Knowlton v. Shaw, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Michael Boudin, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [12-1251]

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Date Filed: 01/04/2013

Entry ID: 5701351

United States Court of Appeals
For the First Circuit

No. 12-1251
ALAN D. KNOWLTON,
Plaintiff, Appellant,
v.
JUDITH SHAW; ANDREW BLACK; GLENN GRISWOLD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Torruella, Boudin,* and Thompson,
Circuit Judges.

Eric M. Mehnert, with whom Hawkes & Mehnert, LLP, was
for appellant.
Rosie M. Williams, with whom Edward R. Benjamin,
Thompson & Bowie, LLP, were on brief for appellee Andrew
Martin J. Ridge, with whom Beagle & Ridge, LLC, was
for appellee Judith Shaw.
Russell B. Pierce, with whom Norman, Hanson & DeTroy,

*

on brief
Jr. and
Black.
on brief
LLC, was

Judge Boudin heard oral argument in this matter, and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C. §
46(d).

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on brief for appellee Glenn Griswold.

January 4, 2013

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THOMPSON, Circuit Judge.

Entry ID: 5701351

An investigation into the

questionable business practices of Appellant Alan D. Knowlton's
employer, Bankers Life and Casualty Co. ("Bankers Life" or "the
Company"), eventually led the Maine Bureau of Insurance ("the
Bureau")

and

the

Maine

Attorney

General's

Office") to Knowlton's front door.

Office

("the

AG's

In exchange for Knowlton

accepting responsibility for his own unlawful conduct, Appellees
Judith Shaw, Glenn Griswold and Andrew Black (collectively, "the
state officials"), representing the Bureau and the AG's Office,
agreed to take no further action against Knowlton.
turned

out

to

be

short-lived,

however,

when

That promise

they

agreed

to

Knowlton's termination in a separate agreement with Bankers Life.
Knowlton appeals the district court's dismissal of his complaint
against the state officials.

We affirm.

BACKGROUND
As this case comes before us on a grant of a motion to dismiss,
we treat as true all well-pleaded facts, viewing those facts in the
light most favorable to the plaintiff, and drawing all reasonable
inferences therefrom for him. Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008).

We recite only the relevant facts.

In or around 2001, the Bureau began investigating Bankers
Life's improper marketing practices targeting elderly consumers.
Shaw, the Bureau's Deputy Superintendent, became involved and
initiated

a

parallel

investigation

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into

Bankers

Life's

sales

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practices.

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Griswold, Director of the Consumer Healthcare Division

of the Bureau, led that investigation.

In or around January 2005,

after finding that Bankers Life had engaged in improper sales
practices in Maine, Assistant Attorney General Black, Shaw and
Griswold began negotiating with Bankers Life to resolve those
claims.
Bankers Life was not the only one on the state officials'
radar, however.

Shaw, Griswold and Black quickly turned their

attention to Knowlton, the Company's Branch Sales Manager in
Bangor,

Maine,

after

recruitment meeting.

learning

about

his

November

2004

sales

At that meeting, he distributed materials

representing that Bankers Life had an "A" rating by A.M. Best
Company,1 when its rating was actually a "B++."

In response to an

attendee's comment that he was pleased about the "A" rating,
Knowlton said he hoped to see it improve.
On the heels of the investigation into Knowlton's actions,
Knowlton entered into a consent agreement with the AG's Office and
the Bureau to resolve licensing violations associated with the
sales recruitment meeting and his conversation with the potential
recruit.

In the agreement, Knowlton admitted that he violated the

Maine Insurance Code, Me. Rev. Stat. tit. 24-A, § 1, et seq., by
distributing materials containing a misleading representation about

1

A.M. Best Company is the leading
ratings for insurance companies.
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provider of

financial

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Bankers

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Life's

financial

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condition

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and

by

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acknowledging

the

attendee's comment about the A.M. Best Company rating. In addition
to accepting responsibility for those violations, he agreed to
submit to a 60-day suspension of his insurance producer license and
a 270-day period of license probation, pay a civil penalty of
$750.00, and comply with other requirements regarding recruiting
materials and the reporting of consumer complaints.

In exchange,

the Bureau and the AG's Office agreed to "forgo pursuing further
disciplinary measures or other civil or administrative sanctions
against [him] for the violations" described in the agreement.
Not one week passed before the Bureau and the AG's Office
entered into a separate consent agreement with Bankers Life to
resolve the claims against it.

During their negotiations, the

Bureau accepted Bankers Life's proposal that the branch managers of
its South Portland and Bangor branch offices (which included
Knowlton's position as the Bangor branch manager) be terminated.
Thus, the

agreement

called

for

Bankers

Life to

"relieve

the

managers of its South Portland and Bangor branch offices of their

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positions as branch managers."2 Bankers Life terminated Knowlton's
position as branch manager on April 14, 2005.3
Knowlton's complaint asserts claims against Shaw, Black and
Griswold in their individual capacities for violations of 42 U.S.C.
§ 1983 and 42 U.S.C. § 1985(2).
alleges

that

by

agreeing

to

Specifically, the complaint

Bankers

Life's

termination

of

Knowlton's position as branch manager, the appellees deprived
Knowlton of continued employment with the Company without due
process under § 1983.

The complaint adds that Shaw, Black and

Griswold violated his rights under § 1985(2) by participating in a
conspiracy with the Bureau and Bankers Life to deprive him of his
rights to challenge the termination provision in the consent
agreement.
The state officials moved to dismiss the complaint on several
grounds, including absolute immunity for the § 1983 claim.

In

granting the motion, the district court agreed that absolute
immunity protected the state officials from liability.

The court

2

Knowlton claims that Bankers Life proposed terminating his
employment to avoid an audit (originally requested by the Bureau)
of the Company's Bangor and South Portland Branch Sales Managers'
practices which would have involved an investigation of a sales
manager who was one of Bankers Life's top producers.
3

After Bankers Life relieved Knowlton of his position as
branch manager, he took a 90-day paid leave of absence and worked
as a Unit Sales Manager in Bankers Life's Boston office until
around July 2006. As best we can tell from the record, Knowlton's
employment with the Company ended sometime thereafter.
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further concluded that Knowlton failed to plead a plausible §
1985(2) claim, and rejected his argument that the state officials
were judicially estopped from denying liability under § 1983 based
on a prior civil suit Knowlton had filed against the State for
breach of contract (more on that later).

Knowlton now appeals.

DISCUSSION
We review de novo the grant of a motion to dismiss under Rule
12(b)(6).

Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527,

532 (1st Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 2742
(2012).
Absolute Immunity
We

first

consider

whether

the

district

court

erred

in

dismissing Knowlton's due process claim on the basis that the state
officials had absolute immunity from suit.
While "[t]he presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties,"

Burns v. Reed, 500 U.S. 478, 486-87

(1991), "there are some officials whose special functions require
a full exemption from liability."
508 (1978).4

Butz v. Economou, 438 U.S. 478,

Judges and prosecutors are entitled to absolute

4

Qualified immunity will bar a civil action against a
government official unless the plaintiff has alleged the
deprivation of a constitutional right that was clearly established
at the time of the alleged violation. Conn v. Gabbert, 526 U.S.
286, 290 (1999). Absolute immunity, on the other hand, acts as a
"complete bar" to damages claims of any sort, constitutional or
otherwise. Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 22
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immunity when functioning in their official capacities.
U.S. at 508-10.

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Butz, 438

Prosecutors, for example, are absolutely immune

for actions, taken as advocates for the State, which are closely
associated

with

the

judicial

process

such

as

initiating

and

pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409,
430-31 & n.33 (1976); Burns, 500 U.S. at 479.

That absolute

immunity, as Knowlton concedes, extends to non-prosecutor officials
of government agencies "performing certain functions analogous to
those of a prosecutor."

Butz, 438 U.S. at 515. Absolute immunity,

however, is not available to either prosecutors or agency officials
whose actions are primarily administrative or investigative in
nature and unrelated to their functions as advocates in preparing
for the initiation of a prosecution or for judicial proceedings.
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see Burns, 500
U.S. at 495 (no absolute immunity for prosecutor providing legal
advice to police regarding interrogation practices).
In

considering

whether

absolute

immunity

attaches

official's conduct, we employ a "functional approach,"

to

an

Buckley,

509 U.S. at 269; Harrington v. Almy, 977 F.2d 37, 40 (1st Cir.
1992)

("[T]he

availability

of

absolute

immunity

turns

on

a

functional analysis."), which looks to the "nature of the function
performed," not the identity of the actor who performed it.

See

Forrester v. White, 484 U.S. 219, 229 (1988); Buckley, 509 U.S. at

(1st Cir. 1992).
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269; Frazier v. Bailey, 957 F.2d 920, 931 n.12 (1st Cir. 1992)
("Absolute immunity depends not on the titles of officials but
their functions."). Officials claiming absolute immunity, like the
state officials here, bear the burden of proving their actions
warrant that protection.
Knowlton

argues

Buckley, 509 U.S. at 274.

that

the

district

court

got

it

wrong:

negotiating and executing the consent agreements to resolve the
civil violations against Bankers Life and Knowlton, he argues, were
not prosecutorial-type functions protected by absolute immunity,
but

rather

were

actions

taken

in

the

state

officials'

administrative and investigative capacities which do not afford
them absolute immunity.
state

officials'

actions

The question before us is whether the
were,

as

the

district

court

prosecutorial in nature to warrant absolute immunity.

found,

We agree

that they were.
Shaw and Griswold, as representatives of the Bureau, have the
duty and authority to enforce Maine's insurance laws, and through
the AG (Black), may "invoke the aid of the Superior Court through
proceedings" to enforce any action taken by the Bureau or pursue
criminal prosecution based on violations of the Code.
Stat. tit. 24-A, § 214; see also id., § 211.5

5

Me. Rev.

An enforcement

As indicated in the consent agreement, "[t]he Superintendent
of [the Maine Bureau] of Insurance is the official charged with
administering and enforcing the insurance laws of the State of
Maine."
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petition need not, however, reach an administrative proceeding or
even the courthouse door. The Bureau may decide to execute consent
agreements that impose penalties or fines authorized by law to
"resolve[]

a

complaint

or

investigation

without

Me. Rev. Stat. tit. 10 § 8003(5)(B).6

proceedings."

further

Vested with

that authority, Shaw, Griswold, and Black made a judgment call on
how to best address Bankers Life's and Knowlton's violations of the
Maine Insurance Code.

On the Bureau's and AG's behalf, they

decided to forego further proceedings (be it administrative or incourt)

related

to

those

violations

and

entered

into

consent

agreements to resolve them instead (including the agreement with
Bankers

Life

decision

to

that

called

resolve

the

for

Knowlton's

violations

termination).7

before

pursuing

The

further

proceedings not only arose directly from their roles as the State's
advocates in enforcing Maine's insurance laws, but was inextricably
related to the judicial process.

The state officials took these

6

Those agreements may only be entered into if the Bureau, the
AG, and, as relevant in this case, the licensee consent. Me. Rev.
Stat. tit. 10, § 8003(5)(B).
These consent agreements are not
subject to review or appeal and may be enforced by an action in
Superior Court. Id.
7

Knowlton entered into the consent agreement specifically "to
resolve, without an adjudicatory proceeding, the charges against
[him] contained in the Petition to Enforce in this matter dated
January 4, 2005" regarding his violations of the Maine Insurance
Code. Bankers Life entered into the consent agreement "to resolve,
without resort to an adjudicatory proceeding, [its] failure to
comply with the requirements of the Maine Insurance Code" as set
forth in the agreement.
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actions

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in

preparing

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for

the

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initiation

of

the

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enforcement

proceeding -- a proceeding that would have surely followed had no
consent agreement been executed.
An

agency

official's

decision

to

initiate

administrative

proceedings "aimed at legal sanctions," Wang v. New Hampshire Bd.
of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995), is
discretionary,

"very

much

like

[a]

prosecutor's

decision

to

initiate or move forward with a criminal prosecution" and is,
therefore, entitled to absolute immunity.

Butz, 438 U.S. at 515;

see Wang, 55 F.3d at 701 (finding that state medical board counsel
involved in disciplinary proceedings before state medical licensing
board were entitled to absolute immunity).

Absolute immunity

"insulate[s] the decisionmaking process from the harassment of
prospective litigation."

Westfall v. Erwin, 484 U.S. 292, 295

(1988), superseded by statute on other grounds, Pub. L. No. 100694, 102 Stat. 4563 (1988), codified at 28 U.S.C. § 2679(d).

Such

harassment "would cause a deflection" of an official's energies
from carrying out his official duties, and "the possibility that he
would shade his decisions instead of exercising the independence of
judgment required by his public trust."

Imbler, 424 U.S. at 423.

In this way, absolute immunity promotes "effective government,"
where officials are "freed of the costs of vexatious and often
frivolous damages suits,"

Westfall, 484 U.S. at 295, that may

result from their decisions.

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While no administrative proceeding was initiated in this case
(only a petition to enforce was issued), we see no meaningful
difference between the nature of an agency official's decision to
pursue an administrative proceeding and that of her decision to
resolve a violation before reaching that step.

In both instances,

the agency official acts as the State's advocate, exercising her
"broad discretion in deciding whether a proceeding should be
brought and what sanctions should be sought."

Butz, 438 U.S. at

515; see Romano v. Bible, 169 F.3d 1182, 1187 (9th Cir. 1999)
(finding

that

immunity

for

Gaming

Control

initiating

Board

disciplinary

was

entitled

proceedings

to

absolute

against

the

plaintiff and entering into settlement negotiations with him,
actions which were prosecutorial in nature).

The discretion

officials exercise in deciding which cases should move forward to
further legal proceedings and which may be resolved with consent
agreements "might be distorted if their immunity from damages
arising from that decision was less than complete." Butz, 438 U.S.
at 515.

Indeed, in noting the "serious danger" that an official's

"decision to authorize proceedings will provoke a retaliatory
response,"

Butz

considered

it

unlikely

that

anyone

would

be

"willing and legally able to seek damages from the officials" for
"not authoriz[ing] [an] administrative proceeding."
515 (emphasis in original).

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438 U.S. at

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In an attempt to show that absolute immunity is nonetheless
unavailable

here,

Knowlton

argues

that

the

state

officials'

decision to execute the consent agreements was administrative and
investigative
argument.

in

nature

but

he

fails

to

fully

develop

that

As best we can tell, Knowlton appears to argue that his

case is analogous to Burns and Buckley.8

The state officials'

actions here, however, are far from those the Supreme Court found
to be administrative and investigative in those cases.

Burns held

that absolute immunity protected a prosecutor's appearance at a
probable cause hearing, but did not similarly protect his actions
in giving legal advice to the police.9

In finding that giving

legal advice to the police was not a function "closely associated
with

the

judicial

process,"

but

closer

to

an

investigative

function, the Court explained that "[a]lmost any action by a
prosecutor, including his or her direct participation in purely
investigative activity, could be said to be in some way related to

8

Knowlton cites Buckley but refers to the holding in Burns to
support his argument.
We nonetheless address both Burns and
Buckley.
9

There, the § 1983 suit challenged a prosecutor's act in
giving legal advice to the police on the propriety of hypnotizing
a suspect and on whether probable cause existed to arrest the
suspect, and participating in a probable cause hearing.
The
prosecutor's appearance at the probable cause hearing was entitled
to absolute immunity since it was "'intimately associated with the
judicial phase of the criminal process,'" Burns, 500 U.S. at 492
(quoting Imbler, 424 U.S. at 430), and involved his "'role as
advocate for the State.'" Burns, 500 U.S. at 491 (quoting Imbler,
424 U.S. at 431 n.33).
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the ultimate decision whether to prosecute, but we have never
indicated that absolute immunity is that expansive."

Burns, 500

U.S. at 495. Similarly, Buckley held that the prosecutors were not
entitled to absolute immunity for allegedly "fabricating evidence
during the preliminary investigation of a crime" which the Supreme
Court found to be "entirely investigative" activity.
261, 274.

509 U.S. at

There, the prosecutor had not asserted "probable cause

to arrest petitioner or to initiate judicial proceedings during
that period," and without probable cause to have anyone arrested,
the Court reasoned, a prosecutor "neither is, nor should consider
himself to be, an advocate."

Id. at 274.

Buckley warned that a

prosecutor cannot "shield his investigative work with the aegis of
absolute immunity merely because, after a suspect is eventually
arrested, indicted, and tried, that work may be retrospectively
described as 'preparation' for a possible trial."

Id. at 276.

Burns and Buckley teach us that investigative steps taken to
search for "clues and corroboration" that might lead to an arrest
are more removed from the judicial process and merit only qualified
immunity.

Buckley, 509 U.S. at 273; see Giraldo v. Kessler, 694

F.3d 161, 166 (2d Cir. 2012) (noting that "investigative acts that
are entitled to only qualified immunity are those undertaken in the
phase of law enforcement that involves the gathering and piecing
together of evidence for indications of criminal activities and
determination

of

the

perpetrators").

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But

here,

the

state

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officials' execution of the consent agreements was not part of any
investigative activity. By the time the consent agreements were on
the table, the investigation had already revealed Knowlton's and
Bankers

Life's

violations

of

Maine's

insurance

laws.

The

agreements resolved those violations and allowed all parties to
avoid further legal proceedings on the matter.
In one last ditch effort to save his case, Knowlton argues that
the

state

oversight"
immunity.

officials'

actions

were

and,

result,

cannot

as

a

not
be

subject

to

entitled

"judicial

to

absolute

To support that argument, Knowlton relies on Butz, a §

1983 case involving administrative proceedings brought by federal
agency officials.
officials

were

Butz, 438 U.S. at 480.10

entitled

to

absolute

immunity

In finding the
for

initiating

administrative proceedings, Butz noted the proceedings provided
certain safeguards to the defendant -- i.e., "checks on agency
zeal" and an "opportunity" for the defendant to challenge the
"legality" of the proceeding itself. 438 U.S. at 515-16. Latching
onto that language, Knowlton claims that under Butz, absolute
immunity is available to agency officials only if an administrative
proceeding is held to provide those safeguards.

While Butz in no

way stands for such a broad proposition, Knowlton applies that

10

Knowlton also cites Wang, 55 F.3d at 701 (disciplinary
proceedings before state medical licensing board), to support his
argument that the agency officials there would not have been able
to claim absolute immunity had no administrative proceeding taken
place. Wang says nothing of the sort.
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distorted reading of Butz to his case and argues that the state
officials'

actions

administrative

cannot

proceeding

be

absolutely

took

place

immune

here.

because

no

Without

an

administrative proceeding, he says, no safeguards were present to
protect his employment when the state officials agreed to the
termination provision in their consent agreement with Bankers Life.
Knowlton contends that the proceeding would have given him the
opportunity (as a non-party to the agreement) to contest the
termination provision and that without that opportunity, he was
left defenseless and unable to protect his employment.
The state officials' decision to agree to the termination
provision,
adversarial

however,
testing

immunity to apply.

need
and

not

be

judicial

"put

in

the

supervision,"

Harrington, 977 F.2d at 42.

framework
for

for

absolute

The "availability

of the safeguards" which arise from an adversarial setting or
judicial supervision are "not necessary preconditions" to claiming
absolute

immunity.

Id.

(discussing

Imbler).

The

crux

of

Knowlton's argument is that the state officials abused their
discretion when they agreed to allow Knowlton's termination in one
agreement after they had agreed to take no additional action
against him in another.11

Those, like Knowlton, who believe they

11

Although it is true, as Knowlton argues, that Bankers Life's
compliance with the agreement (of which Knowlton had no part)
harmed Knowlton given that he lost his job, it is simply
"irrelevant" to the question whether the conduct (namely, the
negotiation and execution of the consent agreements) in the first
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have been wronged have "readily available safeguards," Harrington,
977 F.2d at 42, to "deter" or "punish" that type of alleged
"misconduct" when absolute immunity protects the official from
liability in a § 1983 suit.

Imbler, 424 U.S. at 428-29.

In

Knowlton's case, filing a State Personnel Complaint in Maine and
reporting any attorney misconduct to Maine's Board of Overseers of
the

Bar

are

among

the

safeguards

available

to

address

the

discretionary abuse he claims occurred.12
In

sum,

the

state

officials

carried

their

burden

in

establishing they are entitled to absolute immunity for entering
into the consent agreements with Knowlton and Bankers Life.

Given

our ruling, we need not reach whether qualified immunity applies or
delve into the merits of Knowlton's due process claim.

instance is protected by absolute immunity. Buckley, 509 U.S. at
272. The functional approach requires us to keep our focus "on the
conduct for which immunity is claimed, not on the harm that the
conduct may have caused or the question whether it was lawful."
Id. at 271. And, the conduct at the heart of Knowlton's complaint
is the state officials' execution of the consent agreements at
issue.
12

Knowlton also argues that the state officials' actions cannot
be considered prosecutorial functions because his consent agreement
was not an enforceable plea agreement. Despite the questionable
legal basis for this assertion, it is sufficient to point out that
Knowlton failed to raise this argument before the district court
(at least according to the record before us) and has thus waived
it. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No.
59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)
("[L]egal theories not raised squarely in the lower court cannot be
broached for the first time on appeal.").
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Judicial Estoppel
Knowlton next argues that the state officials should have been
judicially estopped from asserting an immunity defense for the §
1983 claim.

We review the district court's decision not to invoke

judicial estoppel for abuse of discretion.

Alt. Sys. Concepts,

Inc. v. Synopsys, Inc., 374 F.3d 23, 30 (1st Cir. 2004); Perry v.
Blum, 629 F.3d 1, 8 (1st Cir. 2010).

"Within that rubric, we

accept the trial court's findings of fact unless they are clearly
erroneous, and evaluate its answers to abstract questions of law de
novo."

Perry, 629 F.3d at 8 (internal citations omitted).

"[J]udicial estoppel is an equitable doctrine," New Hampshire
v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks and
citation omitted), intended to "prevent[] a litigant from pressing
a claim that is inconsistent with a position taken by that litigant
either in a prior legal proceeding or in an earlier phase of the
same legal proceeding."

InterGen N.V. v. Grina, 344 F.3d 134, 144

(1st Cir. 2003). It protects "the integrity of the courts by
preventing parties from improperly manipulating the machinery of
the judicial system."

Alt. Sys. Concepts, 374 F.3d at 33.

Although the contours of judicial estoppel may be hazy, courts
generally consider three factors before invoking the doctrine in a
particular case.

Perry, 629 F.3d at 8-9.

First, a party's earlier

and later positions must be "clearly inconsistent." New Hampshire,
532 U.S. at 750; Alt. Sys. Concepts, 374 F.3d at 33.

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Second, the

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party must have succeeded in persuading a court to accept the
party's earlier position.

Alt. Sys. Concepts, 374 F.3d at 33.

"Third, the party seeking to assert the inconsistent position must
stand to derive an unfair advantage if the new position is accepted
by the court."

Perry, 629 F.3d at 9; New Hampshire, 532 U.S. at

751.
Knowlton contends that the state officials should not be able
to claim immunity for the § 1983 claim when, in his view, they had
just represented to the Maine Supreme Judicial Court in a previous
lawsuit that he had a viable claim.

See Knowlton v. Attorney

General, 976 A.2d 973, 975-76 (Me. 2009).
Knowlton sued

the

State

for

breach of

agreement between Knowlton and the State).

In that lawsuit,

contract

(the

Id. at 975.13

Knowlton faces an uphill battle with his argument.
thing,

a

party

against

whom

judicial

consent

estoppel

is

For one
invoked,

typically, must be the same party who made the prior inconsistent
representation.

See, e.g., Perry, 629 F.3d at 8 (explaining that

judicial estoppel "operates to prevent a litigant from taking a
litigation position that is inconsistent with a litigation position

13

Specifically, Knowlton asserted that the State had breached
his consent agreement by entering into the subsequent consent
agreement with Bankers Life because the subsequent agreement called
for Knowlton's termination as the Bangor branch manager, and
Knowlton
maintained
that
requirement
constituted
further
disciplinary action against him. The Maine Supreme Judicial Court
vacated a judgment in favor of Knowlton, concluding that sovereign
immunity shielded the State from liability. Knowlton, 976 A.2d at
980.
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successfully asserted by him" in the same or earlier proceeding);
Brewer v. Madigan, 945 F.2d 449, 455 (1st Cir. 1991) (explaining
that judicial estoppel prevents "a party from taking a position
inconsistent with one successfully and unequivocally asserted by
that same party in a prior proceeding").

As the district court

recognized, the party asserting the alleged "position" in state
court and the parties here are not the same.

In the state court

action, Knowlton sued the State. In this case, Knowlton sued three
state officials in their individual capacities only.
For another, even assuming the parties were the same, we see
no clear inconsistency between the position taken before the Maine
Supreme Judicial Court and that taken below.

A close look at the

record tells us why. During oral argument before the Maine Supreme
Judicial Court, in response to Justice Silver's comment that the
State may be immune from suit but had not acted "honorably," the
State, represented by an Assistant Attorney General ("AAG"), said
that it "may or may not have acted properly in this case" but that
"there is a section 1983 remedy for that I think."

Justice Silver

followed up with the more direct question, asking whether Knowlton
indeed had a § 1983 remedy.

The AAG clarified that the State was

"not saying [Knowlton] would prevail on a [section] 1983 claim" but
that he thought "a [section] 1983 claim is the vehicle by which
[Knowlton] could address whether what the State did was fair."
Contrary to Knowlton's interpretation of the AAG's statements, the

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AAG specifically declined to take a position one way or the other
regarding the viability of a § 1983 claim, merely noting that
bringing a section 1983 action may be the "vehicle" through which
Knowlton could address a potential due process claim.
Finally, as we have made clear, "a proponent of judicial
estoppel

must

affirmatively

show,

by

competent

evidence

or

inescapable inference, that the prior court adopted or relied upon
the previous inconsistent assertion."

Perry, 629 F.3d at 11-12.

On this record, Knowlton, as the party pressing judicial estoppel,
has failed to demonstrate that the Maine Supreme Judicial Court
accepted the AAG's alleged representation that Knowlton had an
actionable § 1983 claim to seek redress for the alleged unfair
treatment he received.
one issue:

The Court's ruling in that case resolved

whether the State had waived its sovereign immunity

regarding Knowlton's breach of contract claim.
at 978.

Knowlton, 976 A.2d

Nothing about the decision permits us to draw even the

slightest inference that the Court determined the State had not
waived its

sovereign

immunity

based

on

any acceptance

of

or

reliance upon the AAG's representation that Knowlton might have a
viable § 1983 claim.

See id.14

We therefore cannot conclude that

14

While "courts sometimes have allowed judicial estoppel when
the estopped party was responsible in fact for the earlier
representation, or when the estopped party was the assignee of a
litigation claim or assumed the original party's role," Perry, 629
F.3d at 9 (internal citations omitted), Knowlton does not contend
that any of these exceptions apply.
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the district court abused its discretion in refusing to invoke the
doctrine of judicial estoppel.
42 U.S.C. § 1985(2) claim
Lastly, Knowlton challenges the district court's finding that
the complaint failed to plead a plausible § 1985(2) claim.

The

second clause of § 1985(2), which Knowlton claims applies here,
prohibits conspiracies to obstruct "the due course of justice in
any State or Territory, with intent to deny to any citizen the
equal protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws."15
Because that language is "directed toward 'the equal protection of
the laws,'" a plaintiff must allege a "class-based, invidiously
discriminatory animus" to state a plausible § 1985(2) claim.

Hahn

v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)); Schneider v. Tretola, 8
F.3d 809 (1st Cir. 1993) (per curiam) (unpublished).
While the complaint alleges that the state officials conspired
with others to deprive Knowlton of a constitutionally protected
property interest -- i.e., his job with Bankers Life -- it fails to

15

The first clause of § 1985(2) covers conspiracies to
interfere with justice in the federal courts. The second clause,
on the other hand, covers conspiracies to interfere with justice in
the state courts "with intent to deny to any citizen the equal
protection of the laws."
42 U.S.C. § 1985(2); see Kush v.
Rutledge, 460 U.S. 719, 725 (1983) (identifying the different
classes of unlawful conspiratorial activity under § 1985).
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allege

any

racial,

or

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otherwise

class-based,

Entry ID: 5701351

invidiously

discriminatory animus underlying the state officials' actions.

As

the district court properly concluded, the complaint's failure to
do so dooms Knowlton's § 1985(2) claim.

See, e.g., Hahn, 523 F.3d

at 469 (finding allegation of invidiously discriminatory animus is
required

to

state

a

claim

under

the

portion

of

§

1985(2)

proscribing conspiracies to interfere with the administration of
justice in

state

courts); Schneider,

8

F.3d at

809

(finding

meritless plaintiff's § 1985(2) claim for obstruction of state
court proceedings for failure to allege that defendants were
motivated by any class-based, invidiously discriminatory animus);
see also Mason v. Village of El Portal, 240 F.3d 1337, 1340 (11th
Cir. 2001) (failure to establish invidiously discriminatory racial
animus behind conspiratorial decision defeated § 1985(2) claim).
Accordingly, Knowlton's § 1985(2) claim was properly dismissed.
CONCLUSION
In the end, we affirm the district court's dismissal of
Knowlton's claims against the state officials.

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