USCA1 Opinion

[Not For Publication]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 96-1848

JAMES A. MURRAY,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________

____________________

Before

Stahl and Lynch, Circuit Judges,

______________

and Woodlock,* District Judge.

______________

____________________

Mark S. Bourbeau, with

__________________

whom

Bourbeau and Bourbeau Bonilla

_______________________________

Tocchio were on brief, for appellant.

_______

Krisna M.

Basu, Assistant Corporation

Counsel, with whom

Mer

_______________

______________________________

___

A. Hopkins, Corporation Counsel, was on brief, for appellee.

__________ ___________________
____________________
December 17, 1996
____________________
____________________
*Of the District of Massachusetts, sitting by designation.

PER CURIAM.

Plaintiff James

Murray appeals

from

PER CURIAM

the entry of summary judgment on his employment-related claim

against

the City of Boston.

brought claims against

under

42 U.S.C.

the City of

1983 and

Act, Mass. Gen. L. ch. 12,

Murray

Murray, a former city employee,

the Massachusetts

Menino

Civil Rights

11I ("MCRA").

alleges that,

from his position as

Boston and Mayor

in 1992,

he was

terminated

Executive Assistant to the Commissioner

for Elderly Affairs, and that, in 1994, he was constructively

terminated

from his

Boston
Seniority,
__________________

subsequent position

Commission

publication.

Murray

March 1994.

Murray alleges

were

punishment

for

resigned from

for

as a

reporter for

Elderly

the latter

position in

that these employment

expressing

his

Affairs

political

actions

beliefs,

specifically for

running for City

Council in

1991 and

for

Mayor in 1993 against the incumbent Mayor of Boston.

The district court granted summary judgment for the

defendants

on all

claims.

judgment against him as

Murray

to the City.

appeals

the

Because Murray has not

adduced evidence sufficient to establish

under

only from

municipal liability

1983, we affirm the district court's grant of summary

judgment on that

claim.1

As Murray has failed

to show that

____________________

1.

Defendant also

terminated

and that,

retaliation, much
views.

argues that Murray was not constructively

We find

on the

less for

merits, he

has not

shown any

the expression of

his political

it unnecessary to reach these

arguments but

note that they appear well taken.

-22

he was subject to

necessary

any threats, intimidation, or

element of claims

under the MCRA,

coercion, a

we also affirm

the grant of summary judgment on the state law claim.

In order to make out a claim of municipal liability

under

1983, Murray

government's policy

must

show that

the

or custom, whether made

"execution of

by lawmakers or

by those whose edicts or acts may fairly be said to represent

official

policy, inflicts the

injury."

Monell
______

v. New York
________

Dep't of Social Servs., 436 U.S. 658, 694 (1978).

______________________

of respondeat superior has

691.

The theory

no place in such claims.

Id. at
___

The "custom" on which liability is premised must be "so

permanent

and well

settled as

usage' with the force

Kress Co., 398

__________

marks omitted)).

formal

act or

a 'custom

of law." Id. (quoting Adickes

___
_______

U.S. 144,

167-68 (1970)(internal

Murray does

written policy

policy of retaliation.

to constitute

not contend that

which embodies

or

v. S.H.
____

quotation

there is

the so-called

Nor does he contend that

"anyone in

city government ever promulgated, or even articulated, such a

policy."

City of St. Louis v. Praprotnik, 485 U.S. 112, 128

__________________
__________

(1988).

custom

Rather, he says that there is

of punishing

city

employees

an informal policy or

who express

political

views different than those of the administration.

This

requirements for

court

had

said

that

plaintiffs to meet in

there

are

"two

maintaining a

1983

action grounded upon an unconstitutional municipal custom":

-33

First,

the

custom or

attributable
.[I]t

to

must

be

widespread

practice

must be

the

municipality. .

so

well-settled

that

the

.
and

policymaking

officials of the municipality can be said

to

have

either

knowledge

of it

the

practice.

have

been the

force

actual or

constructive

yet did nothing

Second, the
cause of

behind

the

to end

custom must

and

the moving

deprivation

of

constitutional rights.

Bordanaro v. McLeod, 871

_________
______

F.2d 1151, 1156 (1st Cir.)(internal

citations omitted), cert. denied, 493 U.S. 820 (1989).

____________

On the first point,

own employment history, which

support

his

claim

that

Murray naturally relies on his

need not be detailed

there

is

here, to

"well-settled

and

widespread" custom.

usually

municipal

But evidence of a

insufficient,

"custom

in

and

and

single occurrence is

of itself,

usage."

to

St. Hilaire
____________

establish

v.

City of
________

Laconia, 71 F.3d 20, 29 (1st Cir. 1995), cert. denied, 116 S.

_______
____________

Ct.

2548

(1996);

Mahan
_____

v.

Plymouth County
House of
____________________________

Corrections, 64 F.3d 14, 16-17 (1st Cir. 1995).

___________

Murray tries

"custom" by pointing

States District

one

complaint

to buttress his claim that there is a

to three lawsuits

Court for the District

filed

before

the

Against Discrimination by present or

____________________

filed in the

United

of Massachusetts and

Massachusetts

Commission

former city employees.2

2.

We

assume

proffered
City

arguendo
________

by Murray

that

the

deposition

constitute admissible

transcripts

evidence.

argues that they are inadmissible hearsay.

The

See Garside
___ _______

v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990).

_______________

-44

There is

and

one

considerable doubt that three

administrative

allegations comparable

complaint,

individual law suits

even

if

to Murray's, would suffice

each

made

to show a

custom with

not

the force of law.

comparable to

similar

the

allegations

opposition

to the

of

present action

and

do not

retaliation

because

of

incumbent

complaining individuals was,

candidate

allege

than

office

for office.

a broader

But these other disputes are

None of

the

from the evidence presented,

of retaliation,

against

against incumbent

settings he proffers do

political

Even if Murray's complaint is read to

theory

just retaliation

administration.

involve

city

encompassing more

city employees

officials,

the

who run

for

other

fact

not support his claim that

there is

such a custom or policy.

These

claims involve

diverse

city agencies,

different city officials were responsible for

and

the employment

actions at issue.

of due process

One

in how

termination following

one alleges

claimant makes allegations of

his job was

to

sexual harassment,

policymaker.

even the

link

alleges

her criticism of her employing agency,

and one

for speaking out against sexual

attempt

terminated, one

denial

these

harassment.

various

These disparate facts

broader category of

alleges retaliation

claims

to

central

do not fall easily under

a "custom"

-55

Murray makes no

of punishing

city

employees

for expression,

in any

form, of

political views

contrary to those of the city administration.

Such a protean view as that offered by Murray would

render the

with the

"custom" requirement

showing made here,

meaningless.

this court has

In

contrast

credited proof,

such as that offered in Bordanaro, of uncontroverted evidence

_________

from witnesses

particular

period of

city

with first

hand knowledge

officials who

repeatedly

of a practice

engaged,

of

over a

time, in exactly the same sort of unconstitutional

behavior.

See Bordanaro, 871 F.2d

___ _________

at 1156.

As

we said in

Mahan, plaintiff "has not brought his case near the Bordanaro
_____
_________

umbrella, let alone under it."

Mahan, 64 F.3d at 16.

_____

To establish a claim under the MCRA, Mass. Gen.

ch.

12,

11I,

interference

or

plaintiff

must

prove

attempted interference

"threats, intimidation or coercion."

11H; Swanset Dev. Corp.

__________________

337 (Mass. 1996).

that

the

with rights

N.E.2d 333,

context involves

the

to make

another fearful or apprehensive of injury

"Intimidation" involves putting

in fear for the

of

was by

The Supreme Judicial Court has said that:

intentional exertion of pressure

deterring

alleged

Mass. Gen. L. ch. 12,

v. City of Taunton, 668

_______________

"[t]hreat" in this

or harm.

L.

purpose of compelling or

conduct. . .

coercion

[is]

"the

. [A] definition
application

to

another of such
or

moral,

as

against his will

force, either,
to

constrain

physical
him to

something he would

do
not

have done."

-66

Planned Parenthood League v.

___________________________

Blake,
_____

631

N.E.2d 985,

990

(Mass.),

cert. denied,
_____________

citations omitted).

court

could

115

188

(1994)

(internal

Murray presents no evidence from which a

conclude that

intimidation, or

S. Ct.

he

coercion" of

was

subjected to

this nature.

"threats,

Therefore, his

state law claim fails on the merits as well.

The judgment of the district court granting summary

judgment to the defendant on all claims is affirmed.

________

-77