Robert J. Bryant v. Earl E. O'COnnOr and Perry D. Mathis, 848 F.2d 1064, 10th Cir. (1988)

848 F.
2d 1064
51 Fair Empl.Prac.Cas. 187
Robert J. BRYANT, Plaintiff-Appellant,

v.
Earl E. O'CONNOR and Perry D. Mathis, DefendantsAppellees.
No. 87-1002.
United States Court of Appeals,

Tenth Circuit.
June 6, 1988.
Margie J. Phelps, Topeka, Kan. (Fred W. Phelps, Jr. and John R.

Balhuizen, on the brief), for plaintiff-appellant.
Barbara L. Herwig, Dept. of Justice, Washington, D.C. (Richard K.
Willard, Asst. Atty. Gen., and Deborah R. Kant, Dept. of Justice,
Washington, D.C., Benjamin L. Burgess, Jr., U.S. Atty., Topeka, Kan., on
the brief), for defendants-appellees.
Before BRORBY, TIMBERS* and McWILLIAMS, Circuit Judges.
TIMBERS, Circuit Judge.
Appellant Robert J. Bryant, a former probation officer of the United States

District Court for the District of Kansas, appeals from a summary judgment
entered December 2, 1986 in the District of Kansas, Clarence A. Brimmer, Jr.,
Chief Judge of the District of Wyoming, sitting by designation, 671 F.Supp.
1279. The summary judgment was granted in favor of appellees Chief Judge
O'Connor and Chief Probation Officer Mathis, both of the District of Kansas,
dismissing appellant's claim that he was terminated for racial reasons. Bryant
asserts that the court erred (1) in holding that appellees were entitled to judicial
immunity and (2) in concluding that his responses to appellees' motion for
summary judgment were insufficient to defeat the motion before discovery was
completed.
We hold that appellees adequately supported their motion for summary
We hold that appellees adequately supported their motion for summary

judgment and that Bryant's responses were merely conclusory--a sufficient
justification for granting summary judgment against Bryant.
I.
3
We shall summarize those facts and prior proceedings believed necessary to an

understanding of the issues raised on appeal.
Chief Probation Officer Mathis, Bryant's immediate supervisor, suspended

Bryant for disciplinary reasons on October 26, 1984. Bryant wrote to Chief
Judge O'Connor requesting a hearing on the ground that he was suspended not
for cause, but because he is black. Mathis recommended that Bryant be
discharged for gross negligence in carrying out his duties and for failure to
maintain adequate records. All nine judges of the district court, including senior
judges, sat en banc, and, after a hearing at which Bryant was represented by
counsel, unanimously voted to discharge Bryant effective February 28, 1985.
Bryant, by a letter dated March 13, 1985, then filed a complaint with the
district court's Equal Employment Opportunity ("EEO") Coordinator. The
Coordinator recused himself. The court designated a magistrate to act as
coordinator. After an investigation of the complaint, the magistrate filed a
written report on June 20, 1985. He concluded that Bryant was discharged for
poor performance and not for racial reasons. Bryant requested review of the
report. On August 5, 1985, Chief Judge O'Connor dismissed the appeal as
untimely.
Two days later, on August 7, Bryant commenced the instant action against
Chief Judge O'Connor and Mathis for damages and injunctive relief. He alleged
termination of his employment and denial of equal employment opportunities
on the ground of racial discrimination, in violation of the First and Fifth
Amendments to the United States Constitution and in violation of 42 U.S.C.
Sec. 1981 (1982).
After holding a meeting on August 16, 1985, all of the judges of the district
except Chief Judge O'Connor recused themselves. Chief Judge O'Connor
entered a separate order disqualifying himself. Chief Judge Holloway of the
Tenth Circuit then designated and assigned Chief Judge Brimmer of the District
of Wyoming to adjudicate the case. Subsequently Bryant amended his
complaint to assert that the en banc decision of the Kansas district judges to
disqualify themselves constituted an unlawful conspiracy to interfere with his
access to the courts in violation of 42 U.S.C. Sec. 1985(2) (1982).
Appellees Mathis and Chief Judge O'Connor moved to dismiss or in the

alternative for summary judgment, asserting that Bryant was discharged for
legitimate, non-discriminatory reasons; that he had neither a statutory nor an
implied remedy; and that they were protected by judicial and quasi-judicial
immunity. Bryant requested massive discovery, including depositions of the
entire Kansas federal judiciary. In response to this overreaching request, the
court entered an order on March 3, 1986 staying discovery and requiring
Bryant to file a specific discovery plan limited to responding to appellees'
motion and explaining why the request was necessary. On March 10, Bryant
filed a proposed discovery plan. Appellees objected.
The court, in an order entered March 28, held that Bryant did not comply with
its March 3 order. Bryant's proposed plan, the court held, stated only very
general discovery requests. Accordingly, the court continued the stay of
discovery but granted Bryant an additional ten days to file affidavits stating
specific probative facts to support the allegations in his complaint. The Tenth
Circuit on April 16 denied Bryant's petition for a writ of mandamus with
respect to the district court's March 28 order. On June 13, the Tenth Circuit
denied Bryant's motion for rehearing and reconsideration en banc. In an order
entered June 27, the district court granted Bryant one last chance (his third) to
comply with the court's prior March 3 order.
10
On July 11, Bryant responded to the court's order. The court examined Bryant's
submissions and found them to be "unsatisfactory, conclusory, largely
irrelevant, and inadequate." Bryant v. O'Connor, 671 F.Supp. 1279, 1282
(D.Kan.1986). Bryant's counsel had filed an affidavit pursuant to Fed.R.Civ.P.
56(f) stating that discovery of the appellees, the depositions of one or more
federal judges, federal court personnel, and employees of the probation office in
Kansas were "require[d]" "to fully respond to said summary judgment motion."
The court held this bare assertion was insufficient to forestall a motion for
summary judgment, and the court stated that other factors suggested that the
affidavit was "specious". Id. at 1282-83.
11
The court then proceeded to the merits and granted appellees summary
judgment. The court held that Chief Judge O'Connor was absolutely immune
from civil damage liability, and that Mathis was shielded by quasi-judicial
immunity; that, even if Bryant properly had stated a claim for injunctive relief,
which was "doubt[ful]", the Ku Klux Klan Act of 1871, of which Secs. 1981
and 1985(2) are a part, "was not enacted to resolve personnel disputes within
the federal government"; and, finally, that Bryant's
"complete
failure to respond to this Court's order with a meaningful discovery plan
12
suggests that plaintiff lacked an evidentiary basis for the complaint when it was filed
and hoped that discovery would reveal some set of facts supporting his allegations."
13
Bryant, supra, 671 F.Supp. at 1286. From the summary judgment in favor of
appellees, the instant appeal was taken. Bryant asserts on appeal that appellees
were not shielded by immunity and that summary judgment was improper as
there were material facts in issue.
II.
14
More than a year after the district court decision in the instant case, the
Supreme Court in Forrester v. White, 108 S.Ct. 538 (1988), rev'g, 792 F.2d 647
(7th Cir.1986), held that absolute judicial immunity does not extend to a judge's
decisions with respect to the hiring and firing of court personnel. Since the
district court relied on the subsequently reversed Seventh Circuit decision in
Forrester, that ground no longer supports the grant of summary judgment in
favor of appellees.
15
We hold, however, that the court acted well within its discretion in granting
appellees' motion for summary judgment--for the reasons that follow.
16
Fed.R.Civ.P. 56(e) requires that "[w]hen a motion for summary judgment is

made and supported ..., an adverse party may not rest upon the mere allegations
or denials of the adverse party's pleading, but the adverse party's response ...
must set forth specific facts showing that there is a genuine issue for trial."
(emphasis added). Appellees denied the allegations of the complaint. In support
of their motion for summary judgment, they submitted presentence reports
completed by Bryant during the course of his employment. Appellees set forth
over 40 specific errors they claim Bryant made in these reports. Many of these
errors were quite serious, including inaccurately relating or omitting defendants'
prior offenses. For example, appellees asserted that Bryant excluded
information showing that one defendant had a history of cocaine use; and that
he deleted information regarding a local kidnapping and aggravated assault
charge against another defendant. Appellees also disclosed that Bryant had
reported that he had contacted law enforcement agencies to obtain information
about defendants substantially more frequently than those agencies' records
indicated he had done. The errors described by appellees certainly support their
assertion that Bryant was fired for legitimate, non-discriminatory reasons.
17
Accordingly, the burden then shifted to Bryant. As the Second Circuit has well
stated, "it is clear that a plaintiff cannot defeat a motion for summary judgment
by merely restating the conclusory allegations contained in his complaint, and

amplifying them only with speculation about what discovery might uncover."
Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 (2d
Cir.1981). " '[M]ere hope that further evidence may develop prior to trial is an
insufficient basis upon which to justify the denial of the motion.' " Id. (quoting
Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir.1978)). As
the Supreme Court has emphasized, "Summary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole, which are designed 'to secure the just, speedy and
inexpensive determination of every action.' " Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986) (quoting Fed.R.Civ.P. 1).
18
These considerations take on added significance in the instant case since Bryant
charged a federal judge and a judicial officer with misconduct. In Harlow v.
Fitzgerald, 457 U.S. 800, 819-20 n. 35 (1982), the Supreme Court reiterated its
admonition in Butz v. Economou, 438 U.S. 478, 507 (1978), that "
'insubstantial' suits against high public officials should not be allowed to
proceed to trial.... Insubstantial lawsuits undermine the effectiveness of
government as contemplated by our constitutional structure, and 'firm
application of the Federal Rules of Civil Procedure' is fully warranted in such
cases." See also Contemporary Mission, supra, 648 F.2d at 107. The same
policy applies with at least equal force to an action against a member of the
judiciary.
19
Under these guidelines, we are persuaded that the court properly denied
discovery and awarded summary judgment. The only support for Bryant's claim
is his own bare assertion that Chief Judge O'Connor has a "reputation" for
disliking and discriminating against blacks; and that Judge Franklin, a federal
bankruptcy judge in the District of Kansas, warned him that Chief Judge
O'Connor was prejudiced against blacks--a statement that Judge Franklin, in a
personal declaration submitted to the court, denied making. Bryant's
unsupported assertions simply do not pass muster.
20
Bryant claims, however, that summary judgment was improperly granted

because he was not given the opportunity to complete discovery. We are not
persuaded by this claim. Although discovery is strongly favored before
summary judgment is granted, "[w]here a plaintiff fails to produce any specific
facts whatsoever to support a[n] ... allegation, a district court may, in its
discretion, refuse to permit discovery and grant summary judgment." Id.
Appellant invites us to let him proceed with his case and depose almost the
entire Kansas judiciary--proceedings that would be disruptive to the
administration of justice, based solely on his bare assertions and in the face of
strong evidence that he was dismissed for cause. We decline the invitation. We
reject Bryant's demand for discovery as a last ditch effort made in the "hope"
that he then will be able to buttress his claims. We hold as we do particularly in
light of the policy considerations where a federal judge and judicial officer are
charged as defendants.
21
All of Bryant's claims are based on his allegations of racial discrimination,

allegations for which he has no support.1 Accordingly, summary judgment
properly was granted as to all of appellant's claims.
III.
To summarize:
22
We hold that the district court was well within its authority in granting
summary judgment in favor of appellees.
23
AFFIRMED.
Honorable William H. Timbers, Senior Circuit Judge, United States Court of

Appeals for the Second Circuit, sitting by designation
Bryant's Sec. 1985 claim--that the Kansas district judges illegally conspired to
deprive him of access to the courts by their en banc decision to recuse
themselves--is too frivolous to merit discussion

Robert J. Bryant v. Earl E. O'COnnOr and Perry D. Mathis, 848 F.2d 1064, 10th Cir. (1988)

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Robert J. Bryant v. Earl E. O'COnnOr and Perry D. Mathis, 848 F.2d 1064, 10th Cir. (1988)

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848 F.

Robert J. BRYANT, Plaintiff-Appellant,

United States Court of Appeals,

Margie J. Phelps, Topeka, Kan. (Fred W. Phelps, Jr. and John R.

Appellant Robert J. Bryant, a former probation officer of the United States

We hold that appellees adequately supported their motion for summary

We hold that appellees adequately supported their motion for summary

We shall summarize those facts and prior proceedings believed necessary to an

Chief Probation Officer Mathis, Bryant's immediate supervisor, suspended

Appellees Mathis and Chief Judge O'Connor moved to dismiss or in the

Fed.R.Civ.P. 56(e) requires that "[w]hen a motion for summary judgment is

by merely restating the conclusory allegations contained in his complaint, and

Bryant claims, however, that summary judgment was improperly granted

All of Bryant's claims are based on his allegations of racial discrimination,

Honorable William H. Timbers, Senior Circuit Judge, United States Court of

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