Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.anthony Solimine, Plaintiff, Appellant, v. Federal Bureau of Investigation, Defendant, Appellee.anthony Solimine, Plaintiff, Appellant, v. United States Federal Bureau of Investigations, Civilrights, Director Agent Morrill, et al.,defendants, Appellees, 50 F.3d 1 (1st Cir. 1995)Annotate this Case
March 24, 1995
Appeals from the United States District Court for the District of Massachusetts [Hon. William G. Young, U.S. District Judge ]
Anthony Solimine on brief pro se.
Donald K. Stern, United States Attorney, and Gwendolyn R. Tyre, Assistant United States Attorney, on brief for appellees.
Before TORRUELLA, Chief Judge, SELYA and BOUDIN, Circuit Judges.
The district court correctly dismissed, as frivolous, pursuant to 28 U.S.C. § 1915(d), the actions underlying each of these appeals. The complaints, essentially identical, were based on "an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Appellant's proffered amendment, submitted after dismissal in one action and before dismissal in the second action, did not cure the defective pleading. Appellant attempts to contort his allegations into a claim of a negligently-done voluntary undertaking, not within the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680. It is clear, however, that what appellant alleges is not a voluntary undertaking, but a failure to undertake what appellant concedes is a duty not within defendants' authority.
The orders of dismissal are affirmed.