March 18, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 91-1883
No. 92-1394

                        MORGAN JAMES,

                    Plaintiff, Appellant,

                              v.

     NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,

                    Defendants, Appellees.

                                         

                         ERRATA SHEET

The opinion of this  Court issued on March 9, 1993, is amended  as
follows:

Page 2, Footnote 2, line 4:  "procedure" should be "Procedure".

Page   4,  Footnote   3,  line   1:    "impartiality"   should  be
"partiality".

Page  4,   Footnote  3,  line   7:     "impartiality"  should   be
"partiality". 

Page 6,  Footnote 5,  paragraph 2, line  7:   "parties" should  be
"parties'".

Page 7, line 9:  "both" should be "either".

March 9, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 91-1883
No. 92-1394

                        MORGAN JAMES,

                    Plaintiff, Appellant,

                              v.

     NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Joyce L. Alexander, U.S. Magistrate Judge]

                                         

                            Before

                   Torruella, Cyr and Stahl,
                       Circuit Judges.
                                     

                                         

Willie James Wheaton on brief for appellant.
                    
John  D. Corrigan, on  brief for  appellee, New  England Telephone
                 
and Telegraph Company.

                                         

                                         

          Per Curiam.    This case began  in March 1981  with
                    

the    filing    of    plaintiff-appellant   Morgan    James'

discrimination  complaint against  the New  England Telephone

Company  ("NET"),  his  employer  from  1974  to  1983.    It

concluded in January  1991 when summary  judgment entered  in

favor  of NET.1   Before  us are  two companion  appeals: the

first purports  to appeal from the  adverse summary judgment;

the second is from the denial of plaintiff's motion, pursuant

to Fed.  R. Civ. P. 60(b),  to reconsider.   We conclude that

the plaintiff has effectively waived all appellate claims  in

the first appeal, find  no abuse of discretion in  the denial

of the Rule 60(b) motion, and affirm both judgments.

                 THE SUMMARY JUDGMENT APPEAL
                                            

          Appellant's  brief2 in  this  appeal argues  solely

that later  discovered  evidence  would  have  shown  that  a

genuine and  material factual dispute existed  as to pretext,

McDonnell  Douglas Corp. v. Green, 411  U.S. 792, 804 (1973),
                                 

                    

1.   A magistrate-judge decided the  case by agreement of the
parties under 28 U.S.C.   636(c).

2.   Only two issues are raised:
          (1).  Whether  the  Court  below   is  required  to
consider newly discovered evidence  pursuant to Rule 60(b) of
the  Federal  Rules  of   Civil  Procedure,  when,  with  due
diligence, the movant could  not have discovered the evidence
at [the] time of the original proceeding.
          (2). Whether  the newly discovered evidence  was of
such a  material and controlling  nature as to  have affected
the outcome of the original proceeding.

precluding summary judgment against him.  The brief, filed by

plaintiff's counsel, concedes that:

     Appellant   did   not   successfully   oppose   the
     Appellee's Motion  for  Summary Judgment  at  court
     below because  there was  evidence  that tended  to
     refute   and    otherwise   contradict   Appellee's
     witnesses   that  was  not,   with  due  diligence,
     available  to Appellant when Appellant as Plaintiff
     below  filed its  Motion in  Opposition to  Summary
     Judgment.

     Plaintiff-Appellant's  failure  to supply  specific
     facts of a genuine and material issue in dispute in
     court   below  was  due  entirely  [to]  Plaintiff-
     Appellant's  inability to obtain  all of the needed
     affidavits timely, even with diligence; and because
     many of the affidavits were not yet discovered.

The  brief does not address how the district court's judgment

was in error, or otherwise contend that the plaintiff had, at

the summary  judgment stage,  established the existence  of a

genuine and material issue  sufficient to rebut NET's motion.

See Mesnick v. General  Electric Co., 950 F.2d 816,  822 (1st
                                    

Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992).  These, and
                        

other  statements  filed in  this  court,  indicate that  the

appellant  has unambiguously  waived  the right  to have  the

correctness of the grant  of summary judgment in  NET's favor

reviewed by this court.   Jusino v. Zayas, 875 F.2d 986,  993
                                         

n.9 (1st Cir. 1989) (challenges to the lower court's judgment

that are neither briefed or argued are waived); Pignons  S.A.
                                                             

de  Mecanique  v. Polaroid,  701 F.2d  1,  3 (1st  Cir. 1983)
                          

("[A]n appellee is  entitled to  rely on the  contents of  an

appellant's brief for the scope of  the issues appealed . . .

                             -3-

.").   Nor  can plaintiff's  pro se  attacks3 on  the summary
                                   

judgment decision, made after the appellee's brief was filed,

extinguish that waiver.  See United States v. Nueva, 979 F.2d
                                                   

880, 885 n.8 (1st  Cir. 1992) (appellant may not  enlarge the

scope of the issues appealed  after initial briefing).  Thus,

any  challenge to the propriety of  summary judgment in favor

of the defendant has been waived.

                    THE RULE 60(B) APPEAL
                                         

          The  only  question  presented  by  this  appeal is

whether the district court  abused its discretion in deciding

that  plaintiff's motion  under  Fed. R.  Civ.  P. 60(b)  for

relief from summary judgment did not present newly discovered

                    

3.   In  particular, claims  of  judicial bias  or partiality
must first  be addressed to  the trial  judge.  In  re Abijoe
                                                             
Realty Corp., 943  F.2d 121,  126 (1st Cir.  1991); see  also
                                                             
United States  v.  Chantal, 902  F.2d  1018, 1024  (1st  Cir.
                          
1990).   At  no time  during the  lengthy  proceedings below,
including the  request  for 60(b)  reconsideration,  did  the
plaintiff suggest partiality, thus effectively  immunizing it
from judicial scrutiny.  Abijoe Realty, 943 F.2d at 127.  The
                                      
plaintiff  offers no reason why the issue could not have been
put  before the  trial  court.   See  Playboy Enterprises  v.
                                                         
Public  Service  Comm., 906  F.2d  25, 40  (1st  Cir.), cert.
                                                             
denied, 111 S. Ct. 388 (1990).  No facts or circumstances are
      
presented  that  would  lead  a  reasonable  person  to  even
remotely doubt the magistrate's impartiality.  Merely issuing
unfavorable rulings, Lisa v.  Fournier Marine Corp., 866 F.2d
                                                   
530,  532 (1st  Cir. 1989),  or, as  here, suggesting  that a
party  file a  particular motion,  Noli v.  Commissioner, 860
                                                        
F.2d 1521, 1527 (9th  Cir. 1988), or other actions taken by a
judge or a  magistrate-judge in his or  her judicial capacity
during the course of  proceedings cannot form the basis  of a
disqualification  claim absent  a showing  of personal  bias,
Chantal, 902 F.2d at 1022-23 &amp; n.9 (comparing standards under
       
28 U.S.C.    144 and 455), an assertion not made here. 

                             -4-

facts. Because of the  clear and thorough disposition  by the

magistrate  on summary judgment, we do not relate the details

of every claim  presented and decided below,  and repeat only

those facts and conclusions necessary to decide this appeal.

          Plaintiff's  employment  discrimination  complaints

revolve  around his demotion due to  a speech "problem" which

NET  claimed   seriously  interfered  with  his   ability  to

communicate  and perform.  The plaintiff is a black male who,

admittedly, speaks with a slight Jamacian/West  Indian accent

and speech pattern.   In  support of its  motion for  summary

judgment  NET offered  evidence that  plaintiff had  a speech

defect which  caused him,  despite speech therapy  during the

course of employment, to perform in an unsatisfactory manner.

On  motion for  reconsideration, filed  six months  after the

entry of summary judgment against him, plaintiff attempted to

show  that  newly  discovered  evidence  revealed   that  the

plaintiff had, in fact, no diagnosed speech  defect and that,

consequently,   NET's  rationale  for  its  decision  not  to

promote,   and  to   demote,   was  a   pretext  for   racial

discrimination.4  

                    

4.   Much of  the  motion  to  reconsider,  like  appellant's
brief,  is devoted  to arguing the merits of his case against
NET.  As  this appeal  addresses only the  order denying  the
60(b)  motion, and  for  the reasons  discussed earlier,  the
merits of  the underlying grant  of summary judgment  are not
before us.   See, e.g., Parrilla-Lopez v. United  States, 841
                                                        
F.2d 16, 20 (1st Cir. 1988).    

                             -5-

          The  "new"  evidence  supporting  plaintiff's  Rule

60(b)(2)  motion took the form of medical reports which post-

dated the entry of summary judgment in NET's favor and stated

that the plaintiff did not have the particular speech  defect

claimed  by NET as the reason for its employment decision not

to promote the plaintiff.   The reports presented evaluations

based  on  a  series  of assessments  of  plaintiff's  speech

patterns that were originally performed in 1978 and 1979, but

which, the plaintiff asserted, were heretofore available only

in  illegible  handwritten  form.    The  plaintiff professed

knowledge  of the reports at  the time his  opposition to the

motion for  summary judgment was  filed, but stated  that the

records  were  not,  despite  diligent efforts  to  obtain  a

"translation", available in legible form  at that time due to

difficulty in retrieving  the information from the  reporting

source.   The motion also stated that counsel's illness was a

contributing factor  in the inability to  properly respond at

the time the summary judgment opposition was filed.5

                    

5.   Plaintiff's counsel at the  Rule 60(b) stage had entered
the case  shortly before  NET's motion for  summary judgement
was  filed.  During the  prior ten-year history  of the case,
plaintiff  was represented,  at various  times, by  two other
attorneys, or had appeared pro se.  
                                  
     After NET  moved for  summary judgment,  plaintiff filed
two motions for a continuance of the summary judgment hearing
(each occasioned by the rescheduling of counsel's bone marrow
implant  operation);  both were  granted.    In allowing  the
second  continuance,  the  magistrate  indicated,  apparently
taking into account counsel's ill health, that the motion for
summary judgment would be decided on the parties' submissions
some six weeks  later.   At no time  did plaintiff's  counsel

                             -6-

          The magistrate refused to grant the motion because,

despite professing  earlier  knowledge of  the evidence,  the

plaintiff  did not request an extension of time to respond to

the summary  judgment motion,  Fed.  R. Civ.  P. 56(f)6,  and

could  not, given  the  lengthy  history  of  the  case  -  -

including the  allowance of  an extremely late  opposition to

the motion  for  summary  judgment, make  a  claim  that  the

documents  now  offered  were   difficult  to  obtain.    The

magistrate  concluded  that  the  plaintiff  had   failed  to

demonstrate either that the  evidence was newly discovered or

that  due  diligence could  not  have  uncovered it  earlier,

Nickerson  v. G.D. Searle &amp; Co.,  900 F.2d 412, 417 (1st Cir.
                               

1990), and deemed the motion frivolous.  We review the denial

of  a Rule  60(b) motion  for abuse  of discretion,  Duffy v.
                                                          

Clippinger, 857  F.2d 877, 879  (1st Cir.  1988), and  cannot
          

                    

seek an  extension of time to file an opposition.  Almost two
months after the grant of  the second continuance, and  three
months  after   the  summary  judgment   motion  was   filed,
plaintiff's  counsel  filed  a  request  for  leave  to  file
plaintiff's  opposition,  offering ill  health  and the  bone
marrow  operation as reason for the delay.  The only opposing
affidavit offered was that of the plaintiff.   The magistrate
allowed the request and considered the plaintiff's opposition
in  the ruling  on the  summary judgment  motion  three weeks
later.

6.   Rule 56(f) states, in relevant part:
     Should  it appear.  . .  that the  [opposing] party
     cannot  .  . .  present facts  .  . .  essential to
     justify the party's opposition, the court may . . .
     order  a continuance  to  permit  affidavits to  be
     obtained or depositions to be taken or discovery to
     be had or may make such other order as is just.

                             -7-

find that  an error of  judgment was committed  here.   It is

clear that the proffered  documents were not newly discovered

since the plaintiff  was aware of their  existence when NET's

motion  for summary  judgment was  filed.   Parrilla-Lopez v.
                                                          

United States, 841 F.2d 16, 19 (1st Cir. 1988).  Nor does the
             

plaintiff  assert  that  further  facts  became  known  after

summary  judgment  entered.    See  Mas  Marques  v.  Digital
                                                             

Equipment Corp., 637 F.2d  24, 29 (1st Cir.  1980).  Even  if
               

the documents  remained illegible at the  time the opposition

was due, Rule 56(c),  it was incumbent upon the  plaintiff to

make known to  the magistrate  the existence of  any and  all

material  facts  bearing  on   summary  judgment  either   by

introducing affidavits from the treating sources or otherwise

utilizing the mechanisms of Rule 56(f).

          Rule  60(b)(2)  also requires  the moving  party to

show  due diligence in order  to secure relief from judgment.

The  plaintiff's  brief  argues  that  the  medical   records

purporting to show that  the plaintiff had no speech  or oral

communication  problem were  unavailable  because  they  were

unreadable and their conclusions had to be reconstructed from

the original speech and language  tests performed in 1978 and

1979.   However,  this  falls  short  of explaining  why  the

plaintiff  did not  at least  verify the  existence of  these
                                                   

records  at the time the summary judgment was filed, or apply

for a continuance  as provided for in Rule 56(f).   Lepore v.
                                                          

                             -8-

Vidockler,  792 F.2d  272, 274  (1st Cir.  1986).   Given the
         

lengthy history  of the  case, including that  the magistrate

was clearly indulgent of counsel's difficulties, and  mindful

that  Rule 60(b)  affords  "extraordinary  relief"  available

"only under  exceptional circumstances," United States v. One
                                                             

Urban Lot,  882 F.2d 582-83,  585 (1st Cir.  1989) (citations
         

omitted),  we cannot find an  abuse of discretion in refusing

to reconsider summary judgment.7

          Accordingly,  the judgments  of the  district court

are  affirmed.   Appellees'  request for  an award  of double
             

costs and attorney's fees in the Rule 60(b) appeal is denied.

                    

7.   Since relief from judgment under Rule  60(b)(2) requires
that each of  four elements  be present, Duffy,  857 F.2d  at
                                              
879, we  need  not reach  appellant's  claim that  the  "new"
evidence would likely change the summary judgment outcome.  

                             -9-
