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Alston v. Town of Brookline

United States District Court, D. Massachusetts

April 26, 2017

TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; BERNARD GREENE, in his individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; STANLEY SPIEGEL, in his individual capacity; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.



         The magistrate judge to whom this matter was referred filed a report and recommendation (dkt. no. 98) (“R&R”) with respect to Defendant Spiegel's Motion to Dismiss Second Amended Complaint with Prejudice and Request for Hearing (dkt. no. 80). The magistrate judge recommends allowing the motion. The plaintiff, Gerald Alston, has filed an objection to the R&R (dkt. no. 99). Having reviewed the relevant pleadings and submissions, I agree with the magistrate judge's analysis and conclusions. The plaintiff was provided an opportunity to cure the deficiencies of the first amended complaint with respect to the claims against the defendant, Stanley Spiegel, but has failed to do so. I therefore overrule the plaintiff's objection and approve and ADOPT the magistrate judge's recommendation in its entirety.

         Accordingly, the defendant's motion to dismiss the claims against him set forth in the second amended complaint with prejudice (dkt. no. 80) is GRANTED.

         It is SO ORDERED.

          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         Plaintiff Gerald Alston brought this action against the Town of Brookline (the Town); the Brookline Board of Selectmen (the Board); various individuals who are either currently or at some point relevant to this action were serving as selectmen on the Board (the Selectmen);[1] the Human Resources Director for the Town, Sandra Debow; Town Counsel, Joslin Murphy; the union of firefighters to which plaintiff belonged, Local 950, International Association of Firefighters; and Stanley Spiegel, a Town Meeting member and member of the Town's Advisory Committee[2]; alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985 stemming from an ongoing policy and practice of racial discrimination in the Town governance. (#78.) Defendant Spiegel filed a motion to dismiss all claims against him (#80); Alston responded in opposition (#84); and Spiegel filed a reply to plaintiff's opposition (#95).

         II. Procedural History.

         The original complaint in this action was filed on December 1, 2015 (#1). Two months later, on January 26, 2016, plaintiff added seven plaintiffs in an amended complaint (#21). All defendants moved to dismiss the first amended complaint (##34, 36, 45, 52) and plaintiffs opposed (##40, 56, 64). This court's Report and Recommendation on defendants' motions to dismiss (#72) recommended that the claims of all plaintiffs be severed and dismissed without prejudice for failure to comply with the pleading requirements set forth in Rule 8 of the Federal Rules of Civil Procedure, save for those against defendant Spiegel for which the court recommended that all claims be dismissed with prejudice due to plaintiffs' failure to state a claim and Spiegel's entitlement to the defense of qualified immunity. (See #72.) Judge O'Toole, the district court judge to whom this case is assigned, reviewing the Report and Recommendation on the motions to dismiss, adopted all of the court's recommendations with the caveat that, in the interest of fairness, the claims against Spiegel be dismissed without prejudice, and Alston and the other plaintiffs be given leave to replead their claims against all defendants.[3] (#75.) Thereafter, Alston filed his second amended complaint. (#78.)

         III. The Facts.

         The relevant facts as set forth in the second amended complaint are as follows.[4] In 2002, Alston, who is Black, started working for the Brookline Fire Department (the Department) as a firefighter. (#78 ¶¶ 1, 19.) On May 30, 2010, a lieutenant in the Department left a voicemail on Alston's phone in which the lieutenant called Alston a racial slur. Id. ¶ 20. Alston reported the lieutenant's comment to the Department's chief operating officer, but no corrective action was taken. Id. ¶ 22. The matter was eventually taken up by the Board, the entity responsible for hiring, firing, and disciplining the Town's firefighters. Id. ¶¶ 4, 23. Alston alleges that the Selectmen failed to take appropriate action and protected and rewarded the lieutenant instead of disciplining him for his racist remark. Id. ¶¶ 23, 24. Since the 2010 incident, Alston has been the victim of ongoing punishment in the form of, among other things, the Town's[5] ignoring his complaints; concealing the truth; encouraging other firefighters' ostracization of Alston; insufficiently investigating the matter; and constantly harassing Alston. Id. ¶ 25.

         In the fall of 2013, the Town increased its efforts to discredit Alston's claims and force him out of the Department on a pretextual basis. Id. ¶ 28. On September 19, 2013, Spiegel, who is White, distributed a “letter to the editor, ”[6] via email, to members of the Town Meeting.[7] Id. ¶¶ 13, 117-118. The letter, authored by a retired Black fire lieutenant, had been distributed at a public meeting the day before by Selectwoman Daly and attacked Alston's courage and credibility and cast him in a negative light. Id. ¶ 117. In the same email, Spiegel directed Town Meeting members to a quote from Selectwoman Daly taken from that day's local paper in which she cautioned against a rush to judgment before the remainder of the facts of Alston's complaint could be made public. Id. ¶ 118. In the email, Spiegel echoed Selectwoman Daly's sentiments about reserving judgment and noted that the letter provided some additional insight. Id.

         In 2014, the Town ultimately placed Alston on unpaid leave with the intent to terminate his employment. Id. ¶ 28. On December 3, 2014, Alston's case was reported in several area news publications. Id. ¶ 119. At some point thereafter, in response to plaintiffs public protest of his treatment, the Town retaliated against Alston by providing Spiegel with access to Alston's personnel file. Id. ¶ 120. On or around December 9, 2014, Spiegel told several people gathered in the selectmen's public meeting room that he had such access as a result of his position as a Town Meeting member.[8] Id. Spiegel also told a woman who was wearing an “I support Gerald Alston” sticker (the Alston supporter) that she would not support Alston if she knew the real story contained in his personnel file, but that she was not allowed to access the file. Id. ¶¶ 31, 121. Spiegel represented to the Alston supporter that he was speaking on behalf of the Town. Id. Additionally, while in front of the Alston supporter and two other individuals, Spiegel falsely stated that two Black firefighters told him they did not support Alston. Id. ¶ 122. When questioned about his statements, Spiegel allegedly grew extremely agitated and put his face close to the supporter's face and raised his voice. Id. ¶ 123. The conversation ultimately terminated when Spiegel shouted “I'm disgusted” and left the room. Id.

         On February 13, 2015, in response to a public protest of the Town's annual Martin Luther King, Jr. celebration, Alston was placed on paid administrative leave. Id. ¶ 31. Alston asserts that despite the Selectmen's publicly conciliatory stance towards him, “they tacitly encouraged their unofficial surrogates, including advisory committee member and town meeting member, Stanley Spiegel to smear Mr. Alston and undermine public support for him.”[9] Id. On February 16, 2016, the Board terminated Alston's paid administrative leave. Id. ¶ 37. Alston was formally dismissed from his position as a firefighter by a unanimous vote of the Board on October 5, 2016. Id.

         IV. 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 of Boston, 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 plaintiff's] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 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.

         V. Discussion.

         Judge O'Toole previously ordered that the first amended complaint should be dismissed with leave to amend. (See #75.) As noted above, supra n. 2, the changes made from the first to the second amended complaint with respect to defendant Spiegel are minimal. Comparison of the two documents reveals that many of the facts and allegations were simply copied and repled in a different paragraph structure. (Compare, e.g, #21 ¶ 230, with #78 ¶¶ 120-122, 124.) The only arguably substantive changes in the new complaint are as follows: (1) labeling Spiegel an “unofficial surrogate” of the Board, (see #78 ¶¶ 13, 31, 116); (2) the addition of two sentences describing Spiegel's conduct when he confronted the Alston supporter, see Id. ¶ 123; and (3) additional information about the letter Spiegel circulated to Town Meeting members and a comment Spiegel made at that time, see Id. ¶¶ 117-118.

         Alston alleges that Spiegel violated 42 U.S.C. §§ 1981, 1983, and 1985 by: enforcing the Town's unconstitutional policy, practice, and custom; retaliating against plaintiff for opposing the Town's unconstitutional and racist policy; and discriminating against plaintiff on the basis of race. (#78 ¶¶ 133-139.) Spiegel and Alston incorporate by reference their earlier memoranda in support of and opposition to Spiegel's first motion to dismiss, Alston's objection to this court's previous Report and Recommendation, Spiegel's reply, and Spiegel's motion for reconsideration. (See #81 at 1, incorporating by reference ##45, 48, 54, 55, 65, 76, 77; #84 at 2, [10]incorporating by reference ##56, [11] 73.) The court will consider arguments contained in previous filings to the extent that they pertain to the allegations set out in the second amended complaint.[12]

         This court, in its Report and Recommendation on Spiegel's first motion to dismiss, concluded that Alston “failed to state a claim against Spiegel under any actionable legal theory . . . [and] ha[d] not met the core requirement of any discrimination claim, which is that he suffered some deprivation of a right, privilege, or immunity because of his race.” (#72 at 35) (emphasis in original). Alston again fails to clear this hurdle. In addition, several of Alston's other claims fail for other reasons.[13]

         A. 42 U.S.C. § 1983.

         Section 1983 is a procedural mechanism through which constitutional and statutory rights are enforced. Albright v. Oliver,510 U.S. 266, 270 (1994). “The statute . . . ‘is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred . . . by the United States Constitution and federal statutes.'” Bibiloni Del Valle v. Puerto Rico, 661 F.Supp.2d 155, 177 (D.P.R. 2009) (quoting Rodriguez-Garcia v. Municipality of Caguas, 354 F.3d 91, 99 (1st Cir. 2004)). The federally protected rights in ...

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