Starr v. Meaney

Filing 31

Judge Mark L. Wolf: MEMORANDUM & ORDER entered granting 7 Motion to Dismiss; adopting Report and Recommendations re 21 Report and Recommendations. (Bono, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MATTHEW STARR,

Plaintiff,
C.A. No.

V.

16-10062-MLW

ROBERT MEANEY,
Defendant.

MEMORANDUM AND ORDER

March 22, 2017

WOLF, D.J.

In a December 5, 2016 Report and Recommendation (the "R&R"),

the Magistrate Judge recommended that defendant Robert Meaney's
Motion

to

Dismiss

be

allowed

based

on

qualified

immunity.

Plaintiff Matthew Starr submitted objections to the Report and

Recommendation. The court has reviewed ^ novo the issues to which

proper objection has been made.

See Fed. R. Civ. P. 72(b)(3).

The court finds the Report and Recommendation to be thorough and

persuasive.

It

is,

therefore,

Memorandum and adopted.

being

incorporated

in

this

Accordingly, the motion to dismiss is

being allowed.

Nevertheless, the court is addressing Starr's objections

briefly.

Starr argues, in part, that the Magistrate Judge erred

in stating that his work as an auxiliary police officer on paid
details was "infrequent," R&R at 7, n.6, and relying on this

inference to find that a reasonable police officer would not have

known that Starr was a public employee who could be not properly

be denied reappointment for exercising his First Amendment rights
to free speech and to petition for the redress of grievances.
In his Complaint Starr alleges the following.

Medfield, Massachusetts auxiliary police officer.

He was a

Comp. SISI4-6.

"Auxiliary police officers in Medfield are considered special

police officers when performing paid details." Id. S17.

He served

as an auxiliary police officer or special officer at several events

a year from 2010 to 2013. I^ SIS.

In 2014 and the first half of

2015 Starr worked several parades or similar events as an auxiliary

police officer.

Id. SIIO.

When he served as a special police

officer, Starr was paid. I^ SISIS, 10. In 2015, Starr was told by

Meaney that he would no longer be allowed to work as an auxiliary

police officer. Id. at 22. Starr contends that he was deprived
of this opportunity because he had appealed the decision to deny
him appointment as a regular police officer, and exposed Meaney s
failure to investigate and evaluate the other candidates properly.
Id. SI23.

As a result, Starr missed working at least two paid

details in 2015.

Id. ^1.

Accepting these allegations as true, and drawing reasonable
inferences in favor of Starr, the relevant facts for qualified

immunity analysis are that Starr worked several times a year as an

auxiliary police officer and was sometimes, but not always, paid
for his work.
someone

who

The Magistrate Judge assumed, without finding, that
worked

for

a

municipality

occasionally

and

was

sometimes paid has a constitutional right not to be deprived of

the opportunity to continue that work in retaliation for his speech

or petitioning.

This court also assumes, without finding, such a

right exists.

The question for qualified immunity analysis,

therefore, is "whether in the particular factual context of [this]

case, a reasonable officer [in Meaney's position] would have
understood that his [alleged] conduct violated [that] right."

Stamps V. Town of Framinqham, 813 F.3d 27, 34 (1st Cir. 2016).

The Magistrate Judge correctly concluded such a reasonable

police officer would not in 2015 have known that the alleged
conduct at issue violated the First Amendment. In 2011, the First
Circuit said it was "leaving for another day," the question of

whether an unpaid volunteer had an interest in not being denied a

continued opportunity to serve that is protected by the First
Amendment.

See Barton v. Clancy, 632 F.3d 9, 26 (1st Cir. 2011).

It held, however, that as of 2006, "the law was not sufficiently

clear to put [defendant] on notice that declining to reappoint

[plaintiff] to [a] volunteer position . . . in retaliation for his
First Amendment activities was unlawful." Id. Neither the Supreme
Court nor the First Circuit has since decided whether a volunteer

has such First Amendment protection.
3

Nor is there a "robust

consensus of cases of persuasive authority" in other Circuits

clearly establishing such a right.

Ashcroft v. al-Kidd, 131 S.Ct.

2074, 2084 (2011)(internal quotation omitted); see also Plumhoff
V. Rickard, 134 S.Ct. 2012, 2023 (2014).

As

the

Magistrate

Judge

recognized,

it

was

clearly

established in 2015 that a paid public employee, including a

temporary public employee, has a right protected by the First
Amendment not to be retaliated against for speaking or petitioning
to redress a grievance.

See, e.g., Nieves-Villaneva v. Soto-

Rivera, 133 F.3d 92, 98 (1st Cir. 1997); Barton, 632 F.3d at 27.
In this

case,

Starr

was

neither

exclusively an

unpaid

volunteer nor exclusively a paid municipal employee. He served as

an auxiliary police officer only several times a year and was only
sometimes paid for doing so.

There appears to be no case

addressing such a hybrid situation.

In view of the uncertainty

concerning whether a volunteer has a protected right not to be
retaliated against for First Amendment activity and the lack of

any case law concerning individuals who are only occasionally paid
for their government service, let alone a "robust consensus of

persuasive authority on the issue," al~Kidd, 131 S.Ct. at 2084,
the Magistrate Judge correctly concluded that Meaney has qualified
immunity for Starr's claim against him.

In his objections to the Report and Recommendation, Starr

also argues that the Massachusetts Ethics statute, M.G.L. c. 268A,
defines "municipal employee" to include individuals who serve

without compensation on an intermittent basis.

This argument is

not addressed in the Report and Recommendation.

There appears to

be no reference to Chapter 268A in plaintiff's submissions to the

Magistrate Judge. Therefore, the court need not consider it. See
Borden v. Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.

1987).

However, the court finds that the statute does not alter

the conclusion that Meaney has qualified immunity for Starr's
claims.

The fact that an individual is deemed a municipal employee

subject to state ethical obligations does not necessarily mean he
is a public employee for First Amendment purposes.

In Barton, a

Massachusetts case, the First Circuit in 2011 noted that some

Circuits had found volunteers to be protected against retaliation

by the First Amendment based on state statutes providing that they
be treated as public employees.

See 632 F.3d at 25.

The First

Circuit, however, did not suggest that Chapter 268A, which was
enacted in 1962 and in existence in 2011, had this effect.

•

In any event, this court finds that the statute would not have put
a reasonable person in Meaney's position on notice that Starr had
First Amendment rights that Meaney's alleged conduct violated.

In view of the foregoing, it is hereby ORDERED that:

1.

The attached Report and Recommendation {Docket No. 25)

is ADOPTED and INCORPORATED in this Memorandum.

2.

The Motion to Dismiss (Docket No. 7) is ALLOWED.

3.

This case is DISMISSED.

UNITED STATES DISTRICT JUDGE v

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MATTHEW STARR,
Plaintiff,

CIVIL ACTION NO. 16-10062-MLW

ROBERT MEANEY,

in his individual capacity,
Defendant.

REPORT AND RECOMMENDATION ON
DEFENDANT ROBERT MEANEY'S
MOTION TO DISMISS(#7\

KELLEY,U.S.M.J.
I. Introduction.

Plaintiff Matthew Starr brought this action against Robert Meaney under a theory of
retaliation for the exercise of First Amendment rights in violation of42 U.S.C. § 1983.(#1.)

Defendant filed a motion to dismiss(#7); plaintiff responded in opposition (#11); a hearing was
held on the motion on November 7, 2016(#18); and defendant and plaintiff submitted

supplemental briefs thereafter,(#19)and(#20)respectively. At this juncture the motion to
dismiss stands ready for decision.
II. The Facts.

The facts as set out in the complaint are as follows. Defendant was the Medfield chief of

police during the relevant period.(#1 US.)Plaintiff began serving as an auxiliary police officer

for the Medfield Police Department in 2009. M ^ 1. As an auxiliary officer, plaintiff worked
unpaid details; at times, as an auxiliary police officer, he worked paid details at the customary

hourly rate as a "special police officer."^ Id. H 8. From 2010 through the first half of 2015,
plaintiff served as an auxiliary police officer or special police officer at several events each year.
Id. KH 8,10. Toward the end of 2011, plaintiff voluntarily turned over his license to carry a

firearm to defendant^ in response to an incident at plaintiffs regular place of employment that
occurred in November 2011. M H 9. Plaintiff regained his license to carry in 2012 or 2013.Id.

On April 6, 2015, plaintiff submitted an application for employment as a full-time regular
police officer to the Medfield Police Department. M ^ 11. The Medfield Police Department

investigated plaintiffs background as part ofthe standard review process for the job. Id. Plaintiff
was the highest-ranked candidate on the civil service certification for appointment at the time. Id.

On May 25, 2015, plaintiff worked as an auxiliary officer for the Medfield Memorial Day
celebration, /c/. U 13. Plaintiff expected to continue to work as an auxiliary officer and special
officer unless he was appointed as a full-time regular officer in Medfield or another community.
Id.

On June 16, 2015,the Medfield Board of Selectmen (the Board),the appointing authority

in Medfield, bypassed^ plaintiff for appointment as a regular officer and appointed four lower-

ranking candidates over him. Id.^14. Plaintiff alleges that the sole justification for the Board s
action was its reliance on defendant's recommendation. Id. Plaintiff learned ofthe Board s

'"Auxiliary police officers in Medfield are considered special police officers when performing paid
details. At this time, they have full police powers, wear uniforms with a Medfield Police Department
badge, and carry guns, radios, and handcuffs."(#1^7.)

^ Defendant, as the Medfield chief of police, was the issuing authority for a license to carry.(#1 ^ 9 n. 1.)

^ A "bypass" occurs when a Massachusetts appointing authority appoints a lower-ranked candidate over a
higher-ranked candidate.(#1 ^ 14 n. 2.)
2

decision during a July 1,2015 meeting with defendant and the background investigator assigned

to plaintiffs application. M K 15. Plaintiff was told that he was bypassed because the
investigator saw him smoking."^ Id. Several weeks later, on July 28, 2015, plaintiff appealed the
Board's bypass decision to the Massachusetts Civil Service Commission.Id. H 16. On August 18,

2015, plaintiff received a letter from Medfield, as required by Mass. Gen. Laws ch. 31,stating
the reasons why plaintiff was not appointed. Id. T| 17. Other than his smoking, plaintiff was
unaware ofthe other reasons set out in the letter prior to his reading the document. Id.

On August 25,2015, plaintiff and his counsel attended a pre-hearing conference at the
Civil Service Commission.^ Id. %\S. Plaintiffs appeal was discussed at the conference, and he

made clear his intention to pursue all background material regarding the lower-ranked candidates

appointed over him, as well as all information germane to the selection process for these
candidates. Id. Plaintiff is of the opinion that defendant was concerned by plaintiffs declaring

his intent to investigate the appointment process, as plaintiff was calling into question

defendant's vetting ofthe candidates and was announcing his intent to uncover deficiencies in
the selection process. M ^ 19.

Defendant directs the court to Mass. Gen. Laws ch. 41,§ 101 A, which states that no person who

smokes any tobacco product shall be eligible for appointment as a police officer ... in a city or town .. ."
(#8 at 2 n. 2.)

5 The record does not reveal the outcome ofthis appeal; presumably, it was denied. Defendant states in

his motion to dismiss that plaintiff was not hired as a regular police officer because he failed to list two

previous jobs on his application from which he was fired; because he was seen smoking; and because he
had carried a gun on the campus of Framingham State University, which the Civil Service Commission

had previously noted in 2012 as a reason to bypass plaintiff in an application to the Department of
Corrections. (#8 at 2 n. 3.) This case concerns only plaintiffs not being allowed to work as an auxiliary
officer, not his failure to be hired as a regular officer. It is not clear at this stage ofthe case whether any
ofthe reasons defendant lists for plaintiffs not being appointed as a regular officer were also reasons for
his not being allowed to continue to work as an auxiliary officer, and the court does not consider these
facts in deciding the motion to dismiss.

After the conference, the Town of Medfield produced the applications and background
material for the candidates who were selected over plaintiff. Id. 20. The documents showed that

defendant recommended appointing the other candidates before he learned of plaintiffs smoking

violation and before the background check for at least one ofthe candidates had been completed.
Id. Plaintiff claims that the candidate for whom the background check had not been completed
had a criminal record, had been terminated from several governmentjobs, and had failed two

drug tests at a prior governmentjob. Id. Plaintiff avers that these facts demonstrate that
defendant failed to vet thoroughly the other candidates. Id. 121. Plaintiff alleges that the appeal
also revealed that defendant did not disclose any negative information about the other candidates

to the Board, nor did he inform the Board that plaintiff was the highest-ranked candidate. Id.

On September 15,2015, plaintiff was informed that he was no longer allowed to work

any upcoming events as an auxiliary officer because Town Counsel might"frown upon it." Id. 1
22. Plaintiff has not been allowed to work any events as an auxiliary officer since being banned

by defendant. Id.

1,22-23. Plaintiff takes the position that his not being allowed to work as an

auxiliary police officer is the result of his outing defendant's failure to perform adequately his
duties in the candidate appointment process. Id. ^ 23."By not being allowed to continue working
as an auxiliary police officer and/or special police officer, Starr has suffered lost wages,
emotional distress, extreme embarrassment, and reputational harm." Id. ^ 24. Plaintiff asks the

court to enjoin defendant from retaliatory treatment of plaintiff, to order defendant to allow

plaintiff to work as an auxiliary officer, to pay damages for lost wages,emotional distress "and
other injuries," and to pay punitive damages and attorneys' fees and costs.(#1 at 6-7.)

III. Standard of Review.

A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a

claim. In deciding such a motion, a court must "'accept as true all well-pleaded facts set forth in

the complaint and draw all reasonable inferences therefrom in the pleader's favor.'" Haley v.

City ofBoston,657 F.3d 39,46(1st Cir. 2011)(quoting Artuso v. Vertex Pharm., Inc., 637 F.3d
1, 5 (1st Cir. 2011)). When considering a motion to dismiss, a court"may augment these facts
and inferences with data points gleaned from documents incorporated by reference into the

complaint, matters of public record, and facts susceptible to judicial notice." Haley,657 F.3d at
46 (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003)).
In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide

"enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v.

Twombly,550 U.S. 544,570(2007). The "obligation to provide the grounds of[the plaintiffs]
entitlement to relief requires more than labels and conclusions, and a formulaic recitation ofthe
elements of a cause of action will not do." Id. at 555 (internal quotation marks and alteration

omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative
level," and to cross the "line from conceivable to plausible." Id. at 555, 570.

"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft V. Iqbal, 556 U.S. 662,678(2009)(citing Twombly,550 U.S. at 556). However,the
court is "'not bound to accept as true a legal conclusion couched as a factual allegation.'" Id. at

678 (quoting Twombly, 550 U.S. at 555). Simply put, the court should assume that well-pleaded
facts are genuine and then determine whether such facts state a plausible claim for relief. Id. at
679.

IV. Qualified Immunity.

"The qualified immunity doctrine provides defendant public officials an immunity from
suit and not a mere defense to liability." Maldonado v. Fontanes,568 F.3d 263, 268 (1st Cir.

2009). To prevent unnecessary litigation,"immunity is to be resolved at the earliest possible
stage in litigation." Id.

"Qualified immunity protects government officials from trial and monetary liability

unless the pleaded facts establish(1)that the official violated a statutory or constitutional right,
and (2)that the right was clearly established at the time ofthe challenged conduct." MarreroMendez v. Calixto-Rodriguez, 830 F.3d 38,43 (1st Cir. 2016)(internal citations and quotation

marks omitted)."This doctrine gives government officials breathing room to make reasonable

but mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law." Hunt v. Massi, 773 F.3d 361, 367(1st Cir. 2014)(internal citation and quotation

marks omitted). The First Circuit recently reviewed the qualified immunity doctrine and said:
This court adheres to a two-step approach to determine whether a

defendant is entitled to qualified immunity:'We ask "(1) whether the facts alleged
or shown by the plaintiff make out a violation of a constitutional right; and(2)if
so, whether the right was 'clearly established' at the time ofthe defendant's

alleged violation.'" Mlodzinski [v. Lewis],648 F.3d [24],32 [(1st Cir. 2011)]
(quoting Maldonado v. Fontanes, 568 F.3d [at] 269). The second prong, in turn,
has two elements:'We ask(a) whether the legal contours ofthe right in question

were sufficiently clear that a reasonable officer would have understood that what
he was doing violated the right, and(b) whether in the particular factual context
ofthe case, a reasonable officer would have understood that his conduct violated
the right.' Id. at 32-33.

Stamps V. Town ofFramingham,813 F.3d 27, 33-34(1st Cir. 2016)."If either of the two prongs
is not met- i.e., if the facts do not show a constitutional violation or the right in question was not

clearly established -the officer is immune. Either prong may be addressed first, depending on
the circumstances in the particular case at hand." Marrero-Mendez, 830 F.3d at 43 (internal

citation and quotation marks omitted); Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010)

("These two prongs ofthe analysis need not be considered in any particular order, and both

prongs must be satisfied for a plaintiff to overcome a qualified immunity defense").
V. Discussion.

The nub ofthe question here is whether, in September 2015,the law regarding whether

plaintiff should be treated as a public employee was so clearly established as to put defendant on
fair notice that he was violating plaintiffs First Amendment Rights by not allowing him to work

as an auxiliary officer. As set out above, plaintiffs work for the Medfield Police Department
consisted of work as an unpaid auxiliary officer, which included the occasional special officer

work for which he was paid.^ If plaintiff is deemed to be a volunteer, defendant unquestionably

is entitled to qualified immunity, because the law regarding an unpaid volunteer's termination
and whether such an action triggers First Amendment scrutiny remains unclear in this circuit. In

Barton v. Clancy,632 F.3d 9(1st Cir. 2011),the First Circuit dismissed a plaintiffs First
Amendment retaliation claim for non-reappointment to an unpaid position on qualified immunity

grounds. The Barton court explicitly did not decide whether terminating a volunteer's position
could trigger scrutiny of First Amendment rights. Id. at 26(noting that the court was [l]eaving
for another day the question of whether Barton has demonstrated a First Amendment violation
based on the non-reappointment to a volunteer position").

Plaintiff assumes that because he was paid as a special police officer, he has the status of

a public employee.(#11 at 4-5; #20.)Plaintiff may well be right, but for purposes of deciding
^ The record is thin concerning how much compensated special officer work plaintiff performed and the
details about that work,for example, how an auxiliary officer obtains paid assignments and how

frequently. A close reading ofthe complaint suggests that the paid work was infrequent; one can infer
from the complaint that between May and December 2015 plaintiff claims to have missed "at least two
paid events."(#1 at 1-2.)

whether defendant is entitled to qualified immunity,the issue is whether the law was sufficiently

clear on that point so as to put defendant on notice of it. If plaintiff is considered to be a public
employee, as plaintiff points out, the court is guided by the standard articulated by the Supreme
Court in Garcetti v. Ceballos, 547 U.S. 410(2006), the application of which is explained in

detail m Decotiis v. Whittemore, 635 F.3d 22,29(IstCir. 2011)."^ The court here need not

engage in the analysis set out in Decotiis, because the court concludes that the law concerning
the threshold question, whether defendant was on notice that plaintiff should be treated as a

public employee, was not sufficiently clear, and so defendant is entitled to qualified immunity.
Defendant, in his motion to dismiss, asserted the defense of qualified immunity, correctly

arguing that the law was not clear that volunteers are protected against retaliatory government

discharge.^(#8 at 4.) At the hearing on the motion, defendant did an about-face and stated that at
the time he filed the motion, he did not realize plaintiff was paid for his work, and because he

was paid, plaintiff was a public employee.^ In his post-hearing memorandum, defendant
reiterated his claim of qualified immunity; stated that plaintiff was a public employee; and

argued that the complaint should be dismissed because under the standard articulated in Garcetti

^ In Decotiis, the First Circuit endorsed a three-part test: in order to prevail on a § 1983 retaliation claim, a

public-employee plaintiff must establish:(1)that he spoke as a citizen on a matter of public concern;(2)
that his interest in commenting on these matters outweighed defendant's interest in the efficient

performance of its public services; and (3)that the protected expression was a substantial or motivating
factor in the defendant's adverse employment decision. Decotiis,635 F.3d at 29. The First Circuit

acknowledged that applying that test, particularly in the context of a motion to disrniss,"has proven to be
a tricky business,""because the inquiry is so highly fact intensive and context specific." Id. at 26.
® Inexplicably, defendant also argued that plaintiff had alleged a violation of his due process rights, and
included a lengthy argument against that claim,see #8 at 6-7. In fact, plaintiff did not make any such
allegation, see #1 at 6, and the court will not address that issue.

3 Defendant's change of position was curious, because his motion to dismiss noted that plaintiff was
sometimes paid for his work.(#8 at 3.)

V. Ceballos, plaintiffs speech was not protected as he was not speaking as a citizen addressing
matters of public concern.(#19 at 2-3.)

Plaintiff fails to cite to any case law from the Supreme Court or this circuit demonstrating

that an individual such as plaintiff- who worked occasionally and was infrequently paid for his
work -should be considered to be a public employee for purposes of a First Amendment

retaliation claim. His first pass at the issue is to simply assert that because "Medfield paid Stan-

wages as part of his work as an auxiliary officer," cases such as Lynch v City ofBoston^ 180 F.3d
1 (1st Cir. 1999), which held that "non-compensated positions on voluntary boards" were not

protected against retaliatory discharge, and Ziskend v. O'Leary, 79 F. Supp. 2d 10, 13(D. Mass.

2000), where the District Court held that auxiliary police officer positions are not protected from

retaliatory discharge, are inapplicable.'® (#11 at 4.) In his post-hearing memorandum, plaintiff
cites Welch v. Ciampa,542 F.3d 927(1st Cir. 2008)for the proposition that "it is clearly
established that the loss of paid details and similar benefits are a cognizable adverse action under
the First Amendment."(#20 at 2.) Welch, however, concerned a full-time police officer who

alleged that in retaliation for his exercise of First Amendment Rights he was not reassigned to a

"specialist position," which included an additional stipend, the opportunity for substantial
overtime pay, and additional pay related to detail and court assignments. The First Circuit held
that this constituted an adverse employment action under § 1983. Welch,542 F.3d at 936. Unlike

the plaintiff here, the plaintiff in Welch was unquestionably a public employee under the law of
this circuit. Also,the loss suffered by the Welch plaintiff as a result ofthe defendants' actions
was both substantial and definite: Welch was guaranteed additional money as part of his

appointment. Id. In reaching its conclusion, the Welch court likened the plaintiffs nonThere is no mention in the Ziskend case whether the officer in question was ever paid for his auxiliary
officer work.

reappointment to cases in which a public employee plaintiff lost "substantial overtime pay and
additional duties" or "supervisory positions" resulting in a lower position and rank, and

considered Welch's loss to be "a significant diminution in his job responsibilities." See id.(citing
to Martinez—Velez v. Rey—Hernandez,506 F.3d 32,40(1st Cir. 2007)ond Acosta—Orozco v.

Rodriguez-de-Rivera, 132 F.3d97,101 (1st Cir. 1997)).
Nor does the Decotiis case help plaintiff. There,the First Circuit, concluding that the

state-contractor plaintiff was a public employee, anchored its finding to Bd. ofCty. Comm'rs,

Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668,678(1996), a case in which the Supreme Court
extended public employee status to government contractors. See Decotiis, 635 F.3d at 26 n. 1

(citing to Umbehr,518 U.S. 668). Plaintiff is not a government contractor. Finally, he offers two
cases from other circuits for the proposition that plaintiffs fluctuating status -from volunteer to

paid employee- has no bearing on his classification as a public employee.(#20 at 3.) These
cases do not help him, as one was already distinguished by the First Circuit in Barton and the
other fails to comport with the law of this circuit.^'
The court need not decide plaintiffs status to resolve this case, however, because it is

apparent that a reasonable person in defendant's position could not have known that he was

In his post-hearing brief, arguing that plaintiff is a public employee, plaintiff cites Mosely v. Board of
Educ. ofCity ofChicago,434 F.3d 527(7th Cir. 2006)and Fotopolous v. Board ofFire Com 'rs of
Hicksville Fire Dist., 11 F. Supp. 3d 348(E.D.N.Y. 2014).(#20 at 3.) In Barton, the First Circuit

expressly distinguished Mosely due to its reliance on Seventh Circuit case law and state statutes, and the
court explicitly did not adopt the holding in Mosely, that the plaintiffs volunteer status was irrelevant to
the court's First Amendment analysis. See Barton, 632 F.3d at 25.

Fotopolous, a case addressing the suspension and coerced resignation of a plaintiff who worked
as an unpaid volunteer firefighter and a paid dispatcher for the fire department, relied on Second Circuit
case law in finding that defendants' actions constituted an adverse employment action for the sake of the
First Amendment analysis. See Fotopolous, IIP. Supp. 3d at 364-365. The Fotopolous court s
conclusion is not the law in this circuit. See Barton,632 F.3d at 12,26(leaving for another day the

question of whether the deprivation of a volunteer position constitutes a violation under the First
Amendment).

10

deciding not to reappoint a public employee as opposed to a volunteer when he chose to ban
plaintiff from all auxiliary and special officer work.
Addressing the second prong ofthe qualified immunity analysis,

[t]he inquiry into whether a right is clearly established must be undertaken in light
ofthe specific context ofthe case, not as a broad general proposition. When
determining whether a reasonable [state actor] would have been aware of a
constitutional right, we do not impose on the official a duty to sort out conflicting
decisions or to resolve subtle or open issues. In order to show that a principle is

clearly established ... a plaintiff ordinarily must identify cases of controlling
authority at the time of the incident or a consensus of cases of persuasive
authority such that a reasonable [actor] could not have believed that his actions
were lawful.

Mead v. Indep. Ass'n, 714 F. Supp. 2d 188,197(D. Me.2010), affd, 684 P.3d 226(1st Cir.
2012)(some alteration in original)(internal citation and quotation marks omitted).
The absence of First Circuit cases or any out-of-circuit consensus concerning whether a

person in plaintiffs position is held to be a public employee for purposes of a First Amendment
retaliation claim is determinative. This void demonstrates that a reasonable individual in

defendant's position could not have been given fair notice ofthe potential ramifications of his
decision. Thus, defendant is entitled to qualified immunity. The complaint should be dismissed
in its entirety.
V. Conclusion.

For all of the reasons stated, I RECOMMEND that Defendant Robert Meaney's Motion
to Dismiss(#7) be ALLOWED.
VI. Review bv District Court Judge.

The parties are hereby advised that any party who objects to this recommendation must

file specific written objections with the Clerk ofthis Court within 14 days ofthe party s receipt
ofthis Report and Recommendation. The objections must specifically identify the portion ofthe
recommendation to which objections are made and state the basis for such objections. The
11

parties are further advised that the United States Court of Appeals for this Circuit has repeatedly
indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate
review. See Keating v. Secretary ofHealth & Human Servs., 848 F.2d 271 (1st Cir. 1988);
United States v. Emiliano Valencia-Copete, 792 F.2d 4(1st Cir. 1986); Scott v. Schweiker^ 702

F.2d 13,14(1st Cir. 1983); United States v. Vega,678 F.2d 376, 378-379 (1st Cir. 1982);Park
Motor Mart, Inc. v. Ford Motor Co.,616 F.2d 603 (1st Cir. 1980);see also Thomas v. Arn,474
U.S. 140(1985).
/s / M.Page Kellev

M.Page Kelley

December 5, 2016

United States Magistrate Judge

12