523 F.2d 461 (1st Cir. 1975), 75-1087, Hahn v. Sargent

Docket Nº:75-1087.
Citation:523 F.2d 461
Party Name:Robert C. HAHN, Plaintiff-Appellant, v. Francis W. SARGENT et al., Defendants-Appellees.
Case Date:September 18, 1975
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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523 F.2d 461 (1st Cir. 1975)

Robert C. HAHN, Plaintiff-Appellant,

v.

Francis W. SARGENT et al., Defendants-Appellees.

No. 75-1087.

United States Court of Appeals, First Circuit

September 18, 1975

Argued June 3, 1975.

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[Copyrighted Material Omitted]

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Robert C. Hahn, with whom Hahn & Matkov, Boston, Mass., was on brief, for plaintiff-appellant.

Alex Prasinos, pro se.

Richard R. Eurich, with whom Morrison, Mahoney & Miller, Boston, Mass., was on brief, for Alan G. Miller, defendant-appellee.

Michael Eby, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Hiller B. Zobel, Thomas G. Dignan, Jr., and Paul B. Galvani, Sp. Asst. Attys. Gen., were on brief, for Francis W. Sargent, Robert H. Quinn, John J. Irwin, Jr., Harvey F. Rowe, Jr., John G. Ryan, and William I. Cowin, defendants-appellees.

Alfred J. Disciullo, Jr., Boston, Mass., on brief for Wendell Berman, defendant-appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MURRAY [*], District Judge.

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COFFIN, Chief Judge.

Appellant, a former chairman of the Massachusetts Republican party, filed this action under four sections of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(2), 1985(3) and 1986, alleging that appellees' participation in events which led to his indictment, defeat in his efforts to be reelected as state party chairman, and acquittal by a jury, constituted a conspiracy to violate his constitutional rights. Appellees are two private attorneys, a businessman, and the former Governor, Attorney General, two Assistant Attorneys General, Secretary of Consumer Affairs, and Insurance Commissioner of the state of Massachusetts. They are alleged variously to have perjured themselves, suborned perjury, suppressed evidence and manipulated administrative processes in an effort to destroy appellant's political career by generating adverse publicity and procuring his indictment. The district court dismissed three counts of the complaint and granted summary judgment as to the fourth. Hahn v. Sargent, 388 F.Supp. 445 (D.Mass.1975). We affirm.

The district court granted summary judgment with respect to appellant's claim under 42 U.S.C. § 1983. Federal Rule of Civil Procedure 56(c) provides:

" . . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . .."

judgment "shall be rendered forthwith". In determining whether summary judgment is appropriate the court must "look at the record . . . in the light most favorable to . . . the party opposing the motion . . .." Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Similarly the court must indulge all inferences favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Rogen v. Ilikon, 361 F.2d 260, 266 (1st Cir. 1966). These rules must be applied with recognition of the fact that it is the function of summary judgment, in the time hallowed phrase, "to pierce formal allegations of facts in the pleadings . . ..", Schreffler v. Bowles, 153 F.2d 1, 3 (10th Cir. 1946), and to determine whether further exploration of the facts is necessary. Briggs v. Kerrigan, 431 F.2d 967, 968 (1st Cir. 1970).

The language of Rule 56(c) sets forth a bifurcated standard which the party opposing summary judgment must meet to defeat the motion. He must establish the existence of an issue of fact which is both "genuine" and " material". A material issue is one which affects the outcome of the litigation. To be considered "genuine" for Rule 56 purposes a material issue must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). The evidence manifesting the dispute must be "substantial", Fireman's Mut. Ins. Co. v. Aponaug Mfg. Co., Inc., 149 F.2d 359, 362 (5th Cir. 1945), going beyond the allegations of the complaint. Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972).

With these standards and objectives in mind, we examine the record which the district court held did not present any genuine issue of material fact as to appellant's § 1983 claims. The story, as reflected in the transcripts of grand jury testimony by some of the appellees, portions of the transcript of appellant's trial, the transcript of an administrative hearing, several documents and the affidavits submitted by appellees, is as follows. The Rockland Mutual Insurance Company, controlled by appellee Berman, applied to the Commissioner of Insurance, appellee Ryan, for authority to write bodily-injury automobile liability

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insurance. Ryan denied the application, and Rockland, represented by appellee Miller obtained a state court order requiring Ryan to hold hearings on Rockland's application. Sometime shortly before February 17, 1972, after Ryan had held the hearing and had tentatively decided to grant the application subject to certain conditions, but before he had begun to write his decision, he was contacted by a member of the staff of appellee Sargent, then Governor of Massachusetts, who told Ryan to expect a call from appellant on "an insurance matter". On February 17, 1972, appellant met with Ryan for "five or ten minutes", expressing his hope that Rockland's application would be treated fairly. Ryan reported the substance of this conversation to his superior, the Secretary of Consumer Affairs, appellee Cowin, who instructed Ryan to bring appellant to see him. Appellant, Ryan and Cowin met in Cowin's office on February 25, 1972. Appellant evinced concern that if Rockland's application was not soon approved the company would fail. Ryan and Cowin indicated that the decision, which was by then partially written, would be favorable although subject to conditions. Three days later, in response to a phone call from appellant, Ryan read him the list of conditions which would be imposed on Rockland by the yet-to-be-released decision. On March 2, 1972, after several more calls, Ryan sent appellant a copy of the decision which was on the same day released.

On March 3, 1972, Rockland's attorney of record, appellee Miller, went to Ryan's office, discussed the conditions imposed on Rockland by the decision, and then recounted the story told him by Berman of an unsolicited offer of political assistance and subsequent claim of successful intervention by appellant and another attorney named Kirk. Ryan immediately arranged to take Miller to tell his story to Cowin that afternoon. On March 16, 1972, Berman accompanied by Miller met with Cowin and one of his assistants. Berman said that he had initially been contacted by Kirk, a personal friend of a Rockland staff attorney, appellee Prasinos. Kirk had extended several offers of help to Berman through Prasinos, and finally arranged for Berman to meet with him and appellant the morning of February 28, 1972. At that meeting, Berman told Cowin, appellant and Kirk indicated that they could assure Rockland of favorable action on its application by Ryan. Berman did not, he said, authorize such intervention; nevertheless Kirk called soon after to advise Berman that appellant had been successful in his efforts on behalf of Rockland. A few days later, Berman stated, Kirk had called suggesting that an appropriate fee for the services rendered by him and appellant would be $75,000, and that Berman should in addition purchase several tables at a fund raising dinner. Later, according to Berman, the fee demands were reduced, and then, when Kirk heard that Berman had been summoned to Cowin's office, withdrawn. 1

Cowin asked Berman to make a written statement rehearsing the story which he had just told. Berman, after several days deliberation, refused to make such a statement. Cowin then asked Ryan to reopen the hearing on Rockland's application to permit him to put into the record, without revealing the names of Kirk and appellant, a summary of the events surrounding appellant's involvement with the application. A hearing was held on March 31, 1972, at which

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Cowin testified and was cross-examined by Miller.

Beginning on March 3, when Miller first reported Berman's story of appellant's offer of assistance, Cowin had kept Governor Sargent's office apprised of significant developments. Contemporaneous with his testimony at the reopened Rockland hearing, Cowin referred the matter to the Attorney General, appellee Quinn, who after further investigation, instructed two of his assistants, appellees Rowe and Irwin, to bring the evidence before a grand jury. Appellant and Kirk were indicted and brought to trial. During the trial testimony of Berman the defense requested that the court examine the prosecution's records of prior statements given by Berman. The court, after examining the materials in camera, ordered the prosecution to make available to defense counsel several items not revealed in response to previous requests for exculpatory evidence. These materials were available to the defense when Berman was cross-examined. The jury acquitted both defendants. Kirk has since died.

Appellant, in his long narrative complaint, tells a different tale. Berman, he says, solicited his help through Kirk, and thereafter, delighted at the report that Rockland's license would be granted, offered to make Kirk an officer of Rockland as compensation, and to purchase $500 worth of tickets to a party fund raiser. The allegation that he volunteered to help and then demanded a huge fee, appellant states, was concocted by Berman at a meeting with Cowin on March 10, 1972, in an effort to secure elimination of the conditions imposed on Rockland by...

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