Gene Perry, a Massachusetts inmate, was adjudged guilty in 1989 of three disciplinary infractions following a hearing before the prison disciplinary board. He subsequently filed the instant civil rights action under 42 U.S.C. § 1983, alleging that the administrative proceedings had been tainted by due process irregularities. The district court granted the defendants' motion for summary judgment, and plaintiff filed a timely appeal. We now affirm.
The factual and procedural background is straightforward. On October 17, 1989, while incarcerated at Medfield Prison Project, plaintiff was charged with three disciplinary offenses: lying to a staff officer, violating a departmental rule, and being out of place. The charges arose from an incident two days earlier in which correction officers had allegedly discovered plaintiff (and his wife, who was visiting) in an "out-of-bounds" area on the prison grounds. Following a four-day postponement requested by plaintiff, a disciplinary hearing was held on October 23, 1989; plaintiff was represented by counsel and was permitted to call his own witnesses. Found guilty on all charges, plaintiff was sanctioned to five days of house restriction (except for work and meals) and thirty hours extra duty. The Superintendent subsequently denied his appeal from the board's findings.
Plaintiff filed the instant pro se, in forma pauperis complaint on January 18, 1990, naming as defendants the Superintendent and the three disciplinary board members. "On information and belief," he alleged: (1) that the board members "willfully prejudged" plaintiff by deciding "prior to the hearing and without benefit of the evidence presented . . . that [plaintiff] would be found guilty"; and (2) that the Superintendent, "knowing that the Disciplinary Board [had] prejudged" plaintiff, nonetheless denied his appeal. Claiming violations of both federal and state law, he sought declaratory relief, expungement of his record, and compensatory and punitive damages. Plaintiff verified his complaint by swearing, under the pains and penalties of perjury, that the contents thereof were true to the best of his knowledge.
In a motion for summary judgment filed on April 24, 1990, plaintiff elaborated slightly on these claims. Referring to one of the board members, he alleged: "Defendant Linda Chaves-Trites is willing to testify under oath that she was ordered to find plaintiff guilty before the disciplinary proceedings even started. Plaintiff makes this statement based on [a] conversation held with Ms. Chaves-Trites after the board hearing." At the end of his pleading, above his signature, plaintiff inscribed: "Signed under the pains and penalties of perjury."
Defendants responded by filing their own motion for summary judgment on June 28, 1990. Attached was an affidavit from defendant Chaves-Trites specifically denying the allegation contained in plaintiff's motion. She averred that she "was not ordered to find the plaintiff guilty prior to, during, or after the hearing," that she "made [her] decision based on the evidence presented at the hearing," that she "did not have any conversations with [plaintiff] after the Disciplinary Board hearing," and that she had "no intention of testifying on [his] behalf." Plaintiff filed no opposition. Approximately one month later, on July 30, 1990, the district court allowed the defendants' motion for summary judgment, stating that it was "unopposed" and was "conclusively supported" by the Chaves-Trites affidavit.
Plaintiff's reliance on his pleadings, as a means of opposing the defendants' summary judgment motion, disregards the express terms of Fed. R. Civ. P. 56(e):
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) ("plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment"); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial'"), quoting Advisory Committee Note to 1963 Amendment to Rule 56(e).
The fact that the allegations contained in plaintiff's summary judgment motion were submitted "under the pains and penalties of perjury" is without significance. It is true that in Sheinkopf v. Stone, No. 90-1838 (1st Cir. 1991), we held that a verified pleading "can serve in lieu of an affidavit for purposes of opposing a summary judgment motion" so long as it "satisfies the standards explicated in Rule 56(e)." Id., slip op. at 6.1 Yet plaintiff's chosen phraseology here falls short of effecting an adequate verification of his motion; while he signed under the "pains and penalties of perjury," he departed from the form employed in his complaint by failing expressly to attest to the truth of the allegations therein. See, e.g., 28 U.S.C. § 1746(2) (specifying as the generally appropriate form of unsworn verification: "I declare . . . under penalty of perjury that the foregoing is true and correct.").2 For this reason, his pleading cannot be treated as an affidavit for the purposes of Rule 56(e).
In any event, even if consideration thereof were permissible, plaintiff's contentions would fail to satisfy Rule 56(e)'s requirement of "setting forth specific facts showing that there is a genuine issue for trial." A factual dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "The evidence manifesting the dispute must be 'substantial,' going beyond the allegations of the complaint." Mutual Fire, Marine & Inland Insur. Co. v. Costa, 789 F.2d 83, 85 (1st Cir. 1986), quoting Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976). If the evidence is "merely colorable . . . or is not significantly probative," Anderson, 477 U.S. at 249-50, or consists simply of "conclusions or a 'skeletal set of bland allegations,'" Berrigan v. Greyhound Lines, Inc., 782 F.2d 295, 299 (1st Cir. 1986), quoting Dewey v. University of New Hampshire, 694 F.2d 1, 4 (1st Cir. 1982), summary judgment may lie.
Even accepting plaintiff's factual allegations as true and drawing all reasonable inferences in his favor, as we must, see, e.g., Paterson-Leitch v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 995 (1st Cir. 1988); Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987), we are unable to conclude that "a fair-minded jury could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 252. His allegations, in their entirety, consist of the two above-quoted sentences that appear in his summary judgment motion. Far from being "significantly probative," id. at 249-50, such evidence is cursory and conclusory, entirely lacking in specificity. No quotation from (or even direct attribution to) Chaves-Trites is offered, and no surrounding details of the alleged conversation are provided. In the face of Chaves-Trites's categorical denial, plaintiff was obligated to adduce more than this "mere . . . scintilla of evidence," id., in order to defeat the award of summary judgment for defendants.3
1. Rule 56(e) provides that an affidavit in the summary judgment context "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The factual allegations set forth in plaintiff's summary judgment motion would seem to satisfy these requirements, as plaintiff there purports to recount comments voiced directly to him by Chaves-Trites. By contrast, those contained in his verified complaint plainly do not, as they are proffered only "on information and belief." See, e.g., Automatic Radio Mfg., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1949) ("affidavit . . . made upon information and belief . . . does not comply with Rule 56(e)"); Sheinkopf v. Stone, supra, slip op. at 28.
2. The safeguard underlying the verification process, of course, is the threat of prosecution for perjury for a false declaration. See, e.g., Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980) (per curiam). The applicable perjury statute states in pertinent part: "Whoever . . . in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28 . . . willfully subscribes as true any material matter which he does not believe to be true . . . is guilty of perjury . . . ." 18 U.S.C. § 1621 (emphasis added). Were any factual allegation in plaintiff's motion to prove false, his failure to "subscribe" to the truth thereof would almost certainly preclude any prosecution for perjury.
3. While plaintiff's appellate brief contains some minimal elaboration on his factual assertions, this of course comes too late to avail him here. See, e.g., Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 29-30 (1st Cir. 1980). Such supplementation in any event would appear insufficient to call for a different result. Plaintiff suggests that judgment was entered unfairly on the basis of technical rules of which he was unaware. His objection in this regard, although not particularized, apparently pertains to his ignorance of -- and the district court's failure to apprise him of -- his obligation to submit an opposing affidavit in response to that of Chaves-Trites. Yet the alternative basis for our decision here has been reached without reliance on this "technical" requirement. However unversed in the law, plaintiff must obviously have realized that he had to flesh out his claim at some point. In the entirety of his district court submissions, however, he failed to do so. And the absence of any meaningful effort following the lower court's ruling to buttress his allegations -- either through a post-judgment motion or on appeal -- further militates against any finding of "unfairness." We think plaintiff has had sufficient opportunity to present his side of the case. We therefore need not decide the extent to which special solicitude should ordinarily be afforded pro se inmates in the summary judgment context. See, e.g., Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (collecting cases).