
USCA1 Opinion

	




                               [NOT FOR PUBLICATION]                                 ____________________          No. 96-2100                        KEVIN AND BOBBI RAYZOR, THE MINOR BR,                 REPRESENTED BY HER PARENTS, KEVIN AND BOBBI RAYZOR,                               Plaintiffs, Appellants,                                         v.                              UNITED STATES OF AMERICA,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Salvador E. Casellas, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                       Coffin and Cyr, Senior Circuit Judges.                                ____________________               Andres Guilemard-Noble with whom Joan S. Peters was on brief          for appellants.               Steve  Frank, Attorney, Appellate Staff Civil Division,          Department of Justice, with whom    Frank                                                       W.                                                           Hunger, Assistant          Attorney General,                            Guillermo Gil                                        , United States Attorney, and                                                                      Robert          S. Greenspan                     , Attorney, Appellate Staff Civil Division, Department          of Justice, were on brief for appellee.                                 ___________________                                    JULY 22, 1997                                 ___________________               COFFIN, Senior                               Circuit                                        Judge. Appellants Kevin and Bobbi          Rayzor seek to hold the United States responsible for the sexual          abuse of their daughter by a babysitter whose name they obtained          from a list allegedly recommended by the Navy. The Rayzors filed          suit for damages under the Federal Tort Claims Act, 28 U.S.C. S          1346(b), asserting that the Navy was negligent in directing them to          select a babysitter from a Red Cross generated list without first          checking the qualifications of the individuals on the list. The          district court granted summary judgment for the government on both          that claim and a related First Amendment claim. We affirm.                                    I. Background               Appellant Kevin Rayzor, a petty officer in the Navy, was          stationed with his wife and young daughter at a base in Ceiba,          Puerto Rico. The Rayzors claim that the Navy instructed them to          hire babysitters for sporadic child care needs only from a list          provided by the American Red Cross at the base's Family Service          Center. That list contained the names of teenagers who had          completed the nine-hour Red Cross babysitting course offered at the                                              Two points warrant some elaboration. First, there is some          confusion about whether the district court misunderstood the          allegation to be that the Navy advised the Rayzors                                                            not to hire from          the Red Cross list. Unraveling the confusion is unnecessary          because our assumption that the Navy did direct the Rayzors to use          the list exclusively is most advantageous to the Rayzors, whose          claim of negligence would be absurd, rather than just fruitless, if          they had hired a sitter from the list despite the Navy's explicit          directive not to do so.               Second, the Rayzors' assertion that they were directed to hire          from the Red Cross list is based only on their own statement and is          not attributed to any particular individual or document. For          purposes of summary judgment, we accept the allegation as true.          base. The course covered the basics of first aid and outlined the          duties of a babysitter.               The Rayzors hired an individual from the list, and discovered          the next day that she had physically and sexually abused their two-          year-old daughter. They subsequently filed their complaint under          the FTCA alleging that the Navy was negligent in "certif[ying]" the          sitter, and in falsely representing that she was qualified to          provide safe babysitting services. Appellants also alleged that          the Navy violated their First Amendment rights by warning them "to          keep silent" about the incident.               The district court granted summary judgment for the          government. It ruled that the FTCA was inapplicable because the          Red Cross and its employees were not government employees whose          conduct was actionable under the statute. It also held that an          FTCA action was not viable because the Navy's alleged actions did          not constitute negligence under local law. Although the government          did not respond in its summary judgment motion to the First          Amendment claim, the district court                                              sua                                                  sponte dismissed the claim                                              The Navy sought to have the sitter prosecuted but the U.S.          Attorney's office declined to prosecute because the sitter was a          juvenile.                The Navy operates two fulltime child care programs at the          base, the Child Development Center/Preschool (CDC) and a Family          Home Care Program (FHC), neither of which is at issue in this case.          The Navy has issued detailed instructions for each of these          programs, including background checks for FHC providers, who are          private individuals who care for up to six children in a Navy          housing unit.  See App. at 24-41.          for lack of supporting evidence. The Rayzors then filed this          appeal.                             II. Federal Tort Claims Act               Our review of a grant of summary judgment is de novo, and we          evaluate the record in the light most favorable to the non-moving          party.  See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.          1995). Even from that vantage point, however, the Rayzors'          negligence claim lacks luster.                Their claim, in essence, is that the Navy should have probed          the backgrounds of the babysitters on the Red Cross list before          recommending them to base residents. Under Puerto Rico law, which          is applicable in this FTCA suit,                                          see                                              Attallah v.                                                          United States                                                                      , 955          F.2d 776, 781 (1st Cir. 1992), such a claim is actionable only if          a reasonable factfinder could find that the Navy had a duty to          exercise due diligence to avoid foreseeable risks to the Rayzors,          and that the Navy failed to fulfill that responsibility.      See          Coyne, 53 F.3d at 458-60;                                    Malave Felix                                                v.                                                  Volvo Car Corp.                                                                 , 946 F.2d          967, 971 (1st Cir. 1991). Even assuming, as the Rayzors argue at          length, that the Navy acquired a duty to protect them as a result          of its recommendation that they hire a babysitter from the Red          Cross list -- a legal proposition about which we have doubts -- we          think no reasonable factfinder could find either a failure to          exercise due diligence or a foreseeable risk of harm.                                              The Rayzors do not appeal the court's holding that Red Cross          workers are not federal employees, limiting their challenge on the          FTCA claim to the court's ruling that they failed to make a viable          showing of negligence.               The Navy's only representation about the sitters on the Red          Cross list was an implicit statement that they were preferable to          other sitters because of their relationship with the international          humanitarian agency, making them something of a known quantity.          The Rayzors offer no evidence to support their contention that the          Navy lacked due diligence in failing to investigate the individuals          whose names appeared on the list. They cite to no incidents of          child abuse involving Red Cross sitters generally, or concerning          the specific individuals on the list at the base in Ceiba.          Moreover, all of the individuals on the Red Cross list were          teenagers, ranging in age from 11 to 17, and we cannot accept that          a reasonable factfinder would have concluded that the Navy had an          obligation to do background checks on minors who had undergone Red          Cross training, in the absence of particularized concern. In          short, a reasonable person would not have foreseen a need to          investigate these Red Cross-affiliated sitters to prevent harmful          criminal conduct.               Although foreseeability typically is both a "factbound and          case-specific" issue, see  Coyne, 53 F.3d at 460 -- foreclosing          summary judgment -- "the evidence must be such that the factfinder          rationally can conclude that the risk complained of is among the          universe of risks recognizable by reasonably prudent persons acting          with due diligence under the same or similar circumstances."  Id.          (citing Pacheco v. Puerto                                     Rico                                          Water                                                Resources                                                          Auth., 112 D.P.R.          367, 372 (1982)). As we have noted, however, the Rayzors have          proffered no basis upon which a factfinder could conclude that it          was foreseeable to the Navy that this, or any other teenage          babysitter who had taken a Red Cross babysitting course, would          engage in criminally abusive mistreatment of her charge.                                                                  Cf.,                                                                       e.g.,          Coyne, 53 F.3d at 461 (reversing summary judgment where defendants          were on notice of the potential for violence);  Elba v. Univ.                                                                          of          P.R., 90 J.T.S. 13 (1990) (Official English Translation: No. RE-86-          214, slip op. at 21-23) (university's failure to provide adequate          security in high-risk area gave rise to violent assault of female          student);                    Negron v.                              Orozco Rivera                                          , 113 P.R. Offic. Trans. 921, 927-          29 (1983) (reasonable person would have foreseen eruption of          violence in police station, given prior confrontation between armed          officer and decedent).  See also  Mas v. United                                                           States, 984 F.2d          527, 530 (1st Cir. 1993) (showing of negligence under Puerto Rico          law requires "a demonstration that the defendant has either actual          or constructive knowledge of a dangerous condition"). We therefore          conclude that the Rayzors failed to generate a sufficient factual          dispute to survive the government's motion for summary judgment on          the FTCA claim.  Accordingly, we affirm the district court's          dismissal of that claim.                             III. First Amendment Claim                                              We previously have observed that liability for a breach of          duty under Puerto Rico law requires a causal relationship between          the breach and the ensuing harm, meaning that "'the damage must          have been foreseeable and                                     avoidable had the omitted action been          timely taken,'" Coyne v. Taber                                          Partners                                                   I, 53 F.3d 454, 459 (1st          Cir. 1995) (quoting Elba v.  Univ.                                              of                                                 P.R., 90 J.T.S. 13 (1990)          (Official English Translation: No. RE-86-214, slip op. at 12)          (emphasis added)). The Rayzors offer no evidence that a background          check would have revealed the unsuitability of the sitter.               The Rayzors also alleged that the government violated their          First Amendment rights by threatening that they should keep quiet          about the abuse incident. The government's motion for summary          judgment did not address this claim, but the court dismissed it                                                                         sua          sponte because it could not find any proof in the record to verify          the allegation. The court stated in its opinion:               Mr. Rayzor has failed to identify or indicate who, if               anyone, threatened him. In our opinion, a claim not               supported by affirmative evidence does not present a               genuine issue for trial. Unsupported allegations or               denials are not enough to defeat a motion for summary               judgment.  Anderson v.  Liberty                                                Lo[bby],                                                         Inc. 477 U.S.               242, 252 (1986).               The only apparent evidence on this claim contained in the          appellate materials consists of two affidavits, one from each of          the Rayzors. The content relevant to a First Amendment claim in          Kevin Rayzor's affidavit is as follows:               [W]e were harassed and threatened by Navy officers in an               attempt to cover-up the incident. . . . I was told by an               officer of the Navy that I better keep my wife's mouth               shut, or I would have problems with my records.          Bobbi Rayzor's affidavit merely repeats the allegation of          harassment and threats, and alleges that action on her application          to be licensed as a Child Care Provider was delayed because of the          couple's complaints about the incident.               We agree with the district court's judgment that these          statements are inadequate to warrant a trial on the First Amendment          claim. They fail to identify who made the threatening statement(s)          or when they were made, the basis for Mrs. Rayzor's assertion that          this incident affected her application to become a base Child Care          Provider, or how Officer Rayzor's records could be affected by          public disclosure of the assault.               Appellants imply in their brief that summary judgment on this          claim is premature because no discovery has been conducted. So far          as we can tell, lack of discovery was not an issue below. The          government moved for summary judgment on March 18, 1994, and the          district court dismissed the case more than two years later on July          28, 1996. Appellants do not assert that they requested, but were          denied, discovery. Instead, they maintain that their affidavits          constituted "ample evidence" to survive summary judgment.               As we already have explained, we disagree that their proffer          is adequate. It is virtually axiomatic that "neither 'conclusory          allegations,' . . . nor '[b]rash conjecture coupled with earnest          hope that something concrete will materialize, is []sufficient to          block summary judgment.'"  J. Geils Band Employee Benefit Plan v.          Smith                 Barney                        Shearson,                                  Inc., 76 F.3d 1245, 1251 (1st Cir. 1996)          (citations omitted). This is all the Rayzors have offered.                                              We have some concern about the court's  sua                                                             sponte grant of          summary judgment on the First Amendment claim in light of the          government's failure to move for brevis disposition on that claim.          This, however, was not an ambush. In its Reply to Plaintiffs'          Opposition to Defendant's Motion for Summary Judgment, the          government pointed to the lack of support for both the allegations          of threats and Mrs. Rayzor's contention that the government stalled          her license to become a Child Care Provider. The Reply was filed          on June 27, 1994, more than two years before the court ruled.               We therefore are satisfied that appellants had adequate notice          of the government's challenge to the sufficiency of their "threat"          allegations. See                            Penobscot Indian Nation                                                   v.                                                      Key Bank of Maine                                                                      , 112          F.3d 538, 562 (1st Cir. 1997) (quoting    Berkovitz v.  Home                                                                          Box          Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996)) ("'targeted party'"          must be given "'appropriate notice and a chance to present its          evidence on the essential elements of the claim or defense'").           In these circumstances, to preclude summary judgment on the First          Amendment claim based on the government's failure to seek it          explicitly would be to waste judicial resources for the sake of          pointless technicality. We decline to do so.               For the foregoing reasons, the summary judgment of the          district court is affirmed.
