTMENT,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Lynch, Circuit Judges.
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            Chukwu E. Azubuko on brief pro se.
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            John  M.  Townsend,  General  Counsel,  Suffolk  County  Sheriff's
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        Department, on brief for appellee.





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                                    MARCH 4, 1997

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                      Per Curiam.   Appellant Chukwu  E. Azubuko  appeals
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            from  the  sua  sponte  dismissal,  under  Fed.  R.  Civ.  P.



            12(b)(6), of  his complaint  against Sheriff Robert  C. Rufo.



            The court dismissed the complaint, stating that it failed  to



            state a claim against the Sheriff.



                      It  is evident that appellant "can  prove no set of



            facts  in support  of his  claim which  would entitle  him to



            relief."  See  Conley v.  Gibson, 355 U.S.  41, 45-46  (1957)
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            (standard for a Rule 12(b)(6) dismissal).  First, it is plain



            that appellant is premising  Sheriff Rufo's liability for the



            alleged false imprisonment solely  on the Sheriff's status as



            a  supervisor or employer.  That is, the only person directly
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            involved  in the incident at the Roxbury District Court is an



            attorney who  supposedly worked  for Sheriff  Rufo.   A claim



            which  is  premised  solely  on  respondeat  superior  is  an



            improper basis for  a   1983 action.  See Figueroa v. Aponte-
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            Rogue, 864 F.2d 947, 953 (1st Cir.  1989) (a defendant may be
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            found liable only for his or her own acts or omissions).



                      Second, appellant  cannot state  a claim for  false



            imprisonment   under   the   Fourteenth   Amendment.      The



            availability of  an adequate  remedy under  Massachusetts law



            for such  a claim,  see,  e.g., Foley v. Polaroid  Corp., 400
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            Mass. 82,  508 N.E.2d 72  (1987), precludes a  procedural due



            process  challenge.  See Roche v. John Hancock Mut. Life Ins.
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            Co., 81 F.3d 249, 256 (1st Cir. 1996).  Further, there exists
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            no  substantive due  process right  to be  free from  such an



            alleged  deprivation.  See  Albright v. Oliver,  510 U.S. 266
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            (1994) (plurality opinion).



                      Finally,  appellant cannot state a Fourth Amendment



            claim in this case  because he never was arrested  or seized.



            A   seizure  occurs  "only  if,   in  view  of   all  of  the



            circumstances surrounding the  incident, a reasonable  person



            would  have believed that he was not  free to leave."  United
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            States v. Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J.).
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            The letter concerning the arrest warrant stated  specifically



            that  appellant would be arrested only if he failed to appear
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            at a "voluntary" court appearance.  Thus, a reasonable person



            reading this letter would understand that if he went to court



            on his  own steam, he would  not be arrested.   In any event,
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            appellant indicates that he, in fact, freely left the meeting



            at the Roxbury District Court.



                      The judgment of the district court is affirmed.
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