Harriman v. Hancock County

United States Court of Appeals
For the First Circuit

No. 09-2284
DAVID HARRIMAN,

Plaintiff, Appellant,

v.

HANCOCK COUNTY, a Political Subdivision of the State of Maine;
WILLIAM CLARK, in his Personal and Professional Capacities as
Sheriff of Hancock County Sheriff Department; RYAN HAINES, in his
Personal and Professional Capacities as Corrections Officer of
Hancock County Sheriff Department; HEATHER SULLIVAN;
MICHAEL PILESKI, in his Personal and Professional Capacities as
Corrections Officer of Hancock County Sheriff Department;
KAREN MCCARTY, in her Personal and Professional Capacities as
Corrections Officer of Hancock County Sheriff Department;
TROY RICHARDSON, in his Personal and Professional Capacities
as Corrections Officer of Hancock County Sheriff Department,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr, Chief U.S. District Judge]

Before

Torruella, Selya and Howard,
Circuit Judges.

Dale F. Thistle, with whom Law Office of Dale F. Thistle was
on brief, for appellant.
Peter T. Marchesi, with whom Cassandra S. Shaffer and
Wheeler & Arey, P.A. were on brief, for appellees.

December 6, 2010
 HOWARD, Circuit Judge. This civil rights action involves

competing accounts of an arrestee's weekend stay in Maine's Hancock

County Jail. Plaintiff David Harriman, although he remembers

virtually nothing that occurred over the entire weekend, contends

that one or more correctional officers beat him until he sustained

a lasting brain injury. Defendants Hancock County, its sheriff and

several correctional officers assert that Harriman fell on his

head. Harriman appeals the district court's preclusion of two

affidavits and entry of summary judgment in defendants' favor.

After careful review, we affirm.

I. BACKGROUND

We recount the facts in the light most favorable to

Harriman as the party opposing summary judgment. Statchen v.

Palmer, 623 F.3d 15, 16 (1st Cir. 2010).

A. The Weekend

On a Friday evening in October 2006, Maine State Trooper

Gregory Mitchell responded to a disturbance at the Blue Hill

Hospital involving a disorderly emergency room patient later

identified as Harriman. After a short game of cat-and-mouse --

Harriman fled the hospital on foot before Mitchell arrived but

returned on account of foul weather -- Mitchell found Harriman back

in the emergency room. Harriman appeared to be drunk.1 Because

1
A blood test later revealed that Harriman's blood alcohol
content was at least .3 percent.

-2-
Harriman was prohibited from consuming alcohol in connection with

a previous infraction, Mitchell arrested him.2

Mitchell escorted Harriman outside to the police cruiser

and searched him. Harriman launched a stream of epithets against

Mitchell, including threats to Mitchell and his children. As

Mitchell guided Harriman into the cruiser, Harriman resisted and

fell to the ground, pulling Mitchell down with him. Mitchell got

back on his feet and hoisted Harriman up and into the cruiser.3

Once in the cruiser, Harriman spit at Mitchell and then fell

asleep.

At about 8 p.m., the pair arrived at the jail. Mitchell

escorted Harriman into the intoxilyzer room.4 Harriman leveled

several new expletives against Mitchell, and struggled against

Mitchell's hold until correctional officers Ryan Haines and Michael

Pileski arrived to take custody. Mitchell then went to the

2
The record does not describe Harriman's criminal history, but
this is of no moment because Harriman no longer contests his
arrest. See infra note 6.
3
The record contains a vague reference that Mitchell struck
Harriman in order to get him into the police cruiser. We need not
dwell on that because Harriman does not assert that his injuries
occurred before his detention at the jail. And Mitchell, although
initially named as a defendant, was subsequently dropped from the
case by mutual agreement of the parties.
4
An intoxilyzer room is a room that contains, among other
things, an intoxilyzer -- a portmanteau of "intoxication" and
"analyzer" -- which is a device used to estimate blood alcohol
content by means of infrared spectroscopy.

-3-
adjacent booking room to complete the necessary paperwork regarding

the evening's events.

What happened next is the subject of some dispute.

According to the defendants, Haines and Pileski escorted Harriman

directly to the nurse's station where Haines asked him several

questions in order to evaluate whether he was a suicide risk.

Harriman did not respond. In accordance with jail protocol,

Harriman was determined to be a suicide risk until he could respond

in a manner that showed otherwise. With some assistance from

Haines, Harriman changed into an anti-suicide smock.5 At about

8:30 p.m., Haines and Pileski moved Harriman to HD-1, which is a

holding cell further inside the jail and adjacent to the jail's

control room. Correctional officers began monitoring Harriman at

successive fifteen-minute intervals. Harriman then lay down and

went to sleep.

A little after 10 p.m., Sergeant Heather Sullivan, from

her position in or around the control room, heard Harriman

"yelling" and "hollering" in his cell. When Sullivan looked over,

she saw Harriman "banging around" his cell naked; she also noticed

blood on the bridge of his nose. Sullivan radioed Haines and

instructed him to investigate. Harriman greeted Haines with

shouted expletives and, from behind the glass partition, drew his

5
An anti-suicide smock is a stiff, tear-resistant gown worn in
place of clothing to prevent a detainee from forming a noose or
other device that could be used to commit suicide.

-4-
fist back as though he would punch Haines. Sullivan soon arrived

outside Harriman's cell. While she and Haines were deciding on a

course of action, they both heard a loud "thump" or "thud" from

inside Harriman's cell. Although neither Sullivan nor Haines saw

what happened in Harriman's cell, Pileski and another correctional

officer, Crystal Hobbs, from their vantage point in the control

room, saw Harriman fall to the floor in a leftward motion. Pileski

further saw Harriman strike his head as he fell against the

lefthand concrete wall of his cell.

Haines entered the cell and saw Harriman lying on the

floor in his own urine, apparently unconscious. Harriman then had

what appeared to be two seizures, each lasting a matter of seconds.

At Sullivan's request, Hobbs called an ambulance from the control

room at about 10:20 p.m. The ambulance arrived within several

minutes and took Harriman to the hospital. Haines accompanied

Harriman in the ambulance and stayed with him at the hospital until

relieved by another correctional officer later that evening.

Harriman remembers next to nothing about his jail stay.

From his arrest on Friday until he woke up at home on Monday or

Tuesday night, Harriman remembers only the following: "a lot of

hollering"; "echoes from hollering"; "flashes of light"; "somebody

saying he's had enough or I think that's enough or maybe even

that's enough"; "seeing my wife's cousin [Foster Kane, another jail

detainee] but just barely"; "somebody telling me that they were

-5-
going to take me to Augusta"; and "the smell . . . [of] urine mixed

with cleaning fluid."

Given his anamnestic difficulties, Harriman relies on

Mitchell's deposition testimony and affidavits from two other

witnesses to contradict the defendants' version of events.

Mitchell testified at deposition that he spent roughly an

hour in the booking room finishing up paperwork after transferring

custody of Harriman to Haines and Pileski. When Mitchell exited

the booking room at about 9 p.m., he noticed Harriman through a

glass partition in a room known as secure holding, not in HD-1,

which was further inside the jail. According to Mitchell, Harriman

appeared to be unaccompanied and was wearing civilian clothes.

Foster Kane, the detainee who Harriman vaguely remembers

seeing, stated in an affidavit that, from his cell near the booking

room, he "heard yelling and screaming and loud thuds of someone

hitting a wall." He further stated that the "commotion went on for

approximately 45 minutes before I saw the correctional officers

dragging David Harriman into my cell block." And, "David had two

black eyes, a cut on his nose, and a cut on his forehead over his

right eye."

Jenny Sheriff, the emergency medical technician who

responded to the jail's call for an ambulance, stated in an

affidavit that she "picked Mr. Harriman up in [secure holding]."

Sheriff noticed dried blood on Harriman's nose, and was "certain

-6-
that I did not receive the call to respond to the Jail immediately

after the injuries occurred." She also stated that Harriman was

naked and that there was "no robe or suicide smock in his cell."

The rest of the weekend is materially undisputed.

Harriman returned from the hospital early Saturday morning. He

spent the next two days in jail. On Monday, he appeared before a

judge who set bail. Later that day, a family member bailed him out

and drove him home. The next thing Harriman remembers is waking up

at home on Monday or Tuesday night.

B. The Lawsuit

In April 2008, Harriman brought a civil rights action

against the defendants in federal district court in Maine. He

asserted five claims premised on constitutional violations

(excessive force, false arrest, conspiracy under both §§ 1983 and

1985, and deprivation of due process) and three claims premised on

state tort law (negligence, intentional infliction of emotional

distress, and punitive damages). In due course, the magistrate

judge assigned to the case entered a scheduling order setting

dates for, among other things, initial disclosures (July 30, 2008)

and close of discovery (December 3, 2008). An amended scheduling

order required dispositive motions by January 15, 2009. Trial, if

necessary, was anticipated for April 2009.

Harriman's initial disclosure identified fourteen

individuals likely to have discoverable information; critically,

-7-
however, it did not identify either Kane or Sheriff. See Fed. R.

Civ. P. 26(a)(1)(A)(i) (requiring identification of individuals

"likely to have discoverable information"). Discovery proceeded

over the next several months, during which the parties exchanged

written discovery and deposed almost all individuals that Harriman

had identified in his initial disclosure.

On January 15, 2009, the defendants moved for summary

judgment. On February 17, 2009, two days before Harriman's

response to the defendants' motion was due and more than two months

after discovery had closed, Harriman's attorney sent the defendants

a "supplemental" initial disclosure that identified Kane and

Sheriff as two additional individuals likely to have discoverable

information. In a cover letter to the amended disclosure,

Harriman's attorney explained that he had retained a private

investigator, that the investigator had located Kane and Sheriff,

and that Harriman intended to submit affidavits from Kane and

Sheriff in opposition to summary judgment. On February 19, 2009,

Harriman filed his opposition papers, which drew heavily from the

Kane and Sheriff affidavits in contesting the defendants' motion.

In their reply, the defendants requested that the

magistrate judge strike these affidavits as a sanction pursuant to

Fed. R. Civ. P. 37(c)(1). The magistrate judge held a telephone

conference with counsel to discuss this request. Following the

conference, which was not transcribed, Harriman submitted a

-8-
memorandum and supporting affidavits addressing the failure to

identify Kane and Sheriff earlier. Those affidavits revealed that

Harriman's attorney had not retained the investigator until January

5, 2009, ten days before the defendants' summary judgment motion

was due and more than a month after the close of discovery.

The magistrate judge issued an order that precluded the

Kane and Sheriff affidavits as a sanction, and recommended summary

judgment in favor of the defendants on all remaining claims.6 The

magistrate judge reasoned that Harriman offered "precious little

justification or explanation for his own failure to properly

prepare his case and complete discovery in a timely fashion," and

that preclusion was necessary "if the court's scheduling orders are

to maintain any credibility at all." Nevertheless, the magistrate

judge stated that summary judgment was appropriate even if one

considered the Kane and Sheriff affidavits, and so purported to

analyze Harriman's claims under the full record. When the

magistrate judge analyzed Harriman's excessive force claim,

however, she disregarded the Kane affidavit on the basis of her

earlier decision precluding that affidavit:

Clearly if Harriman has met his burden of creating a
genuine dispute of material fact on his theory that he
was deliberately beaten by the guards by providing
competent evidence of his theory, a trial would be
necessary on this count. However, I have determined that
the Kane Affidavit must be stricken because Harriman has

6
Harriman dropped his claims for false arrest and conspiracy
under § 1985 in his response to the summary judgment motion.

-9-
 in no way demonstrated a justification for his late
disclosure (and tardy efforts to investigate). The
Sheriff Affidavit also is stricken, but even if it were
not, this evidence would not be sufficient to carry
Harriman's burden of providing a dispute of fact that
justifies sending this count to trial.

(Emphasis in original.) The district court adopted in full the

magistrate judge's report and recommendation and entered judgment.

II. DISCUSSION

We address two threshold issues before reaching the

propriety of summary judgment.

A. Which Claims Harriman Preserved For Appeal

The defendants argue that Harriman has waived all claims,

save his claims for excessive force and municipal liability,

because he failed to address any other claims in his opening brief.

They further argue that those claims (again, except his claims for

excessive force and municipal liability) are doubly waived because

Harriman failed to object to the portions of the magistrate judge's

order concerning those claims. Harriman contests waiver on the

ground that our standard of review in this case is de novo.

According to Harriman, that standard requires us to review all his

claims, regardless of whether he articulated them in his brief.

Harriman correctly identifies the standard of review, but

that is about all. A long-familiar rule in this circuit is that

"issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived." United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). "It is not

-10-
enough merely to mention a possible argument in the most skeletal

way, leaving the court to do counsel's work, create the ossature

for the argument, and put flesh on its bones." Id. Instead, "a

litigant has an obligation 'to spell out its arguments squarely and

distinctly,' or else forever hold its peace." Id. (quoting Rivera-

Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)). Contrary

to Harriman's postulation, plenary review does not excuse that

obligation.

If Harriman intended to attack summary judgment with

respect to each and every claim, his opening appellate brief is

woefully deficient. His brief challenges summary judgment only as

to his claims of excessive force and municipal liability. It does

not explain why summary judgment on his other claims was improper;

indeed, it does not even mention those claims other than to list

them in the statement of the case. Although Harriman's reply brief

contains references to those claims, it too fails to articulate a

reason for vacating summary judgment as to those claims. And even

if it had, the time for doing so had passed. See Braintree Labs.,

Inc. v. Citigroup Global Mkts. Inc., 622 F.3d 36, 44 (1st Cir.

2010) ("The slight development in the reply brief does nothing to

help matters, as arguments raised there for the first time come too

late to be preserved on appeal.").

-11-
 Consequently, only Harriman's excessive-force and

municipal-liability claims are properly before us. All other

claims are waived.7

B. Preclusion of the Kane and Sheriff Affidavits

Harriman challenges the magistrate judge's decision

precluding the Kane and Sheriff affidavits. Because that ruling

defined the record on which summary judgment rests, we address this

challenge before turning to the merits. Livick v. Gillette Co.,

524 F.3d 24, 28 (1st Cir. 2008).

Harriman argues, essentially, that precluding the

affidavits was wrong because they were important to his case. The

defendants counter that preclusion was a proportional response to

Harriman's failure to identify Kane and Sheriff earlier. Each

individual, the defendants contend, could have been identified in

the exercise of reasonable diligence during discovery, and

Harriman's failure to do so prejudiced the defendants because they

sought discovery and moved for summary judgment without knowing

about two prospective witnesses on whom Harriman later relied.

7
Although we need not address the defendants' alternate
argument concerning Harriman's incomplete objection below, we note
that a party's failure to object adequately to a magistrate judge's
report and recommendation imperils that party's ability to cry foul
on appeal. See, e.g., Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010) ("We have previously held that
'only those issues fairly raised by the objections to the
magistrate's report are subject to review in the district court and
those not preserved by such objection[s] are precluded on
appeal.'") (quoting Keating v. Sec'y of Health & Human Servs., 848
F.2d 271, 275 (1st Cir. 1988)).

-12-
 We begin our inquiry with the Federal Rules of Civil

Procedure, which provide the basic framework. Rule 26 requires a

party, without awaiting a discovery request, to "provide to the

other parties . . . the name . . . of each individual likely to

have discoverable information -- along with the subjects of that

information -- that the disclosing party may use to support its

claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). That

obligation is a continuing one. See Fed. R. Civ. P. 26(e)(1)(A)

(requiring a party to supplement its disclosure promptly "if the

party learns that in some material respect the disclosure or

response is incomplete or incorrect.").

Failure to comply with disclosure obligations can have

severe consequences. Rule 37 authorizes district courts to

sanction noncomplying parties; although sanctions can vary

depending on the circumstances, "[t]he baseline rule is that 'the

required sanction in the ordinary case is mandatory preclusion.'"

Santiago-Diaz v. Laboratorio Clinico Y De Referencia Del Este, 456

F.3d 272, 276 (1st Cir. 2006) (quoting Lohnes v. Level 3 Commc'ns,

Inc., 272 F.3d 49, 60 (1st Cir. 2001)); see Fed. R. Civ. P.

37(c)(1) (providing that if a party fails to disclose under Rule

26, that "party is not allowed to use that information or witness

to supply evidence on a motion").

We consult an array of factors when reviewing preclusion

decisions. They include the sanctioned party's justification for

-13-
the late disclosure; the opponent-party's ability to overcome its

adverse effects (i.e., harmlessness); the history of the

litigation; the late disclosure's impact on the district court's

docket; and the sanctioned party's need for the precluded evidence.

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 76 (1st Cir.

2009) (citing Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003));

see also Santiago-Diaz, 456 F.3d at 276-77. Our review is highly

deferential, Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 191

(1st Cir. 2006); see Macaulay, 321 F.3d at 51 ("the question on

appeal is not whether we would have imposed the same sanction.

Rather, the question is whether the district court's action was so

wide of the mark as to constitute an abuse of discretion."), and

the sanctioned party shoulders a "heavy burden" to show that an

abuse has occurred. Santiago-Diaz, 456 F.3d at 275; see also

Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir.

2001) (sanctioned party obliged to show preclusion unwarranted).

Our examination of these factors leads us to conclude

that preclusion of the affidavits fell within the parameters of the

district court's discretion.

Harriman's justification for the late disclosure is

nonexistent. He argues on appeal that "had Defendants written

truthful reports, or testified truthfully in deposition, Plaintiff

would have learned far earlier that Plaintiff was kept in the

Secure Holding Cell throughout the evening on October 20, 2006."

-14-
He argued, similarly, before the magistrate judge that he was

"lulled into the belief that there was no one to corroborate

Trooper Gregory Mitchell's version of the facts, which stood in

stark contrast to those of the Defendants." But these statements

only pound the table. They do not explain, let alone justify,

Harriman's late disclosure or his decision to begin looking for

Kane and Sheriff in earnest only after discovery closed. Cf.

Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (requiring

preclusion in roughly comparable circumstances involving a failure

to conduct an adequate investigation), superceded in unrelated part

by rule amendment, In re Subpoena to Witzel, 531 F.3d 113, 118 (1st

Cir. 2008).

The record shows beyond hope of contradiction that

Harriman knew very early on that Kane and Sheriff could help his

case. As early as 2006, Harriman knew that Kane was in jail with

him over the weekend. It is one of the few fragments of

information that Harriman remembered, and Kane's name appeared on

an inmate list that the defendants produced during discovery.

Harriman also knew, as early as 2007, that Kane had information

that supported his claims. Coincidentally, Kane is the first

cousin of Harriman's spouse. Kane wrote a letter to Harriman's

spouse in April 2007 -- before this case even commenced -- stating

"that he believed David [Harriman] had been beaten by corrections

officers at the Hancock County Jail on October 20, 2006." Despite

-15-
knowing Kane's importance to his case, Harriman made no meaningful

attempt to find him until after discovery closed.

So, too, with Sheriff. Harriman may not have remembered

Sheriff, but multiple witnesses testified at their depositions that

an EMT responded to the jail and brought Harriman to the hospital

in an ambulance. The defendants also produced the ambulance's so-

called run report.8 Among other things, the run report described

the circumstances surrounding the call and Harriman's condition

when Sheriff arrived. True, the run report did not reveal

Sheriff's identity: in what appears to be a photocopying error,

the bottom of the page cuts off after asking for the "SIGNATURE OF

CREW MEMBER IN CHARGE" (i.e., Sheriff). But the salient point is

that Harriman knew during discovery that an EMT existed who had

information that could support his claims, and yet he did nothing

whatsoever to find that individual until after discovery closed.

As for the next factor, Harriman's late disclosure was

not a harmless inconvenience. The defendants prepared and filed a

summary judgment motion premised on evidence submitted before the

discovery deadline. Harriman opposed the motion with affidavits

obtained after that deadline, from witnesses whom he had not

provided the defendants an opportunity to depose. While perhaps

8
Counsel for the defendants explained at oral argument that
the jail had a copy of the run report because Harriman returned
from the hospital with that document and other medical records in
order to facilitate further medical care by jail staff.

-16-
not as palpable as if trial were looming, the prejudice to

defendants was real. See, e.g., Primus v. United States, 389 F.3d

231, 236 (1st Cir. 2004) (finding prejudice when information

disclosed after summary judgment motion filed but before trial was

imminent); Lohnes, 272 F.3d at 60 (failure to unveil expert until

after summary judgment motion filed was prejudicial in part because

it deprived defendant of opportunity to depose).

Furthermore, Harriman took no steps to minimize the harm

caused by the late disclosure. Harriman's attorney retained an

investigator ten days before the defendants' summary judgment

motion was due, but did not put the defendants or the court on

notice that he was attempting to locate Kane and Sheriff. Cf.

Klonoski, 156 F.3d at 272 (faulting attorney for failing to alert

opponent in roughly comparable circumstances). And while

Harriman's attorney was actively looking for them, he sought and

received an extension to file an opposition to summary judgment --

not in order to find additional witnesses -- but on the ground that

he was busy with other cases and had been sick. In this light,

Harriman's late disclosure begins to look less like an oversight

and more like a tactic.

The history of the litigation also cuts against

Harriman's position. This was not the first time Harriman missed

a deadline. He failed previously to designate an expert by the

deadline set by the court, and he requested an extension five days

-17-
later. The magistrate judge initially denied the request, but

later -- reluctantly -- allowed it with the caveat that she would

permit no further extensions. Harriman also failed timely to

respond to the defendants' request to strike the Kane and Sheriff

affidavits. Here again the magistrate judge gave Harriman one last

extension. Although these infractions may not rise to the level of

dereliction displayed in other cases, see, e.g., Santiago-Diaz, 456

F.3d at 277 (referencing the plaintiff's "obvious and repeated"

disregard for the court's deadlines), they do place the court's

preclusion decision in context.

The late disclosure's impact on the court's docket is

apparent. Harriman disclosed Kane and Sheriff more than seven

months after the deadline for initial disclosures, more than two

months after the discovery deadline, and about a month after the

defendants had moved for summary judgment. District courts have an

interest in managing their dockets without such disruptions. See

id. ("Whenever a party, without good cause, neglects to comply with

reasonable deadlines, the court's ability to manage its docket is

compromised.").

The only factor that favors Harriman is his need for the

affidavits. Reversals based on a sanctioned party's need for

precluded evidence are rare, and seldom based on that factor alone.

In one recherché case, Esposito, we reviewed an order that had

precluded the plaintiff's only expert because he failed to

-18-
designate him in time. 590 F.3d at 72. We reversed, with one

judge dissenting, because the parties agreed that preclusion was

tantamount to dismissal, and there was no evidence that the

plaintiff had disregarded other deadlines or sought to gain a

calculated advantage by delay. Id. at 79 (characterizing

preclusion there as "a fatal sanction levied for a single

oversight").

This case is not of a kind with Esposito. Although

including the Kane and Sheriff affidavits would make the propriety

of summary judgment less clear, precluding them does not obviously

or automatically result in dismissal. See infra Part II.C

(discussing propriety of summary judgment). And here, unlike in

Esposito, Harriman missed other deadlines and ignored at least one

warning that no further extensions would be tolerated. Also,

Harriman's timing for the disclosure, coupled with his furtive

post-discovery search for additional witnesses, could be viewed as

strategic. None of these circumstances was present in Esposito,

and we decline to expand Esposito's holding beyond its highly

idiosyncratic facts.

In sum, given the above, we cannot fault the district

court for precluding the affidavits. Another judge faced with the

same facts might have selected a lesser sanction. But preclusion

was not "so wide of the mark as to constitute an abuse of

discretion." Macaulay, 321 F.3d at 51.

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 C. Summary Judgment

We turn at last to Harriman's challenge to the summary

judgment, which need not detain us. Our review is de novo.

Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009) ("Summary

judgment is appropriate only when the record reflects no genuine

issue as to any material fact and indicates that the moving party

is entitled to judgment as a matter of law.").

Harriman's argument boils down to the following

syllogism. Mitchell's testimony that Harriman was in secure

holding at 9 p.m. (as opposed to HD-1) exposed the defendants' lies

concerning Harriman's location in the jail. Because the defendants

were lying about Harriman's location, the entirety of "their

reports and deposition testimony cannot be believed." Summary

judgment was therefore inappropriate.

We reject this line of reasoning, because Harriman's

location in the jail is immaterial. His claim that the defendants

used excessive force is premised on a beating. Harriman has not

shown, nor do we see, any link between his location in the jail and

the beating that he alleged occurred.9 What remains is a naked

attack on the credibility of the defendants' testimony, and that

9
For the same reason, we reject Harriman's challenge to
the authenticity of the jail's segregation log, which placed
Harriman in HD-1 during the events in question. Even if Harriman's
location in the jail were relevant to his claim (it is not), his
basis for challenging the segregation log -- that it "appears to be
a fake and untrustworthy" -- is chimerical.

-20-
argument is squarely foreclosed by our case law. Lafrenier v.

Kinirey, 550 F.3d 166, 167 (1st Cir. 2005); see also Sears, Roebuck

& Co. v. Goldstone & Subalter, P.C., 128 F.3d 10, 18 (1st Cir.

1997) ("A party cannot create an issue for the trier of fact 'by

relying on the hope that the jury will not trust the credibility of

witnesses.'") (quoting Dragon v. R.I. Dep't of Mental Health,

Retardation & Hosps., 936 F.2d 32, 35 (1st Cir. 1991)).

We agree with the district court that there was nothing

inherently unbelievable about the defendants' testimony. Their

testimony was, by and large, consistent. Pileski and Hobbs both

saw Harriman fall, and Sullivan and Haines heard sounds in his cell

that resembled a fall. And all correctional officers present at

the jail that night testified, or submitted affidavits stating,

that they did not strike Harriman or see anyone else do so. To be

sure, not all of the defendants' testimony was uniform in every

respect. As Harriman points out, Haines testified that Harriman

was wearing an anti-suicide smock when he entered Harriman's cell;

Sullivan, however, thought Harriman was unclothed. But these minor

details do not undercut the plausibility of the defendants'

testimony that Harriman fell.

Harriman does not identify any admissible facts that

raise a genuine issue that one or more correctional officers beat

him. Yes, his neurologist, Stephanie Lash, testified that, based

on her review of the photographs of Harriman's head taken after his

-21-
release, it was "unlikely" that Harriman's injuries "could have

occurred by him falling against a flat object" (i.e., a cell wall).

But the district court did not consider Lash's opinion, because

Harriman never designated her as an expert. Harriman does not

refute that he failed to designate Lash, and our review of the

record does not reveal that he did. Her testimony is therefore

inadmissible. See Fed. R. Evid. 701 (lay opinion testimony

inadmissible except in narrow circumstances not applicable here);

see also Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 14 (1st

Cir. 1998) (inadmissible lay opinion testimony cannot forestall

summary judgment).

Even if Lash's testimony were admissible, her conclusion

was unsupported: Lash conceded at deposition that she did not

purport to opine on the cause of Harriman's injuries.10 The

10
We provide an excerpt from Lash's deposition:

[Defendants' Counsel:] Let me ask you next about
how a neurologist such as yourself goes about trying to
formulate an opinion as to whether or not there's a
causal connection between a traumatic event and cognitive
difficulties. How would you go about doing that? What
information would you want to have available to you in
order to make that determination?

[Lash:] With respect to this particular case, how
much of this gentleman's cognitive difficulties are due
to what individual injury, and I suspect from what we
know about it there were probably more than one injury
happening to his head, and whether it was fall and
striking or several of each, I don't know; and so,
frankly, the forensic piece of it is really not the focus
of what I spent my time with him. The focus for me is
the degree of the injury, and the extent of the injury,

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district court was thus free to disregard that aspect of her

testimony. See, e.g., Johnson v. Gordon, 409 F.3d 12, 25-26 (1st

Cir. 2005) ("A nisi prius court need not give weight to opinion

evidence that is unsupported by an adequate foundation."); see also

Maldonago-Denis v. Castillo-Rodrequez, 23 F.3d 576, 583 (1st Cir.

1994) (recognizing that "tenuous assertions strung together by

strands of speculation and surmise" cannot defeat summary

judgment).

That leaves Harriman's memory. The only thing he

remembers that could possibly help him is his recollection of

"somebody saying he's had enough or I think that's enough or maybe

even that's enough." Harriman conceded at deposition, however,

the impact on his life, what we can do to help him as an
individual heal, the prognosis, what medications, what
therapies, what treatments may or may not be helpful for
him. That's really the focus of my time in this
particular person's case. It's not who hit whom and who
fell where and that sort of stuff really.

[Defendants' Counsel:] Let me just see if I can
summarize then. Would it be fair for me to say that you
do not have any opinions at this time regarding whether
or not the events that occurred to him on October 20 of
2006 were the cause of his cognitive difficulties?

[Lash:] Based on the history from he and his wife,
in a general sense I think he suffered a severe injury
and in a general sense think that he has ongoing health
problems because of it. So to that extent I have belief
in the importance of those injuries, but any of the
specifics of what went on that evening or the subsequent
couple of days I really have no opinion about.

(Emphasis supplied.)

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that he had no memory of being beaten by anyone at anytime relevant

to this case. The district court was correct that no reasonable

jury could return a verdict in Harriman's favor on that basis.

See, e.g., Wysong v. City of Health, 260 Fed. App'x 848, 857 (6th

Cir. 2008) (no genuine issue in light of plaintiff's concession

that he did not remember whether he resisted arrest).

In the end, the record does not support Harriman's

hypothesis that the defendants inflicted a constitutional injury.

His claim for excessive force therefore fails, and the corollary is

that municipal liability cannot attach. City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986); Wilson v. Town of Mendon, 294

F.3d 1, 6 (1st Cir. 2002).

III. CONCLUSION

For these reasons, the judgment of the district court

is affirmed. Costs to appellees.

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