Rose v. Laskey

Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 United States Court of Appeals For the First Circuit No. 03-2168 SYDNEY A. ROSE, Plaintiff, Appellant, v. FREDERICK LASKEY, as Commissioner of Revenue, Commonwealth of Massachusetts Department of Revenue, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge] Before Selya, Circuit Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge. Sydney A. Rose on brief pro se. Matthew Q. Berge, Assistant Attorney General, and Thomas F. Reilly, Attorney General, on brief for appellee. September 29, 2004 Per Curiam. We affirm the judgment substantially for the reasons enumerated by the district court in its opinion dated July 10, 2003, adding only the following comments. First. We decline to consider the non-record "evidence" proffered by plaintiff on appeal. See, e.g., United States v. Rosario-Peralta, 175 F.3d 48, 56 (1st Cir. 1999) ("It is elementary that evidence cannot be submitted for the first time on appeal."). Plaintiff's contention that he was deprived of an adequate opportunity to develop the record below is mistaken. Defendant's summary judgment motion was filed within the time prescribed by the scheduling order, after discovery had closed. And plaintiff neither moved for relief under Fed. R. Civ. P. 56(f) nor voiced any such complaint in his summary judgment opposition. (He sought an extension to file his opposition only because he was "in the process of moving"; no mention was made of difficulties in obtaining his medical records.) That plaintiff may have been unfamiliar with his evidentiary burden at the summary judgment stage provides no basis for appellate relief. See, e.g., FDIC v. Anchor Properties, 13 F.3d 27, 31 (1st Cir. 1994) (noting that litigant's pro se status does not absolve him from compliance with the federal rules). We might add that the outcome of this appeal would be the same even if the newly proffered materials were considered. Second. Plaintiff contends that a genuine issue of material -2- fact remained as to whether a true threat of violence was involved here. Yet he acknowledges making the reference to the Wakefield tragedy at the end of a heated exchange with his supervisor. Whatever plaintiff's ultimate intention, defendant cannot be faulted for taking this threat at face value. In analogous contexts, courts have not hesitated to reject claims under the Americans with Disabilities Act. See, e.g., Sullivan v. River Valley School Dist., 197 F.3d 804, 813 (6th Cir. 1999) ("threatening other employees disqualifies one from a job") (citations and internal quotation marks omitted); Chapa v. Adams, 168 F.3d 1036, 1039 (7th Cir. 1999) ("people who threaten to kill their supervisors are not