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Starr v. Meaney

United States District Court, D. Massachusetts

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 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.

         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. 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.

         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. 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).

         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. 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. 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.

         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.


          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 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 ...

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