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               Not for Publication in West's Federal Reporter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