Glaros v. Perse

• Decision Date: 12 August 1980
• Docket Number: No. 79-1382,79-1382
• Citation: 628 F.2d 679
• Parties: Alex C. GLAROS, Plaintiff, Appellant, v. Richard PERSE et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 679

628 F.2d 679

Alex C. GLAROS, Plaintiff, Appellant, v. Richard PERSE et al., Defendants, Appellees.

No. 79-1382.

United States Court of Appeals, First Circuit.

Submitted Jan. 11, 1980.

Decided Aug. 12, 1980.

Alex C. Glaros on brief pro se.

Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, and Roberta Thomas Brown, Asst. Atty. Gen., Boston, Mass., on brief for appellees, Commonwealth of Massachusetts et al.

Richard C. Minzner and Rodney, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., on brief for appellees, State of New Mexico et al.

Gerald A. Sherwin, County Counsel and Michael N. Garrigan, Chief Deputy County Counsel, Stockton, Cal., on brief for appellee, San Joaquin Delta College.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Alex Glaros appeals the dismissal of the first amended complaint he filed in an action under 42 U.S.C. § 1983. Glaros sued some twenty-six persons and entities in the federal district court of Massachusetts, alleging three types of civil rights violations: (1) unlawful surveillance of his activities, (2) unlawful maintenance or dissemination of false information about him, and (3) unlawful arrest. In essence, Glaros claimed that FBI agents began investigating him in 1969, while he was attending San Joaquin Delta College in California, and that he was subjected to further surveillance and to harassment by police when he moved to New Mexico in 1971 and to Massachusetts in 1975.

Before discussing whether the dismissal of Glaros' action was proper, we note that in his brief and reply brief Glaros incorporated many factual allegations not contained in his first amended complaint. Glaros defends his inclusion of these additional allegations on the ground that the district court denied him leave to further amend his complaint. Nevertheless, we must disregard these additional allegations, because in reviewing the dismissal of a complaint, our focus is necessarily limited to the allegations contained in the complaint itself. Litton Industries, Inc. v. Colon, 587 F.2d 70, 74 (1st Cir. 1978). Whether the district court erroneously denied leave to amend is a separate issue that we shall address after appraising the sufficiency of the complaint.

The Out-Of-State Defendants

We first consider the complaint as it relates to out-of-state defendants. The out-of-state governmental entities against which appeals are still pending are: San Joaquin Delta College (a California community college), the State of New Mexico, the City of Albuquerque, and Bernalillo County (in New Mexico). ¹ Glaros also sued Rick Brown, who Glaros alleged was a narcotics agent he met at San Joaquin Delta College. ²

The district court properly held that it lacked personal jurisdiction over the out-of-state governmental entities. Assuming that a district court can, in some circumstances, obtain personal jurisdiction over an out-of-state governmental entity, ³ that was not accomplished here.

Glaros contends that personal jurisdiction over the out-of-state defendants was obtained via the Massachusetts long-arm statute, Mass.Gen.Laws, c. 223A. See Fed.R.Civ.P. 4(e). But Glaros failed to allege facts that, if proved, would confer such long-arm jurisdiction over the out-of-state governmental entities. There were, for example, no concrete allegations in his complaint that these defendants transacted business in Massachusetts or caused tortious injury by an act or omission in Massachusetts, see Mass.Gen.Laws, c. 223A, § 3(a) and (c), or engaged in other activity within the statute, see, e.g., id. (d).

Glaros asserts, however, that long-arm jurisdiction existed by virtue of a conspiracy between all defendants. It is true that some courts have recognized a "conspiracy theory of personal jurisdiction," whereby jurisdiction can be obtained over out-of-state defendants who have conspired with in-state defendants. E.g., Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F.Supp. 559, 564-65 (M.D.N.C.1979); Socialist Workers Party v. Attorney General, 375 F.Supp. 318, 321-22 (S.D.N.Y.1974); Mandelkorn v. Patrick, 359 F.Supp. 692, 694-97 (D.D.C.1973). But, to sustain jurisdiction over an out-of-state co-conspirator these courts required something more than the presence of a co-conspirator within the forum state, such as substantial acts performed there in furtherance of the conspiracy and of which the out-of-state co-conspirator was or should have been aware. See discussion in Gemini Enterprises, Inc. v. WFMY Television Corp., supra, at 564. Glaros' allegations were deficient in this regard. His allegations of conspiracy were purely conclusory and did not specifically link the out-of-state governmental defendants to acts committed within Massachusetts. There were, for example, no claims that the out-of-state governmental defendants arranged to have information transmitted to Massachusetts or acted through Massachusetts agents in any way. Even if we were to recognize a conspiracy theory of personal jurisdiction under the Massachusetts long-arm statute, we could not regard Glaros' conspiracy allegations as sufficient to warrant the exercise of personal jurisdiction over the out-of-state governmental defendants. ⁴

For the same reasons, we agree with the district court that it lacked personal jurisdiction over Rick Brown. The only precise allegation about Brown concerned a statement Brown supposedly made to Glaros in New Mexico. Apart from general allegations of conspiracy, there was nothing to connect Brown to the Massachusetts defendants or to Massachusetts, and therefore nothing to support personal jurisdiction over him.

As to the State of New Mexico, we agree with the district court that dismissal was also required because a state may not be sued in federal court under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 337-45, 99 S.Ct. 1139, 1143-1158, 59 L.Ed.2d 358 (1979). ^* With respect to the out-of-state municipal defendants, the district court was likewise correct that no § 1983 claim was stated because Glaros did not allege these defendants had an official policy or custom that led to the deprivation of his constitutional rights. Monell v. Department of Social Services, 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-8, 56 L.Ed.2d 611 (1978). ⁵

The Massachusetts Defendants

Having determined that the complaint was properly dismissed as to the out-of-state defendants, we turn our attention to the defendants from Massachusetts. The governmental defendants against which appeals are still pending are the Commonwealth of Massachusetts and, apparently, the City of Cambridge. ⁶ In addition, appeals are pending against Detective Paul Leonard of the Cambridge Police Department and the following "private" individuals: Richard Perse, Robert Reader, Adeline Zucowska, Andrew Nicholas, Frank Maio, Clayton Ellis, George Bope, and Paul Linardos. ⁷

We discuss the governmental defendants first. Dismissal of the complaint against the Commonwealth of Massachusetts, like dismissal against New Mexico, was warranted because a state is not subject to suit in federal court under 42 U.S.C. § 1983. Quern v. Jordan, supra, 440 U.S. at 337-45, 99 S.Ct. at 1143-1158. And, as with the out-of-state municipal defendants, dismissal against the City of Cambridge was in order for failure to state a § 1983 claim. Glaros did not allege in his complaint any official municipal policy implicating Cambridge. Monell v. Department of Social Services, supra, 436 U.S. at 690-95, 98 S.Ct. at 2035-2038. Indeed, the complaint was so bereft of specific allegations concerning the City of Cambridge that it could state no civil rights claim against the City at all. See Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979). ⁸

Glaros' generalized allegations as to the defendant Leonard were likewise insufficient to state a claim under 42 U.S.C. § 1983. The sole statement in the complaint that explicitly pertained to Leonard was: "26. Defendant Paul A. Leonard was a detective for the Cambridge Police Dept. who was involved in the investigation and surveillance of plaintiff." Leonard was perhaps, by implication, linked to a previous allegation that Massachusetts governmental agencies had conducted "an especially intimidating twenty four hour a day surveillance from approximately September 10, 1976 until March 3, 1977." ⁹ Nothing more is pled to describe further this surveillance, or to illustrate how Leonard's actions deprived Glaros of rights protected by the first, fourth, fifth, sixth, ninth and fourteenth amendments as cited in the complaint.

Despite Glaros' contention that little specificity is or should be required in pro se complaints involving secret activity such as surveillance, we cannot agree that enough was pled as to Leonard. Although we have read pro se complaints liberally in accordance with Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), we have required even pro se plaintiffs to plead specific facts backing up their claims of civil rights violations. Leonardo v. Moran, 611 F.2d 397, 398 (1st Cir. 1979); see Francis-Sobel v. University of Maine, 597 F.2d 15, 17 (1st Cir.), cert. denied, 444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319 (1979); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). In a case allegedly involving surveillance, we do not think it is unrealistic or unfair to expect a plaintiff to describe briefly in his complaint the activities of each defendant said to have surveilled him and how his constitutional rights were impinged upon. Indeed, this is necessary to stating a claim because all surveillance is not per se violative of constitutional rights. See Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Co., 593 F.2d 1030, 1042-43, 1064 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 ...