Cronin v. Town of Amesbury

United States Court of Appeals
For the First Circuit

No. 95-1957

MICHAEL A. CRONIN, ET AL.,

Plaintiffs-Appellants,

v.

TOWN OF AMESBURY, ET AL.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Stahl and Lynch,

Circuit Judges.

Peter Antell, with whom Antell & Associates and J. Daniel Lindley

were on brief, for appellants.
Joseph L. Tehan, Jr., with whom Kurt B. Fliegauf and Kopelman and

Paige, P.C. were on brief, for appellees Town of Amesbury, Amesbury

Police Department, Board of Selectmen of the Town of Amesbury, Daniel
F. Cleary, R. Claude Gonthier, John M. Koelsch, Joseph E. Leary,
William R. McAdams, George A. Motsis, Donna L. Stuart and Charles B.
Wright.
Maura L. Sheehan, with whom Law Offices of Attorney Maura L.

Sheehan was on brief, for appellees Daniel L. Bartley and Nancy

Gonthier.

April 16, 1996

Per curiam. This case arises out of the decision
Per curiam.

of the Town of Amesbury, Massachusetts to fire Michael A.

Cronin from his position as the Town's Chief of Police. The

Town terminated Cronin for falsely denying under oath that he

had written a pornographic letter that was found in his desk

at the Amesbury Police Department. In a fifteen-count

complaint, Cronin alleged that the Town's Board of Selectmen,

two Town Managers, a number of police officers (collectively

the "Town defendants") and two private citizens (Daniel L.

Bartley and Nancy Gonthier) terminated him in violation of 42

U.S.C. 1983 and 1985(3) and state law. The district court

granted summary judgment for the Town defendants on the

1983 and 1985(3) counts (Counts I, II and XV) and dismissed

the state law counts, without prejudice, for lack of subject

matter jurisdiction.1 Cronin has appealed.

The district court, in its careful review of the

case, see Cronin v. Town of Amesbury, 875 F. Supp. 375 (D.

Mass. 1995), adequately recited the pertinent undisputed

facts and there is no need to repeat them in detail here.

Essentially, the facts showed that in early 1988 a Town

police officer, Charles Wright (one of the defendants here),

found in Cronin's desk a pornographic letter written on

1. The district court entered a separate order granting a
Rule 12(b)(6) motion filed on behalf of Nancy Gonthier and
Daniel Bartley dismissing the federal counts with prejudice
and the state counts without prejudice.

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yellow lined paper and signed "Mike." Copies were made and,

in February 1991, one copy was shown to members of the Board

of Selectmen. After a secret meeting, the Town suspended

Cronin with pay.

A series of investigations by Town Managers into

Cronin's fitness to serve as police chief followed. The Town

Managers' investigations, which occurred between 1991 and

1993, focussed on the letter and on other alleged acts of

misconduct. The first Town Manager to investigate, Joseph

Fahey, recommended that three charges be brought against

Cronin and that he be given a 60-day suspension. The Town

subsequently fired Fahey and replaced him with Donna Stuart,

who, one day after being appointed, brought nine charges

against Cronin. Public hearings on the nine charges were

held in front of a civil service hearing officer, Nicholas

Foundas. During those hearings, the letter was made an

exhibit and Cronin denied under oath that the letter was his.

On July 7, 1992, Foundas found Cronin guilty of only two of

the nine charges and recommended a 90-day suspension. He

also found that Cronin had written the letter, but that it

had no bearing on his duties. Cronin appealed Foundas's

decision to the Civil Service Commission.

Before the Civil Service Commission decided

Cronin's appeal, however, a number of other events

transpired. First, Town Manager Stuart demoted Cronin to

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sergeant. Second, the Board of Selectmen released the letter

to the press. Third, in October 1992, Stuart was replaced by

a new Town Manager, John M. Koelsch, who brought two new

charges against Cronin -- (1) lying under oath when he denied

authorship of the letter at earlier hearings and (2) conduct

unbecoming an officer. Koelsch's charges were prompted by

Daniel Bartley and Nancy Gonthier, private citizens who

complained that Cronin had lied under oath about authorship

of the letter. After bringing the charges, Koelsch

designated himself hearing officer. On June 17, 1993, he

found that Cronin had lied about authorship of the letter

and, in so doing, had acted in a manner unbecoming a police

officer. Cronin was then terminated. Cronin immediately

appealed Koelsch's decision to the Civil Service Commission.

On July 20, 1993, the Civil Service Commission

reversed Foundas's decision, recommending that Cronin be

restored to his previous position, with back pay. As of this

court's inquiry at oral argument, the Civil Service

Commission has not yet decided Cronin's appeal from Koelsch's

decision.

Section 1983 Claims

Cronin's 1983 claims allege that the Town

defendants deprived him of procedural due process when they

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terminated him.2 However, even assuming for the purposes of

this appeal that the Town defendants failed to give Cronin

the procedure he was due in making the decision to terminate

him (an issue on which we take no position), Cronin cannot

succeed on his procedural due process claim unless he can

show that the state failed to provide him with an adequate

postdeprivation remedy. See Lowe v. Scott, 959 F.2d 323,

340-41 (1st Cir. 1992) ("[I]f a state provides adequate

postdeprivation remedies -- either by statute or through the

common-law tort remedies available in its courts -- no claim

of a violation of procedural due process can be brought under

1983 against the state officials whose random and

unauthorized conduct caused the deprivation.").

Here, the state has provided an adequate

postdeprivation remedy. Massachusetts has provided Cronin

with extensive postdeprivation remedies in the form of the

Civil Service Law. See Mass. Gen. L. ch. 31, 41-44. Any

2. Cronin, who under state law can only be terminated for
"just cause," see Mass. Gen. L. ch. 31, 41, has a protected

property interest in his employment and thus may invoke the
protection of the due process clause. See Cummings v. South

Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993). In

invoking his procedural due process claims, Cronin does not
seriously argue that the established state pre-termination
procedures are deficient. Rather, Cronin's claims rest on
alleged random and unauthorized acts by the Town defendants.
See Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). He

generally argues that the Town defendants were out to get
him, and, with respect to the termination specifically, he
argues that Koelsch was biased and made evidentiary errors.

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person aggrieved by a decision of the "appointing

authority"3 may appeal to the Civil Service Commission and

be given a hearing before a member of the Commission or some

disinterested person. The Commission may affirm or reverse

the action of the appointing authority. If the appointing

authority's decision is reversed, the employee must be

reinstated without loss of compensation or other rights. If

the employee is dissatisfied with the Civil Service

Commission's decision, he or she may appeal to the Superior

Court. See Mass. Gen. L. ch. 31, 44.

Cronin complains that the Civil Service Commission

has taken too long to decide his appeal from Koelsch's

decision. Although extraordinarily long delays may render a

postdeprivation remedy inadequate, that is not the case here.

See Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st

Cir. 1984) (two and one-half year litigation was not

inordinate delay). Despite the almost three-year delay, the

possibility of reinstatement with back pay remains available

to him. See Decker v. Hillsborough County Attorney's Office,

845 F.2d 17, 22 (1st Cir. 1988) (although there had been

delay, New Hampshire had not yet refused to provide plaintiff

3. Koelsch, as Town Manager, was the appointing authority.
See Mass. Gen. L. ch. 31, 1; see also Amesbury Town

Charter, Art. 4, 4-21(b).

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with a remedy). We affirm the district court's dismissal of

the 1983 claims.4

Section 1985(3) Claim

Cronin also argues that the district court

erroneously granted summary judgment on his 1985(3) claim

against the Town defendants and erroneously dismissed his

1985(3) claim filed against Nancy Gonthier and Daniel

Bartley. Section 1985(3), which prohibits conspiracies to

deprive persons of rights or privileges, requires an

"invidiously discriminatory animus" in which the defendants

have taken the action because of "its adverse effects upon an

identifiable group." Bray v. Alexandria Women's Health

Clinic, 113 S. Ct. 753, 760-61 (1993) (internal quotations

omitted). No such animus was even alleged here. Summary

judgment was properly entered in favor of the Town defendants

and dismissal was properly granted for Nancy Gonthier and

Daniel Bartley.

4. Cronin also argues (1) that the Town defendants violated
his procedural due process rights when they suspended him
with pay and when they demoted him to sergeant; and (2) that
the Town defendants violated his right to petition, his right
to confrontation, and his right to privacy (although he has
been unable to articulate any cognizable theory). These
arguments are without merit. Appellants' additional
arguments, (1) that the district court erred in dismissing
the state law claims, (2) that the district court erred in
its various rulings on discovery practices, and (3) that the
district court erred in denying appellants' motion for relief
from judgment, are also all meritless.

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Gonthier and Bartley's Motion for Damages and Costs

Notwithstanding the obvious correctness of the

district court's dismissal of the 1985(3) count lodged

against Gonthier and Bartley, Cronin has sought appellate

review of the dismissal. Gonthier and Bartley have filed a

separate motion for damages and costs under Fed. R. App. P.

38 and Cronin has responded.5 Federal Rule of Appellate

Procedure 38 provides that if an appellate court "determines

that an appeal is frivolous, it may, after a separately filed

motion or notice from the court and reasonable opportunity to

respond, award just damages and single or double costs to the

appellee." Fed. R. App. P. 38. An appeal is frivolous if

the result is obvious or the arguments are "wholly without

merit." Westcott Constr. Corp. v. Fireman's Fund of N.J.,

996 F.2d 14, 17 (1st Cir. 1993) (internal quotations

omitted). "[I]t is enough that the appellants and their

attorney should have been aware that the appeal had no chance

of success." E.H. Ashley & Co., Inc. v. Wells Fargo Alarm

Servs., 907 F.2d 1274, 1280 (1st Cir. 1990) (emphasis

omitted).

Even a cursory reading of the relevant case law and

treatises would have revealed that the 1985(3) claim was

not properly brought. Not surprisingly, Cronin failed to

5. Cronin's response was filed ten days after Gonthier's and
Bartley's motion was filed.

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articulate in his brief any reasoned basis for why the

district court erroneously dismissed the 1985(3) count. He

instead pressed a bizarre and irrelevant argument that

Federal Rule of Civil Procedure 54(b) precluded the district

court from entering a separate judgment for Gonthier and

Bartley. When the appellees in their brief properly noted

that the Rule 54(b) argument was baseless, Cronin used the

reply brief to try to transform his Rule 54(b) argument into

a variant of a pendent party jurisdiction argument. Such a

pendent party argument was never raised before the district

court nor in the initial briefing on appeal. One might think

that Cronin created such an argument to conceal the fact that

the appeal from the dismissal of the claims against Gonthier

and Bartley was wholly without merit.

A penalty is appropriate here. Rule 38 allows the

award of attorneys' fees as "just damages" for frivolous

appeals. See Natasha, Inc. v. Evita Marine Charters, Inc.,

763 F.2d 468, 472 (1st Cir. 1985); see also Fed. R. App. P.

38 advisory committee's notes. This court can assess a

particular amount or "reasonable counsel fees" as damages

without additional submissions by the parties. Natasha, 763

F.2d at 472 (internal quotations omitted); see also Tomczyk

v. Blue Cross & Blue Shield United of Wisconsin, 951 F.2d

771, 779-80 & n.4 (7th Cir. 1991), cert. denied, 504 U.S. 940

(1992). Gonthier and Bartley assert that they have incurred

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legal fees in responding to this appeal of $2,725.00,

exclusive of costs. We believe such fees are reasonable and

assess that amount as just damages to the appellees. We also

assess double costs.

The bulk of the blame for the frivolous appeal

rests with appellants' attorney. An attorney's duty to

represent a client zealously is not a license to harass.

When the appellants' attorney sought to appeal the district

court's dismissal of the 1985(3) claim against Gonthier and

Bartley, he crossed the line from zealous advocacy to

vexatious advocacy, needlessly multiplying the proceedings in

this case. Under such circumstances, it is appropriate to

sanction the attorney personally for the excess costs,

expenses and attorneys' fees reasonably incurred. See Fed.

R. App. P. 38; 28 U.S.C. 1927; Cruz v. Savage, 896 F.2d

626, 635 (1st Cir. 1990) (frivolous appeal warranted

assessment of double costs and attorneys' fees against

attorney under Rule 38 and 1927). We therefore apportion

the damages award and order that $2,500.00 of the award be

assessed directly against appellants' attorney.6 The

remaining $225.00 shall be assessed against appellant Michael

6. The award of damages against appellants' attorney shall
run against Peter Antell, not J. Daniel Lindley, who was
allowed to withdraw as counsel for appellants.

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Cronin.7 Double costs shall be born jointly and severally

by Michael Cronin and appellants' attorney.

Affirmed. Appellees' Motion for Damages for

Frivolous Appeal is granted, with double costs and damages to

be apportioned in the manner prescribed in this opinion. It

is so ordered.

7. No costs or damages are assessed against the other
appellants, Gail Cronin and Angel Cronin.

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