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USCA1 Opinion

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,


__________________________________

was on brief for appellant.


Marie St. Fleur,
________________

Assistant

Attorney General,

with

Harshbarger, Attorney General, was on brief for appellees.

whom

Sc
__

___________

________________

____________________

____________________

Per Curiam.
___________

Plaintiff-appellant Timothy Davis, an

employee of the Massachusetts State Lottery

the

Commission

violation

and

Daniel

Kinney,

his

Commission, sued

supervisor,

for

of civil rights, racial discrimination, infliction

of emotional distress, and improper layoff, stemming from his

dismissal

moved

by the

to dismiss

Commission

for failure

relief could be granted.

later

allowed

permitting him to

(Count

VI)

on May

to state

plaintiff's

Motion

file an amended

his federally

Defendants

a claim

The court granted the

seeking compensatory

violation of

1, 1991.1

for

upon which

motion, but

Reconsideration,

complaint adding a

and

punitive damages

protected rights after

count

for

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

incorporating,

claims.

This

but simply by

Memorandum and Order.

motion, also,

reference, the court's earlier

We affirm.

The obligatory appendix

this

appeal

totally

Procedure

30.

required

items

largely

the

Except

was granted,

which plaintiff filed for

disregards Federal

for a copy

is present.

Rule

of Count VI,

Instead

of Appellate

none of the

are some

60

memoranda of law filed in the district court.

Rule expressly forbids.

to such filings meet brief

FRAP 30(a).

requirements.

pages,

These

Nor does reference

FRAP 28.

We will

____________________

1.

Following arbitration, the improper layoff was corrected.

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not consider them.

brief

the court's Memorandum

judgment for

anywhere

V.

Plaintiff

did attach

to his

and Decision

defendants on Count

appellate

granting summary

VI, but failed

to include

the court's earlier memorandum dismissing Counts I-

FRAP 30(a)(3).

In

judgment, the

granting

defendants'

court set

the course for

motion

for

summary

plaintiff's appeal:

"I find that he has failed to meet his burden of establishing

a prima facie case

21,

1991."

otherwise.

alleged

of unlawful discrimination after November

Plaintiff's filings

do not

enable us

to find

The (very) occasional references in his brief to

evidence

of

continuing

discrimination

after

his

reinstatement consist of cryptic allusions to: "Davis Depo.";

"A copy of his

affidavit in this regard is

(It was not); "Kelly

the appendix);

annexed hereto."

Depo., p. 38-51" (also not

and "Memorandum

the Motion for Summary Judgment

in Support of

included in

Opposition to

. . . pages 12 through

16."

Finally, in an attempt to rebut the court's exposition of how

he

failed

to

make out

plaintiff points to his

prima
_____

facie case
_____

on

Count VI,

amended complaint as "establish[ing]

genuine issues of material fact which render summary judgment

inappropriate."

retaliation,

He

and

he has

continuing

Defendants," without

complaint.

states

acts

"detailed

of

discrimination

reference to the record

In lieu, "Davis

harassment,

by

other than the

respectfully refers to pages 16

-3-

through 19 of his

Memorandum," which, as already

noted, was

improperly filed.

All

specific facts,

rest upon the

against

56(e).

this is

meaningless.

the non-moving

Fundamentally, without

party

(plaintiff) "may

mere allegations of [its]

summary judgment

Ramsdell v.
________

for the

Bowles, 64 F.3d
______

not

pleading" to defend

defendant.

Fed.R.Civ.P.

5, 11 (1st Cir.

1995).

Plaintiff presents neither facts nor law to make out a case.

This is an extraordinary waste of time.

is dismissed on the opinion below.

The appeal

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