
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2326                              SHEIKH BASHIR AHMED, M.D.,                                Plaintiff, Appellant,                                          v.                           BERKSHIRE MEDICAL CENTER, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Dr. Sheikh Bashir Ahmed on brief pro se.            _______________________            John F. Rogers, Kevin  M. Kinne and Cain, Hibbard, Myers & Cook on            ______________  _______________     ___________________________        brief for appellee.                                 ____________________                                   August 21, 1996                                 ____________________                 Per  Curiam.   In 1992,  plaintiff Sheikh  Bashir Ahmed,                 ___________            M.D. was discharged from his one-year term of employment as a            resident in internal medicine at defendant Berkshire  Medical            Center,   Inc.,  ostensibly  because  of  unsatisfactory  job            performance.   Plaintiff  responded  by  filing  the  instant            action in which he complained, inter alia, of national origin                                           __________            discrimination, denial of due process and breach of contract.            Some ten  months  later, while  in  the midst  of  discovery,            plaintiff moved for a preliminary injunction  reinstating him            to the  residency position  pending final disposition  of his            allegations.    From  the  district court's  denial  of  such            request, plaintiff now appeals on an interlocutory basis.  He            also  seeks to appeal from a district court order denying him            leave to amend his complaint.                 We perceive no error in the district court's decision to            deny preliminary  injunctive relief.   The court  applied the            proper  rule  of  law,  having  invoked  the  four-part  test            governing  such  determinations.    See,  e.g.,  Narragansett                                                ___   ____   ____________            Indian  Tribe v.  Guilbert, 934  F.2d 4,  5 (1st  Cir. 1991).            _____________     ________            Accordingly,  "[t]he  only  real   question  is  whether  the            district  court misused  [its] discretion  in evaluating  the            circumstances and calibrating the scales."  Independent Oil &                                                        _________________            Chem. Workers of Quincy,  Inc. v. Procter & Gamble  Mfg. Co.,            ______________________________    __________________________            864 F.2d 927, 929 (1st Cir. 1988); accord, e.g., Conservation                                               ______  ____  ____________            Law Foundation, Inc. v.  Busey, 79 F.3d 1250, 1271  (1st Cir.            ____________________     _____                                         -2-            1996) (taking note of the lower courts' "broad discretion" in            this regard).   On the basis of the limited record before it,            the  district   court  concluded  that   plaintiff  had   not            demonstrated a probability of success on the merits, that  he            had not established irreparable harm, and that the balance of            equities  and the  public  interest both  tilted in  favor of            denying  injunctive relief.   Having  reviewed the  record in            full, and  having scrutinized  the court's findings  "under a            relatively deferential glass," Procter  & Gamble, 864 F.2d at                                           _________________            929, we find no abuse of discretion.1                                                1                 Plaintiff insists that his  eventual success at trial is            a foregone conclusion.  Yet much of the evidence  on which he            relies is conclusory or otherwise inadmissible.  It turns out            that  the parties'  respective evidentiary  submissions, when            juxtaposed,  do  little  to  resolve the  underlying  factual            disputes,   particularly   concerning   the   rationale   for            plaintiff's termination.2   And the district  court cannot be                                    2            faulted   for  concluding  that,  until  the  allegations  of            unsatisfactory   job   performance   have    been   resolved,                                            ____________________               1   Given  our  disposition of  the  merits, we  need  not               1            address defendant's contention  that jurisdiction is  lacking            under 28 U.S.C.    1292(a)(1)  to review this  ruling.   See,                                                                     ___            e.g., Narragansett Indian Tribe, 934 F.2d at 8 n.5.            ____  _________________________               2    With  respect to  his  due  process  claim, plaintiff               2            objects  that the  lower  court overlooked  an allegation  of            state  action in his complaint.  That such an allegation does            appear  therein does not disturb the  conclusion that, on the            present record, plaintiff has not established a likelihood of            success with respect to any of his claims.                                          -3-            plaintiff's  reinstatement to a position "with responsibility            for  life and death  decisions," Order at  8, might adversely            affect the public interest.                 Plaintiff's  appeal from  the  denial of  his motion  to            amend falters on  a different basis: we  lack jurisdiction at            this juncture to  review such an order.   It is well  settled            that "denial of a request to amend a complaint is not usually            appealable  as an  interlocutory  matter."   Kartell v.  Blue                                                         _______     ____            Shield of  Massachusetts, Inc., 687  F.2d 543, 551  (1st Cir.            ______________________________            1982);  accord, e.g.,  15A  Charles Wright,  Arthur Miller  &                    ______  ____            Edward Cooper,  Federal Practice  and Procedure    3914.1, at                            _______________________________            491 & n.7 (1992 & '96  Supp.) (citing cases).  Nothing in the            instant  case calls for an exception to this rule.  Plaintiff            can obtain  effective review  of the  court's ruling  in this            regard on appeal from final judgment.                 For these reasons,  the order denying  the motion for  a            preliminary  injunction is  affirmed.   The  appeal from  the                                        ________            order  denying leave  to  amend the  complaint is  dismissed,                                                               _________            without prejudice, for lack of appellate jurisdiction.                 So ordered.                 __________                                         -4-
