April 12, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-2099
TIMOTHY DAVIS,
Plaintiff, Appellant,
v.
MASSACHUSETTS STATE LOTTERY COMMISSION
and DANIEL KINNEY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Circuit Judge,
Aldrich and Bownes, Senior Circuit Judges.
John A. Morrissey with whom Law Offices of James C. Gahan, Jr.
was on brief for appellant.
Marie St. Fleur, Assistant Attorney General, with whom Scott
Harshbarger, Attorney General, was on brief for appellees.
Per Curiam. Plaintiff-appellant Timothy Davis, an
employee of the Massachusetts State Lottery Commission, sued
the Commission and Daniel Kinney, his supervisor, for
violation of civil rights, racial discrimination, infliction
of emotional distress, and improper layoff, stemming from his
dismissal by the Commission on May 1, 1991.1 Defendants
moved to dismiss for failure to state a claim upon which
relief could be granted. The court granted the motion, but
later allowed plaintiff's Motion for Reconsideration,
permitting him to file an amended complaint adding a count
(Count VI) seeking compensatory and punitive damages for
violation of his federally protected rights after November
21, 1991, the date of the Civil Rights Act of 1991, 42 U.S.C.
1981a(b)(1). In due course, defendants moved for summary
judgment on all claims. This motion, also, was granted,
incorporating, but simply by reference, the court's earlier
Memorandum and Order. We affirm.
The obligatory appendix which plaintiff filed for
this appeal totally disregards Federal Rule of Appellate
Procedure 30. Except for a copy of Count VI, none of the
required items is present. Instead are some 60 pages,
largely memoranda of law filed in the district court. These
the Rule expressly forbids. FRAP 30(a). Nor does reference
to such filings meet brief requirements. FRAP 28. We will
1. Following arbitration, the improper layoff was corrected.
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not consider them. Plaintiff did attach to his appellate
brief the court's Memorandum and Decision granting summary
judgment for defendants on Count VI, but failed to include
anywhere the court's earlier memorandum dismissing Counts I-
V. FRAP 30(a)(3).
In granting defendants' motion for summary
judgment, the court set the course for plaintiff's appeal:
"I find that he has failed to meet his burden of establishing
a prima facie case of unlawful discrimination after November
21, 1991." Plaintiff's filings do not enable us to find
otherwise. The (very) occasional references in his brief to
alleged evidence of continuing discrimination after his
reinstatement consist of cryptic allusions to: "Davis Depo.";
"A copy of his affidavit in this regard is annexed hereto."
(It was not); "Kelly Depo., p. 38-51" (also not included in
the appendix); and "Memorandum in Support of Opposition to
the Motion for Summary Judgment . . . pages 12 through 16."
Finally, in an attempt to rebut the court's exposition of how
he failed to make out a prima facie case on Count VI,
plaintiff points to his amended complaint as "establish[ing]
genuine issues of material fact which render summary judgment
inappropriate." He states he has "detailed harassment,
retaliation, and continuing acts of discrimination by
Defendants," without reference to the record other than the
complaint. In lieu, "Davis respectfully refers to pages 16
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through 19 of his Memorandum," which, as already noted, was
improperly filed.
All this is meaningless. Fundamentally, without
specific facts, the non-moving party (plaintiff) "may not
rest upon the mere allegations of [its] pleading" to defend
against summary judgment for the defendant. Fed.R.Civ.P.
56(e). Ramsdell v. Bowles, 64 F.3d 5, 11 (1st Cir. 1995).
Plaintiff presents neither facts nor law to make out a case.
This is an extraordinary waste of time. The appeal
is dismissed on the opinion below.
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Davis v. MA. State Lottery
Combined Opinion