Rogan v. Menino, 267 F.3d 24, 1st Cir. (2001)

267 F.3d 24 (1st Cir.
2001)
SHANNON ROGAN, Plaintiff, Appellant,

v.
CITY OF BOSTON ET AL., Defendants, Appellees.
No. 00-1828
United States Court of Appeals For the First Circuit

Submitted Sept. 12, 2001
Decided October 5, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Sherman Rogan on brief for appellant.
Merita A. Hopkins, Corporation Counsel, and Eve A. Piemonte Stacey,
Assistant Corporation Counsel, on brief for appellees.
Before Torruella and Selya, Circuit Judges, and Lisi, * District Judge.
SELYA, Circuit Judge.
On March 15, 1996, plaintiff-appellant Shannon Rogan suffered serious

personal injuries when a motor vehicle she was driving collided with a trolley
car operated under the auspices of the Massachusetts Bay Transportation
Authority (MBTA). We canvassed the pertinent facts on an earlier occasion,
see Rogan v. Menino, 175 F.3d 75, 76-77 (1st Cir. 1999) (Rogan II), and it
would be pleonastic to rehearse them here. For the purpose at hand, it suffices
to note that, immediately following the accident, officers from both the MBTA
and the City of Boston converged on the scene.1 Pursuant to an unofficial
departmental policy, the Boston police officers, John McDonough and Robert
Colburn, relinquished control of the investigation to the MBTA.
In due course, an MBTA police officer cited the plaintiff for failure to yield.
Believing the citation to be unfounded, the plaintiff sought judicial review. A
state district judge found her responsible for failing to yield. The plaintiff
eschewed a further appeal, instead paying a $50 fine.
3
That was not the end of the matter. Invoking 42 U.S.C. 1983, the plaintiff
sued a multitude of defendants -- the two responding officers (McDonough and
Colburn), the City of Boston, three municipal officials, the MBTA, and several
MBTA employees -- in the federal district court. She claimed, inter alia, that
McDonough, Colburn, and the municipal officials had impaired her access to
the courts when they ceded control of the investigation to the MBTA (which,
she averred, had a financial interest in the outcome of the investigation and
shaped its findings accordingly).
The plaintiff eventually settled her state-court tort suit against the MBTA and,
as part of the settlement, dismissed the MBTA defendants from this action. The
district court disposed of the plaintiff's claims against the remaining defendants
in stages. First, the court, acting on a motion brought pursuant to Fed. R. Civ. P.
12(b)(6), dismissed all individual-capacity claims against the mayor (Menino),
the police commissioner (Evans), and a third municipal official (DiMarzio).
Rogan v. Menino, 973 F. Supp. 72, 77 (D. Mass. 1997) (Rogan I). The plaintiff
then dropped her official-capacity claims against Mayor Menino. Finally, the
district court, acting on its own initiative, entered summary judgment adverse to
the plaintiff on the remainder of the claims.
The plaintiff appealed both the Rule 12(b)(6) order and the sua sponte
summary judgment. This court upheld the dismissal of the individual-capacity
claims, but vacated the grant of summary judgment on procedural grounds.
Rogan II, 175 F.3d at 81. On remand, the remaining defendants -- McDonough,
Colburn, and the City of Boston -- formally moved for summary judgment, see
Fed. R. Civ. P. 56(c), and the district court granted the motion. This appeal
followed.
We review the district court's entry of summary judgment de novo, construing

the record and all reasonable inferences therefrom in favor of the nonmoving
party (here, the plaintiff). N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35,
37 (1st Cir. 2001). We keep firmly in mind that summary judgment is
appropriate only "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c).
Summary judgment practice has its own rhythm. Where, as here, the initiators
are the defendants, they must begin the movement by averring the absence of
any evidence sufficient to support some necessary element of the plaintiff's
case. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
To avoid summary judgment, the plaintiff then must sound a contrapuntal note,
pointing to evidence in the record sufficient to establish the existence of a
"genuine" issue of "material" fact anent the disputed element(s). Id. A genuine
issue exists if the record evidence is such that a reasonable factfinder could
resolve it either way. Id. A fact is material if its existence vel non "affects the
outcome of the suit" so that it "needs to be resolved before the related legal
issues can be decided." Id. (citation and internal punctuation omitted).
8
Summary judgment motions are decided on the record as it stands, not on the
pleadings or on the nonmovant's vision of what facts might some day be
unearthed by the litigation equivalent of an archeological dig. Consequently, a
plaintiff who aspires to ward off a properly documented motion for summary
judgment must produce enough proof to enable her case to get to a jury. Perez
v. Volvo Car Corp., 247 F.3d 303, 313 (1st Cir. 2001). This obligation cannot
be satisfied by conclusory allegations, empty rhetoric, unsupported speculation,
or evidence which, in the aggregate, is less than significantly probative.
Maldonado-Denis, 23 F.3d at 581; Medina-Munoz v. R.J. Reynolds Tobacco
Corp., 896 F.2d 5, 8 (1st Cir. 1990).
Against this backdrop, we turn to the plaintiff's claims. The statute under which
she sues, 42 U.S.C. 1983, provides in pertinent part that "every person who,
under color of a statute, ordinance, regulation, custom, or usage . . ., subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured." In other words, section 1983 "supplies a private
right of action against a person who, under color of state law, deprives another
of rights secured by the Constitution or by federal law." Evans v. Avery, 100
F.3d 1033, 1036 (1st Cir. 1996).
10
To maintain such a cause of action, the plaintiff -- who has the burden of proof
-- first must show official conduct, that is, an act or omission undertaken under
color of state law. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253
(1st Cir. 1996). That is not a problem here; the municipal defendants plainly
were acting under color of Massachusetts law. But the plaintiff also must show
that the defendants' acts or omissions caused a constitutional injury. Rogan's
case founders on this shoal. We explain briefly.
11
To satisfy the "constitutional injury" requirement, the plaintiff must make a

showing of a deprivation of a federally-secured right. Baker v. McCollan, 443
U.S. 137, 142 (1979); Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). It
is the law of the case that the policy of transferring accidents involving MBTA
vehicles to the MBTA police is not, in and of itself, unconstitutional. Rogan II,
175 F.3d at 78 (declaring that "there is no constitutional prohibition against
organizational schemes that lodge self-investigative powers within a
government agency"). This leaves the plaintiff, on her pleadings, with two
possible avenues of attack.
12
The most obvious avenue would be to show an unconstitutional implementation

of the transfer policy. See City of Canton v. Harris, 489 U.S. 378, 386-87
(1989) (concluding that, under certain circumstances, a policy that is
constitutional on its face may be applied in an unconstitutional manner, thus
implicating section 1983). Here, however, the plaintiff makes only a token
effort to travel this road. She offers no significantly probative evidence that the
MBTA officers deliberately skewed their investigation, let alone that the
municipal defendants knew (or had reason to believe) that such a charade
would occur.
13
The plaintiff pursues the second avenue with more vigor: she endeavors to
make the requisite showing of constitutional injury based on a denial of
meaningful access to the courts. Theoretically, she is on solid ground. There is
a constitutional right of access to the courts. See Wolff v. McDonnell, 418 U.S.
539, 579 (1974); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 660
(1st Cir. 1997). It follows, therefore, that "[i]t can be a deprivation of life,
liberty, or property, without due process of law, in violation of the Fourteenth
Amendment, for state officials to deny a person adequate, effective, and
meaningful access to the courts." Germany v. Vance, 868 F.2d 9, 11 (1st Cir.
1989) (citation and internal quotation marks omitted). But theory is one thing
and reality is quite another. As a practical matter, the plaintiff's effort to limn a
denial of access to the courts falls short.
14
The plaintiff's thesis is not easily extracted from the harsh rhetoric and tangled
ratiocination that permeates her brief. As best we can tell, her argument seems
to be that the defendants are liable because they shifted responsibility for the
accident investigation to the MBTA police who, she theorizes, had a conflict of
interest which led them to conduct a biased investigation and cover up the real
cause of the accident (the trolley driver's negligence). This conflict of interest,
the plaintiff says, arises out of the mutual employment of the MBTA police and
the trolley car operator, presumably on the basis that, if the trolley driver were
held responsible for the accident, the MBTA would be exposed to financial risk
(i.e., money damages). In this way, the municipal defendants allegedly
deprived the plaintiff of an impartial investigation, and, thus, of meaningful
access to the judicial process (including an opportunity to obtain more generous

recompense in her tort action).
15
This thesis has several flaws. The perceived link between the investigation and
the plaintiff's tort suit seems tenuous at best, especially since under
Massachusetts law, the plaintiff's conviction on the failure-to-yield charge
would not have been admissible in evidence in a trial of that suit. See LePage v.
Bumila, 407 Mass. 163, 164-65 (Mass. 1990) (holding that the payment of a
fine pursuant to a traffic citation does not constitute an evidentiary admission).
Moreover, the plaintiff, in fact, was able to pursue her personal injury claim,
and she received a substantial settlement ($710,000). We need not belabor these
points, however, because the summary judgment record contains no evidence
whatsoever that the MBTA investigation was partial or that the municipal
defendants had any reason to suspect that it would be. To cinch matters, the
record reveals a similar dearth of evidence that any MBTA investigations were
marked by partiality, or that the defendants, based on their experience, were on
notice that the MBTA had played fast and loose on prior occasions (or would
do so on this occasion).
16
To bridge these chasmal gaps, the plaintiff baldly asserts that the MBTA's
financial interest in the outcome of the investigation somehow creates a
presumption of partiality. She is wrong. Accusations of bias are not selfelucidating. Thus, a plaintiff who alleges a pattern and practice of partiality
must, when faced with a motion for summary judgment, offer some
significantly probative evidence to support that charge. Indeed, in situations in
which a presumption exists, the presumption is that government officials are
impartial in the administration of responsibilities arising within the scope of
their employment.2 See Withrow v. Larkin, 421 U.S. 35, 47 (1975); United
States v. Morgan, 313 U.S. 409, 421 (1941); Brasslett v. Cota, 761 F.2d 827,
837 (1st Cir. 1985). Were the law otherwise, federal agencies would be
hamstrung whenever they had reason to investigate crimes against the United
States or tort claims involving federal employees.
17
The plaintiff's cause is not aided by her denunciatory charge that the citation
issued by the MBTA for failure to yield was "intended to provide leverage to
diminish her claim for damages." Appellant's Br. at 15. That is rank conjecture.
As the plaintiff provides us with no evidence to support the accusation, it can
play no role in the summary judgment calculus.3 See Maldonado-Denis, 23
F.3d at 581; Medina-Munoz, 896 F.2d at 8.
18
The short of it is that the plaintiff has mustered no proof that the MBTA's
investigation was anything less than pristine on this (or any other comparable)
occasion. By the same token, she has adduced no evidence to show that the
municipal defendants knew, or had reason to know, of any irregularity in the
MBTA's discharge of its investigatory functions. These deficits are fatal. See,
e.g., Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001)
(warning that a plaintiff who opposes summary judgment but fails to marshal
evidence in support of her position has little prospect of success); Kelly v.
United States, 924 F.2d 355, 358-59 (1st Cir. 1991) (similar).
19
We need go no further.4 Here, as in Maldonado-Denis, 23 F.3d at 586, "

[a]lthough the rhetoric of [constitutional injury] reverberates from the pages of
[the plaintiff's] brief[s], the record contains no evidence of [a violation]
sufficient to relate the rhetoric to the reality of events." Since the plaintiff failed
to present any proof of a constitutional injury, the district court did not err in
granting the defendants' motion for brevis disposition.
20
Affirmed.
Notes:
*
Of the District of Rhode Island, sitting by designation.
The MBTA has its own police and shares jurisdiction over certain matters with
the Boston police department. See Act of July 19, 1968, ch. 664, 1968 Mass.
Acts 547 (creating a separate police force to function with the MBTA's
territorial authority and investing its officers with powers equivalent to those of
municipal police officers).
In support of her contention that partiality may be presumed without proof, the
plaintiff cites Ward v. Vill. of Monroeville, 409 U.S. 57 (1972). That case bears
on the neutrality of officials performing judicial or quasi-judicial functions. See
id. at 59-60. The plaintiff's claim of institutional bias on the part of the MBTA
investigators presents a significantly different problem. Ward is, therefore,
inapposite. See Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395, 1405-07 (4th
Cir. 1995); Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir. 1989).
At any rate, the undisputed evidence that a state court judge, unaffiliated with
the MBTA, found the plaintiff guilty of failure to yield tends to contradict the
notion that the MBTA officers issued the citation for an improper purpose.
The absence of a constitutional injury suffices to doom the plaintiff's claim,

rendering it unnecessary for us to consider the other formidable obstacles (e.g.,
qualified immunity) that block her path.

Rogan v. Menino, 267 F.3d 24, 1st Cir. (2001)

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267 F.3d 24 (1st Cir.

SHANNON ROGAN, Plaintiff, Appellant,

United States Court of Appeals For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

On March 15, 1996, plaintiff-appellant Shannon Rogan suffered serious

We review the district court's entry of summary judgment de novo, construing

To satisfy the "constitutional injury" requirement, the plaintiff must make a

The most obvious avenue would be to show an unconstitutional implementation

access to the judicial process (including an opportunity to obtain more generous

We need go no further.4 Here, as in Maldonado-Denis, 23 F.3d at 586, "

Of the District of Rhode Island, sitting by designation.

The absence of a constitutional injury suffices to doom the plaintiff's claim,

qualified immunity) that block her path.

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