Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1985

MATTHEW THOMAS, ET AL.,

Plaintiffs, Appellants,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

 Lynch, Chief Judge, 

Tashima and Lipez, Circuit Judges. *

John F. Killoy for appellants.

Neil F.X. Kelly, Assistant Attorney General, for appellees

State of Rhode Island and Providence Plantations; Patrick C. Lynch,

Attorney General; Rhode Island State Police, Colonel Steven M.

Pare; State Police Trooper Badge #37; State Police Detective

Timothy Sanzi; State Police Detective Joseph Philibin, and State

Police Detective Michael Casey.

Claire Richards, Special Counsel, for appellee Governor Donald

L. Carcieri.

Rebecca Tedford Partington, Assistant Attorney General, for

appellees State Police Detectives Ken Barry and Ken Bell. 

September 24, 2008
 The appellants are Narragansett Indian Tribe members Matthew 1

Thomas, Randy Noka, Bella Noka, Hiawatha Brown, John Brown, Thawn

Harris, and Adam Jennings.

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LIPEZ, Circuit Judge. Appellants are seven members of

the Narragansett Indian Tribe ("the Tribe") who brought suit under 1

42 U.S.C. § 1983 claiming that Rhode Island state officials,

including state police officers, violated their constitutional

rights by arresting them "without lawful authority" on tribal

lands. Relying on our earlier ruling that the state police had

jurisdiction to make arrests on Narragansett tribal lands, see

Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30-31 (1st

Cir. 2006)(en banc), the district court dismissed appellants'

complaint for failure to state a claim on which relief could be

granted. See Fed. R. Civ. P. 12(b)(6). The court also denied

appellants' request for leave to amend their complaint.

Appellants challenge both of these rulings. They argue

that the court construed their allegations too narrowly, thereby

ignoring a viable Fourth Amendment claim based on the lack of

probable cause for arrest. Alternatively, they claim that the

court wrongly denied their request to amend the complaint, thereby

denying them the opportunity to remedy any deficiencies. We

affirm.
 We addressed the claims of appellant Adam Jennings in our 2

decision in Jennings, and therefore his claims here are barred by

the principle of res judicata. See Aristud-Gonzalez v. Gov't Dev.

Bank, 501 F.3d 24, 27 (1st Cir. 2007) (explaining that res judicata

encompasses claim preclusion, which may be used both to prevent the

re-litigation of the same cause of action and bar claims that were

not brought earlier but grew out of the same nucleus of operative

facts and should have been brought in an earlier action).

Appellants' counsel acknowledged at oral argument that Jennings is

no longer a viable plaintiff in this case.

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I.

We have previously described at great length the events

associated with the July 14, 2003 raid of the Narragansett Indian

Smoke Shop by the police. See Jennings v. Jones, 499 F.3d 2, 4-5

(1st Cir. 2007); Narragansett Indian Tribe, 449 F.3d at 18-21. We 2

recount here only the facts most pertinent to the case at hand. 

The State of Rhode Island imposed an excise tax on all

cigarettes sold, distributed, or held for sale or distribution

within its borders. To enhance collection of this tax, it required

cigarette dealers to affix to their merchandise stamps furnished by

the State. Id. Failure to comply with these rules was a

misdemeanor and subjected the cigarettes to seizure. The Tribe

believed that the State had no jurisdiction over tribal lands and

that the State's tax regime, therefore, did not apply to cigarette

sales on its property. The Tribe opened a smoke shop on tribal

land located in Charleston, Rhode Island, and sold cigarettes

without the stamps affixed and without collecting the state sales
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tax. Consequently, the cigarettes were priced significantly below

the prevailing market rate.

After securing a search warrant, the police entered the

smoke shop on July 14, 2003 to seize the unstamped cigarettes. The

officers' entry "sparked an altercation" and resulted in eight

arrests. Id.

The Tribe then brought suit against the State arguing

that under the Rhode Island Indian Claims Settlement Act, 25 U.S.C.

§§ 1701-16, Rhode Island officials did not have the authority to

enter tribal land for the purpose of enforcing state laws. We

considered this issue en banc, and a majority of the court held

that state officers could execute a search warrant on tribal lands

and arrest members of the Tribe in order to enforce the State's

laws. Narragansett Indian Tribe, 449 F.3d at 24. The Tribe

petitioned for certiorari, which was denied on November 27, 2006.

Narragansett Indian Tribe v. Rhode Island, 127 S. Ct. 673 (2006).

On July 13, 2006, while the petition for certiorari was

still pending, appellants initiated this action pursuant to 42

U.S.C. § 1983 against the State, the officers who conducted the
 The following people and entities were listed as defendants: 3

the State of Rhode Island and Providence Plantation, Governor

Donald L. Carcieri in his official capacity, Rhode Island Attorney

General Patrick C. Lynch in his official capacity, Colonel Steven

M. Pare of the State Police, State Police Trooper Badge #37, State

Police Detective Timothy Sanzi, State Police Detective Joseph

Philibin, State Police Detective Michael Casey, and State Police

Troopers -- John Does 1 to 7. 

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raid, and several state officials. In their complaint, they stated: 3

Defendants individually and in concert with the

others acted under the color of state law and in their

official capacities, but said acts are illegal, and each

defendant individually and in concert with the others

acted deprived [sic] the plaintiffs of their

constitutional rights.

The transportation, detention and prosecution of the

plaintiffs without lawful authority or jurisdiction

constituted a seizure within the meaning of the Fourth

Amendment and deprived plaintiffs of their liberty. This

seizure and deprivation of liberty were unreasonable in

violation of the Fourth and Fourteenth Amendments to the

United States Constitution. 

On February 2, 2007, after the Supreme Court denied

certiorari, the defendants filed a Motion to Dismiss pursuant to

Fed. R. Civ. P. 12(b)(6), arguing that appellants had failed to

state a claim on which relief could be granted because the

Narragansett case had resolved the question of state authority. In

their response to the motion, appellants indicated that they would

be seeking leave to amend their complaint, but did not specify the

content of the proposed changes, or explain why they were

necessary. Appellants never filed a written motion to amend the

complaint.
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At a hearing on the dismissal motion, appellants argued

that the Narragansett case was not dispositive because the

complaint concerned the claims of "individual tribal members for

violations of their own individual civil rights," and not the

State's "jurisdiction and authority in taxation" over the Tribe.

When asked by the court what had occurred during the raid that

"could possibly give rise to" a § 1983 claim, counsel for

appellants pointed to three alleged incidents of excessive force:

(1) an appellant was bitten by a state police dog, (2) a pregnant

appellant was forced to the ground by the police with a knee to her

back, and (3) an appellant received a "chest bump." None of these

incidents, however, were alleged in the complaint. Appellants

further asserted at the hearing that they needed time for discovery

so they could determine whether other episodes of excessive force

had occurred, and they requested leave to amend their complaint

after such discovery had been completed. Appellants never

suggested at this hearing that the police lacked probable cause for

the arrests.

The district court concluded in a written opinion that

the complaint "fail[ed] to state any viable cause of action." The

court found that the notion that the complaint contained an

excessive force claim, which had been "weakly suggested" by

appellants at the hearing, was not supported by the contents of the

complaint itself. The district court also held that appellants'
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"passing references in their memorandum to their desire to amend

their pleading," unaccompanied by a motion, were "patently

inadequate" as a motion to amend. The court rejected appellants'

argument that they needed discovery to properly allege their

excessive force claim, concluding that "[t]here is nothing more to

be learned [because the appellants] were there; they knew what

happened."

In the district court's view, the complaint "was

conceived as a placeholder of sorts for claims sounding in false

arrest, false imprisonment and malicious prosecution which might

possibly become viable if, or when, the Supreme Court reversed the

First Circuit's en banc decision." However, in light of the

Supreme Court's denial of the petition for certiorari, the district

court concluded that there is "no doubt that the raid was carried

out with lawful authority and jurisdiction." Because appellants'

claims were "all predicated on the assertion that the raid was

unlawful," the court ruled that the complaint was "legally

insufficient and on its face plainly fails to state a claim." It

granted the State's motion to dismiss.

On appeal, appellants argue that the district court erred

when it "narrowly interpreted 'lawful authority' in the Complaint

to mean solely that the State had lawful authority and jurisdiction

to carry out the Smoke Shop Raid," and that the district court

should have interpreted the allegation of lack of authority to
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encompass the absence of probable cause. They contend that the

failure to do so was inconsistent with the district court's

obligation under Rule 12(b)(6) to broadly construe their complaint

and to deny the motion to dismiss only if no set of facts could

support their claim for relief. Appellants also contend that the

district court erred in denying their request for leave to amend

their complaint under Federal Rule of Civil Procedure 15. They

argue that they should be permitted additional time to engage in

discovery prior to amending their complaint.

We review de novo the district court's dismissal of the

complaint under Rule 12(b)(6). Clark v. Boscher, 514 F.3d 107, 112

(2008). In doing so, we must assume the truth of all well-pleaded

facts and give the plaintiff the benefit of all reasonable

inferences therefrom. Id. We review for abuse of discretion the

denial of appellants' purported motion to amend. Aponte-Torres v.

Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006).

II.

In Bell Atlantic Corp. v. Twombly, the Supreme Court

explained that "[w]hile a complaint attacked by a Rule 12(b)(6)

motion does not need detailed factual allegations, a plaintiff's

obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do." 127

S. Ct. 1955, 1964-65 (2007)(internal citations and quotations
 The motion to dismiss standard cited by appellants -- a 4

complaint should not be dismissed unless "it appears beyond doubt

that the plaintiff can prove no set of facts" that entitles him to

relief -- was set forth in Conley v. Gibson, 355 U.S. 41, 45-46

(1957). That standard no longer governs in light of Twombly.

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omitted). The complaint must allege "a plausible entitlement to

relief" in order to survive a motion to dismiss. Id. at 1965.

Subsequently, the Supreme Court reiterated that "[s]pecific facts

are not necessary; the statements need only 'give the defendants

fair notice of what the . . . claim is and the grounds upon which

it rests.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)

(quoting Twombly, 127 S. Ct. at 1964).4

Appellants argue that their allegation that the police

acted "without lawful authority" is broad enough to include a claim

that the police lacked probable cause. As appellants put it in

their brief:

The issue here is NOT [emphasis in original]

whether the state had authority to make an

arrest on Tribal lands but was the arrest of

these individuals lawful. The lawfulness must

be decided based upon the facts of each

arrest-was there probable cause for each

arrest that was made. This determination has

not been made and cannot be made in a vacuum

without the benefit of discovery and testimony

from witnesses and the parties themselves.

The issue of probable cause or reasonable

grounds to make the arrest is one for the jury

to decide.

There is not a hint of this probable cause argument in the

proceedings before the district court. Instead, as the district

court noted in its opinion, "plaintiffs weakly suggested [at oral
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argument] that the complaint contained an excessive use of force

claim based on a dog bite and/or a 'chest bump,' however, even the

most generous reading of the complaint reveals no such allegation."

The appellants have not even weakly suggested that excessive use of

force claim on appeal. Instead, they have replaced the excessive

use of force claim with a probable cause claim that was never

presented to the district court.

Appellants cannot raise an argument on appeal that was

not "squarely and timely raised in the trial court." Iverson v.

City of Boston, 452 F.3d 94, 102 (1st Cir. 2006); see also id.

(litigants must "spell out their legal theories face-up and

squarely in the trial court; if a claim is 'merely insinuated'

rather than 'actually articulated,' that claim ordinarily is deemed

unpreserved for purposes of appellate review.") On that basis

alone, we reject the argument that the district court erred in

granting the motion to dismiss because the claim of appellants

included a viable claim that the appellants were arrested without

probable cause.

However, even if the probable cause theory of the

appellants were properly before us, we would reject it. The vague

references in the complaint to acts of the defendants that "are

illegal" and "without lawful authority" were insufficient to

apprise defendants that the appellants were asserting a more

particular claim that there was a lack of probable cause for the
 Fed. R. Civ. P. 15(a)(i) states: 5

(1) Amending as a Matter of Course. A party may

amend its pleading once as a matter of course: (A) before

being served with a responsive pleading; or (B) within 20

days after serving the pleading if a responsive pleading

is not allowed and the action is not yet on the trial

calendar.

(2) Other Amendments. In all other cases, a party

may amend its pleading only with the opposing party's

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arrests. As we have stated, "[n]otice pleading rules do not

relieve a plaintiff of responsibility for identifying the nature of

her claim." Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir.

2006). Our precedent is clear that courts "must always exhibit

awareness of the defendant's inalienable right to know in advance

the nature of the cause of action being asserted against him,"

because such notice is "[a] fundamental purpose of pleadings under

the Federal Rules of Civil Procedure." Rodriguez v. Doral Mortgage

Corp., 57 F.3d 1168, 1171 (1st Cir. 1995). Here, the generality of

the complaint's language did not afford defendants such notice with

respect to the probable cause claim.

III. 

Appellants alternatively argue that the district court

should have given them the opportunity to amend their complaint

because there are significant facts, some not yet revealed through

discovery, that support their allegations. Under Federal Rule of

Civil Procedure 15, parties must obtain leave to amend from either

the opposing party or the court in order to amend their complaint

after a responsive pleading has been filed. The procedure for 5
written consent or the court's leave. The court should

freely give leave when justice so requires. . . . 

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requesting leave to amend a complaint in the District of Rhode

Island is set forth in Civil Local Rule 15. This rule states that

a motion to amend a pleading "shall be made promptly after the

party seeking to amend first learns the facts that form the basis

for the proposed amendment" and must be accompanied by the

"proposed amended pleading" and "a supporting memorandum that

explains how the amended pleading differs from the original and why

the amendment is necessary." District of Rhode Island Civil Local

Rule 15. 

Appellants did not satisfy the requirements of the local

rule. As an initial matter, the "request" for leave to amend

included in plaintiffs' response to the motion to dismiss,

unaccompanied by any of the required documents, did not comply with

the motion practice prescribed by Local Rule 15. Moreover, even if

we overlooked this procedural defect, the district court's decision

to deny leave to amend was sound in light of appellants' failure to

make the substantive showings required by the rule. 

At the hearing on the defendants' motion to dismiss (and

not before), appellants suggested that they wanted to amend their

complaint to add claims of excessive force. However, on appeal,

appellants do not specifically mention any allegations that the

proposed amendment would have added. Instead, they argue generally
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that the district court erroneously denied their request to add

"additional claims." Appellants' general reference on appeal to

unenumerated "additional claims" confirms the observation of the

district court that plaintiffs' belated request for leave to amend

was nothing more than "a vague intent to amend a complaint along

with wishful thinking that discovery may turn up new facts." The

court did not abuse its discretion in denying appellants' request

for leave to amend. 

Affirmed.