Rubin v. Smith

• Decision Date: 20 March 1996
• Docket Number: Civil No. 92-273-SD.
• Citation: 919 F. Supp. 534
• Parties: Carol A. RUBIN, et al. v. Philip SMITH, Sr., individually and in his official capacity as a Police Officer of the Town of Salem; Fred Rheault, individually and in his official capacity as a Police Officer of the Town of Salem; James Ross, individually and in his official capacity as Chief of Police of the Town of Salem; Town of Salem, a municipal corporation of the State of New Hampshire; Harvey Rubin.
• Court: U.S. District Court — District of New Hampshire

919 F. Supp. 534

Carol A. RUBIN, et al. v. Philip SMITH, Sr., individually and in his official capacity as a Police Officer of the Town of Salem; Fred Rheault, individually and in his official capacity as a Police Officer of the Town of Salem; James Ross, individually and in his official capacity as Chief of Police of the Town of Salem; Town of Salem, a municipal corporation of the State of New Hampshire; Harvey Rubin.

Civil No. 92-273-SD.

United States District Court, D. New Hampshire.

March 20, 1996.

COPYRIGHT MATERIAL OMITTED

Paul McEachern, Portsmouth, NH, for plaintiffs.

Wayne C. Beyer, North Conway, NH, Robert M. Larsen, Concord, NH, Jonathan Katz, New Haven, CT, for defendants.

ORDER

DEVINE, Senior District Judge.

This order addresses the following motions: (1) plaintiff Carol A. Rubin's motion for reconsideration; (2) Carol Rubin's motion to expunge exhibit; (3) defendant Harvey Rubin's motion for summary judgment; and (4) the Salem defendants'¹ motion for summary judgment.

1. Carol Rubin's Motion for Reconsideration, document 194

Plaintiff Carol A. Rubin presently moves the court to reconsider its February 5, 1996, order which, inter alia, granted without prejudice Rebecca Rubin's motion for voluntary dismissal pursuant to Rule 41, Fed.R.Civ.P. Invoking "fundamental notions of fairness", as well as other, less ethereal, grounds for the requested relief, plaintiff is here before the court for a fourth time objecting to, in essence, the appointment of a guardian ad litem on her daughter's behalf. For the reasons that follow, such motion is herewith denied.

Plaintiff correctly notes the First Circuit's directive that "requires all magistrates ... to include in their reports," United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986) (per curiam), "clear notice to litigants not only of the requirements that objections must be specific and be filed within ten days, but that failure to file within the time allowed waives the right to appeal the district court's order," id. (citation omitted). Two observations about this "waiver notice" rule, however, are in order.

The rule in Valencia-Copete was mandated "to protect the rights of pro se litigants." United States v. Akinola, 985 F.2d 1105, 1108 (1st Cir.1993). At all times relevant to the magistrate judge's initial appointment of the guardian ad litem (September 6, 1994), Carol Rubin was represented by able counsel from the Boston office of the LeBoeuf, Lamb, Greene & MacRae firm. Such counsel did not file their motion to withdraw appearance until September 23, 1994, some seventeen days after the magistrate judge's order. Moreover, said motion was not finally granted by this court until December 15, 1994. Boston counsel opposed, on plaintiff's behalf, Attorney Uchida's March 10, 1994, request for instructions — which precipitated the guardian's appointment — as well as the Salem defendants' June 2, 1994, motion for summary judgment. Thus, plaintiff was not a pro se party at the time of the magistrate judge's September 6, 1994, order, and, as such, falls without the mandate of Valencia-Copete. See Akinola, supra, 985 F.2d at 1108.

Even were the court to assume arguendo that plaintiff was acting pro se at the time, her argument is defective for an entirely alternate reason. The First Circuit's waiver notice "is necessary only as part of a Magistrate Judge's report and recommendation to the district judge, 28 U.S.C. § 636(b)(1)(B), (C), and not when the Magistrate Judge issues a non-dispositive order. 28 U.S.C. § 636(b)(1)(A)." Id. at 1108-09 (emphasis added) (other citation omitted). As this court held, when considering plaintiff's initial objection to the guardian's appointment,

Not being among the list of dispositive motions identified in section 636(b)(1)(A), and neither "finally resolving" nor addressing the merits of the parties' claims, the court hereby finds and rules that the appointment of a guardian ad litem is a nondispositive act as that term is defined in Rule 72(a), Fed.R.Civ.P., and by implication in 28 U.S.C. § 636(b)(1)(A).

Rubin v. Smith, 882 F.Supp. 212, 217 (D.N.H.1995). Under such circumstances, the magistrate judge's appointment order was "self-operating," United States v. Ecker, 923 F.2d 7, 9 (1st Cir.1991), to which timely challenge was required, and waiver notice language was not necessary.

Plaintiff's motion for reconsideration is denied.²

2. Harvey Rubin's Motion for Summary Judgment, document 142

a. Summary Judgment Standard

Summary judgment shall be ordered when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. Since the purpose of summary judgment is issue finding, not issue determination, the court's function at this stage "`is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Stone & Michaud Ins., Inc. v. Bank Five for Savings, 785 F.Supp. 1065, 1068 (D.N.H.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Although "motions for summary judgment must be decided on the record as it stands, not on litigants' visions of what the facts might some day reveal," Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994), the entire record will be scrutinized in the light most favorable to the nonmovant, with all reasonable inferences indulged in that party's favor, Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995); see also Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994); Maldonado-Denis, supra, 23 F.3d at 581.

"In general ... a party seeking summary judgment is required to make a preliminary showing that no genuine issue of material fact exists." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)), cert. denied, ___ U.S. ___, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995).

A "genuine" issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party. Maldonado-Denis, 23 F.3d at 581. In other words, a genuine issue exists "if there is `sufficient evidence supporting the claimed factual dispute' to require a choice between `the parties' differing versions of the truth at trial.'" Id. (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 1st Cir.1990). A "material" issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995).

"`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....'" National Amusements, supra, 43 F.3d at 735 (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)). Accordingly, "purely conclusory allegations, ... rank speculation, or ... improbable inferences" may be properly discredited by the court, id. (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)), and "`are insufficient to raise a genuine issue of material fact,'" Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993) (quoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992)).

b. The Merits³

Plaintiff's claim against Harvey Rubin involves an alleged conspiracy between Rubin and the Salem defendants designed to deprive plaintiff of certain protected civil rights. Acknowledging that the long-running dispute between the Rubins has generated a host of disputed "facts", defendant Harvey Rubin maintains that "none of the disputed facts are material to whether plaintiff has offered sufficient proof of a conspiracy between Harvey Rubin and Detectives Smith and Rheault to allow the issue to be decided by a jury." Defendant Harvey Rubin's Motion for Summary Judgment at 15.

The law of this circuit clearly establishes that "a section 1983 claim does not lie absent state action." Alexis v. McDonald's Restaurants of Mass., 67 F.3d 341, 351 (1st Cir.1995) (citing Casa Marie, Inc. v. Superior Ct. of P.R., 988 F.2d 252, 258 (1st Cir. 1993); 42 U.S.C. § 1983). "State action" entails two components: (1) the deprivation has been caused "by the exercise of some right or privilege created by the state, or by a rule of conduct imposed by the state, or by a person for whom the state is responsible," and (2) "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id. (citing Casa Marie, supra, 988 F.2d at 258).

"Where a private individual is a defendant in a section 1983 action, there must be a showing that the private party and the state actor jointly deprived plaintiff of her civil rights." Id. (citations omitted); see also Brennan v. Hendrigan, 888 F.2d 189, 195 (1st Cir.1989) (for a conspiracy to be actionable under section 1983, plaintiff must show both agreement and actual deprivation of constitutional right). That noted, "`the gist of the section 1983 cause of action is the deprivation and not the conspiracy.'" Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980) (quoting Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540 n. 2 (7th Cir.1975)); accord Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995) ("although the pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right") (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970)).

Although "any pre-trial disposition of...