888 F.2d 189 (1st Cir. 1989), 89-1214, Brennan v. Hendrigan

Docket Nº:89-1214.
Citation:888 F.2d 189
Party Name:Robert BRENNAN, Plaintiff, Appellant, v. Roderick HENDRIGAN, et al., Defendants, Appellees.
Case Date:October 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 189

888 F.2d 189 (1st Cir. 1989)

Robert BRENNAN, Plaintiff, Appellant,


Roderick HENDRIGAN, et al., Defendants, Appellees.

No. 89-1214.

United States Court of Appeals, First Circuit

October 27, 1989

Heard Sept. 13, 1989.

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Michael J. Conley, for plaintiff, appellant.

Brian Rogal, with whom Timothy M. Burke was on brief, for defendants, appellees Roderick Hendrigan and Gary Walsh.

Samuel Leiter, with whom Norman Holtz, Holtz and Gilman, P.C., Richard L. Barry, Jr., and Olivieri, Truttman, Barry & Casey were on brief for remaining appellees.

Before TORRUELLA, SELYA and MAYER [*], Circuit Judges.

SELYA, Circuit Judge.

There is presented for our consumption an appeal from an order of the United States District Court for the District of Massachusetts granting summary judgment for all defendants in this civil rights action. After fully digesting the record, we have found plaintiff's assignments of error to be uniformly unnourishing. We therefore affirm.


Although many of the details and nuances are controverted, the factual predicate underlying this suit is, for the most part, undisputed. We set forth that background in a manner consistent with the protocol of Fed.R.Civ.P. 56, described infra.

Plaintiff-appellant Robert Brennan was hired as a correctional officer at the Middlesex County House of Correction in Billerica, Massachusetts on September 1, 1982. His appointment was subject to a one-year probationary period. During the year, an inmate told prison officials that Brennan was trafficking with convicts, bartering drugs for jewelry. On July 6, 1983, a "sting" operation was mounted, albeit clumsily. After alerting the state police, prison officials supplied their informant with some baubles to be offered to plaintiff as part of an illegal exchange. Shortly thereafter, the inmate reported that Brennan had risen to the bait, taken the jewelry, and agreed to the bargain.

The trap snapped shut--a bit prematurely, as matters turned out. Three prison officials (Gallant, the prison's security chief, and two guards, Spellisey and Roark) approached plaintiff's duty station and requested that he accompany them to an office within the prison complex. Once there, Brennan was instructed to empty his pockets. When he did so, the jewelry was found. Brennan was searched and told that he would be charged criminally. He alleges that he was handled ungently during the episode; his shirt pocket was ripped and his wallet "torn apart." Plaintiff claims, and defendants deny, that he satisfactorily explained the situation. See infra n. 5. The prison officials claim, and Brennan denies, that he admitted guilt. Before the session ended, the officers took Brennan's car keys (which had been in his pocket) and conducted a consensual, but warrantless, search of his automobile. At one point, Aubuchon, the prison's personnel director, entered the office and terminated plaintiff's employment.

Thereafter, two state troopers (who had been briefed earlier and were waiting in their cruiser) came into the room. Before interviewing Brennan, the troopers were told by prison officials that Brennan had been discharged after admitting (1) that he had received jewelry from an inmate, intending to swap money and marijuana in exchange; and (2) that, on another occasion, he had brought illegal drugs into the facility for prisoner use. The troopers claim, and Brennan denies, that during the interview, Brennan admitted to them that he intended to remove the jewelry from the penitentiary, sell it, and pay the inmate for stealing it. At some point after Brennan was cashiered, the prison superintendent

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(Quealy) was brought up to speed. Later that evening, the superintendent and his deputy (Ryan) spoke to the duty shift concerning plaintiff's dismissal.

We need only offer a decurtate account of the remaining events. Brennan was charged, found guilty of receiving illicit articles with intent to convey by a judge in Lowell District Court, appealed, claimed a de novo trial by jury, and was eventually acquitted.


Following acquittal, plaintiff brought the instant action against the Middlesex County Sheriff, six persons employed at Billerica (officers), and two Massachusetts state troopers (troopers). 1 His complaint contained five counts, all of which drew upon the same 38-paragraph narrative of events. Count II was dismissed early on, and is not before us. We limn the remaining statements of claim:

A. Count I, brought under 42 U.S.C. Sec. 1983 (1982), alleged in substance that, on various dates from and after July 6, the individual defendants, acting under color of law and in a conspiratorial fashion, deprived Brennan of various rights secured by the federal Constitution.

B. Count III, a pendent state-law claim, asserted that the described conduct violated the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, Sec. 11I (1986).

C. Count IV alleged that the Sheriff, qua employer, deprived Brennan of a constitutionally secured liberty interest by cashiering him without due process of law.

D. Count V, oblivious of any need for identifying theoretical roots, simply alleged that plaintiff had suffered emotional distress as a result of defendants' misconduct.

After completion of discovery, defendants--contending that there were no triable issues--moved for brevis disposition. The district court, in an ore tenus bench decision, obliged. Brennan appealed.


A motion for summary judgment must be granted if:

[T]he 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 and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Accordingly, the movant must adumbrate "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both "material," in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), and "genuine," in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. "The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:

[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly

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probative, summary judgment may be granted.

Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.

It is against this firmly-entrenched backdrop that we examine whether Brennan sustained his burden of establishing the existence of genuine, material fact issues with respect to any of his claims.


We start with the claims encompassed by count I of plaintiff's complaint, pausing first to comment upon the doctrine of...

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