
USCA1 Opinion

	




          April 12, 1996                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2099                                    TIMOTHY DAVIS,                                Plaintiff, Appellant,                                          v.                        MASSACHUSETTS STATE LOTTERY COMMISSION                                  and DANIEL KINNEY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            John A. Morrissey  with whom Law  Offices of  James C. Gahan,  Jr.            _________________            _____________________________________        was on brief for appellant.            Marie  St. Fleur,  Assistant  Attorney General,  with  whom  Scott            ________________                                             _____        Harshbarger, Attorney General, was on brief for appellees.        ___________  ________________                                 ____________________                                 ____________________                      Per  Curiam.  Plaintiff-appellant Timothy Davis, an                      ___________            employee of the Massachusetts State Lottery  Commission, sued            the  Commission  and  Daniel  Kinney,  his  supervisor,   for            violation  of civil rights, racial discrimination, infliction            of emotional distress, and improper layoff, stemming from his            dismissal  by the  Commission  on May  1, 1991.1   Defendants            moved  to dismiss  for failure  to state  a claim  upon which            relief could be granted.   The court granted the  motion, but            later   allowed   plaintiff's  Motion   for  Reconsideration,            permitting him to  file an amended  complaint adding a  count            (Count  VI)  seeking compensatory  and  punitive damages  for            violation of  his federally  protected rights after  November            21, 1991, the date of the Civil Rights Act of 1991, 42 U.S.C.              1981a(b)(1).   In due course, defendants  moved for summary            judgment  on all  claims.   This  motion, also,  was granted,            incorporating,  but simply by  reference, the court's earlier            Memorandum and Order.  We affirm.                       The obligatory appendix  which plaintiff filed for            this  appeal  totally  disregards Federal  Rule  of Appellate            Procedure  30.  Except  for a copy  of Count VI,  none of the            required  items  is present.    Instead  are some  60  pages,            largely  memoranda of law filed in the district court.  These            the  Rule expressly forbids.  FRAP 30(a).  Nor does reference            to such filings meet brief  requirements.  FRAP 28.   We will                                            ____________________            1.  Following arbitration, the improper layoff was corrected.                                         -2-            not consider them.   Plaintiff  did attach  to his  appellate            brief  the court's Memorandum  and Decision  granting summary            judgment for  defendants on Count  VI, but failed  to include            anywhere  the court's earlier memorandum dismissing Counts I-            V.  FRAP 30(a)(3).                      In   granting   defendants'   motion  for   summary            judgment, the  court set  the course for  plaintiff's appeal:            "I find that he has failed to meet his burden of establishing            a prima facie case  of unlawful discrimination after November            21,  1991."   Plaintiff's filings  do not  enable us  to find            otherwise.   The (very) occasional references in his brief to            alleged  evidence  of  continuing  discrimination  after  his            reinstatement consist of cryptic allusions to: "Davis Depo.";            "A copy of his  affidavit in this regard is  annexed hereto."            (It was not); "Kelly  Depo., p. 38-51" (also not  included in            the appendix);  and "Memorandum  in Support of  Opposition to            the Motion for Summary Judgment  . . . pages 12 through  16."            Finally, in an attempt to rebut the court's exposition of how            he  failed  to  make out  a  prima  facie case  on  Count VI,                                         _____  _____            plaintiff points to his  amended complaint as "establish[ing]            genuine issues of material fact which render summary judgment            inappropriate."    He  states  he has  "detailed  harassment,            retaliation,   and  continuing  acts   of  discrimination  by            Defendants," without  reference to the record  other than the            complaint.   In lieu, "Davis  respectfully refers to pages 16                                         -3-            through 19 of his  Memorandum," which, as already  noted, was            improperly filed.                      All  this is  meaningless.   Fundamentally, without            specific facts,  the non-moving  party  (plaintiff) "may  not            rest upon the  mere allegations of [its]  pleading" to defend            against  summary judgment  for the  defendant.   Fed.R.Civ.P.            56(e).  Ramsdell v.  Bowles, 64 F.3d  5, 11 (1st Cir.  1995).                    ________     ______            Plaintiff presents neither facts nor law to make out a case.                      This is an extraordinary waste of time.  The appeal            is dismissed on the opinion below.                                         -4-
