United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case involves a dispute as to why plaintiff Scott Saunders
("plaintiff" or "Saunders") was passed
over for promotion in the Town of Hull's Police
Department. Plaintiff alleges that defendants, the Town of
Hull and former Police Chief Richard Billings, refused to
promote him because Saunders 1) reported funds missing from
the Union account to the Massachusetts Attorney General's
Office, 2) played a central role in a publicized Union vote
of no confidence against Chief Billings and 3) was
irrationally disliked by the Chief. Plaintiff's motion
for reconsideration of summary judgment of dismissal of his
42 U.S.C. § 1983 claim against the Town of Hull is
currently before the Court.
Plaintiff's Motion for Reconsideration
difficult to succeed on a motion for reconsideration under
Fed. R. Civ. P. 59(e). Marie v.
Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st
Cir. 2005). Such a motion is appropriate only if there are
extraordinary circumstances such as a "manifest error of
law or newly discovered evidence." Ruiz Rivera
v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st
Cir. 2008) (quoting Kansky v. Coca-Cola Bottling
Co. of New England, 492 F.3d 54, 60 (1st Cir. 2007)).
contends that reconsideration is warranted on the summary
judgment of dismissal of the 42 U.S.C. § 1983 claim
against the Town of Hull because the Court raised the issue
sua sponte and a jury could find that the Board of
Selectmen ("the Board") "rubber-stamp[ed]
Defendant Billings' retaliatory refusal to recommend
Saunders to the second vacancy". Defendants respond that
summary judgment was appropriate because there is no evidence
of a municipal policy.or custom of retaliation.
Court does not consider the issue to be raised sua
sponte because in their motion for summary judgment
defendants sought "judgment as a matter of law on all
claims made against them ... as the Court sees fit."
Accordingly, plaintiff was on notice that if there was no
genuine issue of material fact and defendants were entitled
to judgment as a matter of law, summary judgment would be
entered against him.
elementary that there is no municipal liability under 42
U.S.C. § 1983 unless there is evidence of a municipal
"policy or custom." Fabiano v.
Hopkins, 352 F.3d 447, 452 (1st Cir. 2003). Here,
there was no evidence of a municipal policy or custom of
retaliating against individuals for exercising their first
amendment rights. Moreover, although a single decision by a
final policymaker may result in municipal policy, as was the
case in Fabiano, plaintiff did not allege that
former Police Chief Richard Billings was the final policy
maker for the purposes of hiring and promotion.
Welch v. Ciampa, 542 F.3d 927, 942
(1st Cir. 2008) ("[I]n Fabiano we never state
that the policymaker had the final policymaking
authority.")(emphasis in original). On the contrary,
plaintiff concedes that it was "undisputed that the
Board of Selectmen is the appointing authority" for the
purpose of staffing the police department.
assertion that it is the Police Chief's responsibility to
"coordinate the entire [hiring] process and make a
recommendation" does not change the fact that the final
policymaker for the purpose of hiring is the Board. As the
First Circuit Court of Appeals has observed,
[s]imply going along with discretionary decisions made by
ones subordinates ... is not a delegation to them of the
authority to make policy.
Walden v. City of Providence,
R.I., 596 F.3d 38, 57 (1st Cir. 2010) (quoting City
of St. Louis v. Praprotnik, 485 U.S.
112, 130 (1988)). In fact, the Walden Court
specifically rejected the argument that an individual who
makes a recommendation to a municipal board, which then makes
a final decision, qualifies as a final policy maker.
there is no evidence that the Board authorized or ratified
the Chief's alleged retaliation against plaintiff. Welch,
542 F.3d at 942 (holding that a municipality could not be
held liable for an individual's decision because there
was no evidence that the Board authorized the retaliatory
acts); see also Walden, 596 F.3d at 57 (declining to
impose municipal liability based an employee's
recommendation because there was -no argument that the board
did not independently review the merits of [the]
proposal"). Plaintiff does not dispute that he never
discussed the vote of no confidence or his possible promotion
with the Board or its members. Nor does he dispute that he
never saw an email or statement or any other written
communication from anyone on the Board that addressed his
possible promotion. Plaintiff himself testified that he had
no evidence that Chief Billings tried to influence the Board
with respect to the promotion decision.
Chief Billings' purported statements to plaintiff that
"you can't fight Town Hall" and "Town Hall
has my back" do not support a finding of municipal
liability. Although summary judgment requires courts to draw
all "reasonable" inferences in the