Hart v. Verizon Communications, Inc.

Not for Publication in West's Federal Reporter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. 04-1287

JAMES H. HART,

Plaintiff, Appellant,

v.

VERIZON COMMUNICATIONS, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Lynch and Lipez,
Circuit Judges.

James H. Hart on brief pro se.
John P. McLafferty, Victoria Woodin Chavey and Day, Berry &
Howard LLP on brief for appellees.

March 29, 2005
 Per Curiam. Pro se plaintiff-appellant James H. Hart

("Hart") appeals from a judgment entered after a jury verdict

denying him relief under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a), for his sexual harassment claim, alleging

various trial errors. Hart also appeals from the prior dismissal

of his other claims. We affirm.1

Hart, who was represented by counsel at trial, did not

object to the alleged trial errors. Accordingly, our review is

only for plain error. Microfinancial, Inc. v. Premier Holidays

Int'l, Inc., 385 F.3d 72, 81 (1st Cir. 2004). Hart first argues

that the court erred by allowing defendant Verizon Communications,

Inc. ("Verizon") to introduce evidence of Hart's conviction for

operating a motor vehicle under the influence ("OUI"). In response

to Hart's pre-trial motion to preclude use of this conviction, the

court had initially limited Verizon's cross-examination to the

facts of his OUI arrest and prohibited Verizon from eliciting the

fact of his conviction. In response to questions about his arrest,

however, Hart volunteered that a juror had told him "You have

grounds for a mistrial." Hart later said that the arrest was

upsetting but the trial "was vindication for me after what

1
We do not address defendants' separate contention that
Hart's appeal fails because of his brief's flagrant failure to
comply with the procedural requirements of the Federal Rules of
Appellate Procedure. A pro se party is not insulated from
complying with those rules. Ahmed v. Rosenblatt, 118 F.3d 886, 890
(1st Cir. 1997). Because Hart's appeal lacks substantive merit, we
elect to proceed on that basis.

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happened." The court then permitted Verizon to inquire into the

result of that trial, without objection from Hart's counsel.

Because Hart opened the door to the actual result of his OUI trial,

the court did not err in allowing the inquiry into his conviction.

See, e.g., Beck v. Haik, 377 F.3d 624, 642 (6th Cir. 2004) (holding

that testimony of drowning victim's mother that victim "wasn't

convicted" when asked on cross-examination in civil rights action

whether he had ever gotten into trouble opened door to question

regarding whether victim had ever gone to prison). Hart also

argues that the court erred by allowing evidence of a prior

conviction for contempt. Verizon, however, never offered evidence

of that conviction.

Hart next argues that the court erred by excluding the

testimony and/or affidavits of certain present and former Verizon

employees. Hart never called any of them as witnesses or sought to

introduce any of their affidavits. Accordingly, there was no

error. See, e.g., Andrews v. Bechtel Power Corp., 780 F.2d 124,

140 (1st Cir. 1985) (noting that claim of error cannot be

predicated upon evidence which is never actually offered to court).

Hart further argues that the court erred in allowing an

improper comment by the court's clerk. There is no record of this

comment in the trial transcript. Nor did Hart ever bring it to the

district court's attention. Thus, the court could not have erred

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in failing to address an allegation articulated for the first time

on appeal.

Hart also argues that the court violated his due process

rights by dismissing his other claims prior to trial without

holding a hearing, despite his request for oral argument. Hart

contends that he should have been afforded a hearing because he was

proceeding pro se at the time. A pro se plaintiff is not

automatically entitled to a hearing. Here, Hart presented his

position in writing in his opposition to defendants' motion to

dismiss, and, more importantly, has not pointed to any relevant

factual question or legal theory that he was precluded from

bringing to the court's attention by lack of a hearing. Thus, this

claim has no merit.

We add a few comments. Hart's brief makes vague,

fragmentary and passing references to some other claims. We need

not consider them. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (noting that issues raised in perfunctory manner

are deemed waived). Also, Hart attaches to his brief a court order

dismissing a second action against Verizon. This action was filed

while the present case against Verizon was pending and dismissed on

res judicata grounds after final judgment had entered in this case.

Hart appealed from the dismissal of the second action, but the

appeal was dismissed after he failed to file an opening brief.

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While Hart appears to be seeking a second bite at the apple, that

second action is not properly before us.

Hart's motion for oral argument is denied.

The judgment of the district court is summarily affirmed.

See Loc. R. 27(c).

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