943 F.2d 104 (1st Cir. 1991), 91-1237, Johnson v. Rodriguez

Docket Nº:91-1237.
Citation:943 F.2d 104
Party Name:Leroy H. JOHNSON, Jr., Plaintiff, Appellant, v. Alex RODRIGUEZ, etc., et al., Defendants, Appellees.
Case Date:August 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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943 F.2d 104 (1st Cir. 1991)

Leroy H. JOHNSON, Jr., Plaintiff, Appellant,


Alex RODRIGUEZ, etc., et al., Defendants, Appellees.

No. 91-1237.

United States Court of Appeals, First Circuit

August 23, 1991

Submitted June 7, 1991.

Rehearing and Rehearing En Banc

Denied Oct. 9, 1991.

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[Copyrighted Material Omitted]

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Leroy H. Johnson, Jr., pro se.

Scott Harshbarger, Atty. Gen., Com. of Massachusetts, and Amy Spector, Asst. Atty. Gen., Boston, Mass., on brief, for appellees Alex Rodriguez, et al.

Allan A. Ryan, Jr. and Robert B. Donin, Office of the Gen. Counsel, Harvard University, Cambridge, Mass., on brief, for appellee Harvard University.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellant Leroy Johnson, Jr. appeals the district court's sua sponte dismissal of his complaint. Because we find the legal theories on which Johnson's claims are based to be patently unmeritorious, we affirm.


Based on the plaintiff's complaint and ancillary documents docketed in the district court, it appears that Johnson, a black male, filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in January 1980. The charge was directed against Harvard University. It alleged that Johnson had applied for some fourteen positions over the preceding two months, ranging from laboratory technician to research assistant to messenger to security guard, all to no avail. Harvard's failure to hire him, Johnson said, was premised on his color.

The EEOC was unsuccessful in its conciliation efforts. It subsequently transmitted the charge to the Massachusetts Commission Against Discrimination (MCAD), a state agency. On September 27, 1983, the EEOC issued a statutory right-to-sue letter, putting Johnson on notice that he could file a private action in federal district court within ninety days. Johnson did not sue. It was not until January 1989 that MCAD made a final disposition. At that time, the agency, through its chairman, Alex Rodriguez, who served as the so-called "investigating commissioner," concluded that there was no probable cause to buttress Johnson's charge of discrimination. Johnson pursued an administrative appeal. MCAD reviewed the case in April 1989 and sustained the original finding.

In January 1991, more than seven years after receipt of the right-to-sue letter, Johnson brought this action pro se against Harvard, MCAD, and Rodriguez. Invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, Johnson averred that Harvard had unlawfully denied him employment based on his race. He also claimed, pursuant to 42 U.S.C. § 1983, that MCAD and Rodriguez, acting under color of state law, had denied him procedural due process by mishandling the investigation of his charge. The district court granted Johnson leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). The next month, however, the judge took away with the left hand what he had given with the right hand: before process was served, the judge ruled that Johnson's claims against Harvard were time-barred; that MCAD's finding of "no probable cause" was not reviewable in federal court; and that, in any event, the availability of an adequate state remedy precluded the prosecution of a section 1983 claim against MCAD and Rodriguez. Consequently, the district judge dismissed Johnson's complaint as frivolous pursuant to 28 U.S.C. § 1915(d). This appeal followed.


We begin our analysis by explicating the governing legal standard. We then address the appellant's claims against Harvard and the state defendants, respectively. 1

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  1. Legal Standard.

    The statute under which the district court purposed to act provides that the district court "may dismiss [a] case [filed in forma pauperis under 28 U.S.C. § 1915(a) ] ... if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d). Under the guidelines set forth in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), the dismissal of an indigent's complaint under section 1915(d) is appropriate only when the "claim is based on an indisputably meritless legal theory." Id. at 327, 109 S.Ct. at 1832; see also Fredyma v. AT & T Network Systems, Inc., 935 F.2d 368, 369 (1st Cir.1991) (per curiam); Purvis v. Ponte, 929 F.2d 822, 826 (1st Cir.1991). In making this assessment, the district court must give the plaintiff the benefit of all the suggested facts and must indulge all reasonable inferences in his favor. If the complaint, so read, reveals "arguably meritorious legal theories whose ultimate failure is not apparent at the outset," Neitzke, 490 U.S. at 328, 109 S.Ct. at 18, then the court should permit the action to proceed. 2 We have held squarely that "a complaint which states a claim that appears to have expired under the applicable statute of limitations may be dismissed as frivolous" under section 1915(d). Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991) (per curiam).

    Our review of the lower court's order dismissing an action under 28 U.S.C. § 1915(d) is plenary.

  2. Claims Against Harvard.

    In interpreting the complaint before us, we construe it liberally in an effort to accommodate a pro se litigant. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12 (1st Cir.1990). Nonetheless, Johnson's challenge to the court's dismissal of his civil rights claim as time-barred need not occupy us for long. Although appellant cites both 42 U.S.C. § 1981 and § 1983, and, at times, skips back and forth between them in a random way, we read his claim against Harvard as invoking section 1981 ("[a]ll persons...

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