USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1957
MICHAEL A. CRONIN, ET AL.,
Plaintiffs-Appellants,
v.
TOWN OF AMESBURY, ET AL.,
Defendants-Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge] ___________________
____________________
Before
Selya, Stahl and Lynch,
Circuit Judges. ______________
____________________
Peter Antell, with whom Antell & Associates and J. Daniel Lindley ____________ ___________________ _________________
were on brief, for appellants.
Joseph L. Tehan, Jr., with whom Kurt B. Fliegauf and Kopelman and ____________________ ________________ ____________
Paige, P.C. were on brief, for appellees Town of Amesbury, Amesbury ___________
Police Department, Board of Selectmen of the Town of Amesbury, Daniel
F. Cleary, R. Claude Gonthier, John M. Koelsch, Joseph E. Leary,
William R. McAdams, George A. Motsis, Donna L. Stuart and Charles B.
Wright.
Maura L. Sheehan, with whom Law Offices of Attorney Maura L. ________________ ________________________________
Sheehan was on brief, for appellees Daniel L. Bartley and Nancy _______
Gonthier.
____________________
April 16, 1996
____________________
Per curiam. This case arises out of the decision Per curiam. __________
of the Town of Amesbury, Massachusetts to fire Michael A.
Cronin from his position as the Town's Chief of Police. The
Town terminated Cronin for falsely denying under oath that he
had written a pornographic letter that was found in his desk
at the Amesbury Police Department. In a fifteen-count
complaint, Cronin alleged that the Town's Board of Selectmen,
two Town Managers, a number of police officers (collectively
the "Town defendants") and two private citizens (Daniel L.
Bartley and Nancy Gonthier) terminated him in violation of 42
U.S.C. 1983 and 1985(3) and state law. The district court
granted summary judgment for the Town defendants on the
1983 and 1985(3) counts (Counts I, II and XV) and dismissed
the state law counts, without prejudice, for lack of subject
matter jurisdiction.1 Cronin has appealed.
The district court, in its careful review of the
case, see Cronin v. Town of Amesbury, 875 F. Supp. 375 (D. ___ ______ ________________
Mass. 1995), adequately recited the pertinent undisputed
facts and there is no need to repeat them in detail here.
Essentially, the facts showed that in early 1988 a Town
police officer, Charles Wright (one of the defendants here),
found in Cronin's desk a pornographic letter written on
____________________
1. The district court entered a separate order granting a
Rule 12(b)(6) motion filed on behalf of Nancy Gonthier and
Daniel Bartley dismissing the federal counts with prejudice
and the state counts without prejudice.
-3- 3
yellow lined paper and signed "Mike." Copies were made and,
in February 1991, one copy was shown to members of the Board
of Selectmen. After a secret meeting, the Town suspended
Cronin with pay.
A series of investigations by Town Managers into
Cronin's fitness to serve as police chief followed. The Town
Managers' investigations, which occurred between 1991 and
1993, focussed on the letter and on other alleged acts of
misconduct. The first Town Manager to investigate, Joseph
Fahey, recommended that three charges be brought against
Cronin and that he be given a 60-day suspension. The Town
subsequently fired Fahey and replaced him with Donna Stuart,
who, one day after being appointed, brought nine charges
against Cronin. Public hearings on the nine charges were
held in front of a civil service hearing officer, Nicholas
Foundas. During those hearings, the letter was made an
exhibit and Cronin denied under oath that the letter was his.
On July 7, 1992, Foundas found Cronin guilty of only two of
the nine charges and recommended a 90-day suspension. He
also found that Cronin had written the letter, but that it
had no bearing on his duties. Cronin appealed Foundas's
decision to the Civil Service Commission.
Before the Civil Service Commission decided
Cronin's appeal, however, a number of other events
transpired. First, Town Manager Stuart demoted Cronin to
-4- 4
sergeant. Second, the Board of Selectmen released the letter
to the press. Third, in October 1992, Stuart was replaced by
a new Town Manager, John M. Koelsch, who brought two new
charges against Cronin -- (1) lying under oath when he denied
authorship of the letter at earlier hearings and (2) conduct
unbecoming an officer. Koelsch's charges were prompted by
Daniel Bartley and Nancy Gonthier, private citizens who
complained that Cronin had lied under oath about authorship
of the letter. After bringing the charges, Koelsch
designated himself hearing officer. On June 17, 1993, he
found that Cronin had lied about authorship of the letter
and, in so doing, had acted in a manner unbecoming a police
officer. Cronin was then terminated. Cronin immediately
appealed Koelsch's decision to the Civil Service Commission.
On July 20, 1993, the Civil Service Commission
reversed Foundas's decision, recommending that Cronin be
restored to his previous position, with back pay. As of this
court's inquiry at oral argument, the Civil Service
Commission has not yet decided Cronin's appeal from Koelsch's
decision.
Section 1983 Claims ___________________
Cronin's 1983 claims allege that the Town
defendants deprived him of procedural due process when they
-5- 5
terminated him.2 However, even assuming for the purposes of
this appeal that the Town defendants failed to give Cronin
the procedure he was due in making the decision to terminate
him (an issue on which we take no position), Cronin cannot
succeed on his procedural due process claim unless he can
show that the state failed to provide him with an adequate
postdeprivation remedy. See Lowe v. Scott, 959 F.2d 323, ___ ____ _____
340-41 (1st Cir. 1992) ("[I]f a state provides adequate
postdeprivation remedies -- either by statute or through the
common-law tort remedies available in its courts -- no claim
of a violation of procedural due process can be brought under
1983 against the state officials whose random and
unauthorized conduct caused the deprivation.").
Here, the state has provided an adequate
postdeprivation remedy. Massachusetts has provided Cronin
with extensive postdeprivation remedies in the form of the
Civil Service Law. See Mass. Gen. L. ch. 31, 41-44. Any ___
____________________
2. Cronin, who under state law can only be terminated for
"just cause," see Mass. Gen. L. ch. 31, 41, has a protected ___
property interest in his employment and thus may invoke the
protection of the due process clause. See Cummings v. South ___ ________ _____
Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993). In ____________________
invoking his procedural due process claims, Cronin does not
seriously argue that the established state pre-termination
procedures are deficient. Rather, Cronin's claims rest on
alleged random and unauthorized acts by the Town defendants.
See Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988). He ___ ______ _______
generally argues that the Town defendants were out to get
him, and, with respect to the termination specifically, he
argues that Koelsch was biased and made evidentiary errors.
-6- 6
person aggrieved by a decision of the "appointing
authority"3 may appeal to the Civil Service Commission and
be given a hearing before a member of the Commission or some
disinterested person. The Commission may affirm or reverse
the action of the appointing authority. If the appointing
authority's decision is reversed, the employee must be
reinstated without loss of compensation or other rights. If
the employee is dissatisfied with the Civil Service
Commission's decision, he or she may appeal to the Superior
Court. See Mass. Gen. L. ch. 31, 44. ___
Cronin complains that the Civil Service Commission
has taken too long to decide his appeal from Koelsch's
decision. Although extraordinarily long delays may render a
postdeprivation remedy inadequate, that is not the case here.
See Alton Land Trust v. Town of Alton, 745 F.2d 730, 732 (1st ___ ________________ _____________
Cir. 1984) (two and one-half year litigation was not
inordinate delay). Despite the almost three-year delay, the
possibility of reinstatement with back pay remains available
to him. See Decker v. Hillsborough County Attorney's Office, ___ ______ _____________________________________
845 F.2d 17, 22 (1st Cir. 1988) (although there had been
delay, New Hampshire had not yet refused to provide plaintiff
____________________
3. Koelsch, as Town Manager, was the appointing authority.
See Mass. Gen. L. ch. 31, 1; see also Amesbury Town ___ ___ ____
Charter, Art. 4, 4-21(b).
-7- 7
with a remedy). We affirm the district court's dismissal of
the 1983 claims.4
Section 1985(3) Claim _____________________
Cronin also argues that the district court
erroneously granted summary judgment on his 1985(3) claim
against the Town defendants and erroneously dismissed his
1985(3) claim filed against Nancy Gonthier and Daniel
Bartley. Section 1985(3), which prohibits conspiracies to
deprive persons of rights or privileges, requires an
"invidiously discriminatory animus" in which the defendants
have taken the action because of "its adverse effects upon an
identifiable group." Bray v. Alexandria Women's Health ____ ___________________________
Clinic, 113 S. Ct. 753, 760-61 (1993) (internal quotations ______
omitted). No such animus was even alleged here. Summary
judgment was properly entered in favor of the Town defendants
and dismissal was properly granted for Nancy Gonthier and
Daniel Bartley.
____________________
4. Cronin also argues (1) that the Town defendants violated
his procedural due process rights when they suspended him
with pay and when they demoted him to sergeant; and (2) that
the Town defendants violated his right to petition, his right
to confrontation, and his right to privacy (although he has
been unable to articulate any cognizable theory). These
arguments are without merit. Appellants' additional
arguments, (1) that the district court erred in dismissing
the state law claims, (2) that the district court erred in
its various rulings on discovery practices, and (3) that the
district court erred in denying appellants' motion for relief
from judgment, are also all meritless.
-8- 8
Gonthier and Bartley's Motion for Damages and Costs ___________________________________________________
Notwithstanding the obvious correctness of the
district court's dismissal of the 1985(3) count lodged
against Gonthier and Bartley, Cronin has sought appellate
review of the dismissal. Gonthier and Bartley have filed a
separate motion for damages and costs under Fed. R. App. P.
38 and Cronin has responded.5 Federal Rule of Appellate
Procedure 38 provides that if an appellate court "determines
that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the
appellee." Fed. R. App. P. 38. An appeal is frivolous if
the result is obvious or the arguments are "wholly without
merit." Westcott Constr. Corp. v. Fireman's Fund of N.J., ______________________ _______________________
996 F.2d 14, 17 (1st Cir. 1993) (internal quotations
omitted). "[I]t is enough that the appellants and their
attorney should have been aware that the appeal had no chance
of success." E.H. Ashley & Co., Inc. v. Wells Fargo Alarm _________________________ __________________
Servs., 907 F.2d 1274, 1280 (1st Cir. 1990) (emphasis ______
omitted).
Even a cursory reading of the relevant case law and
treatises would have revealed that the 1985(3) claim was
not properly brought. Not surprisingly, Cronin failed to
____________________
5. Cronin's response was filed ten days after Gonthier's and
Bartley's motion was filed.
-9- 9
articulate in his brief any reasoned basis for why the
district court erroneously dismissed the 1985(3) count. He
instead pressed a bizarre and irrelevant argument that
Federal Rule of Civil Procedure 54(b) precluded the district
court from entering a separate judgment for Gonthier and
Bartley. When the appellees in their brief properly noted
that the Rule 54(b) argument was baseless, Cronin used the
reply brief to try to transform his Rule 54(b) argument into
a variant of a pendent party jurisdiction argument. Such a
pendent party argument was never raised before the district
court nor in the initial briefing on appeal. One might think
that Cronin created such an argument to conceal the fact that
the appeal from the dismissal of the claims against Gonthier
and Bartley was wholly without merit.
A penalty is appropriate here. Rule 38 allows the
award of attorneys' fees as "just damages" for frivolous
appeals. See Natasha, Inc. v. Evita Marine Charters, Inc., ___ _____________ ____________________________
763 F.2d 468, 472 (1st Cir. 1985); see also Fed. R. App. P. ___ ____
38 advisory committee's notes. This court can assess a
particular amount or "reasonable counsel fees" as damages
without additional submissions by the parties. Natasha, 763 _______
F.2d at 472 (internal quotations omitted); see also Tomczyk ___ ____ _______
v. Blue Cross & Blue Shield United of Wisconsin, 951 F.2d _______________________________________________
771, 779-80 & n.4 (7th Cir. 1991), cert. denied, 504 U.S. 940 _____ ______
(1992). Gonthier and Bartley assert that they have incurred
-10- 10
legal fees in responding to this appeal of $2,725.00,
exclusive of costs. We believe such fees are reasonable and
assess that amount as just damages to the appellees. We also
assess double costs.
The bulk of the blame for the frivolous appeal
rests with appellants' attorney. An attorney's duty to
represent a client zealously is not a license to harass.
When the appellants' attorney sought to appeal the district
court's dismissal of the 1985(3) claim against Gonthier and
Bartley, he crossed the line from zealous advocacy to
vexatious advocacy, needlessly multiplying the proceedings in
this case. Under such circumstances, it is appropriate to
sanction the attorney personally for the excess costs,
expenses and attorneys' fees reasonably incurred. See Fed. ___
R. App. P. 38; 28 U.S.C. 1927; Cruz v. Savage, 896 F.2d ____ ______
626, 635 (1st Cir. 1990) (frivolous appeal warranted
assessment of double costs and attorneys' fees against
attorney under Rule 38 and 1927). We therefore apportion
the damages award and order that $2,500.00 of the award be
assessed directly against appellants' attorney.6 The
remaining $225.00 shall be assessed against appellant Michael
____________________
6. The award of damages against appellants' attorney shall
run against Peter Antell, not J. Daniel Lindley, who was
allowed to withdraw as counsel for appellants.
-11- 11
Cronin.7 Double costs shall be born jointly and severally
by Michael Cronin and appellants' attorney.
Affirmed. Appellees' Motion for Damages for ________
Frivolous Appeal is granted, with double costs and damages to _______
be apportioned in the manner prescribed in this opinion. It __
is so ordered. _____________
____________________
7. No costs or damages are assessed against the other
appellants, Gail Cronin and Angel Cronin.
-12- 12