Maldonado-Denis v. Castillo-Rodriguez

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2012

MANUEL MALDONADO-DENIS, ET AL.,
Plaintiffs, Appellants,

v.

REINALDO CASTILLO-RODRIGUEZ, ET. AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Demetrio Fernandez, with whom Melva A. Quintana was on

brief, for appellants.
John F. Nevares, with whom Ilsa Y. Figueroa-Arus and Smith &

Nevares were on brief, for appellee Carlos J. Lopez-Feliciano.

Carlos Lugo-Fiol, Deputy Solicitor General, with whom Pedro

A. Delgado-Hernandez, Solicitor General, and Mabel Ramon Milian

were on brief, for appellee Ismael Betancourt-Lebron.

May 6, 1994

SELYA, Circuit Judge. This appeal arises out of an
SELYA, Circuit Judge.

action brought pursuant to 42 U.S.C. 1983 (1988). In it,

appellants strive to convince us that the district court erred in

granting summary judgment in favor of defendants Ismael

Betancourt-Lebron (sometimes referred to as Ismael Betancourt y

Lebron) and Carlos J. Lopez-Feliciano. Although we are troubled

by the district court's action expediting the appeal under Fed.

R. Civ. P. 54(b), we affirm the entry of summary judgment.

I.

Statement of the Case

In the early morning hours of February 15, 1991, a

police officer, Jose M. Colon-Burgos, allegedly shot and killed a

young man, Manuel E. Maldonado-Irizarry, in the line of duty.

The decedent's family members, appellants here, brought a

section 1983 suit in which they claimed, inter alia, that Colon-

Burgos used excessive force; that the homicide constituted a

wrongful deprivation of the decedent's civil rights; and that

other law enforcement officers conspired to hide the truth.

In mounting this offensive, appellants cut a wide

swath; they sued Colon-Burgos, several of his confreres, and

certain high-ranking officials who had no direct connection to

the shooting or its aftermath. Betancourt-Lebron, who was the

superintendent of police when the incident occurred, and Lopez-

Feliciano, the former superintendent, fell into this latter

2

group.1 Appellants alleged in substance that Betancourt-Lebron

did not adequately supervise officers under his command, and

thereby exhibited deliberate indifference to the proper discharge

of his duties. Lopez-Feliciano, appellants said, exhibited

similar indifference during his tenure as superintendent, and, in

addition, failed properly to train members of the police force.

On February 22, 1993, Betancourt-Lebron moved for

summary judgment on appellants' third amended complaint.

Appellants requested, and received, several extensions of time.

Eventually, they tendered an opposition. On June 25, Lopez-

Feliciano moved for summary judgment. Appellants did not serve

an opposition, but, instead, requested a further extension of

time within which to respond. On July 13, the district court

denied the motion for more time, and, eight days later, granted

both Rule 56 motions.2 This appeal followed.

II.

Appellate Jurisdiction

Fed. R. Civ. P. 54(b) permits the entry of final

judgment as to fewer than all the parties or claims in a multi-

party action, thus clearing the way for earlier-than-usual

appeals, "upon an express determination that there is no just

1Lopez-Feliciano served as superintendent of police from
early 1986 until he resigned effective December 31, 1988. He had
no official standing on February 15, 1991.

2At the same time, the lower court entered the July 13 order
on the docket and granted a motion to dismiss that had been filed
on behalf of another high-ranking official, defendant Aida Myrna
Velez. Appellants have not ventured an appeal from this aspect
of the court's order.

3

reason for delay" in entering judgment.3 In this case, the

district court made the requisite finding and directed entry of

judgment notwithstanding that the action remained unadjudicated

as to numerous other parties.

The court focused on the existence of a special

circumstance: one of the defendants, Reinaldo Castillo-Rodriguez

(Castillo), had declared bankruptcy, triggering the automatic

stay, 11 U.S.C. 362; the case, the court felt, would likely "be

dormant for a number of months pending the disposition of [the]

bankruptcy matter"; and, therefore, it would "save time" to

permit the appeal to go forward "while the issue of the

bankruptcy stay was addressed before the bankruptcy court."

Because this determination implicates the existence vel non of

appellate jurisdiction, we must satisfy ourselves concerning its

correctness even though the parties have acquiesced in it. See

Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.

1988); United States General, Inc. v. Albert, 792 F.2d 678, 680

(7th Cir. 1986).

This court has used a two-step approach in connection

3The rule provides in pertinent part:

When more than one claim for relief is
presented in an action, . . . or when
multiple parties are involved, the court may
direct the entry of a final judgment as to
one or more but fewer than all of the claims
or parties only upon an express determination
that there is no just reason for delay and
upon an express direction for the entry of
judgment. . . .

Fed. R. Civ. P. 54(b).

4

with Rule 54(b) determinations. See Geiselman v. United States,

961 F.2d 1, 3-5 (1st Cir.) (per curiam), cert. denied, 113 S. Ct.

261 (1992); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 44

(1st Cir. 1991); Spiegel, 853 F.2d at 42-43. First, the ruling

underlying the proposed judgment must itself be final in the

sense that it disposes completely either of all claims against a

given defendant or of some discrete substantive claim or set of

claims against the defendants generally. See Spiegel, 843 F.2d

at 43. That requirement plainly is satisfied here; the orders

granting brevis disposition terminated appellants' claims against

Betancourt-Lebron and Lopez-Feliciano in their entirety.

The second step of the Spiegel pavane is harder to

master. It requires tracing the interrelationship between, on

one hand, the legal and factual basis of the claims undergirding

the proposed judgment (i.e., the jettisoned claims), and on the

other hand, the legal and factual basis of the claims remaining

in the case. See id. Once the court of appeals has prepared the

necessary schematic, it must then ponder the balance struck by

the district court between the desirability of immediate review

and the undesirability of promoting piecemeal appeals. See

Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir. 1993);

Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981)

(Kennedy, J.).

Here, the second half of the Spiegel paradigm presents

a borderline question. Appellants sued Betancourt-Lebron and

Lopez-Feliciano for improperly discharging supervisory

5

responsibilities in ways that led to the decedent's death. But

adjudicating those claims necessitates an exploration of the

facts concerning the shooting and alleged coverup. See, e.g.,

Voutour v. Vitale, 761 F.2d 812, 820-21 (1st Cir. 1985), cert.

denied, 474 U.S. 1100 (1986). Thus, there is a significant

imbrication between the jettisoned claims and the remaining

claims. District courts should go very slowly in employing Rule

54(b) when, as in this instance, the factual underpinnings of the

adjudicated and unadjudicated claims are intertwined. See

Spiegel, 843 F.2d at 45.

We think, too, that the Rule 54(b) determination rests

on shaky ground for other reasons. In the first place, whether

the record is scanned from the standpoint of the plaintiffs, the

defendants, or the court, it discloses no urgent need for

immediate review. In the second place, trial of the remaining

claims has the potential of mooting the issue of supervisory

liability and rendering further appellate review of the summary

judgment order superfluous. Given these circumstances, and given

the "long-settled and prudential policy against scattershot

[appeals]," id. at 42, the rush to enter an immediate judgment

strikes us as problematic.

To be sure, the scales are not entirely out of balance.

The judgment did dispose fully of all claims against a group of

parties appellees and Velez and those claims raised a set of

unique issues. And, moreover, the district court had an arguably

plausible reason the enforced stay of litigation on the

6

district court level for resorting to Rule 54(b). These

factors tend to balance out, to some extent, the factors that

counsel in favor of a more deliberate approach.

While we, if writing on a pristine page, would have

accorded greater weight to considerations of judicial economy and

the importance of discouraging broadly piecemeal appeals, three

things persuade us to allow the Rule 54(b) determination to

stand: first, the special circumstance presented by the stay;

second, the differences, both legal and factual, that distinguish

the claims against appellees from the claims against the other

defendants; and third, the deference owed to the trial court's

determinations under Rule 54(b), see Spiegel, 843 F.2d at 42.

Although the call is excruciatingly close, we are not prepared to

say that the court below overstepped the bounds of its discretion

here.4

III.

The Summary Judgment Standard

Summary judgment is permissible when "there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). We review a grant of summary judgment de novo, see Quaker

State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513

(1st Cir. 1989), scrutinizing the entire record in the light most

flattering to the nonmovant and indulging all reasonable

4Though we permit the appeal to go forward, we urge the
district courts, in borderline cases, to exercise restraint
rather than allowing appeals to proceed in an inchmeal fashion.

7

inferences in that party's favor. See Brennan v. Hendrigan, 888

F.2d 189, 191 (1st Cir. 1989); Mack v. Great Atlantic & Pacific

Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).

Summary judgment practice has a rhythm of its own. We

have described that rhythm in the following way:

The movant must put the ball in play,
averring "an absence of evidence to support
the nonmoving party's case." The burden then
shifts to the nonmovant to establish the
existence of at least one fact issue which is
both "genuine" and "material." A "genuine"
issue is one "that properly can be resolved
only by a finder of fact because [it] may
reasonably be resolved in favor of either
party." Put another way, a "genuine" issue
exists if there is "sufficient evidence
supporting the claimed factual dispute" to
require a choice between "the parties'
differing versions of the truth at trial." A
"material" issue is one that "affect[s] the
outcome of the suit," that is, an issue
which, perforce, "need[s] to be resolved
before the related legal issues can be
decided."

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)

(citing and quoting, inter alia, Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986), and Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986) (other citations omitted)).

On issues as to which the nonmovant bears the ultimate

burden of proof, he may not defeat a properly focused motion for

summary judgment by relying upon mere allegations or evidence

that is less than significantly probative. See Anderson, 477

U.S. at 249-50; Pagano v. Frank, 983 F.2d 343, 348 (1st Cir.

1993). Put another way, a party opposing summary judgment must

"present definite, competent evidence to rebut the motion."

8

Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991),

cert. denied, 112 S. Ct. 2965 (1992); accord Fragoso v. Lopez,

991 F.2d 878, 887 (1st Cir. 1993). Thus, summary judgment likely

will be appropriate if the nonmovant elects to rest upon some

combination of "conclusory allegations, improbable inferences,

and unsupported speculation." Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

There is another important dimension to summary

judgment practice: motions for summary judgment must be decided

on the record as it stands, not on litigants' visions of what the

facts might some day reveal. As we have warned, "[b]rash

conjecture, coupled with earnest hope that something concrete

will eventually materialize, is insufficient to block summary

judgment." Dow v. United Bhd. of Carpenters, 1 F.3d 56, 58 (1st

Cir. 1993).

IV.

Supervisory Liability

Although a superior officer cannot be held vicariously

liable under 42 U.S.C. 1983 on a respondeat superior theory,

see Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978);

Gutierrez-Rodgriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.

1989), he may be found liable under section 1983 on the basis of

his own acts or omissions, see Bowen v. Manchester, 966 F.2d 13,

20 (1st Cir. 1992); Manarite v. Springfield, 957 F.2d 953, 957

(1st Cir.), cert. denied, 113 S. Ct. 113 (1992); Gutierrez-

Rodriguez, 882 F.2d at 562.

9

One way in which a supervisor's behavior may come

within this rule is by formulating a policy, or engaging in a

custom, that leads to the challenged occurrence. See Oklahoma

City v. Tuttle, 471 U.S. 808, 823-24 (1985). Thus, even if a

supervisor lacks actual knowledge of censurable conduct, he may

be liable for the foreseeable consequences of such conduct if he

would have known of it but for his deliberate indifference or

willful blindness, and if he had the power and authority to

alleviate it. See Miranda v. Munoz, 770 F.2d 255, 260 (1st Cir.

1985); DiMarzo v. Cahill, 575 F.2d 15, 17-18 (1st Cir.), cert.

denied, 439 U.S. 927 (1978); cf. Pinto v. Nettleship, 737 F.2d

130, 132 (1st Cir. 1984) (barring liability under 1983 for

actions beyond supervisor-defendant's control).

Under this rubric, a supervisor may be held liable for

what he does (or fails to do) if his behavior demonstrates

deliberate indifference to conduct that is itself violative of a

plaintiff's constitutional rights. See, e.g., City of Canton v.

Harris, 489 U.S. 378, 388 (1989); Manarite, 957 F.2d at 957;

Gutierrez-Rodriguez, 882 F.2d at 562; see also Rivas v. Freeman,

940 F.2d 1491, 1495 (11th Cir. 1991). Deliberate indifference,

however, is not the be-all and the end-all of a section 1983

claim premised on supervisory liability. As we explain below,

there is a causation element as well.

To succeed on a supervisory liability claim, a

plaintiff not only must show deliberate indifference or its

equivalent, but also must affirmatively connect the supervisor's

10

conduct to the subordinate's violative act or omission. See

Bowen, 966 F.2d at 20; Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988); Pinto, 737 F.2d at 132. This causation requirement

can be satisfied even if the supervisor did not participate

directly in the conduct that violated a citizen's rights; for

example, a sufficient casual nexus may be found if the supervisor

knew of, overtly or tacitly approved of, or purposely disregarded

the conduct. See, e.g., Larez v. Los Angeles, 946 F.2d 630, 646

(9th Cir. 1991); Lipsett v. University of Puerto Rico, 864 F.2d

881, 902-03 (1st Cir. 1988). Consequently, deliberate

indifference to violations of constitutional rights can forge the

necessary linkage between the acts or omissions of supervisory

personnel and the misconduct of their subordinates. See

Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert.

denied, 111 S. Ct. 2266 (1991).

A causal link may also be forged if there exists a

known history of widespread abuse sufficient to alert a

supervisor to ongoing violations. When the supervisor is on

notice and fails to take corrective action, say, by better

training or closer oversight, liability may attach. See Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir. 1990), cert. denied, 111

S. Ct. 2056 (1991); Gutierrez-Rodriguez, 882 F.2d at 564-66.

We hasten to add that isolated instances of

unconstitutional activity ordinarily are insufficient to

establish a supervisor's policy or custom, or otherwise to show

deliberate indifference. See Tuttle, 471 U.S. at 823-24;

11

Rodriquez v. Furtado, 950 F.2d 805, 813 (1st Cir. 1991); see also

Voutour, 761 F.2d at 820 (finding no liability though police

chief knew of past complaints of brutality; plaintiff failed to

show a pattern so striking that it would permit an inference of

supervisor's encouragement or approval of officers' actions). By

like token, proof of mere negligence, without more, is inadequate

to ground supervisory liability. See Febus-Rodrigues v.

Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994); Haynesworth v.

Miller, 820 F.2d 1245, 1261 (D.C. Cir. 1987). Gross negligence

can signify deliberate indifference and serve as a basis for

supervisory liability if it is causally connected to the actions

that work the direct constitutional injury. See Voutour, 761

F.2d at 820. Hence, inadequate training of subordinates may be a

basis for a section 1983 claim against a superior officer. See,

e.g., Harris, 489 U.S. at 388-89; Hopkins v. Andaya, 958 F.2d

881, 888 (9th Cir. 1992); Kibbe v. Springfield, 777 F.2d 801, 807

(1st Cir. 1985), cert. dismissed, 480 U.S. 257 (1987).

V.

Betancourt-Lebron's Motion

Though the district court granted summary judgment in

favor of both Betancourt-Lebron and Lopez-Feliciano, appellants

approach each ruling from a different direction. We, therefore,

bifurcate our analysis. We begin with Betancourt-Lebron, but we

do not linger long. The nisi prius roll discloses no evidence on

which a claim of supervisory liability against that defendant

might properly be predicated.

12

To be sure, the record contains evidence from which a

jury reasonably could conclude that the remaining defendants

the police officers allegedly involved in the shooting and the

coverup abridged the decedent's civil rights. But appellants'

attempts to link Betancourt-Lebron to these activities are

impuissant. There is no competent proof of actual participation,

or of a policy of tolerating similar violations, or of deliberate

indifference. Nor is there proof of a pattern of misconduct

sufficient to put the superintendent of police on inquiry

notice.5

In sum, considering the record in the light most

congenial to appellants, we can find only tenuous assertions

strung together by strands of speculation and surmise. More is

required to survive summary judgment. See Fragoso, 991 F.2d at

887; Medina-Munoz, 896 F.2d at 8. Supervisory liability attaches

only if a plaintiff can demonstrate by material of evidentiary

quality an affirmative link between the supervisor's conduct and

the underlying section 1983 violation. See Bowen 966 F.2d at 20;

Pinto, 737 F.2d at 132. Here, the record is bereft of any proof,

5Appellants did proffer two previous administrative
complaints, one naming Colon-Burgos and the other naming
Castillo. These complaints have only marginal relevance to the
claims at issue in this appeal. The complaint against Colon-
Burgos relates to his conduct during an alleged dispute with his
former mother-in-law. The complaint against Castillo relates to
his alleged
discourteousness in refusing to return a firearm to its owner.
There is absolutely no connection between these complaints and
the charges levelled against the officers in this case. A

fortiori, there is no connection between the complaints and

appellants' claims against the appellees.

13

direct or inferential, of a causal link between Betancourt-

Lebron's activities and the alleged deprivation of constitutional

rights. It follows that the district court appropriately ordered

summary judgment.

VI.

Lopez-Feliciano's Motion

On the record before the district court, Lopez-

Feliciano's entitlement to summary judgment cannot seriously be

disputed.6 Indeed, appellants offer no developed argumentation

to the contrary; rather, they assign error to the denial of their

Rule 6(b) motion for additional time in which to marshal an

opposition. Thus, the question presented in respect to this

motion is not a matter of evidentiary sufficiency but a matter of

procedural orthodoxy.

We start with first principles. A trial court may

enlarge the time for responding to motions, including motions for

summary judgment.7 See, e.g., United States v. One Lot of U.S.

6This statement reflects our assessment of the record as it
stands, recognizing that, even if unopposed, a motion for summary
judgment can only be granted if the record discloses the movant's
entitlement to judgment as a matter of law. See Mendez v. Banco

Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir. 1990).

7The rule on which appellants rely provides in pertinent
part:

[T]he court for cause shown may at any time
in its discretion (1) . . . order [a time]
period enlarged if request therefor is made
before the expiration of the period
originally prescribed or as extended by a
previous order, or (2) upon motion made after
the expiration of the specified period permit
the act to be done where the failure to act

14

Currency ($68,000), 927 F.2d 30, 33-35 (1st Cir. 1991); Mendez v.

Banco Popular de Puerto Rico, 900 F.2d 4, 5-6 (1st Cir. 1990).

The district court is afforded great leeway in granting or

refusing enlargements, see Mendez, 900 F.2d at 6, and its

decisions are reviewable only for abuse of that discretion, see

id. at 7. This deference is grounded in common sense. We deem

it self-evident that "appellate courts cannot too readily agree

to meddle in such case-management decisions lest the trial

court's authority be undermined and the systems sputter." Id.

However, there are few, if any, guidelines beyond these

abecedarian principles, for decisions about whether enlargements

of time are warranted tend to be case specific.

The facts surrounding the Rule 6(b) dispute in this

case are simple. Lopez-Feliciano moved for summary judgment on

Friday, June 25, 1993. Under prevailing practice, appellants'

response was due within ten days. See D.P.R. Loc. R. 311.5,

311.12. On Friday, July 2, appellants' counsel advised the

court, by means of an informative motion, that he would "be on

vacation leave from July 3, 1993 until August 6, 1993." On July

6, after counsel had left for Europe, appellants for the first

time requested, in a curt, two-paragraph motion, that the court

extend the time for filing their opposition to Lopez-Feliciano's

summary judgment initiative until late August. Appellants'

motion alleged, in a purely conclusory fashion, that Lopez-

was the result of excusable neglect . . . .

Fed. R. Civ. P. 6(b).

15

Feliciano's motion "contained voluminous exhibits and questions

of law which require an additional time to study and

investigate."

On July 13, the district court denied the sought-after

extension. The court noted that it had "patiently granted

several requests of this nature [for appellants' benefit] in the

past," and indicated that it could not justify "continu[ing] [to]

[allow] . . . delay in the disposition of pending matters." No

opposition was ever filed, and the court granted brevis

disposition in Lopez-Feliciano's favor on July 21.

It is important to pin down what this appeal does not

involve. Appellants did not, by affidavit or other proffer,

invoke Fed. R. Civ. P. 56(f),8 claiming, say, that they needed

more time for additional discovery. By like token, appellants

did not advert to any circumstances beyond their control, such as

an attorney's illness, to justify an enlargement of time.

Rather, they sought the extension primarily for the convenience

8The rule reads:

Should it appear from the affidavits of a
party opposing the motion [for summary
judgment] that the party cannot for reasons
stated present by affidavit facts essential
to justify the party's opposition, the court
may refuse the application for judgment or
may order a continuance to permit affidavits
to be obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.

Fed. R. Civ. P. 56(f).

16

of counsel, who wished to take a leisurely vacation.9

Viewed in this light, the ruling is supportable. The

judge, not counsel, must run the court and set the agenda. This

entails establishing reasonable time parameters and ensuring

compliance with them. Reversing the roles of court and counsel

would invite chaos. See de la Torre v. Continental Ins. Co., 15

F.3d 12, 14 (1st Cir. 1994); Higuera v. Pueblo Int'l, Inc., 585

F.2d 555, 557 (1st Cir. 1978). Consequently, it will be a rare

case in which an appellate court will fault a trial judge for

refusing to elevate counsel's convenience over the need to

maintain respect for court rules that require filings to be made

within a set time frame. As we acknowledged in an analogous

situation, "a district judge often must be firm in managing

crowded dockets and demanding adherence to announced deadlines."

Mendez, 900 F.2d at 7.

Of course, judges are not tinpot dictators, and

firmness must not be confused with tyranny. But, here, the

denial of appellants' Rule 6(b) motion, silhouetted against the

historical background of the case, seems reasonable, not despotic

or even arbitrary. Two circumstances are of particular interest

in this regard.

9Indeed, given the wholly conclusory nature of the other
reasons advanced in the July 6 motion, the plethoric discovery
already completed, and the similarity between Lopez-Feliciano's
motion and the summary judgment motion filed earlier by
Betancourt-Lebron (to which appellants had already responded),
there was ample room for the district court to conclude that
counsel's convenience comprised the only impetus behind the

extension request.

17

First, the disputed extension request came after

appellants trespassed on the court's indulgence many times over

many months, e.g., amending the complaint three times, obtaining

at least five enlargements of time to oppose earlier motions for

summary judgment, and successfully rescheduling pretrial

conferences on no fewer than four occasions.

Second, appellants' lawyer exhibited meager respect for

the court. Although his European respite had been planned since

March, the lawyer filed his informative motion at the beginning

of July and filed the extension request three days after his

actual departure. Appellants' only excuse for this discourtesy

rings hollow. They point out that, on June 18, they filed a

request to postpone the pretrial conference, then set for July

20, on the ground that their counsel "will be in Europe from July

3, 1993 until August 6, 1993." On July 1, the district court

granted the request, shifting the conference to August 17.

Appellants contend that their request necessarily alerted the

court to counsel's vacation plans, and that the granting of the

request lulled them into believing that the court would work

around counsel's absence.

This contention will not wash. For one thing, the

district court did not act on the request until July 1; thus,

appellants could not have placed any meaningful reliance on the

granting of the request. This lack of reliance is adequately

evinced by appellants' subsequent filing, in rapid sequence, of

the informative motion and the Rule 6(b) motion. For another

18

thing, the June 18 request did not fairly apprise the district

court of the overall situation. Appellants limited the request

to the timing of the pretrial conference. The fact that counsel

wished personally to attend that proceeding shed no definitive

light upon his intentions vis-a-vis more mundane matters.

Indeed, since the request did not mention other aspects of the

litigation, the court reasonably could infer that counsel had

made suitable arrangements and would not require any special

dispensation in regard to motion practice, discovery proceedings,

and the like.

The issue does not require further elaboration. A

petition for a continuance is always suspect when it is within

the power of the petitioner to alter the conditions that

allegedly preclude him from acting within the allotted period of

time. Here, appellants can identify nothing that suffices to

dispel this cloud. And a variety of other factors support the

reasonableness of the district court's action in holding

appellants to the rule: the filing of Lopez-Feliciano's motion

for summary judgment came as no surprise; appellants had ample

opportunity including roughly eight days before counsel

departed within which to respond to it; they had the benefit of

ample discovery, rendering it unlikely that a further opportunity

to submit additional materials would have influenced the outcome

of the case; and, finally, they failed to file a Rule 56(f)

motion. This omission speaks volumes. Litigants who are

unprepared to respond in a timely manner to motions for summary

19

judgment cannot be encouraged or permitted to essay end runs

around the substantial requirements of Rule 56(f). See generally

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co.,

840 F.2d 985, 988 (1st Cir. 1988) (discussing requirements).

When all is said and done, the district court's refusal

to grant the requested extension comes down to a matter of

discretion. The test for abuse of discretion is well settled in

this circuit, see, e.g., United States v. Roberts, 978 F.2d 17,

21 (1st Cir. 1992); Independent Oil & Chem. Workers of Quincy,

Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.

1988), and does not bear reiteration. Applying this test, we

conclude that, though the district court's decision perhaps can

be characterized as tough-minded, the court made no obvious

mistake either in isolating or in weighing the appropriate

factors. While attorneys are entitled to take vacations, a trial

lawyer who wishes to plan a lengthy pleasure trip has a

corresponding obligation to advise the judge and opposing counsel

well in advance, and to make appropriate arrangements for case

coverage in his absence. When, as now, an attorney fails to take

elementary precautions, and the trial court declines to alter

course, an appellate tribunal should not interfere without

compelling reason. After all, "[r]ules are rules and the

parties must play by them." Mendez, 900 F.2d at 7. Here,

appellants have articulated no plausible basis for us to

intervene.

Our conclusion that the district court did not err in

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denying appellants' Rule 6(b) motion ends our inquiry. Appellants

offer no developed argumentation to demonstrate that, on the

record as it stands, summary judgment could have been avoided.

The point is, therefore, effectively conceded. See Ryan v. Royal

Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled in

this circuit that issues adverted to in a perfunctory manner,

unaccompanied by some developed argumentation, are deemed to have

been abandoned."). The judgment in favor of Lopez-Feliciano must

stand.

VII.

Conclusion

We need go no further. Having examined the record with

care, we are satisfied that the appeal is properly before us. In

the exercise of that discerned jurisdiction, we conclude that the

court below did not err either in denying appellants further time

or in granting appellees' motions for summary judgment. Although

the rhetoric of supervisory liability reverberates from the pages

of appellants' briefs, the record contains no evidence of

culpability sufficient to relate the rhetoric to the reality of

events.

Affirmed.

Concurring opinion follows

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BOWNES, J., separately concurring. I concur in the
BOWNES, J., separately concurring.

result reached in this case and commend the writing judge for his

scholarly and clearly written discussion of supervisory

liability.

I concur in the result reached on the appellate

jurisdiction question, but I do not agree that the issue was

"excruciatingly close." I think the district court was clearly

correct in finding that "there is no just reason for delay."

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