United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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 de 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, being incorporated
in this Memorandum and adopted. Accordingly, the motion to
dismiss is being allowed.
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.
Complaint Starr alleges the following. He was a Medfield,
Massachusetts auxiliary police officer. Comp.
¶¶4-6. "Auxiliary police officers in Medfield
are considered special police officers when performing paid
details." Id. ¶7. He served as an
auxiliary police officer or special officer at several events
a year from 2010 to 2013. Id. ¶8. In 2014 and
the first half of 2015 Starr worked several parades or
similar events as an auxiliary police officer. Id.
¶10. When he served as a special police officer, Starr
was paid. Id. ¶¶8, 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. ¶23. As a result, Starr missed working at
least two paid details in 2015. Id. ¶1.
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. The Magistrate Judge assumed, without
finding, that someone who 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 Framingham, 813 F.3d
27, 34 (1st Cir. 2016).
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. 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).
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.
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.
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.
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. Id. 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.
of the foregoing, it is hereby ORDERED that:
attached Report and Recommendation (Docket No. 25) is ADOPTED
and INCORPORATED in this Memorandum.
Motion to Dismiss (Docket No. 7) is ALLOWED.
case is DISMISSED.
AND RECOMMENDATION ON DEFENDANT ROBERT MEANEY'S MOTION TO
Matthew Starr brought this action against Robert Meaney under
a theory of retaliation for the exercise of First Amendment
rights in violation of 42 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 ...