

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.

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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

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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.

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