United States Court of Appeals
For the First Circuit
No. 00-1828
SHANNON ROGAN,
Plaintiff, Appellant,
v.
CITY OF BOSTON ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
and Lisi,* District Judge.
Sherman Rogan on brief for appellant.
Merita A. Hopkins, Corporation Counsel, and Eve A. Piemonte
Stacey, Assistant Corporation Counsel, on brief for appellees.
October 5, 2001
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*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. On March 15, 1996, plaintiff-
appellant Shannon Rogan suffered serious personal injuries when
a motor vehicle she was driving collided with a trolley car
operated under the auspices of the Massachusetts Bay
Transportation Authority (MBTA). We canvassed the pertinent
facts on an earlier occasion, see Rogan v. Menino, 175 F.3d 75,
76-77 (1st Cir. 1999) (Rogan II), and it would be pleonastic to
rehearse them here. For the purpose at hand, it suffices to
note that, immediately following the accident, officers from
both the MBTA and the City of Boston converged on the scene. 1
Pursuant to an unofficial departmental policy, the Boston police
officers, John McDonough and Robert Colburn, relinquished
control of the investigation to the MBTA.
In due course, an MBTA police officer cited the
plaintiff for failure to yield. Believing the citation to be
unfounded, the plaintiff sought judicial review. A state
district judge found her responsible for failing to yield. The
plaintiff eschewed a further appeal, instead paying a $50 fine.
1 The MBTA has its own police and shares jurisdiction over
certain matters with the Boston police department. See Act of
July 19, 1968, ch. 664, 1968 Mass. Acts 547 (creating a separate
police force to function with the MBTA's territorial authority
and investing its officers with powers equivalent to those of
municipal police officers).
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That was not the end of the matter. Invoking 42 U.S.C.
§ 1983, the plaintiff sued a multitude of defendants — the two
responding officers (McDonough and Colburn), the City of Boston,
three municipal officials, the MBTA, and several MBTA employees
— in the federal district court. She claimed, inter alia, that
McDonough, Colburn, and the municipal officials had impaired her
access to the courts when they ceded control of the
investigation to the MBTA (which, she averred, had a financial
interest in the outcome of the investigation and shaped its
findings accordingly).
The plaintiff eventually settled her state-court tort
suit against the MBTA and, as part of the settlement, dismissed
the MBTA defendants from this action. The district court
disposed of the plaintiff's claims against the remaining
defendants in stages. First, the court, acting on a motion
brought pursuant to Fed. R. Civ. P. 12(b)(6), dismissed all
individual-capacity claims against the mayor (Menino), the
police commissioner (Evans), and a third municipal official
(DiMarzio). Rogan v. Menino, 973 F. Supp. 72, 77 (D. Mass.
1997) (Rogan I). The plaintiff then dropped her official-
capacity claims against Mayor Menino. Finally, the district
court, acting on its own initiative, entered summary judgment
adverse to the plaintiff on the remainder of the claims.
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The plaintiff appealed both the Rule 12(b)(6) order and
the sua sponte summary judgment. This court upheld the
dismissal of the individual-capacity claims, but vacated the
grant of summary judgment on procedural grounds. Rogan II, 175
F.3d at 81. On remand, the remaining defendants — McDonough,
Colburn, and the City of Boston — formally moved for summary
judgment, see Fed. R. Civ. P. 56(c), and the district court
granted the motion. This appeal followed.
We review the district court's entry of summary
judgment de novo, construing the record and all reasonable
inferences therefrom in favor of the nonmoving party (here, the
plaintiff). N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35,
37 (1st Cir. 2001). We keep firmly in mind that summary
judgment is appropriate only "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c).
Summary judgment practice has its own rhythm. Where,
as here, the initiators are the defendants, they must begin the
movement by averring the absence of any evidence sufficient to
support some necessary element of the plaintiff's case.
Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st
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Cir. 1994). To avoid summary judgment, the plaintiff then must
sound a contrapuntal note, pointing to evidence in the record
sufficient to establish the existence of a "genuine" issue of
"material" fact anent the disputed element(s). Id. A genuine
issue exists if the record evidence is such that a reasonable
factfinder could resolve it either way. Id. A fact is material
if its existence vel non "affects the outcome of the suit" so
that it "needs to be resolved before the related legal issues
can be decided." Id. (citation and internal punctuation
omitted).
Summary judgment motions are decided on the record as
it stands, not on the pleadings or on the nonmovant's vision of
what facts might some day be unearthed by the litigation
equivalent of an archeological dig. Consequently, a plaintiff
who aspires to ward off a properly documented motion for summary
judgment must produce enough proof to enable her case to get to
a jury. Perez v. Volvo Car Corp., 247 F.3d 303, 313 (1st Cir.
2001). This obligation cannot be satisfied by conclusory
allegations, empty rhetoric, unsupported speculation, or
evidence which, in the aggregate, is less than significantly
probative. Maldonado-Denis, 23 F.3d at 581; Medina-Munoz v.
R.J. Reynolds Tobacco Corp., 896 F.2d 5, 8 (1st Cir. 1990).
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Against this backdrop, we turn to the plaintiff's
claims. The statute under which she sues, 42 U.S.C. § 1983,
provides in pertinent part that "every person who, under color
of a statute, ordinance, regulation, custom, or usage . . .,
subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured." In other words, section 1983 "supplies
a private right of action against a person who, under color of
state law, deprives another of rights secured by the
Constitution or by federal law." Evans v. Avery, 100 F.3d 1033,
1036 (1st Cir. 1996).
To maintain such a cause of action, the plaintiff — who
has the burden of proof — first must show official conduct, that
is, an act or omission undertaken under color of state law.
Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st
Cir. 1996). That is not a problem here; the municipal
defendants plainly were acting under color of Massachusetts law.
But the plaintiff also must show that the defendants' acts or
omissions caused a constitutional injury. Rogan's case founders
on this shoal. We explain briefly.
To satisfy the "constitutional injury" requirement, the
plaintiff must make a showing of a deprivation of a federally-
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secured right. Baker v. McCollan, 443 U.S. 137, 142 (1979);
Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). It is the
law of the case that the policy of transferring accidents
involving MBTA vehicles to the MBTA police is not, in and of
itself, unconstitutional. Rogan II, 175 F.3d at 78 (declaring
that "there is no constitutional prohibition against
organizational schemes that lodge self-investigative powers
within a government agency"). This leaves the plaintiff, on her
pleadings, with two possible avenues of attack.
The most obvious avenue would be to show an
unconstitutional implementation of the transfer policy. See
City of Canton v. Harris, 489 U.S. 378, 386-87 (1989)
(concluding that, under certain circumstances, a policy that is
constitutional on its face may be applied in an unconstitutional
manner, thus implicating section 1983). Here, however, the
plaintiff makes only a token effort to travel this road. She
offers no significantly probative evidence that the MBTA
officers deliberately skewed their investigation, let alone that
the municipal defendants knew (or had reason to believe) that
such a charade would occur.
The plaintiff pursues the second avenue with more
vigor: she endeavors to make the requisite showing of
constitutional injury based on a denial of meaningful access to
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the courts. Theoretically, she is on solid ground. There is a
constitutional right of access to the courts. See Wolff v.
McDonnell, 418 U.S. 539, 579 (1974); Inmates of Suffolk County
Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997). It follows,
therefore, that "[i]t can be a deprivation of life, liberty, or
property, without due process of law, in violation of the
Fourteenth Amendment, for state officials to deny a person
adequate, effective, and meaningful access to the courts."
Germany v. Vance, 868 F.2d 9, 11 (1st Cir. 1989) (citation and
internal quotation marks omitted). But theory is one thing and
reality is quite another. As a practical matter, the
plaintiff's effort to limn a denial of access to the courts
falls short.
The plaintiff's thesis is not easily extracted from the
harsh rhetoric and tangled ratiocination that permeates her
brief. As best we can tell, her argument seems to be that the
defendants are liable because they shifted responsibility for
the accident investigation to the MBTA police who, she
theorizes, had a conflict of interest which led them to conduct
a biased investigation and cover up the real cause of the
accident (the trolley driver's negligence). This conflict of
interest, the plaintiff says, arises out of the mutual
employment of the MBTA police and the trolley car operator,
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presumably on the basis that, if the trolley driver were held
responsible for the accident, the MBTA would be exposed to
financial risk (i.e., money damages). In this way, the
municipal defendants allegedly deprived the plaintiff of an
impartial investigation, and, thus, of meaningful access to the
judicial process (including an opportunity to obtain more
generous recompense in her tort action).
This thesis has several flaws. The perceived link
between the investigation and the plaintiff's tort suit seems
tenuous at best, especially since under Massachusetts law, the
plaintiff's conviction on the failure-to-yield charge would not
have been admissible in evidence in a trial of that suit. See
LePage v. Bumila, 407 Mass. 163, 164-65 (Mass. 1990) (holding
that the payment of a fine pursuant to a traffic citation does
not constitute an evidentiary admission). Moreover, the
plaintiff, in fact, was able to pursue her personal injury
claim, and she received a substantial settlement ($710,000). We
need not belabor these points, however, because the summary
judgment record contains no evidence whatsoever that the MBTA
investigation was partial or that the municipal defendants had
any reason to suspect that it would be. To cinch matters, the
record reveals a similar dearth of evidence that any MBTA
investigations were marked by partiality, or that the
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defendants, based on their experience, were on notice that the
MBTA had played fast and loose on prior occasions (or would do
so on this occasion).
To bridge these chasmal gaps, the plaintiff baldly
asserts that the MBTA's financial interest in the outcome of the
investigation somehow creates a presumption of partiality. She
is wrong. Accusations of bias are not self-elucidating. Thus,
a plaintiff who alleges a pattern and practice of partiality
must, when faced with a motion for summary judgment, offer some
significantly probative evidence to support that charge.
Indeed, in situations in which a presumption exists, the
presumption is that government officials are impartial in the
administration of responsibilities arising within the scope of
their employment.2 See Withrow v. Larkin, 421 U.S. 35, 47
(1975); United States v. Morgan, 313 U.S. 409, 421 (1941);
Brasslett v. Cota, 761 F.2d 827, 837 (1st Cir. 1985). Were the
law otherwise, federal agencies would be hamstrung whenever they
2In support of her contention that partiality may be
presumed without proof, the plaintiff cites Ward v. Vill. of
Monroeville, 409 U.S. 57 (1972). That case bears on the
neutrality of officials performing judicial or quasi-judicial
functions. See id. at 59-60. The plaintiff's claim of
institutional bias on the part of the MBTA investigators
presents a significantly different problem. Ward is, therefore,
inapposite. See Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395,
1405-07 (4th Cir. 1995); Hammond v. Baldwin, 866 F.2d 172, 177
(6th Cir. 1989).
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had reason to investigate crimes against the United States or
tort claims involving federal employees.
The plaintiff's cause is not aided by her denunciatory
charge that the citation issued by the MBTA for failure to yield
was "intended to provide leverage to diminish her claim for
damages." Appellant's Br. at 15. That is rank conjecture. As
the plaintiff provides us with no evidence to support the
accusation, it can play no role in the summary judgment
calculus.3 See Maldonado-Denis, 23 F.3d at 581; Medina-Munoz,
896 F.2d at 8.
The short of it is that the plaintiff has mustered no
proof that the MBTA's investigation was anything less than
pristine on this (or any other comparable) occasion. By the
same token, she has adduced no evidence to show that the
municipal defendants knew, or had reason to know, of any
irregularity in the MBTA's discharge of its investigatory
functions. These deficits are fatal. See, e.g., Corrada
Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir.
2001) (warning that a plaintiff who opposes summary judgment but
fails to marshal evidence in support of her position has little
3
At any rate, the undisputed evidence that a state court
judge, unaffiliated with the MBTA, found the plaintiff guilty of
failure to yield tends to contradict the notion that the MBTA
officers issued the citation for an improper purpose.
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prospect of success); Kelly v. United States, 924 F.2d 355, 358-
59 (1st Cir. 1991) (similar).
We need go no further.4 Here, as in Maldonado-Denis,
23 F.3d at 586, "[a]lthough the rhetoric of [constitutional
injury] reverberates from the pages of [the plaintiff's]
brief[s], the record contains no evidence of [a violation]
sufficient to relate the rhetoric to the reality of events."
Since the plaintiff failed to present any proof of a
constitutional injury, the district court did not err in
granting the defendants' motion for brevis disposition.
Affirmed.
4The absence of a constitutional injury suffices to doom the
plaintiff's claim, rendering it unnecessary for us to consider
the other formidable obstacles (e.g., qualified immunity) that
block her path.
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Rogan v. City of Boston
Court: Court of Appeals for the First Circuit
Date filed: 2001-10-05
Citations: 267 F.3d 24
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