Cronin v. Amesbury

• Court: Court of Appeals for the First Circuit
• Decided: April 16, 1996
• Docket: 95-1957
• Status: Published

Opinion

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.



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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


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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


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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
                                 ___


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            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.   



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                                          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


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            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).



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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. 



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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.



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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


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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


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            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.



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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.



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