Ahmed, M.D. v. Berkshire

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1496 SHEIKH BASHIR AHMED, M.D., Plaintiff, Appellant, v. BERKSHIRE MEDICAL CENTER, INC., Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Frank H. Freedman, Senior U.S. District Judge] Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge. Sheikh Bashir Ahmed on brief pro se. John F. Rogers, Kevin M. Kinne and Cain, Hibbard, Myers & Cook on Memorandum in Support of Motion for Summary Disposition for appellee. October 5, 1999 Per Curiam. Plaintiff Sheikh Bashir Ahmed, M.D. was hired in 1991 by defendant Berkshire Medical Center (BMC), a teaching hospital affiliated with the University of Massachusetts medical school, for a one-year position as a second-year medical resident. He was discharged some eight months later, allegedly because of unsatisfactory performance. Claiming wrongful termination, plaintiff brought this pro se action seeking relief on various federal and state law grounds. He now appeals from an award of summary judgment for defendant. Although a number of issues have been raised, the appeal effectively hinges on a pair of procedural rulings made by the district court. We find no error in those respects and otherwise affirm substantially for the reasons recited by the district court. Plaintiff first contends that the district court erred in denying his request to extend the discovery deadline. "We will overturn a court's denial of a motion to extend discovery only for abuse of discretion." Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 869 (1st Cir. 1997). No such abuse is apparent here. Plaintiff's principal complaint in this regard was that defendant refused to produce requested documents. Yet that accusation was never substantiated and, even if true, would not have precluded plaintiff from engaging in discovery. His related complaint about defendant's allegedly "evasive" answers to interrogatories is similarly unavailing. And plaintiff's final objection--that defendant and others had subjected him to "oppressive" lawsuits in various forums--overlooks the fact that it was he who initiated those actions. Plaintiff also challenges the court's allowance of defendant's motion to strike portions of his summary judgment affidavit. The provisions in question, the court ruled, consisted variously of hearsay statements or legal conclusions or speculative assertions--and thus did not satisfy the standards of personal knowledge, admissibility and competence required by Fed. R. Civ. P. 56(e). See, e.g., Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998) ("Evidence that is inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment."). We perceive no error. "The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint ... with conclusory allegations of an affidavit." Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6 (1st Cir. 1998) (quoting Jones v. Merchants Nat'l Bank & Trust Co. of Indianapolis, 42 F.3d 1054, 1059 (7th Cir. 1994)). Yet that is essentially what plaintiff has done. His insistence that he had "personal and sensory knowledge" of all the recited facts does not overcome their conclusory or hearsay nature. Nor has any foundation been established for invoking Fed. R. Evid. 801(d)(2)(D). Plaintiff's substantive claims consist of allegations that defendant: discriminated against him on the basis of national origin, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981, 1983 & 1985(3); deprived him of property without due process of law; breached his employment contract; and harmed his professional reputation. Based on the lopsided factual record presented, these claims all prove clearly meritless. We affirm the dismissal thereof substantially for the reasons enumerated by the district court. With respect to the due process claim, we add that no need arises to determine whether BMC was a "state actor," inasmuch as the four-step review procedure provided plaintiff with all process that was due. See, e.g., Hankins v. Temple University, 829 F.2d 437, 444-45 (3d Cir. 1987). For the reasons cited below, we also find no error in the court's denial of plaintiff's motion to amend his complaint. Affirmed. See Loc. R. 27.1. The motion to supplement evidence on appeal is denied, and the motion to "discard affidavit" is denied as moot.