Manego v. Cape Cod Five Cents Sav. Bank, 82-1414

• Citation: 692 F.2d 174
• Decision Date: 28 October 1982
• Docket Number: No. 82-1414,82-1414
• Parties: Isaac MANEGO, Plaintiff, Appellant, v. CAPE COD FIVE CENTS SAVINGS BANK, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 174

692 F.2d 174

Isaac MANEGO, Plaintiff, Appellant, v. CAPE COD FIVE CENTS SAVINGS BANK, Defendants, Appellees.

No. 82-1414.

United States Court of Appeals First Circuit.

Argued Sept. 15, 1982.

Decided Oct. 28, 1982.

Charles R. Weidman, Chatham, Mass., for plaintiff, appellant.

Samuel Hoar, with whom Kenneth A. Cohen, Laura L. Carroll, Catherine E. Sullivan, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendants, appellees Cape Cod Five Cents Savings Bank, Inc., et al.

Albert P. Zabin, with whom Schneider, Reilly, Zabin, Connolly & Costello, P.C., Boston, Mass., was on brief, for defendants, appellees Gaston L. Norgeot, et al.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Isaac Manego brought suit, under 42 U.S.C. Secs. 1981, 1983, 1985, 1986, 1988, 2000e et seq., Sec. 3605 of the Fair Housing Act, and Mass.Gen.Laws c. 151, Sec. 4(3B), against the Cape Cod Five Cents Savings Bank (Bank); its president, George Marble; the manager of its Orleans branch, David Willard; the members of the Orleans Board of Selectmen, Gaston Norgeot, Herbert Wilcox and Thomas Nickerson; and Paul Thibert, who obtained an entertainment license from the Selectmen. ¹ The substance of the plaintiff's complaint is that the defendants conspired to deny him a license to build a disco in Orleans because he is black.

The salient allegations of the complaint are as follows. Plaintiff applied to the Board of Selectmen for a license to build his proposed disco. In January and February of 1979, public hearings were held at which "a state of aggression and hostility was created against the plaintiff." Also in February of 1979, the individual defendants met together to organize and carry out a plan to prevent him from carrying out his disco plans. During the same period, the bank defendants hired attorneys and encouraged individuals to appear before the Board of Selectmen to oppose the plaintiff's license. On February 22, 1979, the Board of Selectmen denied the license. On February 23, 1979, unknown persons set fire to a building plaintiff owned. On May 16, 1979, the bank brought suit to enjoin plaintiff from constructing a building in the Town of Orleans. On June 1, 1979, the bank defendants secretly sought to block plaintiff's supply of construction materials. On July 16, 1979, the Board of Selectmen granted an entertainment license "of the type sought by plaintiff to the Lower Cape Sports Arena operated by Paul M. Thibert, a White person."

On September 22, 1981, the district court held a hearing on motions to dismiss by the private defendants and motions for summary judgment by the defendant Selectmen. The defendant Selectmen argued that the claims under 42 U.S.C. Secs. 1981, 1983, 1985, 1986 and 1988, were barred by the doctrines of res judicata and collateral estoppel. The plaintiff had petitioned the Superior Court for the Commonwealth of Massachusetts for a writ of mandamus compelling the Board of Selectmen of the Town of Orleans to issue him a license. The Massachusetts court dismissed the complaint for failure to state a claim. The district court rejected the defendants' res judicata and collateral estoppel argument "[s]ince the claims made here were neither fully argued or adjudicated in the state proceeding." ²

The district court did not rule on the defendant Selectmen's motions for summary judgment. It addressed, instead, the failure of the plaintiff to make legally sufficient allegations of a conspiracy, without which the claim against the private defendants could not stand. Reluctant to dismiss the complaint, the court determined that

"[plaintiff] should be allowed to provide the court with the facts which he asserts will support his claim of a conspiracy designed to deprive him of his civil rights. I, therefore, will allow the plaintiff 90 days to present, either by way of affidavit or by other means, concrete, factual bases for his allegations of conspiracy. At that time defendants may again seek dismissal and/or summary judgment."

Seven months later the district court ruled on renewed motions to dismiss or for summary judgment. In support of his claim, plaintiff had submitted two personal affidavits. One, based "upon information and belief", set out the details of the conspiracy as the plaintiff saw them. The other explained that he was unable to produce direct evidence of the conspiracy "as only the Defendants have the requisite personal knowledge", but that he expected the facts to become evident after cross-examination of hostile witnesses at trial. Plaintiff had also submitted the affidavit of Roger Hulick, a building contractor employed by the plaintiff to construct the disputed disco. Hulick's affidavit contained a hearsay statement indicating that the Cape Cod Five Cents Savings Bank had requested that Nickerson Lumber Co. not supply Manego with building materials, a statement that unnamed persons had uttered racial slurs against him because of his association with the plaintiff, observations of Manego's house after it was set afire by unknown persons, and a vague suggestion that his treatment at the bank had been adversely affected by his association with the plaintiff.

The district court carefully reviewed all of the evidence introduced by plaintiff, including the affidavits described above and plaintiff's deposition taken by the defendant Selectmen and filed on December 22, 1980. It also examined these affidavits submitted by defendants Willard and Nickerson in support of the motion for summary judgment. The court found that the affidavits provided affirmative evidence that at no time was race a factor in the opposition to or consideration of plaintiff's application for a license. The court concluded that

"[m]aking every inference favorable to the plaintiff, one still is forced to conclude that the plaintiff has failed to set forth even the promise of evidence that would show involvement by any of these defendants in a conspiracy, sufficient to create a genuine issue for trial. The theory of liability advanced by the plaintiff has been unsupported despite the fact that the court originally granted 90 days to supply affidavits or other foundation material in the form of answers to interrogatories, depositions, or motions for production of documents.

"However sympathetically one might look at the complaint of the plaintiff, the motions for summary judgment must be, and are hereby granted."

We affirm the district court's judgment. First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), involved a similar effort by a plaintiff to infer an illegal conspiracy, in that case to prevent him from buying and selling Iranian oil, from the fact that the defendant traded with someone else. The Court acknowledged that "the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence." The Court insisted, however, that

"[w]hat Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him ....

"Essentially all that the lower courts held in this case was that Rule 56(e) placed upon [the plaintiff] the burden of producing evidence of the conspiracy he alleged only after respondent ... conclusively showed that the facts upon which he relied to support his allegation were not...