106 F.3d 383 (1st Cir. 1997), 96-1695, Cox v. O'Malley

Docket Nº:96-1695.
Citation:106 F.3d 383
Party Name:Laroy D. COX, Plaintiff, Appellant, v. Peter J. O'MALLEY, Miller Thomas, Trent W. Holland, William Dunn, Francis M. Roache and City of Boston, Defendants, Appellees.
Case Date:January 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 383

106 F.3d 383 (1st Cir. 1997)

Laroy D. COX, Plaintiff, Appellant,

v.

Peter J. O'MALLEY, Miller Thomas, Trent W. Holland, William Dunn, Francis M. Roache and City of Boston, Defendants, Appellees.

No. 96-1695.

United States Court of Appeals, First Circuit

January 22, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert B. Collings, U.S. Magistrate Judge]

Valeriano Diviacchi, with whom Diviacchi Law Office was on brief for appellant.

Kimberly M. Saillant, with whom Merita A. Hopkins was on brief for appellees City of Boston and Roache.

Ronald Kovner, with whom Merita A. Hopkins and Christopher J. Muse were on brief for appellees O'Malley, Thomas and Holland.

Thomas Drechsler for appellee Dunn.

Before CYR, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

PER CURIAM.

Plaintiff Laroy Cox challenges a district court ruling denying relief from a judgment dismissing his claim for damages against the City of Boston and various members of its police department. See 42 U.S.C. § 1983; Mass. Gen. L. ch. 12, § 11I. The claim arose out of Cox's interrogation during the Boston Police investigation of the Carol Stewart homicide. The principal thrust of the Cox appeal is that counsel for defendants failed to produce some 900 pages of material from the Boston Police Department Internal Affairs Division ("IAD") which were properly requested during pretrial discovery. As the district court did not abuse its discretion, see Anderson v. Cryovac, Inc., 62 F.2d 910, 923 (1st Cir.1988), we affirm.

The record discloses that Cox's counsel knew, well before trial, that the IAD files existed; in fact, counsel so conceded in the motion for reconsideration filed below. Moreover, in a pretrial letter mailed June 1, 1995, the City of Boston offered to provide the IAD files to Cox's counsel, but the offer was declined. Thus, Cox has not explained how the proffered IAD files can have been evidence "newly discovered" after the entry of judgment, let alone evidence not discoverable in the exercise of due diligence. See Fed.R.Civ.P. 60(b)(2).

Cox nonetheless contends that his Rule 60(b)(2) motion should have...

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