Ofori v. Ruby Tuesday, Inc.

Nov 17, 2006

06-1651

Versions:205 F. App'x 851

Before HOWARD, Circuit Judge, BALDOCK^* and STAHL, Senior Circuit Judges.

STAHL, Senior Circuit Judge.

Having considered the parties’ briefs and the record below, we affirm the district court‘s grant of summary judgment in this case, for substantially the reasons outlined in the district court‘s careful opinion.

Appellants, both members of the Puerto Rico Police Department (PRPD), brought suit against the Superintendent and Inspector General of the PRPD and against the Commonwealth, for civil rights violations under 42 U.S.C. § 1983. Ramos-Rodriguez alleges that he was denied due process when he was not promoted to First Lieutenant, and together they allege their right to association was violated when the PRPD investigated whether they were conducting an intimate relationship at the police station. We review a grant of summary judgment de novo. Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006). Ramos-Rodriguez‘s due process claim does not survive summary judgment because, viewing the facts in the light most favorable to him, he has failed to allege a viable property interest in receiving a promotion. Stuart v. Roache, 951 F.2d 446, 455 (1st Cir.1991). Puerto Rico law does not permit promotion of a police officer where he has outstanding disciplinary complaints. 25 P.R. Laws Ann. § 3114(d) (2003). Here, it is uncontested that Ramos had at least two, and up to seven, complaints pending against him on each of the three relevant promotion dates. In addition, Ramos-Rodriguez‘s allegation that the PRPD had a practice of lodging anonymous complaints to prevent promotions simply is not supported by the record.

Appellants also argue that “both plaintiffs have been deprived of a federally protected right to privacy by undue surveillance and harassment.” Appellants’ Brief at 14. However, appellants expend only two sentences of their brief on this argument, one in the Statement of Issues and one in the Conclusion. With such a paucity of argumentation, appellants have waived this issue. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“).

Affirmed.

Komi Ofori on brief pro se.

Cornelius R. Heusel and Jones, Walker, Waechter, Poitevent, Carrére and Denégre, L.L.P. and Jennifer L. Parent and McLane, Graf, Raulerson and Middleton, Professional Association on brief for appellee.

Before TORRUELLA, LYNCH and HOWARD, Circuit Judges.

PER CURIAM.

This appeal follows the denial of pro se appellant Komi Ofori‘s motion for “clarification” of his earlier, unsuccessful motion for reconsideration of the district court‘s decision granting summary judgment for his former employer, Ruby Tuesday, Inc. Because Ofori‘s notice of appeal is untimely as to both the district court‘s January 27, 2006 summary judgment decision, as well as the district court‘s February 21, 2006 denial of his first motion to reconsider, we review only the denial of Ofori‘s second post-judgment motion.

Eight days after the district court entered summary judgment for Ruby Tuesday dismissing each of Ofori‘s race and national origin discrimination claims, Ofori filed a one-paragraph motion for reconsideration which argued that Ruby Tuesday “falsified” its “issues to support their[] legitimate defenses to the Honorable Court.” This motion failed to identify any error of law or fact in the court‘s summary judgment decision. Because this motion was filed within ten days of entry of final judgment, it is properly viewed as motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Under Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, the filing of this Rule 59(e) motion suspended the time for appealing the underlying summary judgment decision until such time as the court disposed of the motion. Aybar v. Crispin-Reyes, 118 F.3d 10, 14 (1st Cir. 1997), cert. denied, 522 U.S. 1078 (1998).

The district court summarily denied the motion on February 21, 2006. A week later, Ofori filed a three-page pleading titled “Clarification,” in which he explained in more detail the basis for his original request for reconsideration. Because this pleading was filed more than ten days after the entry of final judgment, it is properly viewed as arising under Rule 60(b) of the Federal Rules of Civil Procedure. Fed. R.App. P. 4(a)(4)(A). Rule 60(b) motions do not affect the time for appealing from the final judgment. Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 389 (1st Cir.), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994). The district court summarily denied this motion on March 6, 2006.

Ofori filed his notice of appeal on March 27, 2006. It is timely only as to the March 6, 2006 denial of Ofori‘s second post-judgment motion. Construing this second motion as arising under Rule 60(b), Ofori could only prevail in setting aside the original judgment if he could show “exceptional circumstances” entitling him to “extraordinary relief.” Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.1989) (quoting Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir. 1986)). Ofori‘s “Clarification” fails to meet this exacting standard. “We have made it transparently clear that relief under Rule 60(b) is ‘extraordinary in nature‘” and that “motions invoking the rule should be granted sparingly.” Cintron-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d 522, 527 (1st Cir.2002) (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.2002)).

After careful review of the pleadings, it is clear that the district court properly exercised its discretion in denying Ofori‘s motion. Each of the arguments presented in the “Clarification” was previously presented to and fully considered by the district court. Ofori attempts to reargue the facts, but simple disagreement with the court‘s decision is not a basis for reconsideration. “[W]e recognize the district court‘s ‘intimate, first-hand knowledge of the case,’ and, thus, defer broadly to that court‘s informed discretion.” Cintron-Lorenzo, 312 F.3d at 527 (quoting Karak, 288 F.3d at 19).

Insofar as Ofori‘s appeal seeks review of the January 27, 2006 entry of summary judgment dismissing the case or the denial of his first motion for reconsideration, it is dismissed for want of appellate jurisdiction. The order of the district court denying Ofori‘s second motion for reconsideration is affirmed.

Notes

Of the Tenth Circuit, sitting by designation.