Ali v. University of Massachusetts Medical Center , 76 F. App'x 342 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2376
MUSSA M. ALI,
Plaintiff, Appellant,
v.
UNIVERSITY OF MASSACHUSETTS MEDICAL CENTER, ET AL.,
Defendants, Appellees.
____________________
DORCA I. GOMEZ, COMMISSIONER, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Mussa M. Ali on brief pro se.
Geoffrey B. McCullough, Associate Counsel, University of
Massachusetts, on brief for appellees.
September 19, 2003
Per Curiam. Pro se plaintiff-appellant Mussa M. Ali
("Ali") appeals the grant of summary judgment in favor of
defendants-appellees, the University of Massachusetts Medical
Center (the "University") and seven of its employees. We review
the grant of summary judgment de novo, examining the record
independently and drawing any factual inferences in the light
most favorable to the non-movant. Gu v. Boston Police Dep't, 312
F.3d 6, 10 (1st Cir. 2002). After carefully reviewing the
parties' briefs and the record, we affirm the grant of summary
judgment substantially for the reasons stated in the district
court's September 23, 2002 memorandum and order. We add only the
following comments.
With respect to Ali's claim under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d, we agree with Ali that
there appear to be genuine factual issues regarding the
University's purported denial of Ali's 1993 and 1994 applications
for admission to the University's medical school based on Ali's
residency status. We agree with the district court, however,
that the University articulated another legitimate, non-
discriminatory reason for not admitting Ali to the medical school
during those years (that he was out-competed by other
applicants), and that Ali was not able to refute this other
explanation.
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We also agree with the district court that Ali's
assertions of discrimination and unlawful action by various
University employees were either unsupported or insufficient to
withstand summary judgment. We have repeatedly held that "a
summary judgment motion cannot be defeated by conclusory
allegations, harsh invective, empty rhetoric, strained
inferences, or unsupported conjecture." Collier v. City of
Chicopee, 158 F.3d 601, 604 (1st Cir. 1998). Although Ali
appears to truly believe that he was discriminated against by the
University and its employees, his perception is not evidence.
Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 871 (1st Cir.
1997) (noting that a plaintiff's "[subjective] perception is not
evidence" of discriminatory intent, and, hence, "not enough to
withstand summary judgment").
Ali's contention that the district court invaded the
province of the jury by deciding questions of intent and motive
has no merit. "Even in cases where elusive concepts such as
motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990).
Ali also argues on appeal that he was prejudiced in the
presentation of his case because the district court failed to
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reduce to writing its order on his motion to compel discovery
from the defendants. This argument is waived because Ali failed
to timely seek clarification of the challenged ruling. Ali did
not seek any clarification or make any objection at the time that
the court ruled on his motion to compel. Indeed, the first time
Ali requested clarification of the court's ruling was in a post-
judgment motion after he had lost his case. See K-Mart Corp. v.
Oriental Plaza, Inc., 875 F.2d 907, 913 (1st Cir. 1989) (holding
that appellant waived argument by not making timely objection).
Ali's claim of judicial bias is similarly waived. Ali
did not make any claim of bias while his case was pending, or
even in his multiple motions for reconsideration. It was not
until these post-judgment motions were denied that Ali filed two
motions seeking to have the district judge recused from the case.
A party may not wait to see what outcome he receives in a case
before asserting a claim of judicial bias. Rodriguez-Hernandez
v. Miranda-Velez, 132 F.3d 848, 857 (1st Cir. 1998) (noting that
"[c]laims of judicial partiality must be raised at the earliest
moment that a litigant becomes cognizant of the purported bias").
Moreover, the record does not support Ali's claim of bias.
Finally, with respect to Ali's motion to incorporate
documents, the documents which were presented to the district
court, and which form part of the record, have been considered.
To the extent Ali is attempting to submit documents which were
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not, but could have been, presented to the district court, he has
waived his right to present the new evidence on appeal. See In
re Colonial Mortgage Bankers Corp., 186 F.3d 46, 50 (1st Cir.
1999) (noting that new evidence proffered by appellant which
could have been, but was not, presented to trier of fact cannot
be considered on appeal).
The judgment of the district court is affirmed.
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