Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
MARK GILBERT v. CITY OF CHICOPEE; WILLIAM JEBB; JOHN PRONOVOST; RICHARD J. KOS
Case Number: 17-2206
Judge: Ojetta Rogeriee Thompson
Court: United States Court of Appeals For the First Circuit
Plaintiff's Attorney: Shawn P. Allyn
Defendant's Attorney: John J. McCarthy
Nancy Frankel Pelletier
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.
- 4 -
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
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."
- 5 -
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
- 6 -
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.
- 7 -
[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.
- 8 -
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
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
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.
- 9 -
Police Chief Jebb, and Mayor Kos for taking retaliatory actions
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.
- 10 -
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
And here we are.
- 11 -
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
- 12 -
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
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.
- 13 -
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."
- 14 -
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
- 15 -
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)).
- 16 -
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
- 17 -
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.
- 18 -
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
- 19 -
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
- 20 -
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.
- 21 -
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.
Outcome: We affirm11 and award costs to appellees. Over and