[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 00-1263

DAVID MICHAUD,

Plaintiff, Appellant,

v.

CITY OF ROCHESTER; MICHAEL MCQUADE, Individually and

Officially; WAYNE PERREAULT, Individually and Officially;

VIRGINIA DOHERTY; Individually and Officially,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Selya, Lynch and Lipez,

Circuit Judges.

David Michaud on brief pro se.

Donald E. Gardner and Devine, Millimet & Branch on brief for

appellees.

December 27, 2000
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Per Curiam. Pro se appellant David Michaud appeals

from the dismissal of his civil rights complaint. In a

report and recommendation dated December 30, 1999, a

magistrate judge recommended dismissal for failure to state

a federal claim. See 28 U.S.C. § 1915A(a) & (b) (providing

for dismissal on preliminary review of prisoner complaints

against government officers or employees if the complaints

do not state a claim for relief). After reviewing an

objection filed by appellant, the district court approved

the recommendation in an order dated January 19, 2000, and

dismissed the complaint. We affirm. 

On appeal, appellant argues that he stated a due

process claim for relief, contending that there was state

action and that he possessed a property interest sufficient

to warrant protection under the Due Process Clause. But the

district court did not dismiss the due process claim for

lack of state action or the requisite property interest.

Adopting the magistrate judge's reasoning, the district

court essentially dismissed it under the Parratt-Hudson

doctrine. See Parratt v. Taylor, 451 U.S. 527, 541-43

(1981) (rejecting due process claim based on negligent loss

of property where defendants' act was "random and
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unauthorized" and there was an adequate state

postdeprivation remedy to redress the loss), overruled in

part on other grounds by Daniels v. Williams, 474 U.S. 327

(1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984)

(extending the ruling in Parratt to intentionally caused

losses of property). In objecting to the magistrate judge's

report, appellant did not argue that the magistrate judge

had erred in relying on that principle of law. Likewise, on

appeal, appellant has not argued that the district court

erred in dismissing his claim based on that principle, but

argues other points which the district court was apparently

willing to assume in his favor. Due to his double default,

appellant has waived consideration of the dismissal of his

due process claim. See Brown v. Hot, Sexy and Safer

Productions, Inc., 68 F.3d 525, 536-37 (1st Cir. 1995)

(affirming Rule 12(b)(6) dismissal of due process claim

where, both in district court and on appeal, plaintiffs had

failed to adequately argue points pertinent to the ParrattHudson doctrine); Sands v. Ridefilm Corp., 212 F.3d 657, 663

(1st Cir. 2000) (declining to consider argument on appeal

which appellant failed to make in objecting to magistrate

judge's report). 
1We deny appellant's motion for leave to assert, in a

hearing, claims of misrepresentation against appellees'

attorney. We also deny appellees' request to reconsider the

denial of their motion to revoke appellant's in forma pauperis

status under 28 U.S.C. § 1915(g). For reasons fully explained

in the case law, we conclude that appellant has not accumulated

the requisite "three strikes" under the statute. See Adepegba

v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996) (explaining

that a dismissal followed by an affirmance counts as only one

strike under § 1915(g) and that dismissals by the district court

should not be counted until after a petitioner has exhausted or

waived his avenues of appeal); accord Jennings v. Natrona County

Detention Ctr., 175 F.3d 775, 779-81 (10th Cir. 1999). In view

of our ruling, we deny appellant's motion to strike appellees'

motion for reconsideration as moot.

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As for the equal protection claim, we also conclude

that appellant has waived appellate consideration of his

claim. In his appellate brief, appellant contends that

appellees stole and destroyed his property, knowing that he

was incarcerated and indigent. But he failed to present the

same factual allegations to the district court when he

objected to the magistrate judge's report, and the

magistrate judge had recommended dismissing the equal

protection claim for lack of adequate supporting

allegations. Because appellant failed to present his

present argument to the district court, we decline to

consider it. See Sands, supra.

Affirmed. See Loc. R. 27(c).

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