Murray v. Menino
Opinion
USCA1 Opinion
[Not For Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 96-1848
JAMES A. MURRAY,
Plaintiff, Appellant,
v.
CITY OF BOSTON,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________
____________________
Before
Stahl and Lynch, Circuit Judges, ______________
and Woodlock,* District Judge. ______________
____________________
Mark S. Bourbeau, with whom Bourbeau and Bourbeau Bonilla & __________________ __________________________________
Tocchio were on brief, for appellant. _______
Krisna M. Basu, Assistant Corporation Counsel, with whom Merita _______________ ______________________________ ______
A. Hopkins, Corporation Counsel, was on brief, for appellee. __________ ___________________
____________________
December 17, 1996
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
PER CURIAM. Plaintiff James Murray appeals from PER CURIAM
the entry of summary judgment on his employment-related claim
against the City of Boston. Murray, a former city employee,
brought claims against the City of Boston and Mayor Menino
under 42 U.S.C. 1983 and the Massachusetts Civil Rights
Act, Mass. Gen. L. ch. 12, 11I ("MCRA").
Murray alleges that, in 1992, he was terminated
from his position as Executive Assistant to the Commissioner
for Elderly Affairs, and that, in 1994, he was constructively
terminated from his subsequent position as a reporter for
Boston Seniority, a Commission for Elderly Affairs __________________
publication. Murray resigned from the latter position in
March 1994. Murray alleges that these employment actions
were punishment for expressing his political beliefs,
specifically for running for City Council in 1991 and for
Mayor in 1993 against the incumbent Mayor of Boston.
The district court granted summary judgment for the
defendants on all claims. Murray appeals only from the
judgment against him as to the City. Because Murray has not
adduced evidence sufficient to establish municipal liability
under 1983, we affirm the district court's grant of summary
judgment on that claim.1 As Murray has failed to show that
____________________
1. Defendant also argues that Murray was not constructively
terminated and that, on the merits, he has not shown any
retaliation, much less for the expression of his political
views. We find it unnecessary to reach these arguments but
note that they appear well taken.
-2- 2
he was subject to any threats, intimidation, or coercion, a
necessary element of claims under the MCRA, we also affirm
the grant of summary judgment on the state law claim.
In order to make out a claim of municipal liability
under 1983, Murray must show that the "execution of a
government's policy or custom, whether made by lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury." Monell v. New York ______ ________
Dep't of Social Servs., 436 U.S. 658, 694 (1978). The theory ______________________
of respondeat superior has no place in such claims. Id. at ___
691. The "custom" on which liability is premised must be "so
permanent and well settled as to constitute a 'custom or
usage' with the force of law." Id. (quoting Adickes v. S.H. ___ _______ ____
Kress Co., 398 U.S. 144, 167-68 (1970)(internal quotation __________
marks omitted)). Murray does not contend that there is a
formal act or written policy which embodies the so-called
policy of retaliation. Nor does he contend that "anyone in
city government ever promulgated, or even articulated, such a
policy." City of St. Louis v. Praprotnik, 485 U.S. 112, 128 __________________ __________
(1988). Rather, he says that there is an informal policy or
custom of punishing city employees who express political
views different than those of the administration.
This court had said that there are "two
requirements for plaintiffs to meet in maintaining a 1983
action grounded upon an unconstitutional municipal custom":
-3- 3
First, the custom or practice must be
attributable to the municipality. . .
.[I]t must be so well-settled and
widespread that the policymaking
officials of the municipality can be said
to have either actual or constructive
knowledge of it yet did nothing to end
the practice. Second, the custom must
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