MARK GILBERT v. CITY OF CHICOPEE; WILLIAM JEBB; JOHN PRONOVOST; RICHARD J. KOS

After a near decade-long saga within the fragmented City

of Chicopee Police Department, Plaintiff-Appellant Mark Gilbert,

a Captain in the police department, sued a host of Defendants

Appellees, including the City of Chicopee, Police Chief William

Jebb, Mayor Richard J. Kos, and fellow police officer John

Pronovost, seeking redress under 42 U.S.C. § 1983 and various state

laws.1 From what we can glean, Gilbert claims his First Amendment

rights were violated after appellees improperly targeted him for

"speaking out and participating in a government investigation."

In this appeal (which causes us to seriously ponder "who's policing

the police?"), Gilbert seeks reversal of the district court's

dismissal of his claims pursuant to Federal Rule of Civil Procedure

12(b)(6). Finding no reason to reverse, we close the curtain on

this workplace drama.

GETTING OUR FACTUAL BEARINGS

In sharing this tale, we construe the facts of the

complaint in the light most favorable to Gilbert. Ocasio–Hernández

v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011) (citing Fed. R.

Civ. P. 12(b)(6)). While doing so, we observe, as did the district

1 Although Gilbert named Defendants Jane and John Doe in the caption of his amended complaint, they were not mentioned in its body.



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court, that Gilbert's one-hundred-eighty-one paragraph complaint

is particularly difficult to follow.2 Because the district court

already parsed as best it could the facts drawn from Gilbert's

complaint and gave the narrative some coherence, we provide and

adopt the district court's recitation of facts contained in its

November 14, 2017 Memorandum and Order Regarding Defendants'

Motions to Dismiss (and we thank the district court for its

herculean effort).

Over at least the past decade, [Gilbert] has been a police officer for the City of Chicopee. Defendants Jebb and Pronovost were fellow officers during this time. In 2007, Defendant Pronovost fell into a depression after his wife died, and he began behaving strangely at work.[*] At some point, [Gilbert] complained about this behavior to [] Jebb, who was at the time Captain of his shift. Nothing was done in response to [Gilbert]'s complaint. Thereafter, on an unspecified date in December, [Gilbert] and Pronovost

2 The district court underscored that Gilbert's "complaint wavers back and forth chronologically and sometimes offers disconnected narratives, with links between the factual allegations and [Gilbert]'s supposed injuries often difficult to discern." Gilbert v. City of Chicopee, No. 3:16-cv-30024-MAP, 2017 WL 8730474, at *1 (D. Mass. Nov. 14, 2017). Indeed, "[i]mportant details confusingly appear for the first time only after the Statement of Facts." Id. at *4 (emphasis in original). For example, the district court pointed to "a reference to an email sent by Defendant Jebb regarding one 'Lieutenant Watson' on September 12, 2014" that "appears out of the blue in the text of Count 3" and noted that "critical factual details, such as the timing and nature of the supposed 'pretextual discipline' are simply absent from the complaint." Id.



[*] We pause to note this strange behavior Gilbert speaks of took place in the Police Department's booking and cellblock areas and involved Pronovost's efforts to communicate with the dead using crystal rocks tied to strings, and hardware store lights which he called "ghost traps."

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got into an argument about Pronovost's behavior. During the interchange, Pronovost allegedly pulled out his gun and pointed it at [Gilbert]. [Gilbert] verbally reported the incident to his commanding officer Thomas Charette.2



2[Gilbert] alleges that Jebb was in the room with [him] and Pronovost during this incident. However, [] Jebb disputes [Gilbert]'s version, stating that the event in question "never happened."



Again, nothing was done.



In 2012, [Gilbert] was promoted to the rank of Captain, and Charette was appointed Acting Police Chief. Defendant Jebb, also a candidate for Acting Police Chief, allegedly resented Charette and other police officers, including [Gilbert], who he believed had supported Charette's appointment.



That same year, certain Chicopee Police Officers responding to a murder scene took pictures of the victim's body and shared them with one another and with civilians outside the police department in violation of department regulations. At the time, Defendant Jebb was the Internal Affairs Investigative Officer tasked with investigating this incident. Jebb concluded that only one officer was responsible for the improper conduct, and he failed to recommend, in [Gilbert]'s view, a sufficiently stringent sanction. At some point in the 2012-2013 time frame, the investigation into the murder scene misconduct by Chicopee Police Officers resumed. This time the inquiry included an incident where photographs of the murder victim's corpse were allegedly displayed to civilians outside the police department at a football game.



In May 2013, Jebb was relieved of his duties with Internal Affairs, and he himself became a target of an investigation into his conduct as the Internal Affairs Investigative Officer. This second investigation focused, in part, on allegations that Jebb failed to look into sexual harassment charges against several officers. It also looked into whether Jebb had properly

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investigated the officers who had distributed the gruesome photographs from the murder scene.



Jebb had made an unsuccessful bid for the office of President of the Police Union in 2013, and the complaint refers to an allegation that he improperly numbered the ballots in that election in order to be able to identify which officers supported him and which supported his opponent, Sgt. Dan Major. Finally, [] Jebb was also accused of hiding evidence to thwart an internal investigation into allegations that Sgt. Major had choked a prisoner.3



3"[Gilbert]'s complaint implies that these charges formed part of the investigation(s) then pending against Jebb and not merely allegations on [Gilbert]'s part offered in this litigation. (Dkt. No. 72 at 34). Although the complaint is ambiguous on this point,[] Jebb and Kos's Memoranda in support of their Motions to Dismiss clarify the context to some extent. Jebb's Memorandum notes that [Gilbert] made "written statements and testimony . . . to a government investigator relating to Jebb's alleged mishandling of ballots." (Dkt. No. 28 at 1). Kos's Memorandum observes that [Gilbert], "as a police captain and internal affairs investigator had investigated Chief Jebb's removal of evidence from the booking room."



[Gilbert] had been the investigating officer for the Major investigation, and he had recommended no discipline be taken against Sgt. Major . . . . [Gilbert] characterizes his participation in the ongoing investigations to include "provid[ing] information and participat[ing] in activity which focused on Police Chief William Jebb's conduct and practices of implementing less than proper discipline towards his friends and retaliating against those he was not friends with; and those who did not vote for him to be the Union President." (Dkt. No. 67-2 at 1).



In July 2013, then-Acting Police Chief Charette asked [Gilbert] to draft and file a written incident report about the episode six years earlier when [] Pronovost had threatened [Gilbert] with his gun.

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[Gilbert] did so. The report was technically late, in violation of Department policy, but Charette did not discipline [Gilbert], as [Gilbert] had verbally reported the incident to Charette and another of his immediate supervisors at the time it occurred.



According to [Gilbert], [] Jebb was unhappy with [Gilbert]'s participation in the ongoing investigation of the gun incident and possibly other incidents. On October 15, 2013, [Gilbert] received a phone call from [] Jebb in which the latter told him, "You have no idea about internal affairs, but you are going to learn. I am definitely without a doubt going to win my appeal [regarding his having been passed over for Acting Chief] and when I do, your [sic] fucked." (Dkt. No. 67-3 at 1).



In 2014, [] Mayor Kos appointed [] Jebb as Police Chief. [Gilbert] alleges that thereafter Jebb "began changing [Gilbert's] terms and conditions of employment and engaged in a concerted effort to have criminal charges initiated against [him]." (Dkt. No. 72 at 9). [Gilbert] claims [] Jebb ordered him off all of his overtime details, citing as a reason [Gilbert]'s filing of a false police report in regard to the 2007 gun incident. [He] claims that [] Jebb repeatedly "initiat[ed] pretextual discipline" against him, but he does not provide details or state when this occurred. In any event, the [amended] complaint specifies no disciplinary sanctions resulting from these proceedings.



Around this time, according to the complaint, [] Jebb met with [] Kos and Pronovost as part of a conspiracy to bring retaliatory criminal charges against [Gilbert] and Charette. Charges were eventually brought against [Gilbert] in Holyoke District Court, perhaps for filing a False Police Report. It is difficult to tell from the amended complaint, which does not provide a date these charges were brought, what exactly those charges were, or how the criminal case resolved. Count 4 in the amended complaint states that [Gilbert] was charged with Filing a False Police, which presumably is the criminal case [Gilbert] is referring to. Additionally, Gilbert states that the "process terminated in [his] favor," (Dkt. No. 72 at 17), though it is not clear if that means he was acquitted of the charge after a trial or the charge was dropped.



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Gilbert, 2017 WL 8730474 at *1-3.

WHAT HAPPENED IN THE DISTRICT COURT

Gilbert filed his federal complaint on February 4, 2016,

to which the defendants responded with Rule 12(b)(6) motions to

dismiss. Gilbert then sought leave to amend the complaint, which

the district court allowed on March 7, 2017 (but struck the

proposed amended complaint due to its "extreme sloppiness"). Three

days later, Gilbert filed the operative amended complaint (which

we refer to herein as "the complaint") in which he asserted eight

counts:

 Count 1: a claim under 42 U.S.C. § 1983 and Mass. Gen.

Laws ch. 12, § 11H against all defendants individually for

retaliating against him for exercising his First Amendment

rights to speak on a matter of public concern and for due process

rights violations;3

 Count 2: a claim under 42 U.S.C. § 1983 against the

City for maintaining policies and customs that resulted in the

violation of Gilbert's First Amendment rights;

 Count 3: a claim under Mass. Gen. Laws ch. 149, § 185

(the Massachusetts whistleblower statute) against the City,

3 In Count 1 of his complaint, Gilbert conclusorily states, "The Defendants acting under the color of state law violated the Plaintiff's due process rights . . . ." He does not allege anything further and his brief is completely silent as to this claim. We thus deem any due process arguments waived.

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Police Chief Jebb, and Mayor Kos for taking retaliatory actions

against Gilbert;

 Counts 4 through 8: common law claims against all

defendants individually for Abuse of Process, Defamation,

Intentional Infliction of Emotional Distress, Malicious

Prosecution, and Civil Conspiracy.

In due course, the defendants renewed their dismissal

motions, which the district court ultimately granted.4 In

considering Gilbert's Count 1 First Amendment claim which got

tossed with prejudice as to all defendants, the district court

struggled to identify the exact speech Gilbert alleged to be

protected: "This is not a case where Plaintiff wrote a letter or

spoke out at a public meeting. Exactly what Plaintiff said, and

when, is left very vague." Gilbert, 2017 WL 8730474 at *5. But

after generously combing through the complaint, the district court

determined that the speech Gilbert most emphasized as warranting

First Amendment protections was the July 19, 2013 written report,

in which he described the 2007 gun-pointing incident involving

Pronovost and Gilbert. And to the extent the July report was the

"speech" in question, the district court reasoned it was offered

pursuant to Gilbert's official duties as a police officer and

4 In so holding, the district court dismissed all claims against John Doe and Jane Doe with prejudice since those defendants were not named anywhere in the body of the amended complaint.



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public employee, and not as a private citizen, and, therefore, not

afforded First Amendment protections.

The district court also dismissed with prejudice Count

2's municipal liability claim. To succeed on this claim Gilbert

had to "offer sufficient facts to permit the court to identify an

unconstitutional custom or policy of the city that was the moving

force behind the injury alleged." Gilbert, 2017 WL 8730474 at *6

(quoting Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011))

(citation and internal quotation marks omitted). The district

court found that although the complaint conveyed Gilbert's sense

of grievance about general misconduct at the police department it

failed to "articulate a specific municipal custom or policy[] or

to offer concrete allegations demonstrating its existence." Id.

After rejecting Gilbert's federal claims, the district

court declined to exercise supplemental jurisdiction over Counts

3 through 8 state law claims save the ones involving Kos: those

got dismissed with prejudice. As to them, the district court found

that Gilbert either complained about events which occurred before

Kos was elected mayor or made conjectural and speculative

allegations devoid of any facts which could support a viable cause

of action.

And here we are.

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STANDARD OF REVIEW

We review the district court's ruling on a motion to

dismiss de novo, accepting all well-pled facts in the complaint as

true, and drawing all reasonable inferences in favor of the

plaintiff. Ocasio-Hernández, 640 F.3d at 7; Gargano v. Liberty

Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). To

survive a motion to dismiss under Rule 12(b)(6), the complaint

must give the defendant fair notice of what the claim is and the

ground upon which it rests and allege a plausible entitlement to

relief. Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011).

Dismissal for failure to state a claim is warranted when the

complaint lacks "sufficient factual matter . . . to 'state a claim

to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). We make this determination through a holistic,

context-specific analysis of the complaint. See Iqbal, 556 U.S.

at 679; Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).

Nevertheless, the plausibility standard "asks for more than a sheer

possibility that a defendant has acted unlawfully." Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 556).

Also relevant here (in part) is this: when the district

court "accurately takes the measure of a case, persuasively

explains its reasoning, and reaches a correct result, it serves no

useful purpose for a reviewing court to write at length in placing

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its seal of approval on the decision below." Moses v. Mele, 711

F.3d 213, 216 (1st Cir. 2013).

With these standards in mind, we turn to the limited

issues presented on appeal. Did the district court blunder, as

Gilbert contends, in dismissing Count 1 against Kos, Jebb, and

Pronovost, Count 2 against the City, and most of the state law

claims against Kos?5

ANALYSIS6

1. First Amendment Retaliation Claim

We begin our analysis with Gilbert's claim that "[t]he

Defendants acting under the color of state law violated and

5 Gilbert is not appealing the dismissal of Count 5.



6 Pronovost argues that we have no jurisdiction to review the district court's November 14, 2017 order granting the defendants' motions to dismiss because Gilbert's notice of appeal is defective, in violation of Federal Rule of Appellate Procedure 3(c)(1)(B). True, Gilbert's notice of appeal stated that he appealed from Docket #86, which is the district court judge's Memorandum and Order, instead of Docket #87, which is the Order of Dismissal. We reject Pronovost's contention. That Gilbert mixed up the dismissal order's docket number is of no matter in this instance because "[a] mistake in designating a judgment . . . in the notice of appeal ordinarily will not result in loss of the appeal as long as the intent to appeal a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." In re Spookyworld, Inc., 346 F.3d 1, 6 (1st Cir. 2003) (quoting Kelly v. United States, 780 F.2d 94, 96 n.3 (1st Cir. 1986)). Here, Gilbert's intent is unambiguous. From the face of the notice of appeal, Gilbert specified that he sought to appeal "from the District Court's Order entered November 14, 2017 . . . allowing Defendants' Motion to Dismiss and dismissing Plaintiff's Complaint." Thus, we conclude that we have jurisdiction to review the district court's dismissal order.

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retaliated against the Plaintiff for exercising his First

Amendment rights and in retaliation for speaking out and

participating in a government investigation." As Gilbert tells

it, he was removed from working all overtime hours, subjected to

a criminal proceeding, and suspended from the police department in

retaliation for voicing his protected speech.

But before diving into the merits, we pause to again

note our agreement with the district court's observation: our de

novo review of Gilbert's First Amendment claim is handcuffed by

the lack of specificity regarding exactly what speech underlies

his claim. Gilbert's complaint muddlingly sketches a litany of

occasions spanning years during which he griped to superiors and

investigators, orally and in writing, about the professional

behavior of his colleagues or public officials. Through their

briefing the appellees give us a clue as to their understanding of

Gilbert's complaint. For their part, the City, Jebb, Kos, and

Pronovost suggest that they, like the district court, understand

Gilbert's most significant at-issue speech to refer to the July

2013 written report of Pronovost misusing his firearm. However,

whether we view Gilbert's complaint as encompassing one or multiple

events of speaking out, the result is the same. He fails to state

a First Amendment claim.

In general, government officials may not subject "an

individual to retaliatory actions . . . for speaking out."

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Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 25 (1st Cir. 2010)

(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). This is so

because "[p]ublic employees do not lose their First Amendment

rights to speak on matters of public concern simply because they

are public employees." Rodriguez-Garcia v. Miranda-Marin, 610

F.3d 756, 765 (1st Cir. 2010) (quoting Curran v. Cousins, 509 F.3d

36, 44 (1st Cir. 2007)). However, "in recognition of the

government's interest in running an effective workplace," those

rights are not absolute. Decotiis, 635 F.3d at 29 (quoting

Mercado-Berrios, 611 F.2d at 26); see also Garcetti v. Ceballos,

547 U.S. 410, 418 (2006).

To determine whether an adverse employment action

against a public employee violated an individual's First Amendment

free speech rights, we employ a three-part inquiry. See Rodriguez

Garcia, 610 F.3d at 765-66. First, we must assess whether Gilbert

"spoke as a citizen on a matter of public concern." Curran, 509

F.3d at 45 (quoting Garcetti, 547 U.S. at 418). In making this

determination, we ask whether the "speech" underlying Gilbert's

claim was made "pursuant to his official duties." Garcetti, 547

U.S. at 421. In considering this question, we look to several

"non-exclusive factors," which help distinguish speech by a public

employee in a professional versus a private capacity. These

include:

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whether the employee was commissioned or paid to make the speech in question; the subject matter of the speech; whether the speech was made up the chain of command; whether the employee spoke at her place of employment; whether the speech gave objective observers the impression that the employee represented the employer when she spoke (lending it "official significance"); whether the employee's speech derived from special knowledge obtained during the course of her employment; and whether there is a so-called citizen analogue to the speech.



Decotiis, 635 F.3d at 32 (internal citations omitted). If we

conclude, as we do, after applying these factors, that Gilbert’s

speech was made "pursuant to his official duties," then Gilbert

has no First Amendment claim, since, generally, "[r]estricting

speech that owes its existence to a public employee's professional

responsibilities does not infringe any liberties." Garcetti, 547

U.S. at 421-22.7

Because Gilbert's claim founders at the first prong of

the Garcetti inquiry -- that is, whether Gilbert "spoke as a

7 Had we concluded that Gilbert made the speech in his private capacity, then we would have proceeded to the second requirement and balanced Gilbert's interest in speaking as a private citizen regarding matters of public concern with the interest of the government, as an employer, in promoting the efficiency of the public services it performs. See Decotiis, 635 F.3d at 29 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Then under the third requirement, Gilbert would have to have shown that the speech was a substantial or motivating factor in the adverse employment decision. See Curran, 509 F.3d at 45. If all three parts of the inquiry had been resolved in Gilbert's favor, the defendants could still escape liability if they had shown the same decision would have been reached even absent the protected conduct. Rodriguez-Garcia, 610 F.3d at 765-66 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

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citizen on a matter of public concern" -- we decline to reach the

second and third prongs.

As to Gilbert's federal constitutional claim, it is

premised solely on his assertion that his speech involved matters

of public concern and thus enjoys First Amendment protections.

According to him "[i]t is in the interest of the police department,

and the general public, to ensure that officers take considerable

care in how they handle their service weapons." And of public

concern is "the failure to properly address police misconduct,

which has the potential to impact the larger public." Gilbert

continues -- failing to "investigate sexual harassment

complaints," exuding "leniency in investigating officers who

distributed photographs" of a corpse, and removing evidence from

an evidence room "for the purpose of interfering with an IIU

investigation" would also rise to the level of creating a public

concern for the citizens of Chicopee.

In response, the appellees argue that the district court

got it just right: it properly dismissed Gilbert's First Amendment

claim because all of Gilbert's speech was compelled as part of his

employment and thus was made within the scope of his official

duties rather than as a citizen.8 We agree.

8 In his brief, Gilbert tells us that the Decotiis factors which we enumerated above are the analytical tools we must use to determine whether Gilbert spoke in his capacity as a citizen or



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Applying the Decotiis factors spelled out above, there

is no plausible inference which can be drawn from the complaint

that Gilbert's statements were made in his capacity as a citizen.

Explicating first on the July 2013 report, Gilbert

acknowledges in the complaint that he wrote the report in response

to an "order," and that he "would have been disciplined for

refusing to follow a command if he refused" to write the report.

He makes clear that he "did not initiate the subject complaints

against Defendant Jebb . . . [and that the] City of Chicopee,

through its executive [i.e., Charette], created this issue by

ordering [Gilbert] to provide a summary of these events again to

management." Further, the subject matter about which he spoke

concerned the gun incident and Pronovost's conduct "in the work

place" -- that is, bringing crystal rocks and setting up

"ghost traps" in the booking area and cells of inmates at the

police station. The content of the July report also includes a

discussion about another work colleague -- Jebb -- whom Gilbert

told about the incident and allegedly failed to properly discipline

pursuant to his official duties. And his brief is replete with why his words should be deemed of public concern. Yet Gilbert never bothers either in his initial brief or reply brief to provide us with any reasoned explanation for why we should deem his speech that of a private citizen under the Decotiis test. Therefore, his argument is likely waived. Fernandez-Salicrup v. Figueroa-Sancha, 790 F.3d 312, 327 (1st Cir. 2015) (citing U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991). Regardless, it lacks merit.

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Pronovost. Gilbert derived this information from the special

knowledge obtained during the course of his employment. The

parties involved in the gun incident were two work colleagues --

that is, Pronovost and Gilbert. And, although Gilbert does not

specify where precisely this confrontation occurred, inferentially

from the complaint, it happened at work. Additionally, his speech

was made up the chain of command, in Gilbert's words, "to

management." After Charette, "an executive" as Gilbert tells us,

ordered him to draft the report, it was then turned over to the

investigator, hired by the City, who requested any and all

documentation related to Jebb's conduct. This type of

communication -- complaints or concerns made up the chain of

command -- is the quintessential example of speech that owes its

existence to a public employee's official responsibilities and

thus is not protected under the First Amendment. See, e.g.,

Decotiis v. Whittemore, 635 F.3d at 32 (suggesting that speech an

employee is "authorized or instructed to make" is "made pursuant

to [his] job duties in the most literal sense") (citations

omitted); see also Kimmett v. Corbett, 554 F. App'x 106, 112 (3d

Cir. 2014); Hagen v. City of Eugene, 736 F.3d 1251, 1258 (9th Cir.

2013); Davis v. McKinney, 518 F.3d 304, 315-16 (5th Cir. 2008).

Moreover, nowhere in his complaint does Gilbert assert or even

suggest that he spoke publicly about this report. On the contrary,

this particular statement Gilbert uttered concerning the gun

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pointing incident was communicated, either in accordance with

police department procedure or because of police department

directive, solely internally.

As for Gilbert's other instances of speech involving his

grievances against fellow officers or public officials, because it

is clear from his complaint that they arose in essentially the

same police department internal affairs context, the reasoning is

the same. Therefore, we are looking at quintessential employment

related speech made pursuant to official duties. See O'Connell v.

Marrero-Recio, 724 F.3d 117, 123 (1st Cir. 2013) (noting that

speech solely focused on workplace events and made to fulfill work

responsibilities is "the quintessential example of speech that

owes its existence to a public employee's professional

responsibilities and thus is not protected under the First

Amendment"). As such, Gilbert is unable to state a plausible claim

for relief that he spoke as a citizen regarding matters of public

concern rather than as an employee simply carrying out his job

related responsibilities. Our First Amendment inquiry ends there.9

9 The City and Kos also argue (anticipatorily) that, to the extent Gilbert is attempting to liken this case to Lane v. Franks, 573 U.S. 228 (2014), his argument fails. As the City and Kos tell us, the Supreme Court held that "[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes . . . even when the testimony relates to his public employment or concerns information learned during that employment." Lane, 573 U.S. at 238. According to Kos and the City, because Gilbert does not



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2. Municipal Liability Claim

To make out a municipal liability claim, Gilbert would

have to first prove a viable First Amendment retaliation claim,

satisfying Garcetti's three-part inquiry. But because we conclude

that no constitutional injury was inflicted, it is unnecessary to

consider Gilbert's municipal liability claim. See Evans v. Avery,

100 F.3d 1033, 1039 (1st Cir. 1996) (citing City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986)); see, e.g., Wagner v. Devine,

122 F.3d 53, 57 (1st Cir. 1997).

3. State Law Claims Against Kos

Gilbert argues that the district court erred in

dismissing the state law claims against Kos.10 He says that his

complaint "pled plausible and sufficient facts against Defendant

Kos . . . as to his abuse of process claim[] (Count 4), intentional

infliction of emotional distress claim (Count 6), malicious

allege that he testified under oath pursuant to a subpoena, Lane does not aid his cause. They also contend that Gilbert is unlike the plaintiff in Lane because sworn testimony, as opposed to internal reporting within the walls of a public employer, has a citizen element. Given that Gilbert never mentions Lane in his opening brief, even though the district court addressed it in its Memorandum and Order Regarding Defendants' Motions to Dismiss, and since even in his reply brief, he never explains why he is similarly situated to Lane, we need say no more. 10 Gilbert does not challenge the district court's exercise of discretion in deciding to rule on the merits of his state law claims against Kos. He thus waives any argument that the district court abused its discretion.

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prosecution claim (Count 7), and civil conspiracy claim[] (Count

8)[.]" We disagree.

Gilbert mentions Kos only in a handful of places when

pleading the facts in the complaint, and when he does, it is, to

describe it charitably, skimpy. For example, Gilbert nakedly

asserts that Kos "acquiesced to Defendant Jebb's conduct," but he

does not flesh out how (or when or where) he did so. Likewise,

Gilbert asserts that after Kos "appointed Defendant Jebb to Police

Chief, the Defendants jointly engaged in conduct attempting to

command a voluntary separation of employment by the Plaintiff with

the City of Chicopee" but he alleged no detailed facts that would

enable a court to draw the reasonable inference that Kos was liable

for the misconduct alleged. To boot, as the district court noted,

much of the complaint refers to events that occurred before Kos

became Chicopee's mayor. For these reasons, the state law claims

against Kos were properly dismissed.

We affirm11 and award costs to appellees. Over and

out.