Ahmed v. Berkshire ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-2326





                              SHEIKH BASHIR AHMED, M.D.,



                                Plaintiff, Appellant,



                                          v.



                           BERKSHIRE MEDICAL CENTER, INC.,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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            Dr. Sheikh Bashir Ahmed on brief pro se.
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            John F. Rogers, Kevin  M. Kinne and Cain, Hibbard, Myers & Cook on
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        brief for appellee.





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                                   August 21, 1996

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                 Per  Curiam.   In 1992,  plaintiff Sheikh  Bashir Ahmed,
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            M.D. was discharged from his one-year term of employment as a



            resident in internal medicine at defendant Berkshire  Medical



            Center,   Inc.,  ostensibly  because  of  unsatisfactory  job



            performance.   Plaintiff  responded  by  filing  the  instant



            action in which he complained, inter alia, of national origin
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            discrimination, denial of due process and breach of contract.



            Some ten  months  later, while  in  the midst  of  discovery,



            plaintiff moved for a preliminary injunction  reinstating him



            to the  residency position  pending final disposition  of his



            allegations.    From  the  district court's  denial  of  such



            request, plaintiff now appeals on an interlocutory basis.  He



            also  seeks to appeal from a district court order denying him



            leave to amend his complaint.



                 We perceive no error in the district court's decision to



            deny preliminary  injunctive relief.   The court  applied the



            proper  rule  of  law,  having  invoked  the  four-part  test



            governing  such  determinations.    See,  e.g.,  Narragansett
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            Indian  Tribe v.  Guilbert, 934  F.2d 4,  5 (1st  Cir. 1991).
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            Accordingly,  "[t]he  only  real   question  is  whether  the



            district  court misused  [its] discretion  in evaluating  the



            circumstances and calibrating the scales."  Independent Oil &
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            Chem. Workers of Quincy,  Inc. v. Procter & Gamble  Mfg. Co.,
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            864 F.2d 927, 929 (1st Cir. 1988); accord, e.g., Conservation
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            Law Foundation, Inc. v.  Busey, 79 F.3d 1250, 1271  (1st Cir.
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            1996) (taking note of the lower courts' "broad discretion" in



            this regard).   On the basis of the limited record before it,



            the  district   court  concluded  that   plaintiff  had   not



            demonstrated a probability of success on the merits, that  he



            had not established irreparable harm, and that the balance of



            equities  and the  public  interest both  tilted in  favor of



            denying  injunctive relief.   Having  reviewed the  record in



            full, and  having scrutinized  the court's findings  "under a



            relatively deferential glass," Procter  & Gamble, 864 F.2d at
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            929, we find no abuse of discretion.1
1



                 Plaintiff insists that his  eventual success at trial is



            a foregone conclusion.  Yet much of the evidence  on which he



            relies is conclusory or otherwise inadmissible.  It turns out



            that  the parties'  respective evidentiary  submissions, when



            juxtaposed,  do  little  to  resolve the  underlying  factual



            disputes,   particularly   concerning   the   rationale   for



            plaintiff's termination.2   And the district  court cannot be
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            faulted   for  concluding  that,  until  the  allegations  of



            unsatisfactory   job   performance   have    been   resolved,




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               1   Given  our  disposition of  the  merits, we  need  not
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            address defendant's contention  that jurisdiction is  lacking

            under 28 U.S.C.    1292(a)(1)  to review this  ruling.   See,
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            e.g., Narragansett Indian Tribe, 934 F.2d at 8 n.5.
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               2    With  respect to  his  due  process  claim, plaintiff
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            objects  that the  lower  court overlooked  an allegation  of

            state  action in his complaint.  That such an allegation does

            appear  therein does not disturb the  conclusion that, on the

            present record, plaintiff has not established a likelihood of

            success with respect to any of his claims.



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            plaintiff's  reinstatement to a position "with responsibility



            for  life and death  decisions," Order at  8, might adversely



            affect the public interest.



                 Plaintiff's  appeal from  the  denial of  his motion  to



            amend falters on  a different basis: we  lack jurisdiction at



            this juncture to  review such an order.   It is well  settled



            that "denial of a request to amend a complaint is not usually



            appealable  as an  interlocutory  matter."   Kartell v.  Blue
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            Shield of  Massachusetts, Inc., 687  F.2d 543, 551  (1st Cir.
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            1982);  accord, e.g.,  15A  Charles Wright,  Arthur Miller  &
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            Edward Cooper,  Federal Practice  and Procedure    3914.1, at
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            491 & n.7 (1992 & '96  Supp.) (citing cases).  Nothing in the



            instant  case calls for an exception to this rule.  Plaintiff



            can obtain  effective review  of the  court's ruling  in this



            regard on appeal from final judgment.



                 For these reasons,  the order denying  the motion for  a



            preliminary  injunction is  affirmed.   The  appeal from  the
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            order  denying leave  to  amend the  complaint is  dismissed,
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            without prejudice, for lack of appellate jurisdiction.



                 So ordered.
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