McGunigle v. City of Quincy
McGunigle v. City of Quincy
Opinion of the Court
MEMORANDUM
I. Introduction
Plaintiff Joseph McGunigle, a former Quincy police officer, brings a claim under 42 U.S.C. § 1983 against Defendants the City of Quincy, Chief of Police Paul Keenan, and Captain John Dougan. Plaintiff claims that while he was a Quincy police officer, Defendants retaliated against him for protected speech in violation of his First Amendment and Equal Protection Clause rights. Defendants move for dismissal under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendants’ Motions to Dismiss [# 12, # 14] are DENIED as to Plaintiffs First Amendment claim, and ALLOWED as to Plaintiffs Equal Protection claim.
II. Factual Background
On September 28, 2006, Plaintiff and his wife purchased a home at 45 Post Island Road, Quincy, Massachusetts.
Plaintiff also observed unleashed dogs attack humans and other animals. In December 2006, an unleashed dog chased and struck Plaintiff while he was jogging.
Plaintiff made numerous complaints to city officials regarding the ongoing violations and non-enforcement of dog ordinances in his neighborhood. In December 2006, Plaintiff requested that the City install a “Mutt Mitt box” with dog bags near the beach.
On September 15, 2007, Plaintiff made several statements to Channel 7 News regarding non-enforcement of dog ordinances in Quincy that aired as part of two live segments.
Plaintiffs statements to news organizations angered Defendants.
III. Discussion
A. Legal Standard
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
In Count III, Plaintiff brings a claim under 42 U.S.C. § 1983 for violation of his Equal Protection Clause and First Amendment rights. Plaintiff alleges that he spoke out regarding widespread violations and non-enforcement of dog ordinances in Quincy. In particular, Plaintiff alleges that he made complaints to news organizations, the mayor, a city councilor, an animal control officer, and the Conservation Commission. Plaintiff further claims that Defendants retaliated against him for this protected speech. Defendants move to dismiss Count III on several grounds. The court addresses each of Defendants’ arguments in turn.
i. Statute of Limitations
Defendants argue that Count III is time-barred. There is no federal statute of limitations for § 1983 claims. Instead, § 1983 borrows the forum state’s statute of limitations for personal injury claims.
Plaintiff filed this suit on May 11, 2012. Plaintiff alleges a number of retaliatory employment decisions spanning from 2007 until 2012. Some of Plaintiffs allegations are timely; others are not. Retaliatory acts that took place on or after May 11, 2009 fall within the statute of limitations period and are therefore timely and actionable.
Plaintiff argues that the “continuing violation doctrine” applies to allow recovery for his pre-May 11, 2009 allegations. “The continuing violation doctrine is an equitable exception to the statute of limitations.”
There are two types of continuing violations: serial and systematic.
The continuing violation doctrine does not apply in this case to allow Plaintiff to recover for his otherwise untimely 2007 and 2008 suspensions. These suspensions are discrete acts of “sufficient permanence” that should have prompted Plaintiff to assert his legal rights. “Suspension from active duty is the type of injury that is immediately recognizable as such, and that should give rise to a request for a remedy.”
ii. Equal Protection Clause Claim
In Count III, Plaintiff alleges a violation of his Equal Protection Clause rights. As Plaintiff does not allege membership in a protected class, he is left to proceed under a “class-of-one” theory. The problem for Plaintiff, however, is that the Supreme Court has squarely held that “the class-of-one theory of equal protection does not apply in the public employment context.”
iii. First Amendment Claim
In Count III, Plaintiff also claims that Defendants violated his First Amendment rights when they took adverse employment actions against him in retaliation for protected speech.
“[Pjublic employees do not surrender all their First Amendment rights by reason of their employment.”
To determine whether an adverse employment decision violates a public employee’s First Amendment rights, courts ask (1) whether the employee spoke on a matter of public concern, (2) whether the employee spoke as a citizen, (3) whether the relevant interests of the employee and public outweigh those of the government employer, and (4) whether the employee’s speech was a “substantial or motivating factor in the adverse employment decision.”
Defendants argue that Plaintiff fails to plausibly allege the first three prongs.
1. Matter of Public Concern
Under the first prong, the. court must determine whether Plaintiffs speech relates to “matters of public concern,” or, “matters only of personal interest.”
Certain subject matters are of inherent public concern, such as official malfeasance and neglect of duties.
Plaintiff allegedly spoke out in a number of forums on the subject of widespread violations and non-enforcement of dog leash and dog waste ordinances in Quincy. According to Plaintiff, dogs in Quincy roamed around unleashed, defecated in residents’ yards, and attacked humans and other animals. Viewing the allegations in the complaint in the light most favorable to Plaintiff, his speech plausibly relates to a matter of inherent public concern — that is, official neglect of duties and non-enforcement of public health ánd safety laws.
2. Garcetti Analysis-
Under the second prong, the court must determine whether Plaintiff spoke “as a citizen,” or alternatively, “pursuant -to [his] official duties.”
As to the first element, the complaint does not contain, and neither side has provided, a description of Plaintiffs official responsibilities. As to the second element, the First Circuit summarized a number of relevant factors in Decotiis, including:
(1) whether the employee was commissioned or paid to make the speech in question; (2) the subject matter of the speech; (3) whether the speech was made up the chain of command; (4) whether the employee spoke at her place of employment; (5) whether the speech gave objective observers the impression that the employee represented the employer when she spoke (lending it “official significance”); (6) whether the employee’s speech derived from special knowledge obtained during the course of her employment; and (7) whether there is a so called citizen analogue to the speech.62
Although the court’s analysis is relatively uninformed at this stage, viewing the complaint in the light most favorable to Plaintiff, the majority of Decotiis factors come out in his favor. First, there is no indication in the complaint that Plaintiff was literally “commissioned or paid” to make the speech at issue. Second, Plaintiff did not make his statements directly up the chain of command to his immediate supervisor. Rather, Plaintiff made complaints to news organizations, the mayor, a city councilor, an animal control officer, and the Conservation Commission. Third, Plaintiff appears to have spoken based on personal observations from his home in Quincy, not based on any special knowledge gained through employment. Finally, Plaintiffs complaints to news organizations and city officials are sufficiently analogous to the speech of other concerned citizens in the community.
At least one of the Decotiis factors favors Defendants. The subject matter of Plaintiffs speech — violations and enforcement of city ordinances — is undoubtedly related to Plaintiffs employment as a city police officer.
The court cannot assess the remaining factors without a more developed factual record. The complaint contains no allegations as to whether Plaintiff made any of the statements in question at his place of employment. And, the court lacks sufficient information to determine whether Plaintiffs speech bore the appearance of official status.
At this stage, the court cannot conclusively determine whether Plaintiff spoke as a citizen or pursuant to his official duties. Considering the above factors, and indulging all reasonable inferences in Plaintiffs favor, the complaint plausibly alleges that Plaintiff spoke out as a concerned citizen and resident of the affected community, rather than as a police officer.
Under the third prong, the court must balance three interests. These interests include: (1) the employee’s First Amendment interest “in commenting on matters of public concern;”
This balancing is guided by the principle that “[s]o long as employees are speaking as citizens on matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”
As in Decotiis, “[t]he posture of the case makes such a ‘particularized’ inquiry relatively uninformed, especially when assessing the government’s interests.”
On one side of the scale, the value of at least some of Plaintiffs speech appears significant.
On the other side of the scale, the weight of the government employer’s interest is uncertain at this stage. Government employers generally have a heightened interest in maintaining discipline and harmony in the law enforcement context.
The court must also consider the employer’s motivation behind the adverse employment decisions. Taking all well-pleaded facts as true, Defendants’ motivation behind their adverse employment decisions was anger and retaliation for protected speech, not concern for workplace disruption or the efficient provision of public services.
Considering the above factors, it is plausible that the relevant interests of Plaintiff and the public outweigh those of the government employer. Accordingly, Plaintiff has alleged a plausible claim under 42 U.S.C. § 1983 for violation of his First Amendment rights.
iv. Qualified Immunity
Finally, the individual Defendants move for dismissal based on qualified immunity.
The Supreme Court has articulated a two-step procedure for determining qualified immunity. The court must 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 of the defendant’s alleged violation.”
This court has already determined that Plaintiff has alleged a plausible violation of his First Amendment rights, satisfying the first step of the qualified immunity analysis. Under the second step, the court must assess the clarity of the law at the time of Defendants’ alleged retaliatory acts. Plaintiff alleges retaliatory acts spanning from July 2009 until April 2012.
The general right that Plaintiff invokes — the right of a public employee to speak out as a citizen on a matter of public concern without retaliation — was undoubtedly clearly established at those times.
The court has insufficient information as to the specific context of this case to make such a determination at this stage. The complaint contains few allegations regarding the content and context of Plaintiffs speech. For instance, the complaint contains no allegations as to the timing, location, substance, and tone of Plaintiffs statements to the mayor, city councilor, and animal control officer. Without this information, the court cannot determine whether there is any “closely corresponding factual or legal precedent”
Defendants argue that they are entitled to qualified immunity because the legal contours of the Garcetti analysis were “cloudy” at the time of the alleged violations.
The court recognizes that “immunity is often appropriate in cases involving public employee speech.”
For the above-stated reasons, Defendants’ Motions to Dismiss [# 12, # 14] are DENIED as to Plaintiffs First Amendment claim, and ALLOWED as to Plaintiffs Equal Protection claim.
AN ORDER HAS ISSUED.
. Defendant City of Quincy has requested additional time to brief its motion to dismiss Plaintiff’s state law claims. Def.'s Mem. Supp. Mot. Dismiss 13 [# 13]. As a result, the court will allow the parties to submit supplemental briefs before the court rules on the remaining state law claims.
. The following facts are taken from Plaintiff’s Complaint [# 1], unless otherwise indicated, and presented in the light most favorable to Plaintiff.
. Compl. ¶ 5.
. Compl. ¶ 6.
. Compl. ¶ 6.
. Compl. ¶ 9.
. Compl. ¶ 10.
. Compl. ¶ 12.
. Compl. ¶ 12.
. Compl. ¶ 8.
. Compl. ¶¶ 14, 15, 22.
. Compl. ¶ 15.
. Compl. ¶ 27.
. Compl. ¶ 25.
. Compl. ¶ 17.
. Compl. ¶¶ 18, 19.
. Compl. ¶ 28.
. Compl. ¶ 29.
. Compl. ¶ 29.
. Compl. ¶ 35.
. Compl. ¶ 30, Ex. B.
. Compl. ¶ 31, Ex. C.
. Compl. ¶ 32.
. Compl. ¶¶ 32, 36, 38, 50.
. Compl. ¶¶ 38, 41.
. Compl. ¶¶ 38, 46-49.
. Compl. ¶ 57.
. Compl. ¶¶ 58-59.
. Compl. ¶¶ 33-37, 51-52, 60-61.
. Fed.R.Civ.P. 8(a)(2).
. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. Id.
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Phillips v. City of Methuen, 818 F.Supp.2d 325, 330 (D.Mass. 2011) (citing Rodriguez-Garcia v. Municipality of Caguas, 354 F.3d 91, 96 (1st Cir. 2004)).
. Id. (citing Mass. Gen. Laws ch. 260, § 2A (2006)).
. Id. (citing Rodriguez-Garcia, 354 F.3d at 96).
. Id. (quoting Rodriguez-Garcia, 354 F.3d at 96-97).
. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
. See id. at 114-15, 122 S.Ct. 2061.
. Phillips, 818 F.Supp.2d at 330.
. O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (quoting Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998)).
. Id. (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 54 (1st Cir. 1999)).
. Thomas, 183 F.3d at 53 (citing cases).
. Phillips, 818 F.Supp.2d at 330 (quoting O'Rourke, 235 F.3d at 731); see also Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130-31 (1st Cir. 2009).
. Phillips, 818 F.Supp.2d at 331.
. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008).
. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
. Id. (citing cases).
. Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 23 (1st Cir. 2010) (quoting Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007)).
. Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (citing cases).
. Id. at 29-30 (quoting Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 765-66 (1st Cir. 2010)).
. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
. Davignon v. Hodgson, 524 F.3d 91, 101 (1st Cir. 2008) (quoting id. at 146, 103 S.Ct. 1684).
. Decotiis, 635 F.3d at 30.
. Id.
. O'Connor v. Steeves, 994 F.2d 905, 914 (1st Cir. 1993) (emphasis in original).
. See Jordan v. Carter, 428 F.3d 67, 73 (1st Cir. 2005) (“Certainly, if either official misconduct or neglect of duties was asserted to be responsible for unsafe conditions for the general public, this would be a matter of public importance.”).
. Plaintiff’s allegations would also pass muster under a more complete Connick analysis. The fact that Plaintiff may have been motivated in part by self-interest as a Quincy resident is not determinative because Plaintiff’s speech had a "sufficient public dimension.” See Fabiano v. Hopkins, 352 F.3d 447, 455 (1st Cir. 2003). Additionally, the complaint indicates that the Quincy community did in fact manifest a legitimate concern in the subject. See Compl. ¶¶ 10-12, Ex. C (Boston Globe article) (starting with "Plaintiff has defenders among his neighbors....”).
. Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
. Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26 (1st Cir. 2010).
. Decotiis v. Whittemore, 635 F.3d 22, 26, 35 n. 15 (1st Cir. 2011) ("[T]he fact-intensive nature of the Garcetti analysis does not easily lend itself to dismissal on a Rule 12(b)(6) motion.”).
. Cruz v. P.R. Power Auth., 878 F.Supp.2d 316, 325 (D.P.R. 2012) (citing Decotiis, 635 F.3d at 32).
. See, e.g., Comp. Ex. C (Boston Globe article) (starting with "Plaintiff has defenders among his neighbors____”).
. It is unclear from the complaint whether Plaintiff is claiming that his issuance of citations is protected speech. To the extent that Plaintiff intends to rely on this argument, his claim must fail. Under Garcetti, Plaintiff's is
. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
. O’Connor v. Steeves, 994 F.2d 905, 912, 915 (1st Cir. 1993).
. Id. at 915.
. Garcetti, 547 U.S. at 419, 126 S.Ct. 1951.
. Decotiis v. Whittemore, 635 F.3d 22, 35 (1st Cir. 2011) (quoting Davignon v. Hodgson, 524 F.3d 91, 104 (1st Cir. 2008)).
. Id. (citing Davignon, 524 F.3d at 104).
. Id. at 36 (citing Jordan v. Carter, 428 F.3d 67, 73 (1st Cir. 2005)).
. See Jordan, 428 F.3d at 74 ("[0]ur starting point is that such information about public welfare and public officials is of significant weight .... ”); see also Garcetti, 547 U.S. at 425, 126 S.Ct. 1951 ("Exposing governmental inefficiency and misconduct is a matter of considerable significance.”).
. See Jordan, 428 F.3d at 74.
. Curran v. Cousins, 509 F.3d 36, 50 (1st Cir. 2007).
. See, e.g., O'Connor v. Steeves, 994 F.2d 905, 916 (1st Cir. 1993). The disruption could have just as likely been caused by Plaintiff’s other unprotected conduct, such as issuance of citations to neighbors, which Plaintiff does not allege to be the basis for the adverse employment decisions. At this stage, the court cannot assume that Plaintiff's statements to news organizations and city officials caused the disruption.
. Compl. ¶¶ 32, 36, 38, 50; See Decotiis v. Whittemore, 635 F.3d 22, 36 (1st Cir. 2011); Davignon v. Hodgson, 524 F.3d 91, 105 (1st Cir. 2008); Jordan, 428 F.3d at 74.
. Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
. Diaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011).
. Maldonado, 568 F.3d at 269 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
. See, e.g., Jordan, 428 F.3d at 74-75; Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir. 2005).
. Wagner, 404 F.3d at 509.
. Jordan, 428 F.3d at 74 (quoting Suboh v. Dist. Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st Cir. 2002)).
. Diaz-Bigio, 652 F.3d at 53 (quoting Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992)).
. Defendants argue that they acted in an objectively reasonable manner in disciplining Plaintiff in light of the numerous citizen complaints against him. Yet, at the motion to dismiss stage, the court must accept as true Plaintiff’s factual allegation that Defendants were motivated by anger and retaliation for protected speech, not by other factors such as citizen complaints. See Mihos v. Swift, 358 F.3d 91, 109-10 (1st Cir. 2004); see also Broderick v. Roache, 996 F.2d 1294, 1297-98 (1st Cir. 1993). Accordingly, Defendants' argument is unavailing at this stage.
. Jordan, 428 F.3d at 75.
. Defs.’ Resp. 9 [# 24] (quoting Decotiis v. Whittemore, 635 F.3d 22, 37 (1st Cir. 2011)).
. Defs.' Resp. 10 (emphasis added) (quoting Fabiano v. Hopkins, 352 F.3d 447, 457 (1st Cir. 2003)).
. See Jordan, 428 F.3d at 75.
. See Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58, 66 (1st Cir. 1997) ("To be sure, the law may still be blurred around the edges. But this is not a borderline case.”).
. Jordan, 428 F.3d at 76.
. Id.
. See id. ("[D]enial of immunity at the motion-to-dismiss stage does not preclude renewal of the defense in a subsequent motion for summary judgment or at trial.”).
Reference
- Full Case Name
- Joseph McGUNIGLE v. CITY OF QUINCY, Paul Keenan, in his Individual and Official Capacities, and John Dougan, in his Individual and Official Capacities
- Cited By
- 4 cases
- Status
- Published