Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1975

ERICK J. JONES,

Plaintiff, Appellant,

v.

CITY OF BOSTON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Erick J. Jones on brief pro se.

Thomas F. Reilly, Attorney General, and Eva M. Badway,

Assistant Attorney General, on brief for appellees Suffolk County

District Attorney and Suffolk County District Attorney's Office.

Kenneth J. Forton, Assistant Corporation Counsel, on brief for

appellees, City of Boston, John Doe and John Foe.

June 14, 2005
1On appeal, Jones concedes that his remaining claims were

untimely, and he does not challenge the court's conclusion that his

suit against the Suffolk County District Attorney's Office and

associated defendants was barred by immunity or otherwise.

2For present purposes, we assume that Jones may assert a

malicious prosecution claim under 42 U.S.C. § 1983 based on the

Fourth Amendment. See Nieves v. McSweeney, 241 F.3d 46, 54 (1st

Cir. 2001) (stating that it is an "open question" whether the

Constitution permits the assertion of such a claim)(citations

omitted).

-2-

Per Curiam. Appellant Erick Jones appeals from the

dismissal of his civil rights complaint under Fed. R. Civ. P.

12(b)(6) and the district court's denial of his motion to amend his

complaint. For the reasons given below, we affirm.

 Jones asserts that his federal and state malicious

prosecution claims were timely and that he should have been allowed

to amend his complaint to add related fact allegations.1 As

indicated below, however, Jones failed to plead specific facts

tending to show that the state criminal proceedings terminated in

his favor. As a result, his malicious prosecution claims are

neither presently cognizable (they have not yet accrued), nor

substantively viable (one of the prerequisites for that cause of

action is lacking).2 Lambert v. Williams, 223 F.3d 257, 262 n.3

(4th Cir. 2000) (discussing significance of failure to show

favorable termination) (relying ultimately on Heck v. Humphrey, 512

U.S. 477, 483-84 (1994)); Nieves v. McSweeney, 241 F.3d 46, 53 (1st

Cir. 2001) (describing key elements of the common-law cause of

action in Massachusetts). Hence, we affirm.
-3-

The complaint and proposed amendment thereto made only

conclusory allegations on the favorable termination question. On

appeal, Jones explains that the Commonwealth dismissed the criminal

charges against him, offering a state court docket summary in

support. But he does not allege facts that would permit an

inference that the charges were dismissed because of his innocence

or the Commonwealth's lack of reasonable grounds for the

prosecution. See Wynne v. Rosen, 391 Mass. 797, 800-01 (1984)

(defining the circumstances when a state dismissal of charges

constitutes a favorable termination). Moreover, the state court

docket indicates that the dismissal occurred after Jones completed

a period of pretrial probation under Mass. Gen. Laws c. 276, § 87.

If anything, this suggests that dismissal was a compromise solution

as defendants maintain, in which neither party conceded guilt or

innocence. See Commonwealth v. Tim T., 437 Mass. 592, 596 (2002)

(describing the implications of pretrial probation when used as a

prelude to dismissal). A disposition of this kind is not

"favorable." Wynne, 391 Mass. at 801 (agreeing that a dismissal

based on the parties' compromise bars a malicious prosecution

claim). 

 Jones acknowledges that his attorney assented to his

pretrial probation. But he suggests that neither he nor his

attorney were present at the dismissal hearing and "thus" did not
3The docket shows that Jones was not present at the dismissal

hearing, but that his attorney was. To the extent that Jones

relied on the docket for his claim that his attorney was not

present, he apparently misread the docket. 

4In fact, Jones' record appendix contains materials which

seriously undermine his malicious prosecution claims. For example,

a grand jury transcript indicates that the grand jury had access to

a videotaped statement by Jones' alleged victim. Jones claimed

that the defendants had withheld that statement from the grand

jury.

-4-

consent to dismissal of the charges.3 An oblique contention of

this kind is an insufficient basis for a remand to the district

court. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52

(1st Cir. 1990) (in evaluating a motion to dismiss, the court is

not obliged to credit "bald assertions, periphrastic

circumlocutions, [or] unsubstantiated conclusions"). For one

thing, neither the original complaint nor the proposed amendment

alleges affirmatively that Jones did not consent to the dismissal.

In addition, the course of events described in the state court

docket all tend to support the opposite conclusion that Jones

acquiesced in the dismissal, if not directly, then through his

attorney. In any event, this indirect claim of lack of consent

does not solve the basic flaw in this case -- Jones' failure to

plead specific facts permitting the inference that the charges

against him were dismissed because he was innocent and there were

no reasonable grounds to prosecute him.4

Affirmed.