Davis v. MA. State Lottery ( 1996 )

USCA1 Opinion

          April 12, 1996

                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-2099



                                    TIMOTHY DAVIS,



                                Plaintiff, Appellant,



                                          v.



                        MASSACHUSETTS STATE LOTTERY COMMISSION

                                  and DANIEL KINNEY,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Nancy Gertner, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Lynch, Circuit Judge,
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                      Aldrich and Bownes, Senior Circuit Judges.
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                                 ____________________





            John A. Morrissey  with whom Law  Offices of  James C. Gahan,  Jr.
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        was on brief for appellant.

            Marie  St. Fleur,  Assistant  Attorney General,  with  whom  Scott
________________                                             _____

        Harshbarger, Attorney General, was on brief for appellees.
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                                 ____________________





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                      Per  Curiam.  Plaintiff-appellant Timothy Davis, an
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            employee of the Massachusetts State Lottery  Commission, sued



            the  Commission  and  Daniel  Kinney,  his  supervisor,   for



            violation  of civil rights, racial discrimination, infliction



            of emotional distress, and improper layoff, stemming from his



            dismissal  by the  Commission  on May  1, 1991.1   Defendants



            moved  to dismiss  for failure  to state  a claim  upon which



            relief could be granted.   The court granted the  motion, but



            later   allowed   plaintiff's  Motion   for  Reconsideration,



            permitting him to  file an amended  complaint adding a  count



            (Count  VI)  seeking compensatory  and  punitive damages  for



            violation of  his federally  protected rights after  November



            21, 1991, the date of the Civil Rights Act of 1991, 42 U.S.C.



              1981a(b)(1).   In due course, defendants  moved for summary



            judgment  on all  claims.   This  motion, also,  was granted,



            incorporating,  but simply by  reference, the court's earlier



            Memorandum and Order.  We affirm.



                       The obligatory appendix  which plaintiff filed for



            this  appeal  totally  disregards Federal  Rule  of Appellate



            Procedure  30.  Except  for a copy  of Count VI,  none of the



            required  items  is present.    Instead  are some  60  pages,



            largely  memoranda of law filed in the district court.  These



            the  Rule expressly forbids.  FRAP 30(a).  Nor does reference



            to such filings meet brief  requirements.  FRAP 28.   We will




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            1.  Following arbitration, the improper layoff was corrected.



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            not consider them.   Plaintiff  did attach  to his  appellate



            brief  the court's Memorandum  and Decision  granting summary



            judgment for  defendants on Count  VI, but failed  to include



            anywhere  the court's earlier memorandum dismissing Counts I-



            V.  FRAP 30(a)(3).



                      In   granting   defendants'   motion  for   summary



            judgment, the  court set  the course for  plaintiff's appeal:



            "I find that he has failed to meet his burden of establishing



            a prima facie case  of unlawful discrimination after November



            21,  1991."   Plaintiff's filings  do not  enable us  to find



            otherwise.   The (very) occasional references in his brief to



            alleged  evidence  of  continuing  discrimination  after  his



            reinstatement consist of cryptic allusions to: "Davis Depo.";



            "A copy of his  affidavit in this regard is  annexed hereto."



            (It was not); "Kelly  Depo., p. 38-51" (also not  included in



            the appendix);  and "Memorandum  in Support of  Opposition to



            the Motion for Summary Judgment  . . . pages 12 through  16."



            Finally, in an attempt to rebut the court's exposition of how



            he  failed  to  make out  a  prima  facie case  on  Count VI,
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            plaintiff points to his  amended complaint as "establish[ing]



            genuine issues of material fact which render summary judgment



            inappropriate."    He  states  he has  "detailed  harassment,



            retaliation,   and  continuing  acts   of  discrimination  by



            Defendants," without  reference to the record  other than the



            complaint.   In lieu, "Davis  respectfully refers to pages 16







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            through 19 of his  Memorandum," which, as already  noted, was



            improperly filed.



                      All  this is  meaningless.   Fundamentally, without



            specific facts,  the non-moving  party  (plaintiff) "may  not



            rest upon the  mere allegations of [its]  pleading" to defend



            against  summary judgment  for the  defendant.   Fed.R.Civ.P.



            56(e).  Ramsdell v.  Bowles, 64 F.3d  5, 11 (1st Cir.  1995).
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            Plaintiff presents neither facts nor law to make out a case.



                      This is an extraordinary waste of time.  The appeal



            is dismissed on the opinion below.



































































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