
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1531 <br> <br>                          SHANNON ROGAN, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                 THOMAS M. MENINO, ETC., ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. William G. Young, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                                 <br>                Selya and Lynch, Circuit Judges. <br>                                 <br>                                 <br>                                 <br>     Sherman Rogan for appellant. <br>     John J. Cloherty, III, and Eve A. Piemonte Stacey, Assistant <br>Corporation Counsel, City of Boston, with whom Merita A. Hopkins, <br>Corporation Counsel, was on brief, for appellees. <br> <br> <br> <br> <br> <br>April 29, 1999 <br> <br> <br> <br>

  SELYA, Circuit Judge.  This appeal stems from a traffic <br>accident that occurred in Boston, Massachusetts.  It illustrates <br>once again the dangers that lurk when busy trial courts, struggling <br>to manage crowded dockets, do not turn square corners.  The tale <br>follows. <br>                                I <br>  On March 15, 1996, a motor vehicle operated by plaintiff- <br>appellant Shannon Rogan collided with a trolley car operated under <br>the auspices of the Massachusetts Bay Transportation Authority (the <br>MBTA).  The MBTA has its own police force, see Act of July 18, <br>1968, ch. 664, 1968 Mass. Acts 547 (creating a separate police <br>force to function within the MBTA's territorial authority and <br>investing its officers with powers equivalent to those of municipal <br>police officers), and that complement shares jurisdiction over <br>certain matters with the Boston Police Department (the BPD).  In <br>this instance, officers from both entities converged on the <br>accident scene.  Pursuant to departmental policy, the BPD officers, <br>John McDonough and Robert Colburn, relinquished control of the <br>investigation to their MBTA counterparts. <br>  Displeased with the results of the investigation, Rogan <br>sued Thomas Menino (Mayor of Boston), Paul Evans (Boston's police <br>commissioner), Dennis DiMarzio (Boston's chief of operations), and <br>the two responding officers in federal district court.  Her <br>complaint limned a plethora of claims   but Rogan voluntarily <br>discontinued most of them, and only one remnant is relevant here.  <br>Invoking 42 U.S.C.  1983, Rogan asserted that the five City of <br>Boston/BPD defendants, jointly and severally, hindered her access <br>to the courts vis--vis her accident-related claim for personal <br>injuries and property damage.  The defendants were liable, Rogan <br>theorized, because by abdicating responsibility for investigation <br>of the accident they had aided and abetted the MBTA's attempts to <br>cover up the trolley driver's negligence.  McDonough's and <br>Colburn's supposed liability rested on their refusal to take <br>control of the investigation, whereas the other defendants' <br>supposed liability related to their roles in promulgating and <br>enforcing a policy of relinquishing jurisdiction over accidents <br>involving MBTA carriers to MBTA police. <br>  The district court disposed of these claims in two <br>stages.  First, acting on the defendants' motion, see Fed. R. Civ. <br>P. 12(b)(6), it dismissed all claims against Menino, Evans, and <br>DiMarzio in their individual capacities.  Nearly a year later, at <br>the final pretrial conference, the court, acting on its own <br>initiative, brought closure to the suit by entering summary <br>judgment in favor of Evans and DiMarzio in their official <br>capacities and in favor of McDonough and Colburn.  Rogan now <br>appeals both the dismissal of her individual-capacity claims <br>against Evans and DiMarzio and the subsequent entry of a sua sponte <br>summary judgment.  We address each aspect of her appeal in turn. <br>                                II <br>  It is axiomatic that the liability of persons sued in <br>their individual capacities under section 1983 must be gauged in <br>terms of their own actions.  See Malley v. Briggs, 475 U.S. 335, <br>341 (1986); Camilo-Robles v. Zapata, ___ F.3d ___, ___ (1st Cir. <br>1999) (Camilo-Robles II) [No. 98-1590, slip op. at 7].  In <br>dismissing the claims against Evans and DiMarzio in their <br>individual capacities, the district court concluded that the <br>complaint utterly failed to link either defendant to the alleged <br>conspiracy to deprive Rogan of meaningful access to the courts.  We <br>review this decision de novo, scrutinizing the complaint in the <br>light most favorable to the plaintiff.  See Aulson v. Blanchard, 83 <br>F.3d 1, 3 (1st Cir. 1996).  In that process, we   like the nisi <br>prius court   must give credence to all well-pleaded facts and <br>indulge all reasonable inferences that fit the plaintiff's stated <br>theory of liability.  See id.  We stop short, however, of <br>"swallow[ing] the plaintiff's invective hook, line, and sinker; <br>bald assertions, unsupportable conclusions, periphrastic <br>circumlocutions, and the like need not be credited."  Id. (citing, <br>inter alia, Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 <br>(1st Cir. 1990)).  If, on that basis, the factual averments do not <br>justify recovery on some theory adumbrated in the complaint, then <br>  and only then   can we affirm a dismissal for failure to state an <br>actionable claim.  See Leatherman v. Tarrant County N.I.&C. Unit, <br>507 U.S. 163, 164 (1993). <br>  We agree with the district court that the instant <br>complaint encompasses no set of facts that entitles Rogan to relief <br>against either Evans or DiMarzio, individually.  Charitably <br>construed, the complaint predicates liability on the theory that <br>BPD personnel collogued with MBTA personnel to conceal the <br>negligence of the trolley car driver, thus inhibiting Rogan's right <br>to sue the MBTA for damages.  Yet, the complaint does not allege <br>(or even insinuate) that either Evans or DiMarzio directly <br>participated in the actions that purportedly violated Rogan's <br>rights.  Rather, the complaint suggests some sort of supervisory <br>liability.  To state a cognizable claim on that basis, Rogan needed <br>to depict a scenario that would permit a fact-based inference that <br>Evans and DiMarzio were guilty of "conduct that amount[ed] to <br>condonation or tacit authorization" of wrongdoing.  Camilo-Robles <br>II, ___ F.3d at ___ (collecting cases) [slip op. at 5]; see also <br>Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (Camilo- <br>Robles I) (explaining that supervisory liability requires proof of <br>an affirmative link sufficient to show causation).  To a <br>significant extent, the existence of such conduct depends on the <br>presence or absence of notice.  See Camilo-Robles II, ___ F.3d at <br>___ [slip op. at 12]; Camilo-Robles I, 151 F.3d at 7.  Rogan, <br>however, alleges no facts from which a rational reader might infer <br>that Evans or DiMarzio knew (or had any basis for knowing) that <br>MBTA police officers were skewing investigations to minimize MBTA <br>liability. <br>  On appeal, Rogan attempts to confess and avoid.  She <br>admits the lack of any averments suggesting notice, but asks us to <br>infer from Evans's and DiMarzio's awareness of the transfer policy <br>a corresponding awareness of the allegedly unconstitutional <br>execution of that policy.  The inference is much too strained.  The <br>BPD's policy of ceding jurisdiction to the MBTA is undoubtedly <br>constitutional on its face   after all, there is no constitutional <br>prohibition against organizational schemes that lodge self- <br>investigative powers within a government agency, cf. Withrow v. <br>Larkin, 421 U.S. 35, 52 (1975) (rejecting the proposition that <br>"agency members who participate in an investigation are <br>disqualified from adjudicating")   and mere knowledge of the <br>transfer policy's existence therefore cannot serve as a proxy for <br>notice of its unconstitutional implementation. <br>  We have said enough on this score.  Since Rogan failed to <br>plead any facts sufficient to support an inference that Evans and <br>DiMarzio had notice that MBTA police officers were wielding <br>investigative powers in a way that threatened to deprive accident <br>victims of their civil rights, she failed to state a claim for <br>deliberate indifference against these defendants, individually.  <br>See Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) <br>(explaining that, to survive a motion to dismiss under Rule <br>12(b)(6), a complaint must "set forth factual allegations, either <br>direct or inferential, respecting each material element necessary <br>to sustain recovery").  Consequently, we affirm the district <br>court's dismissal of the individual-capacity claims against Evans <br>and DiMarzio. <br>                               III <br>  When it jettisoned the claims brought against Evans and <br>DiMarzio in their individual capacities, the district court kept <br>alive Rogan's official-capacity claims against these same <br>defendants, treating those as claims against the City of Boston.  <br>See Brandon v. Holt, 469 U.S. 464, 471-72 (1985).  The court also <br>refused to dismiss the claims against McDonough and Colburn, <br>reasoning that the complaint could be read to allege that they knew <br>MBTA officers would not investigate the accident impartially. <br>  At the final pretrial conference, see Fed. R. Civ. P. 16, <br>the court demanded that Rogan marshal all the evidence at her <br>disposal to defeat summary judgment.  She attempted to comply with <br>this directive, but the court found her proffer inadequate.  <br>Declaring that no reasonable jury could find for Rogan on the <br>adduced evidence, the court, acting sua sponte, entered summary <br>judgment in the defendants' favor on all remaining claims.  Rogan <br>assigns error. <br>  It is apodictic that trial courts have the power to grant <br>summary judgment sua sponte.  See Berkovitz v. HBO, Inc., 89 F.3d <br>24, 29 (1st Cir. 1996).  Withal, that power is not unbridled.  To <br>protect against erosion of the fairness principles embedded in Fed. <br>R. Civ. P. 56, a court tempted to grant an unbesought summary <br>judgment must hew to Rule 56's procedural strictures.  See Stella <br>v. Town of Tewksbury, 4 F.3d 53, 56 (1st Cir. 1993).  Thus, before <br>the court can seriously consider sua sponte summary judgment, two <br>conditions precedent must be satisfied:  (1) the case must be <br>sufficiently advanced in terms of pretrial discovery for the <br>summary judgment target to know what evidence likely can be <br>mustered, and (2) the target must have received appropriate notice.  <br>See Leyva v. On The Beach, Inc., ___ F.3d ___, ___ (1st Cir. 1999) <br>[No. 98-1984, slip op. at 5]; Berkovitz, 89 F.3d at 29; Stella, 4 <br>F.3d at 55.  Notice, in this context, has two aspects:  the summary <br>judgment target is entitled to know both the grounds that the <br>district court will consider and the point at which her obligation <br>to bring forth evidence  supporting the elements of her claim <br>accrues.  See Berkovitz, 89 F.3d at 31. <br>  Inasmuch as the lower court made its sua sponte ruling at <br>the final pretrial conference, with discovery complete (or nearly <br>so), the first condition precedent clearly was satisfied here.  It <br>is more problematic whether the court fulfilled the second <br>condition.  On one hand, the docket sheet reflects that no <br>outstanding motion to dismiss or motion for summary judgment was <br>extant when the court acted; the transcript of the penultimate <br>pretrial conference intimates no warning of the court's intention <br>to consider terminating the case at the final pretrial conference; <br>nothing in the procedural order entered by the court preliminary to <br>the final pretrial conference directed the parties to prepare for <br>a hearing on dispositive motions; and there is no other record of <br>a written notice that dispositive motions would be entertained at <br>that conference.  On the other hand, the defendants have proffered <br>a statement, signed by the district judge pursuant to Fed. R. App. <br>P. 10(c), which indicates that the court had in fact notified the <br>parties during an unreported chambers conference (presumably held <br>in connection with the penultimate pretrial conference) that <br>"pursuant to Fed. R. Civ. P. 16, [it might] dismiss any or all of <br>the defendants" at the final pretrial conference.  Moreover, the <br>defendants submitted several affidavits on the day before the final <br>pretrial conference, presumably in anticipation that the court <br>would consider terminating the case then and there. <br>  This Rule 10(c) statement arrives on our doorstep in a <br>peculiar manner.  In haec verba, Rule 10(c) permits only an <br>appellant, not an appellee, to prepare a statement summarizing what <br>transpired at an unreported proceeding.  Here, the appellees <br>prepared the statement, served it on the appellant, and convinced  <br>the district court, over the appellant's objection, to approve it.  <br>On that basis, the statement's legitimacy might well have been open <br>to question had Rogan asked this court, by motion or in her <br>appellate brief, to strike it.  Because Rogan has not mounted such <br>a protest in this venue, we treat any doubts about the statement's <br>provenance as waived, and we leave for another day the intriguing <br>question whether Rule 10(c)'s reference to "the appellant" must be <br>construed literally. <br>  Apart from this procedural obstacle, the statement <br>commands our respect.  If Rule 10(c) is to be more than a hollow <br>promise, a court of appeals must accept a district court's <br>reconstruction of what transpired at an unrecorded conference or <br>similar proceeding unless some basis exists for believing that the <br>trial court's account is patently unreasonable or deliberately <br>false.  See United States v. Keskey, 863 F.2d 474, 478 (7th Cir. <br>1988); cf. United States v. Serrano, 870 F.2d 1, 12 (1st Cir. 1989) <br>(applying this standard in the Fed. R. App. P. 10(e) context).  <br>Rogan makes no plausible accusation of unreasonableness or <br>falsification, and the record reveals no basis for such a charge.  <br>Hence, we accept the Rule 10(c) statement at face value. <br>  Even so, the mere announcement that the court might <br>dismiss the defendants at the final pretrial conference falls well <br>short of the specific notice to which parties are entitled under <br>Fed. R. Civ. P. 56.  In the first place, Rule 56 obliges the moving <br>party to inform the nonmovant of the grounds for the motion by <br>"identifying those portions of the 'pleadings, depositions, answers <br>to interrogatories, and admissions on file, together with the <br>affidavits, if any,' which it believes demonstrate the absence of <br>a genuine issue of material fact."  Celotex Corp. v. Catrett, 477 <br>U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).  As far as <br>the record in this case reveals, Rogan never received specific <br>advance warning of this kind from either the defendants or the <br>court. <br>  In the second place, once the movant articulates his <br>rationale for brevis disposition and submits the documentation (if <br>any) on which he relies, Rule 56(c) in terms entitles the summary <br>judgment target to no less than ten days within which to prepare a <br>defense to the motion.  This requirement persists even when the <br>trial court aspires to grant summary judgment on its own <br>initiative.  See Stella, 4 F.3d at 56; see also 11 James Wm. Moore <br>et al., Moore's Federal Practice  56.10[2][b] (3d ed. 1997).  <br>Here, however, the defendants filed several affidavits on the day <br>before the final pretrial conference, and the court considered them <br>without affording Rogan the benefit of the ten-day window that Rule <br>56 envisions.  In doing so, the court erred.  Accord Massey v. <br>Congress Life Ins. Co., 116 F.3d 1414, 1417-18 (11th Cir. 1997) <br>(reversing sua sponte summary judgment for failure to comply with <br>Rule 56's ten-day notice requirement). <br>  That the district court acted under the auspices of Fed. <br>R. Civ. P. 16 provides no cover.  To be sure, Rule 16 permits a <br>court to dispose of marginal claims or issues that do not warrant <br>a full-dress trial.  See Fed. R. Civ. P. 16(c)(1) (authorizing <br>district courts to "take appropriate action, with respect to . . . <br>the elimination of frivolous claims or defenses" at pretrial <br>conferences).  Nevertheless, when the district court employs <br>summary judgment as the vehicle for the elimination of such <br>detritus, Rule 16 does not trump the procedural prophylaxis of Rule <br>56.  See Stella, 4 F.3d at 56.  Without advance notice of the basis <br>of a looming dismissal, a targeted party lacks a "meaningful <br>opportunity to cull the best evidence supporting his position, and <br>to present that evidence, together with developed legal <br>argumentation, in opposition to the entry of summary judgment."  <br>Berkovitz, 89 F.3d at 31.  And where, as here, the summary judgment <br>loser was never afforded such an opportunity, sua sponte summary <br>judgment cannot stand.  See id. at 29 (holding that the trial <br>court must provide a targeted party with an "adequate opportunity <br>to dodge the bullet" before entering sua sponte summary judgment). <br>                                IV <br>  We need go no further.  The district court properly <br>dismissed the claims that Rogan brought against Evans and DiMarzio, <br>individually, and to that extent we affirm the judgment below.  <br>However, despite our repeated calls for caution in the use of sua <br>sponte summary judgments, see, e.g., Leyva, ___ F.3d at ___ [slip <br>op. at 4]; Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, <br>1560-61 (1st Cir. 1989), the court below acted too hastily in <br>dispatching the other claims in this case.  Thus, we vacate the <br>remainder of the judgment and remand for further proceedings in the <br>district court.  We take no view of the merit (or lack of merit) <br>of Rogan's case. <br> <br>Affirmed in part, vacated in part, and remanded.  All parties to <br>bear their own costs.</pre>

</body>

</html>

