Cronin v. Amesbury ( 1996 )


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    United States Court of Appeals
    For the First Circuit

    ____________________


    No. 95-1957

    MICHAEL A. CRONIN, ET AL.,

    Plaintiffs-Appellants,

    v.

    TOWN OF AMESBURY, ET AL.,

    Defendants-Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Patti B. Saris, U.S. District Judge] ___________________

    ____________________

    Before

    Selya, Stahl and Lynch,

    Circuit Judges. ______________

    ____________________

    Peter Antell, with whom Antell & Associates and J. Daniel Lindley ____________ ___________________ _________________
    were on brief, for appellants.
    Joseph L. Tehan, Jr., with whom Kurt B. Fliegauf and Kopelman and ____________________ ________________ ____________
    Paige, P.C. were on brief, for appellees Town of Amesbury, Amesbury ___________
    Police Department, Board of Selectmen of the Town of Amesbury, Daniel
    F. Cleary, R. Claude Gonthier, John M. Koelsch, Joseph E. Leary,
    William R. McAdams, George A. Motsis, Donna L. Stuart and Charles B.
    Wright.
    Maura L. Sheehan, with whom Law Offices of Attorney Maura L. ________________ ________________________________
    Sheehan was on brief, for appellees Daniel L. Bartley and Nancy _______
    Gonthier.


















    ____________________

    April 16, 1996
    ____________________




























































    Per curiam. This case arises out of the decision Per curiam. __________

    of the Town of Amesbury, Massachusetts to fire Michael A.

    Cronin from his position as the Town's Chief of Police. The

    Town terminated Cronin for falsely denying under oath that he

    had written a pornographic letter that was found in his desk

    at the Amesbury Police Department. In a fifteen-count

    complaint, Cronin alleged that the Town's Board of Selectmen,

    two Town Managers, a number of police officers (collectively

    the "Town defendants") and two private citizens (Daniel L.

    Bartley and Nancy Gonthier) terminated him in violation of 42

    U.S.C. 1983 and 1985(3) and state law. The district court

    granted summary judgment for the Town defendants on the

    1983 and 1985(3) counts (Counts I, II and XV) and dismissed

    the state law counts, without prejudice, for lack of subject

    matter jurisdiction.1 Cronin has appealed.

    The district court, in its careful review of the

    case, see Cronin v. Town of Amesbury, 875 F. Supp. 375 (D. ___ ______ ________________

    Mass. 1995), adequately recited the pertinent undisputed

    facts and there is no need to repeat them in detail here.

    Essentially, the facts showed that in early 1988 a Town

    police officer, Charles Wright (one of the defendants here),

    found in Cronin's desk a pornographic letter written on


    ____________________

    1. The district court entered a separate order granting a
    Rule 12(b)(6) motion filed on behalf of Nancy Gonthier and
    Daniel Bartley dismissing the federal counts with prejudice
    and the state counts without prejudice.

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    yellow lined paper and signed "Mike." Copies were made and,

    in February 1991, one copy was shown to members of the Board

    of Selectmen. After a secret meeting, the Town suspended

    Cronin with pay.

    A series of investigations by Town Managers into

    Cronin's fitness to serve as police chief followed. The Town

    Managers' investigations, which occurred between 1991 and

    1993, focussed on the letter and on other alleged acts of

    misconduct. The first Town Manager to investigate, Joseph

    Fahey, recommended that three charges be brought against

    Cronin and that he be given a 60-day suspension. The Town

    subsequently fired Fahey and replaced him with Donna Stuart,

    who, one day after being appointed, brought nine charges

    against Cronin. Public hearings on the nine charges were

    held in front of a civil service hearing officer, Nicholas

    Foundas. During those hearings, the letter was made an

    exhibit and Cronin denied under oath that the letter was his.

    On July 7, 1992, Foundas found Cronin guilty of only two of

    the nine charges and recommended a 90-day suspension. He

    also found that Cronin had written the letter, but that it

    had no bearing on his duties. Cronin appealed Foundas's

    decision to the Civil Service Commission.

    Before the Civil Service Commission decided

    Cronin's appeal, however, a number of other events

    transpired. First, Town Manager Stuart demoted Cronin to



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    sergeant. Second, the Board of Selectmen released the letter

    to the press. Third, in October 1992, Stuart was replaced by

    a new Town Manager, John M. Koelsch, who brought two new

    charges against Cronin -- (1) lying under oath when he denied

    authorship of the letter at earlier hearings and (2) conduct

    unbecoming an officer. Koelsch's charges were prompted by

    Daniel Bartley and Nancy Gonthier, private citizens who

    complained that Cronin had lied under oath about authorship

    of the letter. After bringing the charges, Koelsch

    designated himself hearing officer. On June 17, 1993, he

    found that Cronin had lied about authorship of the letter

    and, in so doing, had acted in a manner unbecoming a police

    officer. Cronin was then terminated. Cronin immediately

    appealed Koelsch's decision to the Civil Service Commission.

    On July 20, 1993, the Civil Service Commission

    reversed Foundas's decision, recommending that Cronin be

    restored to his previous position, with back pay. As of this

    court's inquiry at oral argument, the Civil Service

    Commission has not yet decided Cronin's appeal from Koelsch's

    decision.



    Section 1983 Claims ___________________

    Cronin's 1983 claims allege that the Town

    defendants deprived him of procedural due process when they





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    terminated him.2 However, even assuming for the purposes of

    this appeal that the Town defendants failed to give Cronin

    the procedure he was due in making the decision to terminate

    him (an issue on which we take no position), Cronin cannot

    succeed on his procedural due process claim unless he can

    show that the state failed to provide him with an adequate

    postdeprivation remedy. See Lowe v. Scott, 959 F.2d 323, ___ ____ _____

    340-41 (1st Cir. 1992) ("[I]f a state provides adequate

    postdeprivation remedies -- either by statute or through the

    common-law tort remedies available in its courts -- no claim

    of a violation of procedural due process can be brought under

    1983 against the state officials whose random and

    unauthorized conduct caused the deprivation.").

    Here, the state has provided an adequate

    postdeprivation remedy. Massachusetts has provided Cronin

    with extensive postdeprivation remedies in the form of the

    Civil Service Law. See Mass. Gen. L. ch. 31, 41-44. Any ___



    ____________________

    2. Cronin, who under state law can only be terminated for
    "just cause," see Mass. Gen. L. ch. 31, 41, has a protected ___
    property interest in his employment and thus may invoke the
    protection of the due process clause. See Cummings v. South ___ ________ _____
    Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993). In ____________________
    invoking his procedural due process claims, Cronin does not
    seriously argue that the established state pre-termination
    procedures are deficient. Rather, Cronin's claims rest on
    alleged random and unauthorized acts by the Town defendants.
    See Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). He ___ ______ _______
    generally argues that the Town defendants were out to get
    him, and, with respect to the termination specifically, he
    argues that Koelsch was biased and made evidentiary errors.

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    person aggrieved by a decision of the "appointing

    authority"3 may appeal to the Civil Service Commission and

    be given a hearing before a member of the Commission or some

    disinterested person. The Commission may affirm or reverse

    the action of the appointing authority. If the appointing

    authority's decision is reversed, the employee must be

    reinstated without loss of compensation or other rights. If

    the employee is dissatisfied with the Civil Service

    Commission's decision, he or she may appeal to the Superior

    Court. See Mass. Gen. L. ch. 31, 44. ___

    Cronin complains that the Civil Service Commission

    has taken too long to decide his appeal from Koelsch's

    decision. Although extraordinarily long delays may render a

    postdeprivation remedy inadequate, that is not the case here.

    See Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st ___ ________________ _____________

    Cir. 1984) (two and one-half year litigation was not

    inordinate delay). Despite the almost three-year delay, the

    possibility of reinstatement with back pay remains available

    to him. See Decker v. Hillsborough County Attorney's Office, ___ ______ _____________________________________

    845 F.2d 17, 22 (1st Cir. 1988) (although there had been

    delay, New Hampshire had not yet refused to provide plaintiff





    ____________________

    3. Koelsch, as Town Manager, was the appointing authority.
    See Mass. Gen. L. ch. 31, 1; see also Amesbury Town ___ ___ ____
    Charter, Art. 4, 4-21(b).

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    with a remedy). We affirm the district court's dismissal of

    the 1983 claims.4



    Section 1985(3) Claim _____________________

    Cronin also argues that the district court

    erroneously granted summary judgment on his 1985(3) claim

    against the Town defendants and erroneously dismissed his

    1985(3) claim filed against Nancy Gonthier and Daniel

    Bartley. Section 1985(3), which prohibits conspiracies to

    deprive persons of rights or privileges, requires an

    "invidiously discriminatory animus" in which the defendants

    have taken the action because of "its adverse effects upon an

    identifiable group." Bray v. Alexandria Women's Health ____ ___________________________

    Clinic, 113 S. Ct. 753, 760-61 (1993) (internal quotations ______

    omitted). No such animus was even alleged here. Summary

    judgment was properly entered in favor of the Town defendants

    and dismissal was properly granted for Nancy Gonthier and

    Daniel Bartley.


    ____________________

    4. Cronin also argues (1) that the Town defendants violated
    his procedural due process rights when they suspended him
    with pay and when they demoted him to sergeant; and (2) that
    the Town defendants violated his right to petition, his right
    to confrontation, and his right to privacy (although he has
    been unable to articulate any cognizable theory). These
    arguments are without merit. Appellants' additional
    arguments, (1) that the district court erred in dismissing
    the state law claims, (2) that the district court erred in
    its various rulings on discovery practices, and (3) that the
    district court erred in denying appellants' motion for relief
    from judgment, are also all meritless.

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    Gonthier and Bartley's Motion for Damages and Costs ___________________________________________________

    Notwithstanding the obvious correctness of the

    district court's dismissal of the 1985(3) count lodged

    against Gonthier and Bartley, Cronin has sought appellate

    review of the dismissal. Gonthier and Bartley have filed a

    separate motion for damages and costs under Fed. R. App. P.

    38 and Cronin has responded.5 Federal Rule of Appellate

    Procedure 38 provides that if an appellate court "determines

    that an appeal is frivolous, it may, after a separately filed

    motion or notice from the court and reasonable opportunity to

    respond, award just damages and single or double costs to the

    appellee." Fed. R. App. P. 38. An appeal is frivolous if

    the result is obvious or the arguments are "wholly without

    merit." Westcott Constr. Corp. v. Fireman's Fund of N.J., ______________________ _______________________

    996 F.2d 14, 17 (1st Cir. 1993) (internal quotations

    omitted). "[I]t is enough that the appellants and their

    attorney should have been aware that the appeal had no chance

    of success." E.H. Ashley & Co., Inc. v. Wells Fargo Alarm _________________________ __________________

    Servs., 907 F.2d 1274, 1280 (1st Cir. 1990) (emphasis ______

    omitted).

    Even a cursory reading of the relevant case law and

    treatises would have revealed that the 1985(3) claim was

    not properly brought. Not surprisingly, Cronin failed to


    ____________________

    5. Cronin's response was filed ten days after Gonthier's and
    Bartley's motion was filed.

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    articulate in his brief any reasoned basis for why the

    district court erroneously dismissed the 1985(3) count. He

    instead pressed a bizarre and irrelevant argument that

    Federal Rule of Civil Procedure 54(b) precluded the district

    court from entering a separate judgment for Gonthier and

    Bartley. When the appellees in their brief properly noted

    that the Rule 54(b) argument was baseless, Cronin used the

    reply brief to try to transform his Rule 54(b) argument into

    a variant of a pendent party jurisdiction argument. Such a

    pendent party argument was never raised before the district

    court nor in the initial briefing on appeal. One might think

    that Cronin created such an argument to conceal the fact that

    the appeal from the dismissal of the claims against Gonthier

    and Bartley was wholly without merit.

    A penalty is appropriate here. Rule 38 allows the

    award of attorneys' fees as "just damages" for frivolous

    appeals. See Natasha, Inc. v. Evita Marine Charters, Inc., ___ _____________ ____________________________

    763 F.2d 468, 472 (1st Cir. 1985); see also Fed. R. App. P. ___ ____

    38 advisory committee's notes. This court can assess a

    particular amount or "reasonable counsel fees" as damages

    without additional submissions by the parties. Natasha, 763 _______

    F.2d at 472 (internal quotations omitted); see also Tomczyk ___ ____ _______

    v. Blue Cross & Blue Shield United of Wisconsin, 951 F.2d _______________________________________________

    771, 779-80 & n.4 (7th Cir. 1991), cert. denied, 504 U.S. 940 _____ ______

    (1992). Gonthier and Bartley assert that they have incurred



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    legal fees in responding to this appeal of $2,725.00,

    exclusive of costs. We believe such fees are reasonable and

    assess that amount as just damages to the appellees. We also

    assess double costs.

    The bulk of the blame for the frivolous appeal

    rests with appellants' attorney. An attorney's duty to

    represent a client zealously is not a license to harass.

    When the appellants' attorney sought to appeal the district

    court's dismissal of the 1985(3) claim against Gonthier and

    Bartley, he crossed the line from zealous advocacy to

    vexatious advocacy, needlessly multiplying the proceedings in

    this case. Under such circumstances, it is appropriate to

    sanction the attorney personally for the excess costs,

    expenses and attorneys' fees reasonably incurred. See Fed. ___

    R. App. P. 38; 28 U.S.C. 1927; Cruz v. Savage, 896 F.2d ____ ______

    626, 635 (1st Cir. 1990) (frivolous appeal warranted

    assessment of double costs and attorneys' fees against

    attorney under Rule 38 and 1927). We therefore apportion

    the damages award and order that $2,500.00 of the award be

    assessed directly against appellants' attorney.6 The

    remaining $225.00 shall be assessed against appellant Michael





    ____________________

    6. The award of damages against appellants' attorney shall
    run against Peter Antell, not J. Daniel Lindley, who was
    allowed to withdraw as counsel for appellants.

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    Cronin.7 Double costs shall be born jointly and severally

    by Michael Cronin and appellants' attorney.

    Affirmed. Appellees' Motion for Damages for ________

    Frivolous Appeal is granted, with double costs and damages to _______

    be apportioned in the manner prescribed in this opinion. It __

    is so ordered. _____________




































    ____________________

    7. No costs or damages are assessed against the other
    appellants, Gail Cronin and Angel Cronin.

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