USCA1 Opinion

September 30, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1187
ARTHUR D'AMARIO, III,
Plaintiff, Appellant,
v.
PROFESSIONAL SECURITY SERVICES, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
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____________________

Arthur D'Amario, III, on Memorandum Supporting Motion for Summ

____________________
Disposition, pro se.
John A. Davey, Jr. and Olenn & Penza on Memorandum in Support
__________________
_____________
the Motion for Summary Disposition, for appellees, Lonergan, Wahl
Donley.
Robert M. Brady on Memorandum in Opposition to Appellant's Mot
_______________
for Summary Disposition, for appellee, Aloysius Murphy.
James E. O'Neil, Attorney General, William M. Kolb, Assist
________________
________________
Attorney General, and Kara M. Fay, Assistant Attorney General,
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Memorandum
in
Opposition to
Appellant's
Motion for
Summ
Disposition, for appellees, State of Rhode Island and Rhode Isl
Department of Mental Health, Retardation and Hospitals.

Kevin F. McHugh on Memorandum in Opposition to Appellant's Mot

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for Summary Disposition, for appellee, City of Providence.
Andrew S. Richardson, on submissions to the Court, for appelle
____________________
Stevie Nicks, Frank J. Russo, Gemini Concerts, and Concerts East.
Paul T. Jones, Jr. on brief for appellee, Providence Civic Cen
__________________
Authority.
____________________
____________________

Per Curiam.
___________

Plaintiff-appellant

Arthur D'Amario

filed a complaint on

February 4, 1987 in the

district court

for the District of Rhode Island against defendants-appellees

the

Providence

Civic Center

security personnel

Authority

("PROCCA"), various

employed by PROCCA, the Providence Police

Department, and a number of other defendants.

sought

injunctive relief and damages

and under

state law for alleged

rights stemming from a

security

personnel

concert at

the

The complaint

under 42 U.S.C.

infringements of D'Amario's

May 3, 1986 incident in

denied

D'Amario

Providence

1983

Civic

which PROCCA

admittance

Center

to

because

a rock
D'Amario

insisted on bringing in a camera.

The same PROCCA no-camera rule was the subject of a
previous suit brought by D'Amario.

In that case the district

court, affirmed by this court, ruled that D'Amario enjoyed no

constitutional right to bring

a camera into Providence Civic

Center

v.

concerts.

Authority, 639
_________

D'Amario
________

F.Supp. 1538

692 (1st Cir.) (unpublished

Providence Civic
Center
__________________________

(D.R.I. 1986), aff'd,

_____

815 F.2d

opinion), cert. denied, 484 U.S.

_____ ______

859 (1987).
In
opportunity

the instant
for

some

case,

after D'Amario

discovery,

November 30, 1987 granted

complaint.

The

doctrine of

stare decisis,
_____ _______

had had

an

judge

on

the magistrate

defendants' motions to dismiss the

magistrate

judge

ruled that

this court's ruling

(1)

by

the

in D'Amario
________

-3-

foreclosed D'Amario's claims

were

violated

by enforcement

D'Amario's

1983

Department

that his constitutional

claims

charging

imprisonment, and

of

the

against

no-camera rule;

the

assault,

rights

Providence

Police

arrest,

false

false

malicious prosecution

(2)

did not allege

any

official departmental policy or custom that arguably violated

his rights;
false

(3) D'Amario's claims of

imprisonment,

Professional
employees

and

protection

malicious

Security Services, a

sounded only
claim

was

assault, false arrest,

in state

prosecution

against

private company,

and its

law; (4)

defective

allegations of arbitrary deprivation

for

D'Amario's equal

lack

of

adequate

of a protected right or

membership in a suspect class; and (5) D'Amario's allegations

against

the

Rhode

Retardation and
employed by

Department

to give D'Amario

Mental

court accepted

On October

the magistrate

Health

that doctors
sleeping pills

an RIMHRH facility, failed to state

cruel and unusual punishment.

district

of

Hospitals ("RIMHRH"), charging

RIMHRH refused

while he was in
of

Island

a claim

22, 1991, the

judge's

report and

recommendation and dismissed the complaint.

Subsequently,

D'Amario filed

Fed.

R. Civ.

P.

59(e) motion to alter or amend the district court's judgment.

D'Amario argued that, in view of his pro se status, he should
______
be permitted

to file an amended complaint.

number of objections

to the merits

He also raised a

of the district

court's

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dismissal.

On

summarily denied

December

20,

1991,

D'Amario's motion.

the

district

court

D'Amario appeals.

We

affirm.
D'Amario argues on appeal that the district court's
refusal to

permit him to

the deficiencies of his

file an amended

original complaint, was inconsistent

with this court's dictates

(1st

complaint, curing

in Forte v. Sullivan, 935

_____
________

Cir. 1991), and Street v. Fair,

______
____

F.2d 1

918 F.2d 269 (1st Cir.

1990).
In Street, the district court dismissed plaintiff's
______

pro se, in forma pauperis

defendants
court

had responded

found that

support
court

the

to

the complaint.

complaint

its allegations

did

of civil

The

not allege

district
facts

rights violations.

reversed the dismissal and remanded

plaintiff an opportunity
out

1983 complaint sua sponte, before

___ ______

to
This

the case to allow

to amend his complaint.

We pointed

that sua sponte dismissal is appropriate only when an in

___ ______

forma

pauperis complaint

1915(d).

We

found

factually deficient,
U.S.C.

that

plaintiff's

under 28
complaint,

was not "frivolous" for

U.S.C.
while

purposes of 28

1915(d) because it would state a claim if adequate

supporting facts
sufficient

is "frivolous"

were pleaded.

to support

claim under Fed.

a dismissal

R. Civ.

dismissal could not be

Mere

factual deficiency was

for failure

P. 12(b)(6), but

to state

a Rule

12(b)(6)

ordered sua sponte, without affording

___ ______

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plaintiff

notice and an opportunity

to be heard.

Thus, we

held that the court's dismissal was in error, because neither

the substantive
the procedural

requirements for

requirements for

1915(d)

dismissal nor

Rule 12(b)(6)

dismissal

were met.
In Forte, similarly, we reversed the dismissal of a
_____
pro se, in forma pauperis complaint because the complaint was
___ __
not "frivolous" under
complaint
12(b)(6)

may

have been

as factually

without notice
defendant

1915(d)

and because -- although

subject

deficient

was improper

dismissal under

--

Rule

sua sponte
___ ______

dismissal

under Rule 12(b)(6).

Although

had filed a motion

dismissal had, in effect,

to

the

to dismiss, we

found that the

been sua sponte because plaintiff,

___ ______

a prison inmate, had not received the motion to dismiss until

it already had been granted.
D'Amario's
D'Amario's
1915(d),
means

sua
___

situation

complaint was

sponte.
______

To

pleadings submitted
objections

the

some discovery

reveals that in

28 U.S.C.
was by no

the district

and a motion for judgment

defendants.

these

motions,

during

none of these

court
on the

D'Amario filed
long

magistrate judge's report and recommendation.

conducted

different.

The dismissal

contrary,

by various
to

altogether

dismissed under

but under Rule 12(b)(6).

granted motions to dismiss

numerous

not

is

that period.

before

the

D'Amario even
The

filings did D'Amario

record
request

-6-

leave

to amend the complaint.

It was

judge

issued

recommendation, recommending

his

report

and

after the magistrate

dismissal of D'Amario's complaint, that D'Amario sought leave

to amend.
Our decisions
no application

in Street and Forte, therefore, have

______
_____

in these

opportunity to respond to

circumstances.

D'Amario

had ample

defendants' motions to dismiss his

complaint for factual deficiency under Rule 12(b)(6).

Also,

we

court's implicit
report and
his

can

find

denial, in adopting

recommendation,

complaint.

discretion,

no fault

The district

see Fed.
___

with

the

district

the magistrate judge's

of D'Amario's motions
court acted

R. Civ. P.

to amend

well within

15(a), in

its

concluding that

D'Amario's motions to amend, filed only after issuance of the

magistrate judge's report, came too late.
D'Amario

also challenges on

appeal the

merits of

the district court's dismissal of

his complaint.

We

that

stated

magistrate

dismissal

for the

reasons

in the

affirm

judge's November 30, 1987 report and recommendation.

We have considered D'Amario's other

objections and

find them meritless.

The judgment of the district court is affirmed.
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