Monge v. Cortes

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 06-2286

ALEXANDER MONGE,

Plaintiff, Appellant,

v.

ANGEL CORTÉS ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Stafford,** Senior District Judge.

Peter John Porrata on brief for appellant.
Ivonne Cruz-Serrano on brief for appellees Cortés, Marín,
Aquino, and Díaz.
Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas and Maite D. Oronoz-Rodríguez, Deputy Solicitors
General, and Susana I. Peñagaricano-Brown, Assistant Solicitor
General, on brief for remaining appellees.

May 25, 2007

*
Of the Northern District of Florida, sitting by designation.
 Per Curiam. It is trite, but true, that civil trials are

most often won or lost in the district court. This appeal involves

a plaintiff who paid scant attention to the ground rules that

governed the district court proceedings. He now belatedly attempts

to right his sinking ship. His effort founders.

The dispute between the parties had its genesis in an

incident that occurred at the Puerto Rico Medical Center, a

government-run facility, on June 26, 2003. The details of that

incident are chronicled in Monge v. Cortés, 413 F. Supp. 2d 42, 45-

49 (D.P.R. 2006) (Monge I), and we assume the reader's familiarity

with that rescript.

In brief, the plaintiff, Alexander Monge, alleges that

six named defendants — five security guards (one an officer) and a

policeman — accosted him because they were disgruntled with his

choice of a parking spot at the medical center. According to

Monge, four of the defendants used excessive force against him

while the other two failed to intervene (and, thus, all six

violated his constitutional rights).

Monge made those allegations the centerpiece of a federal

civil rights suit that he filed pursuant to 42 U.S.C. § 1983 on

June 23, 2004.1 The defendants denied the pivotal allegations of

the complaint.

1
The suit also contained supplemental statements of claim
under Puerto Rico law, but Monge has eschewed any separate
discussion of those claims.

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 In the ordinary course, the district court issued a case-

management order and set a finite period for pretrial discovery.

Following the expiration of that period, all six defendants moved

for summary judgment. The plaintiff secured an extension of time

for responding but then permitted the new deadline to pass without

obtaining a further extension.2

The record reflects that the plaintiff — contrary to the

assertions in his appellate brief — did not file a timely

opposition to the summary judgment motion. The district court

deemed the motion unopposed; adopted the movants' facts as stated,

see D.P.R. R. 56(e); and granted summary judgment in favor of two

movants (Juan Matos and José Torres). See Monge I, 413 F. Supp. 2d

at 52-54.3 However, the court denied the motion as to the four

remaining defendants, namely, Angel Cortés, Miguel Marín, Carlos

Aquino, and Gilberto Díaz. See id. at 50-52.

The case against those four defendants went to trial on

February 8, 2006. The jury heard the evidence and, on February 15,

returned a take-nothing verdict. Monge moved for a new trial, see

Fed. R. Civ. P. 59(a), and for relief from judgment, see Fed. R.

Civ. P. 60(b). The trial court denied both entreaties. See Monge

2
The plaintiff did belatedly seek a further extension of time
but never received one.
3
In a subsequent opinion, issued during the trial, the
district court explained in some detail why it had accepted the
movants' facts. See Monge v. Cortés 413 F. Supp. 2d 54 (D.P.R.
2005) (Monge II).

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v. Cortés, No. 04-1596, slip op. (D.P.R. July 21, 2006)

(unpublished) (Monge III). This timely appeal followed.

We abjure the temptation to write at length but, rather,

explain briefly why we find this appeal to be utterly without

merit.

First: The plaintiff vigorously attacks the entry of

summary judgment in favor of the defendants Matos and Torres, the

lower court's acceptance of the defendants' statement of material

facts, and the court's denial of his two motions for

reconsideration. This attack is futile. On this record, the

district court was entitled to treat the motion for summary

judgment as unopposed and, therefore, to take the movants' properly

supported statements of undisputed fact as true. See D.P.R. R.

56(e); see also Cordero-Soto v. Island Fin., Inc., 418 F.3d 114,

118 (1st Cir. 2005); Vélez v. Awning Windows, Inc., 375 F.3d 35,

41-42 (1st Cir. 2004).4 On this basis, the movants' papers showed

quite clearly that no genuine issue of material fact existed as to

either Matos or Torres. See Monge I, 413 F. Supp. 2d at 52-54.

Accordingly, both of those defendants were entitled to summary

judgment. See Fed. R. Civ. P. 56(c).

4
Here, moreover, the district court went the extra mile,
exhibiting considerable discernment in its treatment of the facts.
See, e.g., Monge II, 413 F. Supp. 2d at 56-59 (assessing whether
particular facts fairly could be deemed uncontested).

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 In all events, we have examined the plaintiff's late-

filed opposition. Even had that opposition been considered — but

setting to one side, however, bald assertions, unsupported

conclusions, and vituperative epithets — summary judgment still

would have been warranted for Matos and Torres. With that in mind,

we are confident that the district court did not abuse its

discretion in denying the plaintiff's two motions for

reconsideration.

We add that the plaintiff's tardy attempt to invoke

estoppel principles by way of post-trial motions is hopeless. To

be sure, certain of the defendants were convicted on misdemeanor

and/or weapons charges arising out of the fracas at the medical

center. The plaintiff belatedly urged that these convictions

should have worked an estoppel. See, e.g., Kowalski v. Gagne, 914

F.2d 299, 303 (1st Cir. 1990).

There are several problems with this argument. The most

prominent is that the issues tried in the criminal cases appear to

be different from the issues involved in this civil case. We say

"appear to be" because the plaintiff never introduced in the

district court the judgments and related records anent the criminal

case. Without those prior judgments and records the plaintiff's

claim cannot succeed.5

5
That is especially so since the judgments and records are in
the Spanish language, and only a few isolated pages, none properly
authenticated, were produced at trial. This, in itself, was a

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 Equally unavailing is the plaintiff's claim that a

provision of the Victim & Witness Protection Act, 18 U.S.C. §

3664(l), counsels in favor of an estoppel. On this subject, it

suffices to say that no such claim was advanced below. "If any

principle is settled in this circuit, it is that, absent the most

extraordinary circumstances, legal theories not raised squarely in

the lower court cannot be broached for the first time on appeal."

Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline

Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). There are no

extraordinary circumstances here.

Second: The plaintiff next asserts that, at trial, the

district court improperly limited his cross-examination of Cortés

and Torres. The record belies that assertion. For one thing, the

district court allowed the plaintiff broad leeway in cross-

examination. For another thing, the specific "abridgment" to which

the plaintiff adverts relates to his attempt to cross-examine based

on material not seasonably identified by him in advance of trial

(as required by the court's case-management order). Federal

practice does not favor trial by ambush, and barring the proposed

use of such previously undisclosed materials was entirely within

the court's discretion. See Macaulay v. Anas, 321 F.3d 45, 50-53

fatal flaw. See Estades-Negroni v. Assocs. Corp. of N. Am., 359
F.3d 1, 2 (1st Cir. 2004).

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(1st Cir. 2003) (holding adherence to temporal parameters relative

to discovery to be within the trial court's discretion).

Third: The plaintiff's penultimate claim of error relates

to the denial of his motion for a new trial. The granting or

denial of such motions is in the trial court's sound discretion,

see Correia v. Fitzgerald, 354 F.3d 47, 54 (1st Cir. 2003), and we

see no hint of any misused discretion here.

Fourth: The plaintiff's final assignment of error relates

to the denial of his post-trial motion for relief from judgment,

which was premised on a claim of fraud and misrepresentation. See

Fed. R. Civ. P. 60(b)(3). Such a claim, however, requires more

than the frenzied brandishing of a cardboard sword. We have

scoured the record and find this claim to be brazenly asserted but

totally unsubstantiated. There is nothing here — and even less in

the district court record — to suggest anything remotely resembling

fraud or misrepresentation.

The short of it is that none of the aforementioned

arguments is meritorious. To the extent that the plaintiff's

poorly organized brief can be read as attempting to raise other

contentions, those contentions are inadequately developed,

unconvincing, or both. The judgment of the district court must,

therefore, stand.

Affirmed. See 1st Cir. R. 27.0(c).

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