
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
