HOWARD, Circuit Judge.
This civil rights action involves competing accounts of an arrestee's weekend stay in Maine's Hancock County Jail. Plaintiff David Harriman, although he remembers virtually nothing that occurred over the entire weekend, contends that one or more correctional officers beat him until he sustained a lasting brain injury. Defendants Hancock County, its sheriff and several correctional officers assert that Harriman
We recount the facts in the light most favorable to Harriman as the party opposing summary judgment. Statchen v. Palmer, 623 F.3d 15, 16 (1st Cir.2010).
On a Friday evening in October 2006, Maine State Trooper Gregory Mitchell responded to a disturbance at the Blue Hill Hospital involving a disorderly emergency room patient later identified as Harriman. After a short game of cat-and-mouse— Harriman fled the hospital on foot before Mitchell arrived but returned on account of foul weather—Mitchell found Harriman back in the emergency room. Harriman appeared to be drunk.
Mitchell escorted Harriman outside to the police cruiser and searched him. Harriman launched a stream of epithets against Mitchell, including threats to Mitchell and his children. As Mitchell guided Harriman into the cruiser, Harriman resisted and fell to the ground, pulling Mitchell down with him. Mitchell got back on his feet and hoisted Harriman up and into the cruiser.
At about 8 p.m., the pair arrived at the jail. Mitchell escorted Harriman into the intoxilyzer room.
What happened next is the subject of some dispute. According to the defendants, Haines and Pileski escorted Harriman directly to the nurse's station where Haines asked him several questions in order to evaluate whether he was a suicide risk. Harriman did not respond. In accordance with jail protocol, Harriman was determined to be a suicide risk until he could respond in a manner that showed otherwise. With some assistance from Haines, Harriman changed into an anti-suicide smock.
A little after 10 p.m., Sergeant Heather Sullivan, from her position in or around the control room, heard Harriman "yelling" and "hollering" in his cell. When Sullivan looked over, she saw Harriman "banging around" his cell naked; she also noticed blood on the bridge of his nose. Sullivan radioed Haines and instructed him to investigate. Harriman greeted Haines with shouted expletives and, from behind the glass partition, drew his fist back as though he would punch Haines. Sullivan soon arrived outside Harriman's cell. While she and Haines were deciding on a course of action, they both heard a loud "thump" or "thud" from inside Harriman's cell. Although neither Sullivan nor Haines saw what happened in Harriman's cell, Pileski and another correctional officer, Crystal Hobbs, from their vantage point in the control room, saw Harriman fall to the floor in a leftward motion. Pileski further saw Harriman strike his head as he fell against the lefthand concrete wall of his cell.
Haines entered the cell and saw Harriman lying on the floor in his own urine, apparently unconscious. Harriman then had what appeared to be two seizures, each lasting a matter of seconds. At Sullivan's request, Hobbs called an ambulance from the control room at about 10:20 p.m. The ambulance arrived within several minutes and took Harriman to the hospital. Haines accompanied Harriman in the ambulance and stayed with him at the hospital until relieved by another correctional officer later that evening.
Harriman remembers next to nothing about his jail stay. From his arrest on Friday until he woke up at home on Monday or Tuesday night, Harriman remembers only the following: "a lot of hollering"; "echoes from hollering"; "flashes of light"; "somebody saying he's had enough or I think that's enough or maybe even that's enough"; "seeing my wife's cousin [Foster Kane, another jail detainee] but just barely"; "somebody telling me that they were going to take me to Augusta"; and "the smell ... [of] urine mixed with cleaning fluid."
Given his anamnestic difficulties, Harriman relies on Mitchell's deposition testimony and affidavits from two other witnesses to contradict the defendants' version of events.
Mitchell testified at deposition that he spent roughly an hour in the booking room finishing up paperwork after transferring custody of Harriman to Haines and Pileski. When Mitchell exited the booking room at about 9 p.m., he noticed Harriman through a glass partition in a room known as secure holding, not in HD-1, which was further inside the jail. According to Mitchell, Harriman appeared to be unaccompanied and was wearing civilian clothes.
Foster Kane, the detainee who Harriman vaguely remembers seeing, stated in an affidavit that, from his cell near the booking room, he "heard yelling and screaming and loud thuds of someone hitting a wall." He further stated that the "commotion went on for approximately 45 minutes before I saw the correctional officers dragging David Harriman into my cell block." And, "David had two black eyes, a cut on his nose, and a cut on his forehead over his right eye."
Jenny Sheriff, the emergency medical technician who responded to the jail's call for an ambulance, stated in an affidavit that she "picked Mr. Harriman up in [secure holding]." Sheriff noticed dried blood on Harriman's nose, and was "certain that I did not receive the call to respond to the
The rest of the weekend is materially undisputed. Harriman returned from the hospital early Saturday morning. He spent the next two days in jail. On Monday, he appeared before a judge who set bail. Later that day, a family member bailed him out and drove him home. The next thing Harriman remembers is waking up at home on Monday or Tuesday night.
In April 2008, Harriman brought a civil rights action against the defendants in federal district court in Maine. He asserted five claims premised on constitutional violations (excessive force, false arrest, conspiracy under both §§ 1983 and 1985, and deprivation of due process) and three claims premised on state tort law (negligence, intentional infliction of emotional distress, and punitive damages). In due course, the magistrate judge assigned to the case entered a scheduling order setting dates for, among other things, initial disclosures (July 30, 2008) and close of discovery (December 3, 2008). An amended scheduling order required dispositive motions by January 15, 2009. Trial, if necessary, was anticipated for April 2009.
Harriman's initial disclosure identified fourteen individuals likely to have discoverable information; critically, however, it did not identify either Kane or Sheriff. See Fed.R.Civ.P. 26(a)(1)(A)(i) (requiring identification of individuals "likely to have discoverable information"). Discovery proceeded over the next several months, during which the parties exchanged written discovery and deposed almost all individuals that Harriman had identified in his initial disclosure.
On January 15, 2009, the defendants moved for summary judgment. On February 17, 2009, two days before Harriman's response to the defendants' motion was due and more than two months after discovery had closed, Harriman's attorney sent the defendants a "supplemental" initial disclosure that identified Kane and Sheriff as two additional individuals likely to have discoverable information. In a cover letter to the amended disclosure, Harriman's attorney explained that he had retained a private investigator, that the investigator had located Kane and Sheriff, and that Harriman intended to submit affidavits from Kane and Sheriff in opposition to summary judgment. On February 19, 2009, Harriman filed his opposition papers, which drew heavily from the Kane and Sheriff affidavits in contesting the defendants' motion.
In their reply, the defendants requested that the magistrate judge strike these affidavits as a sanction pursuant to Fed. R.Civ.P. 37(c)(1). The magistrate judge held a telephone conference with counsel to discuss this request. Following the conference, which was not transcribed, Harriman submitted a memorandum and supporting affidavits addressing the failure to identify Kane and Sheriff earlier. Those affidavits revealed that Harriman's attorney had not retained the investigator until January 5, 2009, ten days before the defendants' summary judgment motion was due and more than a month after the close of discovery.
The magistrate judge issued an order that precluded the Kane and Sheriff affidavits as a sanction, and recommended summary judgment in favor of the defendants on all remaining claims.
(Emphasis in original.) The district court adopted in full the magistrate judge's report and recommendation and entered judgment.
We address two threshold issues before reaching the propriety of summary judgment.
The defendants argue that Harriman has waived all claims, save his claims for excessive force and municipal liability, because he failed to address any other claims in his opening brief. They further argue that those claims (again, except his claims for excessive force and municipal liability) are doubly waived because Harriman failed to object to the portions of the magistrate judge's order concerning those claims. Harriman contests waiver on the ground that our standard of review in this case is de novo. According to Harriman, that standard requires us to review all his claims, regardless of whether he articulated them in his brief.
Harriman correctly identifies the standard of review, but that is about all. A long-familiar rule in this circuit is that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." Id. Instead, "a litigant has an obligation `to spell out its arguments squarely and distinctly,' or else forever hold its peace." Id. (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)). Contrary to Harriman's postulation, plenary review does not excuse that obligation.
If Harriman intended to attack summary judgment with respect to each and every claim, his opening appellate brief is woefully deficient. His brief challenges summary judgment only as to his claims of excessive force and municipal liability. It
Consequently, only Harriman's excessive-force and municipal-liability claims are properly before us. All other claims are waived.
Harriman challenges the magistrate judge's decision precluding the Kane and Sheriff affidavits. Because that ruling defined the record on which summary judgment rests, we address this challenge before turning to the merits. Livick v. Gillette Co., 524 F.3d 24, 28 (1st Cir.2008).
Harriman argues, essentially, that precluding the affidavits was wrong because they were important to his case. The defendants counter that preclusion was a proportional response to Harriman's failure to identify Kane and Sheriff earlier. Each individual, the defendants contend, could have been identified in the exercise of reasonable diligence during discovery, and Harriman's failure to do so prejudiced the defendants because they sought discovery and moved for summary judgment without knowing about two prospective witnesses on whom Harriman later relied.
We begin our inquiry with the Federal Rules of Civil Procedure, which provide the basic framework. Rule 26 requires a party, without awaiting a discovery request, to "provide to the other parties ... the name ... of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A)(i). That obligation is a continuing one. See Fed.R.Civ.P. 26(e)(1)(A) (requiring a party to supplement its disclosure promptly "if the party learns that in some material respect the disclosure or response is incomplete or incorrect.").
Failure to comply with disclosure obligations can have severe consequences. Rule 37 authorizes district courts to sanction noncomplying parties; although sanctions can vary depending on the circumstances, "[t]he baseline rule is that `the required sanction in the ordinary case is mandatory preclusion.'" Santiago-Diaz v. Laboratorio Clinico Y De Referencia Del Este, 456 F.3d 272, 276 (1st Cir.2006) (quoting Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 60 (1st Cir.2001)); see Fed. R.Civ.P. 37(c)(1) (providing that if a party fails to disclose under Rule 26, that "party is not allowed to use that information or witness to supply evidence on a motion").
Our examination of these factors leads us to conclude that preclusion of the affidavits fell within the parameters of the district court's discretion.
Harriman's justification for the late disclosure is nonexistent. He argues on appeal that "had Defendants written truthful reports, or testified truthfully in deposition, Plaintiff would have learned far earlier that Plaintiff was kept in the Secure Holding Cell throughout the evening on October 20, 2006." He argued, similarly, before the magistrate judge that he was "lulled into the belief that there was no one to corroborate Trooper Gregory Mitchell's version of the facts, which stood in stark contrast to those of the Defendants." But these statements only pound the table. They do not explain, let alone justify, Harriman's late disclosure or his decision to begin looking for Kane and Sheriff in earnest only after discovery closed. Cf. Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir.1998) (requiring preclusion in roughly comparable circumstances involving a failure to conduct an adequate investigation), superceded in unrelated part by rule amendment, In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir.2008).
The record shows beyond hope of contradiction that Harriman knew very early on that Kane and Sheriff could help his case. As early as 2006, Harriman knew that Kane was in jail with him over the weekend. It is one of the few fragments of information that Harriman remembered, and Kane's name appeared on an inmate list that the defendants produced during discovery. Harriman also knew, as early as 2007, that Kane had information that supported his claims. Coincidentally, Kane is the first cousin of Harriman's spouse. Kane wrote a letter to Harriman's spouse in April 2007—before this case even commenced—stating "that he believed David [Harriman] had been beaten by corrections officers at the Hancock County Jail on October 20, 2006." Despite knowing Kane's importance to his case, Harriman made no meaningful attempt to find him until after discovery closed.
So, too, with Sheriff. Harriman may not have remembered Sheriff, but multiple witnesses testified at their depositions that an EMT responded to the jail and brought Harriman to the hospital in an ambulance. The defendants also produced the ambulance's so-called run report.
As for the next factor, Harriman's late disclosure was not a harmless inconvenience. The defendants prepared and filed a summary judgment motion premised on evidence submitted before the discovery deadline. Harriman opposed the motion with affidavits obtained after that deadline, from witnesses whom he had not provided the defendants an opportunity to depose. While perhaps not as palpable as if trial were looming, the prejudice to defendants was real. See, e.g., Primus v. United States, 389 F.3d 231, 236 (1st Cir.2004) (finding prejudice when information disclosed after summary judgment motion filed but before trial was imminent); Lohnes, 272 F.3d at 60 (failure to unveil expert until after summary judgment motion filed was prejudicial in part because it deprived defendant of opportunity to depose).
Furthermore, Harriman took no steps to minimize the harm caused by the late disclosure. Harriman's attorney retained an investigator ten days before the defendants' summary judgment motion was due, but did not put the defendants or the court on notice that he was attempting to locate Kane and Sheriff. Cf. Klonoski, 156 F.3d at 272 (faulting attorney for failing to alert opponent in roughly comparable circumstances). And while Harriman's attorney was actively looking for them, he sought and received an extension to file an opposition to summary judgment—not in order to find additional witnesses—but on the ground that he was busy with other cases and had been sick. In this light, Harriman's late disclosure begins to look less like an oversight and more like a tactic.
The history of the litigation also cuts against Harriman's position. This was not the first time Harriman missed a deadline. He failed previously to designate an expert by the deadline set by the court, and he requested an extension five days later. The magistrate judge initially denied the request, but later—reluctantly—allowed it with the caveat that she would permit no further extensions. Harriman also failed timely to respond to the defendants' request to strike the Kane and Sheriff affidavits. Here again the magistrate judge gave Harriman one last extension. Although these infractions may not rise to the level of dereliction displayed in other cases, see, e.g., Santiago-Diaz, 456 F.3d at 277 (referencing the plaintiff's "obvious and repeated" disregard for the court's deadlines), they do place the court's preclusion decision in context.
The late disclosure's impact on the court's docket is apparent. Harriman disclosed Kane and Sheriff more than seven months after the deadline for initial disclosures, more than two months after the discovery deadline, and about a month after the defendants had moved for summary judgment. District courts have an interest in managing their dockets without such disruptions. See id. ("Whenever a party, without good cause, neglects to comply with reasonable deadlines, the court's
The only factor that favors Harriman is his need for the affidavits. Reversals based on a sanctioned party's need for precluded evidence are rare, and seldom based on that factor alone. In one recherché case, Esposito, we reviewed an order that had precluded the plaintiff's only expert because he failed to designate him in time. 590 F.3d at 72. We reversed, with one judge dissenting, because the parties agreed that preclusion was tantamount to dismissal, and there was no evidence that the plaintiff had disregarded other deadlines or sought to gain a calculated advantage by delay. Id. at 79 (characterizing preclusion there as "a fatal sanction levied for a single oversight").
This case is not of a kind with Esposito. Although including the Kane and Sheriff affidavits would make the propriety of summary judgment less clear, precluding them does not obviously or automatically result in dismissal. See infra Part II.C (discussing propriety of summary judgment). And here, unlike in Esposito, Harriman missed other deadlines and ignored at least one warning that no further extensions would be tolerated. Also, Harriman's timing for the disclosure, coupled with his furtive post-discovery search for additional witnesses, could be viewed as strategic. None of these circumstances was present in Esposito, and we decline to expand Esposito's holding beyond its highly idiosyncratic facts.
In sum, given the above, we cannot fault the district court for precluding the affidavits. Another judge faced with the same facts might have selected a lesser sanction. But preclusion was not "so wide of the mark as to constitute an abuse of discretion." Macaulay, 321 F.3d at 51.
We turn at last to Harriman's challenge to the summary judgment, which need not detain us. Our review is de novo. Morelli v. Webster, 552 F.3d 12, 18 (1st Cir.2009) ("Summary judgment is appropriate only when the record reflects no genuine issue as to any material fact and indicates that the moving party is entitled to judgment as a matter of law.").
Harriman's argument boils down to the following syllogism. Mitchell's testimony that Harriman was in secure holding at 9 p.m. (as opposed to HD-1) exposed the defendants' lies concerning Harriman's location in the jail. Because the defendants were lying about Harriman's location, the entirety of "their reports and deposition testimony cannot be believed." Summary judgment was therefore inappropriate.
We reject this line of reasoning, because Harriman's location in the jail is immaterial. His claim that the defendants used excessive force is premised on a beating. Harriman has not shown, nor do we see, any link between his location in the jail and the beating that he alleged occurred.
We agree with the district court that there was nothing inherently unbelievable about the defendants' testimony. Their testimony was, by and large, consistent. Pileski and Hobbs both saw Harriman fall, and Sullivan and Haines heard sounds in his cell that resembled a fall. And all correctional officers present at the jail that night testified, or submitted affidavits stating, that they did not strike Harriman or see anyone else do so. To be sure, not all of the defendants' testimony was uniform in every respect. As Harriman points out, Haines testified that Harriman was wearing an anti-suicide smock when he entered Harriman's cell; Sullivan, however, thought Harriman was unclothed. But these minor details do not undercut the plausibility of the defendants' testimony that Harriman fell.
Harriman does not identify any admissible facts that raise a genuine issue that one or more correctional officers beat him. Yes, his neurologist, Stephanie Lash, testified that, based on her review of the photographs of Harriman's head taken after his release, it was "unlikely" that Harriman's injuries "could have occurred by him falling against a flat object" (i.e., a cell wall). But the district court did not consider Lash's opinion, because Harriman never designated her as an expert. Harriman does not refute that he failed to designate Lash, and our review of the record does not reveal that he did. Her testimony is therefore inadmissible. See Fed. R.Evid. 701 (lay opinion testimony inadmissible except in narrow circumstances not applicable here); see also Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 14 (1st Cir.1998) (inadmissible lay opinion testimony cannot forestall summary judgment).
Even if Lash's testimony were admissible, her conclusion was unsupported: Lash conceded at deposition that she did not purport to opine on the cause of Harriman's injuries.
That leaves Harriman's memory. The only thing he remembers that could possibly help him is his recollection of "somebody saying he's had enough or I think that's enough or maybe even that's enough." Harriman conceded at deposition, however, that he had no memory of being beaten by anyone at anytime relevant to this case. The district court was correct that no reasonable jury could return a verdict in Harriman's favor on that basis. See, e.g., Wysong v. City of Heath, 260 Fed.Appx. 848, 857 (6th Cir.2008) (no genuine issue in light of plaintiff's concession that he did not remember whether he resisted arrest).
In the end, the record does not support Harriman's hypothesis that the defendants inflicted a constitutional injury. His claim for excessive force therefore fails, and the corollary is that municipal liability cannot attach. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir.2002).
For these reasons, the judgment of the district court is
(Emphasis supplied.)
