Rogan v. City of Boston

United States Court of Appeals
For the First Circuit

No. 00-1828

SHANNON ROGAN,

Plaintiff, Appellant,

v.

CITY OF BOSTON ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella and Selya, Circuit Judges,

and Lisi,* District Judge.

Sherman Rogan on brief for appellant.
Merita A. Hopkins, Corporation Counsel, and Eve A. Piemonte
Stacey, Assistant Corporation Counsel, on brief for appellees.

October 5, 2001

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*Of the District of Rhode Island, sitting by designation.
 SELYA, Circuit Judge. On March 15, 1996, plaintiff-

appellant Shannon Rogan suffered serious personal injuries when

a motor vehicle she was driving collided with a trolley car

operated under the auspices of the Massachusetts Bay

Transportation Authority (MBTA). We canvassed the pertinent

facts on an earlier occasion, see Rogan v. Menino, 175 F.3d 75,

76-77 (1st Cir. 1999) (Rogan II), and it would be pleonastic to

rehearse them here. For the purpose at hand, it suffices to

note that, immediately following the accident, officers from

both the MBTA and the City of Boston converged on the scene. 1

Pursuant to an unofficial departmental policy, the Boston police

officers, John McDonough and Robert Colburn, relinquished

control of the investigation to the MBTA.

In due course, an MBTA police officer cited the

plaintiff for failure to yield. Believing the citation to be

unfounded, the plaintiff sought judicial review. A state

district judge found her responsible for failing to yield. The

plaintiff eschewed a further appeal, instead paying a $50 fine.

1 The MBTA has its own police and shares jurisdiction over
certain matters with the Boston police department. See Act of
July 19, 1968, ch. 664, 1968 Mass. Acts 547 (creating a separate
police force to function with the MBTA's territorial authority
and investing its officers with powers equivalent to those of
municipal police officers).

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 That was not the end of the matter. Invoking 42 U.S.C.

§ 1983, the plaintiff sued a multitude of defendants — the two

responding officers (McDonough and Colburn), the City of Boston,

three municipal officials, the MBTA, and several MBTA employees

— in the federal district court. She claimed, inter alia, that

McDonough, Colburn, and the municipal officials had impaired her

access to the courts when they ceded control of the

investigation to the MBTA (which, she averred, had a financial

interest in the outcome of the investigation and shaped its

findings accordingly).

The plaintiff eventually settled her state-court tort

suit against the MBTA and, as part of the settlement, dismissed

the MBTA defendants from this action. The district court

disposed of the plaintiff's claims against the remaining

defendants in stages. First, the court, acting on a motion

brought pursuant to Fed. R. Civ. P. 12(b)(6), dismissed all

individual-capacity claims against the mayor (Menino), the

police commissioner (Evans), and a third municipal official

(DiMarzio). Rogan v. Menino, 973 F. Supp. 72, 77 (D. Mass.

1997) (Rogan I). The plaintiff then dropped her official-

capacity claims against Mayor Menino. Finally, the district

court, acting on its own initiative, entered summary judgment

adverse to the plaintiff on the remainder of the claims.

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 The plaintiff appealed both the Rule 12(b)(6) order and

the sua sponte summary judgment. This court upheld the

dismissal of the individual-capacity claims, but vacated the

grant of summary judgment on procedural grounds. Rogan II, 175

F.3d at 81. On remand, the remaining defendants — McDonough,

Colburn, and the City of Boston — formally moved for summary

judgment, see Fed. R. Civ. P. 56(c), and the district court

granted the motion. This appeal followed.

We review the district court's entry of summary

judgment de novo, construing the record and all reasonable

inferences therefrom in favor of the nonmoving party (here, the

plaintiff). N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35,

37 (1st Cir. 2001). We keep firmly in mind that summary

judgment is appropriate only "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c).

Summary judgment practice has its own rhythm. Where,

as here, the initiators are the defendants, they must begin the

movement by averring the absence of any evidence sufficient to

support some necessary element of the plaintiff's case.

Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st

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Cir. 1994). To avoid summary judgment, the plaintiff then must

sound a contrapuntal note, pointing to evidence in the record

sufficient to establish the existence of a "genuine" issue of

"material" fact anent the disputed element(s). Id. A genuine

issue exists if the record evidence is such that a reasonable

factfinder could resolve it either way. Id. A fact is material

if its existence vel non "affects the outcome of the suit" so

that it "needs to be resolved before the related legal issues

can be decided." Id. (citation and internal punctuation

omitted).

Summary judgment motions are decided on the record as

it stands, not on the pleadings or on the nonmovant's vision of

what facts might some day be unearthed by the litigation

equivalent of an archeological dig. Consequently, a plaintiff

who aspires to ward off a properly documented motion for summary

judgment must produce enough proof to enable her case to get to

a jury. Perez v. Volvo Car Corp., 247 F.3d 303, 313 (1st Cir.

2001). This obligation cannot be satisfied by conclusory

allegations, empty rhetoric, unsupported speculation, or

evidence which, in the aggregate, is less than significantly

probative. Maldonado-Denis, 23 F.3d at 581; Medina-Munoz v.

R.J. Reynolds Tobacco Corp., 896 F.2d 5, 8 (1st Cir. 1990).

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 Against this backdrop, we turn to the plaintiff's

claims. The statute under which she sues, 42 U.S.C. § 1983,

provides in pertinent part that "every person who, under color

of a statute, ordinance, regulation, custom, or usage . . .,

subjects, or causes to be subjected, any citizen of the United

States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured." In other words, section 1983 "supplies

a private right of action against a person who, under color of

state law, deprives another of rights secured by the

Constitution or by federal law." Evans v. Avery, 100 F.3d 1033,

1036 (1st Cir. 1996).

To maintain such a cause of action, the plaintiff — who

has the burden of proof — first must show official conduct, that

is, an act or omission undertaken under color of state law.

Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st

Cir. 1996). That is not a problem here; the municipal

defendants plainly were acting under color of Massachusetts law.

But the plaintiff also must show that the defendants' acts or

omissions caused a constitutional injury. Rogan's case founders

on this shoal. We explain briefly.

To satisfy the "constitutional injury" requirement, the

plaintiff must make a showing of a deprivation of a federally-

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secured right. Baker v. McCollan, 443 U.S. 137, 142 (1979);

Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). It is the

law of the case that the policy of transferring accidents

involving MBTA vehicles to the MBTA police is not, in and of

itself, unconstitutional. Rogan II, 175 F.3d at 78 (declaring

that "there is no constitutional prohibition against

organizational schemes that lodge self-investigative powers

within a government agency"). This leaves the plaintiff, on her

pleadings, with two possible avenues of attack.

The most obvious avenue would be to show an

unconstitutional implementation of the transfer policy. See

City of Canton v. Harris, 489 U.S. 378, 386-87 (1989)

(concluding that, under certain circumstances, a policy that is

constitutional on its face may be applied in an unconstitutional

manner, thus implicating section 1983). Here, however, the

plaintiff makes only a token effort to travel this road. She

offers no significantly probative evidence that the MBTA

officers deliberately skewed their investigation, let alone that

the municipal defendants knew (or had reason to believe) that

such a charade would occur.

The plaintiff pursues the second avenue with more

vigor: she endeavors to make the requisite showing of

constitutional injury based on a denial of meaningful access to

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the courts. Theoretically, she is on solid ground. There is a

constitutional right of access to the courts. See Wolff v.

McDonnell, 418 U.S. 539, 579 (1974); Inmates of Suffolk County

Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997). It follows,

therefore, that "[i]t can be a deprivation of life, liberty, or

property, without due process of law, in violation of the

Fourteenth Amendment, for state officials to deny a person

adequate, effective, and meaningful access to the courts."

Germany v. Vance, 868 F.2d 9, 11 (1st Cir. 1989) (citation and

internal quotation marks omitted). But theory is one thing and

reality is quite another. As a practical matter, the

plaintiff's effort to limn a denial of access to the courts

falls short.

The plaintiff's thesis is not easily extracted from the

harsh rhetoric and tangled ratiocination that permeates her

brief. As best we can tell, her argument seems to be that the

defendants are liable because they shifted responsibility for

the accident investigation to the MBTA police who, she

theorizes, had a conflict of interest which led them to conduct

a biased investigation and cover up the real cause of the

accident (the trolley driver's negligence). This conflict of

interest, the plaintiff says, arises out of the mutual

employment of the MBTA police and the trolley car operator,

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presumably on the basis that, if the trolley driver were held

responsible for the accident, the MBTA would be exposed to

financial risk (i.e., money damages). In this way, the

municipal defendants allegedly deprived the plaintiff of an

impartial investigation, and, thus, of meaningful access to the

judicial process (including an opportunity to obtain more

generous recompense in her tort action).

This thesis has several flaws. The perceived link

between the investigation and the plaintiff's tort suit seems

tenuous at best, especially since under Massachusetts law, the

plaintiff's conviction on the failure-to-yield charge would not

have been admissible in evidence in a trial of that suit. See

LePage v. Bumila, 407 Mass. 163, 164-65 (Mass. 1990) (holding

that the payment of a fine pursuant to a traffic citation does

not constitute an evidentiary admission). Moreover, the

plaintiff, in fact, was able to pursue her personal injury

claim, and she received a substantial settlement ($710,000). We

need not belabor these points, however, because the summary

judgment record contains no evidence whatsoever that the MBTA

investigation was partial or that the municipal defendants had

any reason to suspect that it would be. To cinch matters, the

record reveals a similar dearth of evidence that any MBTA

investigations were marked by partiality, or that the

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defendants, based on their experience, were on notice that the

MBTA had played fast and loose on prior occasions (or would do

so on this occasion).

To bridge these chasmal gaps, the plaintiff baldly

asserts that the MBTA's financial interest in the outcome of the

investigation somehow creates a presumption of partiality. She

is wrong. Accusations of bias are not self-elucidating. Thus,

a plaintiff who alleges a pattern and practice of partiality

must, when faced with a motion for summary judgment, offer some

significantly probative evidence to support that charge.

Indeed, in situations in which a presumption exists, the

presumption is that government officials are impartial in the

administration of responsibilities arising within the scope of

their employment.2 See Withrow v. Larkin, 421 U.S. 35, 47

(1975); United States v. Morgan, 313 U.S. 409, 421 (1941);

Brasslett v. Cota, 761 F.2d 827, 837 (1st Cir. 1985). Were the

law otherwise, federal agencies would be hamstrung whenever they

2In support of her contention that partiality may be
presumed without proof, the plaintiff cites Ward v. Vill. of
Monroeville, 409 U.S. 57 (1972). That case bears on the
neutrality of officials performing judicial or quasi-judicial
functions. See id. at 59-60. The plaintiff's claim of
institutional bias on the part of the MBTA investigators
presents a significantly different problem. Ward is, therefore,
inapposite. See Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395,
1405-07 (4th Cir. 1995); Hammond v. Baldwin, 866 F.2d 172, 177
(6th Cir. 1989).

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had reason to investigate crimes against the United States or

tort claims involving federal employees.

The plaintiff's cause is not aided by her denunciatory

charge that the citation issued by the MBTA for failure to yield

was "intended to provide leverage to diminish her claim for

damages." Appellant's Br. at 15. That is rank conjecture. As

the plaintiff provides us with no evidence to support the

accusation, it can play no role in the summary judgment

calculus.3 See Maldonado-Denis, 23 F.3d at 581; Medina-Munoz,

896 F.2d at 8.

The short of it is that the plaintiff has mustered no

proof that the MBTA's investigation was anything less than

pristine on this (or any other comparable) occasion. By the

same token, she has adduced no evidence to show that the

municipal defendants knew, or had reason to know, of any

irregularity in the MBTA's discharge of its investigatory

functions. These deficits are fatal. See, e.g., Corrada

Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir.

2001) (warning that a plaintiff who opposes summary judgment but

fails to marshal evidence in support of her position has little

3
At any rate, the undisputed evidence that a state court
judge, unaffiliated with the MBTA, found the plaintiff guilty of
failure to yield tends to contradict the notion that the MBTA
officers issued the citation for an improper purpose.

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prospect of success); Kelly v. United States, 924 F.2d 355, 358-

59 (1st Cir. 1991) (similar).

We need go no further.4 Here, as in Maldonado-Denis,

23 F.3d at 586, "[a]lthough the rhetoric of [constitutional

injury] reverberates from the pages of [the plaintiff's]

brief[s], the record contains no evidence of [a violation]

sufficient to relate the rhetoric to the reality of events."

Since the plaintiff failed to present any proof of a

constitutional injury, the district court did not err in

granting the defendants' motion for brevis disposition.

Affirmed.

4The absence of a constitutional injury suffices to doom the
plaintiff's claim, rendering it unnecessary for us to consider
the other formidable obstacles (e.g., qualified immunity) that
block her path.

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