Bryant v. O'Connor

• Decision Date: 06 June 1988
• Docket Number: No. 87-1002,87-1002
• Citation: 848 F.2d 1064
• Parties: 51 Fair Empl.Prac.Cas. 187 Robert J. BRYANT, Plaintiff-Appellant, v. Earl E. O'CONNOR and Perry D. Mathis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1064

848 F.2d 1064

51 Fair Empl.Prac.Cas. 187

Robert J. BRYANT, Plaintiff-Appellant, v. Earl E. O'CONNOR and Perry D. Mathis, Defendants-Appellees.

No. 87-1002.

United States Court of Appeals, Tenth Circuit.

June 6, 1988.

Margie J. Phelps, Topeka, Kan. (Fred W. Phelps, Jr. and John R. Balhuizen, on the brief), for plaintiff-appellant.

Barbara L. Herwig, Dept. of Justice, Washington, D.C. (Richard K. Willard, Asst. Atty. Gen., and Deborah R. Kant, Dept. of Justice, Washington, D.C., Benjamin L. Burgess, Jr., U.S. Atty., Topeka, Kan., on the brief), for defendants-appellees.

Before BRORBY, TIMBERS ^* and McWILLIAMS, Circuit Judges.

TIMBERS, Circuit Judge.

Appellant Robert J. Bryant, a former probation officer of the United States District Court for the District of Kansas, appeals from a summary judgment entered December 2, 1986 in the District of Kansas, Clarence A. Brimmer, Jr., Chief Judge of the District of Wyoming, sitting by designation, 671 F.Supp. 1279. The summary judgment was granted in favor of appellees Chief Judge O'Connor and Chief Probation Officer Mathis, both of the District of Kansas, dismissing appellant's claim that he was terminated for racial reasons. Bryant asserts that the court erred (1) in holding that appellees were entitled to judicial immunity and (2) in concluding that his responses to appellees' motion for summary judgment were insufficient to defeat the motion before discovery was completed.

We hold that appellees adequately supported their motion for summary judgment and that Bryant's responses were merely conclusory--a sufficient justification for granting summary judgment against Bryant.

I.

We shall summarize those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

Chief Probation Officer Mathis, Bryant's immediate supervisor, suspended Bryant for disciplinary reasons on October 26, 1984. Bryant wrote to Chief Judge O'Connor requesting a hearing on the ground that he was suspended not for cause, but because he is black. Mathis recommended that Bryant be discharged for gross negligence in carrying out his duties and for failure to maintain adequate records. All nine judges of the district court, including senior judges, sat en banc, and, after a hearing at which Bryant was represented by counsel, unanimously voted to discharge Bryant effective February 28, 1985.

Bryant, by a letter dated March 13, 1985, then filed a complaint with the district court's Equal Employment Opportunity ("EEO") Coordinator. The Coordinator recused himself. The court designated a magistrate to act as coordinator. After an investigation of the complaint, the magistrate filed a written report on June 20, 1985. He concluded that Bryant was discharged for poor performance and not for racial reasons. Bryant requested review of the report. On August 5, 1985, Chief Judge O'Connor dismissed the appeal as untimely.

Two days later, on August 7, Bryant commenced the instant action against Chief Judge O'Connor and Mathis for damages and injunctive relief. He alleged termination of his employment and denial of equal employment opportunities on the ground of racial discrimination, in violation of the First and Fifth Amendments to the United States Constitution and in violation of 42 U.S.C. Sec. 1981 (1982).

After holding a meeting on August 16, 1985, all of the judges of the district except Chief Judge O'Connor recused themselves. Chief Judge O'Connor entered a separate order disqualifying himself. Chief Judge Holloway of the Tenth Circuit then designated and assigned Chief Judge Brimmer of the District of Wyoming to adjudicate the case. Subsequently Bryant amended his complaint to assert that the en banc decision of the Kansas district judges to disqualify themselves constituted an unlawful conspiracy to interfere with his access to the courts in violation of 42 U.S.C. Sec. 1985(2) (1982).

Appellees Mathis and Chief Judge O'Connor moved to dismiss or in the alternative for summary judgment, asserting that Bryant was discharged for legitimate, non-discriminatory reasons; that he had neither a statutory nor an implied remedy; and that they were protected by judicial and quasi-judicial immunity. Bryant requested massive discovery, including depositions of the entire Kansas federal judiciary. In response to this overreaching request, the court entered an order on March 3, 1986 staying discovery and requiring Bryant to file a specific discovery plan limited to responding to appellees' motion and explaining why the request was necessary. On March 10, Bryant filed a proposed discovery plan. Appellees objected.

The court, in an order entered March 28, held that Bryant did not comply with its March 3 order. Bryant's proposed plan, the court held, stated only very general discovery requests. Accordingly, the court continued the stay of discovery but granted Bryant an additional ten days to file affidavits stating specific probative facts to support the allegations in his complaint. The Tenth Circuit on April 16 denied Bryant's petition for a writ of mandamus with respect to the district court's March 28 order. On June 13, the Tenth Circuit denied Bryant's motion for rehearing and reconsideration en banc. In an order entered June 27, the district court granted Bryant one last chance (his third) to comply with the court's prior March 3 order.

On July 11, Bryant responded to the court's order. The court examined Bryant's submissions and found them to be "unsatisfactory, conclusory, largely irrelevant, and inadequate." Bryant v. O'Connor, 671 F.Supp. 1279, 1282 (D.Kan.1986). Bryant's counsel had filed an affidavit pursuant to Fed.R.Civ.P. 56(f) stating that discovery of the appellees, the depositions of one or more federal judges, federal court personnel, and employees of the probation office in Kansas were "require[d]" "to fully respond to said summary judgment motion." The court held this bare assertion was insufficient to forestall a motion for summary judgment, and the court stated that other factors suggested that the affidavit was "specious". Id. at 1282-83.

The court then proceeded to the merits and granted appellees summary judgment. The court held that Chief Judge O'Connor was absolutely immune from civil damage liability, and that Mathis was shielded by quasi-judicial immunity; that, even if Bryant properly had stated a claim for injunctive relief, which was "doubt[ful]", the Ku Klux Klan Act of 1871, of which Secs. 1981 and 1985(2) are a part, "was not enacted to resolve personnel disputes within the federal government"; and, finally, that Bryant's

"complete failure to respond to this Court's order with a meaningful discovery plan suggests that plaintiff lacked an evidentiary basis for the complaint when it was filed and hoped that discovery would reveal some set of facts supporting his allegations."

Bryant, supra, 671 F.Supp. at 1286. From the summary judgment in favor of appellees, the instant appeal was taken. Bryant asserts on appeal that appellees were not shielded by immunity and that summary judgment was improper as there were material facts in issue.

II.

More than a year after the district court decision in the instant case, the Supreme Court in Forrester v. White, 108 S.Ct. 538 (1988), rev'g, 792 F.2d 647 (7th Cir.1986), held that absolute judicial immunity does not extend to a judge's decisions with respect to the hiring and firing of court personnel. Since the district court relied on the subsequently reversed Seventh Circuit decision in Forrester, that ground no longer supports the grant of summary judgment in favor of appellees.

We hold, however, that the court acted well within its discretion in granting appellees' motion for summary judgment--for the reasons that follow.

Fed.R.Civ.P. 56(e) requires that "[w]hen a motion for summary judgment is made and supported ..., an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response ... must set forth specific facts showing that there is a genuine...