Jones v. Scotti , 493 F. App'x 139 ( 2012 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-2213
GARY M. JONES and STEVEN S. HOWITT,
Plaintiffs, Appellants,
v.
VITO SCOTTI, individually and in his former capacity as Former
Chief of Police of the Town of Seekonk, Massachusetts, a/k/a John
Doe; CLAIMS INVESTIGATION SERVICES, INC., a Rhode Island business
corporation; COLEMAN WHOLEAN, a/k/a John Roe; FRANK JOHN,
individually and in his capacity as police officer of the Town of
Seekonk, Massachusetts; WAYNE L. MACKIEWICZ, individually and in
his capacity as Former Acting Chief of Police of the Town of
Seekonk, Massachusetts; CRAIG MACE, individually and in his
capacity as police officer of the Town of Seekonk, Massachusetts,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. Magistrate Judge]
Before
Boudin, Hawkisn,* and Dyk,** Circuit Judges.
Michael E. Levinson with whom John B. Reilly and John Reilly
& Associates were on brief for appellant.
Deidre Brennan Regan with whom Jeremy Silverfine was on brief
for appellees Vito Scotti, Frank John and Craig Mace.
*
Of the Ninth Circuit, sitting by designation.
**
Of the Federal Circuit, sitting by designation.
Leonard H. Kesten for appellees Claims Investigation Services,
Inc. and Coleman Wholean.
September 26, 2012
-2-
HAWKINS, Circuit Judge. Steven S. Howitt (“Howitt”), at
all times relevant to the issues before us, a Selectman for the
Town of Seekonk, Massachusetts, and Gary M. Jones (“Jones”), a
Captain with its Police Department(“SPD”), appeal the adverse grant
of summary judgment on their First Amendment and defamation claims,
stemming from two encounters between Howitt and private
investigator Coleman Wholean (“Wholean”) arguing that: (1) An Order
from SPD Chief Vito Scotti (“Scotti”)—that Jones not communicate
with certain individuals during the course of an internal
investigation—violated Jones’s and Howitt’s First Amendment rights;
and (2) Wholean defamed Howitt in the course of reporting the
encounters to law enforcement. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 & 1294(1) and affirm.
I. Background
Noticing Wholean sitting in a parked car in the vicinity
of his business, Howitt approached him and initiated a
conversation. Howitt walked back to his office and called Jones,
asking him to “run” Wholean’s license plate through a law
enforcement database and provide him the results, and Jones did so.
A few days later, Howitt spotted Wholean in the same place,
approached him again, and initiated a conversation. During the
conversation, it became clear to Wholean that Howitt had had his
plates run. Later that day, feeling threatened from the incident,
Wholean reported the matter to the SPD. The next day, Wholean went
-3-
to the police station to make a written, signed statement
containing a more detailed account of the two encounters.
The report led Scotti to order an internal investigation
and direct that while the investigation was pending Jones refrain
from discussing with Howitt, other police officers, and former
members of the Board of Selectmen (“Board”) the investigation
regarding his use of the license plate database at Howitt’s behest.
At the conclusion of the internal investigation, Scotti reported to
the Board of Selectmen, recommending that Jones be suspended for
fifteen days without pay and demoted.
After Scotti left the SPD, his successor reopened the
investigation. This resulted in a revised recommendation that
Jones receive a fifteen-day unpaid suspension, but not get demoted.
The Board ultimately adopted a ten-day unpaid suspension, finding
that Jones had violated numerous rules and regulations. Jones then
claimed his right to arbitration pursuant to a collective
bargaining agreement. The arbitrator rejected any suspension,
determining that the violations cited by the Board were
insufficiently supported by the record. The arbitrator did
determine that Jones had exhibited a lack of judgment with respect
to his response to Howitt’s call, however, and for that, directed
a written warning placed in Jones’s employment file.
-4-
II. Discussion
A. First Amendment Claims
1. Matters of “Public Concern”
Jones and Howitt argue that the Scotti Order restrained
Jones’s ability to communicate to the public on a matter of “public
concern”: the SPD’s alleged use of the internal investigation
process as a “tool for harassment” against Jones.
But as Jones and Howitt themselves acknowledge, public
employers may regulate public employees’ speech. Indeed, as the
district court correctly noted, the government acting as an
employer “has far broader powers” than does the government acting
as sovereign. Engquist v. Or. Dept. of Agr., 553 U.S. 591, 598
(2008) (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994)).
Because government offices simply could not function if every
employment decision were subject to constitutional attack,
“constitutional review of government employment decisions must rest
on different principles than review of . . . restraints imposed by
the government as sovereign.” Engquist, 553 U.S. at 599 (quoting
Waters, 511 U.S. at 674) (internal quotation marks omitted).
Thus, we analyze a claim that a public employee was
deprived of First Amendment rights by his employer by seeking “a
balance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
-5-
services it performs.” Engquist, 553 U.S. at 599-600 (quoting
Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 568
(1968)) (internal quotation mark omitted). By contrast, “[i]f an
employee speaks out only on a matter of personal interest . . .
‘absent the most unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee’s behavior.’” Guilloty Perez v. Pierluisi, 339 F.3d 43,
51 (1st Cir. 2003) (quoting Connick v. Myers, 461 U.S. 138, 147
(1983)).
Here, neither Jones nor Howitt present any evidence that
Jones was restricted from speaking on a matter of “public concern.”
Rather, Jones’s and Howitt’s claim rests entirely on the alleged
language of the Order. The record supports the district court’s
finding that “[t]he [O]rder . . . only precluded Jones from
discussing the subject matter of the investigation. It was narrowly
tailored to serve the legitimate interests of his employer in
preserving the integrity of its investigation.”
And, as Jones himself acknowledges, the Order was limited
to the topic of the internal investigation, rather than barring all
contact with the listed individuals. Though we view the evidence
in the light most favorable to the nonmoving party, we certainly
need not ignore the nonmoving party’s own words, especially where
-6-
they are not contradicted in the record.1
Thus, Jones’s and Howitt’s “public concern” argument
rests on their allegation that the investigation itself was the
product of a “serious abuse of police power.” But, they cite no
evidence of any wrongdoing and rely on conclusory allegations.2 As
such there is nothing to substantiate their First Amendment claims
1
On appeal, Jones disputes the district court’s finding that
the Order was limited to the subject matter of the investigation,
averring that it was a total prohibition on speaking with the named
individuals. As evidence, Jones cites to another document he
submitted, his Declaration, in which he did not affirmatively state
that the Order was comprehensive in scope, but simply did not
specify the Order’s substantive scope:
[d]uring the ‘investigation’ described in the
Complaint in this matter, [Jones] was
instructed by Mr. Scotti not to speak with
certain individuals, including Steven Howitt,
David Vierra [] and Doreen Taylor []. [Scotti]
also expressed concern as to whether [Jones]
had contact with Francis Vendetti [].
As discussed below, on review of a grant of summary judgment, we
will ignore “improbable inferences,” from the record, even while
construing the facts in the light most favorable to the nonmoving
party. Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.
2009). Thus, because the district court’s determination that the
Order was limited to the subject matter of the investigation was
supported in the record by Jones’s own documents, Jones’s averment
on this matter finds no valid basis in the record on appeal.
2
A likely explanation for this plainly frivolous argument is
that it remains in the plaintiffs’ briefing from the trial phase,
when they made “Abuse of Process” and “Malicious Prosecution”
claims. However, as the SPD appellees point out, the district
court entered summary judgment in favor of the defendants on these
claims and the appellants do not appeal these claims.
-7-
and no need to conduct a Pickering balancing analysis.3
Further, the record supports an entirely plausible
explanation for the Order as a rational way for the SPD to protect
the integrity and confidentiality of the internal
investigation—preventing Jones from crafting a joint narrative with
Howitt and influencing potential witnesses during the internal
affairs investigation. According to Chief Scotti, this sort of
order was a standard operating procedure to bar police department
officials from speaking to potential witnesses about the
investigation itself during an ongoing internal investigation. The
same rule applies to the employee being investigated as to the
employees conducting the investigation.
Additionally, it would make sense that Jones would be
barred from speaking with former members of the Board, the
governmental body responsible for overseeing the investigation.
With all of this information before it, the district court
3
The appellants further argue that the Order should be analyzed
under the higher level of scrutiny applied to “prior restraints” on
speech, relying on United States v. National Treasury Employees
Union, 513 U.S. 454, 468 (1995). We do not consider this argument
for two reasons. First, appellants did not raise this argument in
the district court, and second, a court’s “prior restraint”
analysis under National Treasury Employees Union is contingent on
first finding the restriction to have pertained to a matter of
public concern, for which, as discussed above, the appellants have
not made any sort of substantive argument. As such, we deem the
argument waived. See Barrett ex rel. Estate of Barrett v. United
States, 462 F.3d 28, 40, n. 9 (1st Cir. 2006) (“Plaintiff cannot
argue on appeal issues not raised below or developed only
perfunctorily on appeal.”).
-8-
correctly determined that the Order was not unlawful, and that it
was an appropriate measure to “preserv[e] the integrity of the
investigation.”4
The district court’s resolution of this claim is entirely
correct; nothing about the Scotti Order was unlawful.
2. Qualified Immunity
Jones and Howitt next argue that the district court
wrongly refrained from conducting an immunity analysis because it
had wrongly resolved the First Amendment claims on the merits, in
favor of the defendants. The court conducting a qualified immunity
analysis determines “(1) whether the facts alleged or shown by the
plaintiff make out a violation of a constitutional right” and “(2)
. . . whether the right was ‘clearly established’ at the time of
the defendant’s alleged violation.” Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009)(citing Pearson v. Callahan, 555 U.S.
223, 231-32 (2009)). Because it is clear that the district court
correctly resolved these claims and that therefore Jones and Howitt
did not satisfy the first prong, no qualified immunity analysis was
necessary.
4
Appellants also raise First Amendment claims on behalf of
Howitt, but we need not consider these. The appellants make no
substantive argument as to why the Order directed at Jones violated
Howitt’s First Amendment rights other than conclusory allegations
that his rights were violated. Because no argumentation accompanies
this bald statement, it is deemed waived. See King v. Town of
Hanover, 116 F.3d 965, 970 (1st Cir. 1997).
-9-
B. Howitt’s Defamation Claim
Howitt appeals the summary judgment grant as to his
defamation claim against Claims Investigation Services, Inc. and
Wholean, concerning a statement Wholean made to police while
reporting to the police one of the interactions between himself and
Howitt. The district court held the statement to be absolutely
privileged because it was a statement made to law enforcement about
a violation of criminal law, citing Correllas v. Viveiros, 410
Mass. 314, 321-23 (1991).
Howitt now contests the district court’s application of
absolute privilege to this statement, arguing that only a qualified
(or “conditional”) privilege should apply here because no criminal
proceeding had begun, and this was an “unsolicited” report to the
police.
The recollection Wholean gave to police about his second
encounter with Howitt contained the following dialogue:
Howitt: (angry tone) What are you doing here
and why are you watching me?
Wholean: It doesn’t concern you.
Howitt: I know who you are, you must be
Coleman [sic]. Your car is registered to
Claims Service.
Wholean: Yes I am and I’m working in the area.
Howitt. So why are you watching me? Why does
it concern me?
Wholean: It doesn’t unless your [sic] cheating
on your wife. (trying to lighten the mood)
Howitt: I think your [sic] lying. If I find
out your [sic] watching me or my family or any
of my employee’s [sic] you’ll be in trouble. I
know people in R.I. who can pay you a visit. I
-10-
know where you live in Saunderstown so you
better not be lying to me, not that I’m
threatening you.
Wholean: That sure sounded like a threat to
me.
Howitt: You’d better not be lying. Why is
Linda (my wife) the president of the company,
so you can get federal bids?
Wholean: Yea basically. I’m just a business
man trying to make a living.
Wholean: (I was thinking at this time this
person was crazy. For him to obtain all my
personal business and wife’s information and
retain it.)
Howitt: Me to [sic]. (Then Howitt walked
away).
At issue is Wholean’s telling police that Howitt said he
“[knew] people in RI who could pay you a visit,” in combination
with a statement that he knew where Wholean lived. Howitt’s
version of this conversation is little different. He asserts that
what he actually said was: “I know a lot of people in Rhode Island
and I can get your license—I’ll go after your license.”5
We need not wade into the waters of whether an absolute
or qualified privilege applies here because Howitt’s defamation
claim cannot survive summary judgment under even a qualified (or
“conditional”) privilege test.
As a general matter, to survive summary judgment on a
typical defamation claim under Massachusetts law, a plaintiff must
5
Howitt disputes the accuracy of additional statements Wholean
made to the SPD, including Wholean’s assertion that an encounter
occurred and that his assertion that Howitt “block[ed] in”
Wholean’s vehicle, “rapped” on Wholean’s window, acted
“aggressively” or exhibited “anger” toward Wholean. The existence
of these additional statements does not alter our analysis.
-11-
show that the defendant was at fault in making the statement. See
Ravnikar v. Bogojavlensky, 438 Mass. 627, 630 (Mass. 2003). The
threshold for this showing varies between negligence when the
statement concerns a private person, and actual malice when the
statement concerns public officials and public figures. Id.Here, Howitt concedes that at least a qualified privilege
applies under Correllas. In those contexts where a conditional
privilege protects otherwise defamatory statements, the plaintiff
must show that the defendant acted recklessly in making false
statements. Bratt v. Int’l Bus. Machines Corp., 467 N.E.2d 126,
131 (Mass. 1984). This requires more than showing negligence. Id.It can be shown if the plaintiff demonstrates that the defendant
“(1) knew the information was false, (2) had no reason to believe
it to be true, or (3) recklessly published the information
unnecessarily, unreasonably, or excessively.” Dragonas v. Sch.
Comm. of Melrose, 64 Mass. App. Ct. 429, 438 (2005) (quoting Sklar
v. Beth Israel Deaconess Med. Ctr., 59 Mass. App. Ct. 550, 558
(2003)) (internal quotation mark omitted).
Here, even interpreting the facts in the light most
favorable to Howitt,6 and even assuming without holding that only
6
Under summary judgment review standards, we view the evidence
in the light most favorable to the nonmoving party. Goldman v.
First Nat'l Bank, 985 F.2d 1113, 1116 (1st Cir. 1993). However,
the court will ignore “conclusory allegations, improbable
inferences, and unsupported speculation.” Sullivan, 561 F.3d at 14(quoting Prescott v. Higgins, 583 F.3d 32, 39 (1st Cir. 2008))
(internal quotation marks omitted).
-12-
a conditional privilege applies, Howitt cannot show that Wholean
either knew or should have known the statement to be false, because
Howitt’s account of what he said is quite similar to Wholean’s. As
the district court noted:
The statement Wholean reported is
substantially similar to the statement which
Howitt concedes that he made. In both
versions, Howitt said that: he had friends in
Rhode Island; that he knew where Wholean
lived; and that, if Wholean were lying, Howitt
would make trouble for Wholean . . . . In
Howitt’s version, he explained that the
“trouble” was revocation of Wholean’s private
detective license, while in Wholean’s version
Howitt provided no further specification of
the trouble.
Nor is there evidence of any wrongdoing on Wholean’s part
or that he did anything that would even remotely affect his
detective license. In his opposition to Wholean’s summary judgment
motion, Howitt’s primary ground for asserting a genuine issue of
material fact on the question of recklessness was the alleged
inaccuracy of Wholean’s account. In that circumstance, the fact
that Wholean reported a slightly different, but still threatening
statement to the police would not support by itself a finding of
recklessness. Even on summary judgment, the very minor
discrepancies between Howitt’s account of what he said and
Wholean’s account cannot support a finding that Wholean made a
knowingly false statement or had no reason to believe it to be
true.
-13-
Neither has Howitt met the burden for showing that
Wholean unnecessarily, unreasonably, or excessively published the
statement, such that he would lose a conditional privilege. Even
Howitt’s account of what he said included a serious threat to
Wholean, making it eminently reasonable for Wholean to report the
statement to the police. Finally, that Wholean gave police a
formal, signed statement further shows that he was not acting
frivolously or recklessly.
For the foregoing reasons, the judgment is AFFIRMED.
-14-