Mead v. Independence Association

United States Court of Appeals
For the First Circuit

No. 10-1790

JANE MEAD,

Plaintiff, Appellant,

v.

INDEPENDENCE ASSOCIATION; CHRISTINE BRADEN, individually and in
her official capacity as Licensor, Division of Licensing and
Regulatory Services for Maine Department of Health and Human
Services; CATHERINE COBB, individually and in her official
capacity as Director, Division of Licensing and Regulatory
Services for Maine Department of Health and Human Services,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before
Lipez, Selya, and Howard,
Circuit Judges.

Rufus E. Brown for appellant.
Eric J. Uhl for appellee Independence Association.
Christopher C. Taub, Assistant Attorney General, with whom
William J. Schneider, Attorney General, and Paul Stern, Deputy
Attorney General, were on brief, for appellees Christine Braden and
Catherine Cobb.

July 11, 2012
 LIPEZ, Circuit Judge. Jane Mead was fired from her job

as administrator of fifteen assisted living facilities operated by

Independence Association ("IA") and licensed by the Maine

Department of Health and Human Services ("DHHS"). Pursuant to 42

U.S.C. § 1983, Mead filed suit against IA and two DHHS employees in

the United States District Court for the District of Maine,

alleging that her termination without a hearing infringed her

procedural due process rights. She also asserted a number of state

law claims.

In response to a motion to dismiss, the district court

dismissed Mead's due process claims, explaining that IA was a non-

state actor and thus could not be held accountable under § 1983,

and that the complaint failed to allege a constitutional violation

by the DHHS employees. See Mead v. Independence Ass'n, 714 F.

Supp. 2d 188, 192-97 (D. Me. 2010). It then declined to exercise

supplemental jurisdiction over Mead's state law claims and

dismissed them without prejudice. See id. at 198-99.

Mead appealed. We affirm.

I.

A. Factual Background

We draw the facts from the allegations in the complaint.

Until May 4, 2009, Mead was the administrator of IA's fifteen

assisted living facilities. IA is a non-governmental organization

whose facilities are licensed by DHHS, and the administrator of

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each licensed facility must be approved by DHHS. In addition, DHHS

closely monitors the facilities for compliance with its Regulations

Governing the Licensing and Functions of Assisted Housing Programs.

Catherine Cobb is the director of DHHS's Division of Licensing and

Regulatory Services. Christine Braden is a DHHS licensor who

reports to Cobb.

On March 6, 2009, Braden conducted an unannounced survey

of one of IA's facilities, the Goldeneye Residence ("Goldeneye").

The survey revealed that an IA employee ("SF") had been abusing

prescription medications and providing poor care to Goldeneye's

residents. Mead had known for some time that SF's behavior was

problematic but had not received permission from IA's president to

fire SF. On March 11, 2009, Braden met with Mead and "made several

accusations blaming [Mead] for how SF was supervised without giving

[Mead] an opportunity to explain her role in the matter."

On April 7, 2009, Cobb sent IA a Directed Plan of

Correction ("DHHS Plan") for Goldeneye. The DHHS Plan was based on

and appended to a Statement of Deficiencies ("DHHS Statement")

prepared by Braden. The DHHS Statement described several incidents

in which, according to Braden, Mead was not forthcoming with

information about SF during Braden's survey. The DHHS Statement

also faulted Mead for exposing Goldeneye's residents to unsafe

conditions by neglecting to take disciplinary action against SF.

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 In light of those failings, the DHHS Plan directed IA to

replace Mead as Goldeneye's administrator. The DHHS Plan also

indicated that IA was entitled to an impartial hearing if it wished

to appeal either the DHHS Statement or the DHHS Plan. Mead pressed

IA to pursue an appeal, but IA declined to do so.

After receiving the DHHS Plan, but before taking any

action against Mead, IA hired an independent investigator to look

into Mead's supervision of SF. The investigator recommended that

IA fire Mead because of her poor working relationship with IA's

president, the DHHS Plan's requirement that Mead be replaced as

Goldeneye's administrator, and various management and communication

issues that arose during the DHHS survey.

On May 4, 2009, Mead was terminated from employment at

IA. IA's vice-president explained to Mead that she had been fired

on the basis of the DHHS Statement and her supervision of SF. Mead

requested an opportunity to protest her termination before IA's

board of directors, but her request was denied. Following her

termination, Mead applied for administrative positions in other

facilities licensed by DHHS but was "not given further

consideration . . . after she disclosed that she had been

terminated by IA after [the DHHS Plan] required her to be removed

from her position as administrator of the Goldeneye Residence."

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B. Procedural Background

On November 18, 2009, Mead filed a six-count complaint

against IA, Cobb, and Braden in federal district court. The first

two counts, reliant on § 1983, alleged that Mead's termination

without a name-clearing hearing violated her procedural due process

rights. The other four counts asserted various state law claims.

IA, Cobb, and Braden moved to dismiss the complaint for

failure to state a claim upon which relief could be granted. See

Fed. R. Civ. P. 12(b)(6). In a thoughtful and thorough opinion,

the district court explained that Mead had "failed to allege

adequate facts demonstrating that IA was a state actor" subject to

liability under § 1983. Mead, 714 F. Supp. 2d at 194. As to Cobb

and Braden, undisputedly state actors, Mead had "failed to plead

facts sufficient to show that the state deprived her" of a

constitutional right. Id. at 197. Without a viable due process

claim, the district court declined to exercise supplemental

jurisdiction over Mead's state law claims. See id. at 198-99.

Accordingly, it dismissed the complaint without prejudice to the

state law claims being refiled in state court. This timely appeal

followed.

II.

We review the dismissal of Mead's complaint de novo. See

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011).

We construe in Mead's favor all well-pleaded facts in the complaint

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and any reasonable inferences to be drawn therefrom. See Tasker v.

DHL Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010).

In order to survive a motion to dismiss, "a complaint

must contain sufficient factual matter, accepted as true, to 'state

a claim to relief that is plausible on its face.'" Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Any statements in the

complaint that are either legal conclusions couched as facts or

bare bones recitals of the elements of a cause of action are

disregarded. See id.; Ocasio-Hernández, 640 F.3d at 12. The

remaining factual statements are taken as true, and the question

becomes whether those statements permit a reasonable inference of

liability for the misconduct alleged. See Iqbal, 556 U.S. at 678.

Mead's due process claims were brought under § 1983,

which "supplies a private right of action against a person who,

under color of state law, deprives another of rights secured by the

Constitution or by federal law." Santiago v. Puerto Rico, 655 F.3d

61, 68 (1st Cir. 2011) (internal quotation marks omitted). In

order to make out a viable claim under § 1983, "a plaintiff must

show both that the conduct complained of transpired under color of

state law and that a deprivation of federally secured rights

ensued." Id.

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A. The Claim Against IA

Ordinarily, a non-governmental organization like IA is

not subject to § 1983 claims. In some circumstances, though, the

conduct of a private party may be "fairly attribut[ed] to the

State," Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), and

therefore may constitute action under color of state law. These

circumstances are rare, see Estades-Negroni v. CPC Hosp. San Juan

Capestrano, 412 F.3d 1, 4 (1st Cir. 2005), and the plaintiff bears

the burden of proving that a private party's acts constitute state

action, see Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978).

We use three tests to determine whether a private party

may be considered a state actor: the public function test, the

state compulsion test, and the nexus/joint action test. See

Santiago, 655 F.3d at 68; Estades-Negroni, 412 F.3d at 5; Alberto

San, Inc. v. Consejo de Titulares del Condominio San Alberto, 522

F.3d 1, 4 (1st Cir. 2008). Mead relies only on the state

compulsion test, which requires that a state exercise such

"coercive power or . . . provide[] such significant encouragement,

either overt or covert, that the [private party's] choice must in

law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S.

991, 1004 (1982). To survive the dismissal of her claim against

IA, then, Mead had to allege that DHHS compelled IA to fire her.

She did not do so. There is no allegation that DHHS

ordered Mead terminated from her employment, which is the essence

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of Mead's claim. So far as DHHS was concerned, Mead could have

continued to work in some capacity at Goldeneye, as well as

remained in her position as the administrator of IA's fourteen

other assisted living facilities. The complaint makes clear that

IA eliminated those possibilities only after conducting its own

investigation into Mead's supervision of SF. Moreover, IA acted at

least in part for its own reasons, citing Mead's poor rapport with

IA's president as one ground for her termination. Hence, IA's

choice to fire Mead cannot "be deemed to be that of the State,"

Blum, 457 U.S. at 1004, and IA cannot be held accountable for that

choice under § 1983.

B. The Claim Against the DHHS Employees

Mead alleges that the DHHS employees, Cobb and Braden,

deprived her of protected liberty interests without due process.

The specific liberty interests she claims are (1) freedom from

unreasonable government interference with her private employment;

and (2) freedom from stigma accompanied by the loss of her IA job,

the loss of her de facto administrator's license, and the

imposition of tangible burdens on her future employment prospects.

We consider each in turn.

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 1. Unreasonable Government Interference1

The right to hold private employment and to pursue one's

chosen profession free from unreasonable government interference is

encapsulated in the liberty concept of the Due Process Clause. See

Greene v. McElroy, 360 U.S. 474, 492 (1959); Truax v. Raich, 239

U.S. 33, 38 (1915). Courts typically have held that this right is

implicated only by government interference that is direct and

unambiguous, as when a city official demands that a restaurant fire

its bartender, see Helvey v. City of Maplewood, 154 F.3d 841, 843-

44 (8th Cir. 1998), or a state agency explicitly threatens to

prosecute a private company's clients if they continue to contract

with the company, see Stidham v. Tex. Comm'n on Private Sec., 418

F.3d 486, 491-92 (5th Cir. 2005).

There are no comparable allegations in this case. Like

her claim against IA, Mead's claim against the DHHS employees

focuses on the decision to terminate her from employment, not the

requirement that she be replaced as Goldeneye's administrator.

According to the complaint, as we have already explained, DHHS

never prohibited or even discouraged IA from continuing to employ

Mead. Mead was fired only after IA carried out its own

1
Cobb and Braden argue that Mead forfeited this theory by
failing to raise it below. We disagree. In opposing the dismissal
of her complaint, Mead insisted that she was entitled to
"protection from unreasonable governmental interference with [her]
employment" and cited many of the cases we rely on here. That
presentation was sufficient to preserve the issue for our review.

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investigation into her performance and discerned deficiencies

warranting termination. It follows that Mead has not adequately

alleged that there was any unreasonable government interference

with her private employment.

2. Stigma Plus

A due process claim cannot rest upon reputational harm

alone. See Paul v. Davis, 424 U.S. 693, 701-02 (1976) (holding

that mere defamation by a state actor does not violate

constitutional rights); URI Student Senate v. Town of Narragansett,

631 F.3d 1, 10 (1st Cir. 2011). "Thus, when a person alleges that

she has suffered stigmatization at the hands of a government actor,

she must show an adverse effect on some interest more tangible than

reputational harm." URI, 631 F.3d at 9 (internal quotation marks

omitted). That is, "the reputational injury must be accompanied by

a change in the injured person's status or rights under substantive

state or federal law." Silva v. Worden, 130 F.3d 26, 32 (1st Cir.

1997); see also URI, 631 F.3d at 10. "To use the popular catch

phrase, the complaining party must satisfy a 'stigma plus'

standard." URI, 631 F.3d at 9.

The stigma in this case is clear. The unmistakable

import of the DHHS Statement is that Mead was dishonest during

Braden's survey and inattentive to the needs of Goldeneye's

residents. See Donato v. Plainview-Old Bethpage Cent. Sch. Dist.,

96 F.3d 623, 630-31 (2d Cir. 1996); Rodriguez de Quinonez v. Perez,

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596 F.2d 486, 489-90 (1st Cir. 1979). The "plus" is less clear.

As noted, Mead has put forward three possibilities: the loss of her

IA job, the loss of her de facto license to serve as the

administrator of an assisted living facility, and the burdening of

her future employment prospects.

a. The Loss of the IA Job

We observed in Pendleton v. City of Haverhill that, "to

achieve a sufficient 'plus' in a loss-of-job context, words spoken

must be uttered incident to the termination." 156 F.3d 57, 63 (1st

Cir. 1998) (internal quotation marks omitted). The plaintiff in

that case was discharged from his position with a non-profit

organization after a police officer made disparaging comments about

him in a local newspaper article in connection with drug charges

that had been dismissed. See id. at 61-62. We held that the

plaintiff did not have a valid "plus" because "the alleged

defamation and the decision to cashier [the plaintiff] came from

two separate, unrelated sources, and the former [could not]

plausibly be said to have occurred incident to the latter." Id. at

63 (internal quotation marks omitted). That reasoning applies

here. The alleged defamation and the decision to fire Mead came

from two distinct sources.

Mead argues that, despite this reasoning in Pendleton,

the case is not as hostile to her claim as it might seem. It is

true that a footnote in Pendleton faulted the plaintiff for

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"rely[ing] on sheer speculation and fail[ing] to establish any

tangible connection between [the police officer's] statements and

his ouster at the hands of [his employer's] president." Id. at 63

n.3. Perhaps with this footnote in mind (Mead does not invoke it

explicitly), Mead presses for the application here of a proximate

cause analysis derived from tort law. She contends that it is

sufficient for her stigma plus claim if her termination by IA was

a reasonably foreseeable consequence of her defamation by the DHHS

employees.

This contention finds some support in cases from other

circuits. See Paige v. Coyner, 614 F.3d 273, 280 (6th Cir. 2010)

("[O]nce there has been state action . . ., the proper test for the

scope of responsibility for events flowing from that action is

reasonable foreseeability, not how close the nexus is between the

private actors and the state actors."); Velez v. Levy, 401 F.3d 75,

89 (2d Cir. 2005) ("There is no rigid requirement . . . that both

the 'stigma' and the 'plus' must issue from the same government

actor or at the same time.").

Whatever hope Mead might find in Pendleton and these

cases for her proximate cause argument, it is foreclosed by a more

recent case of ours. See URI, 631 F.3d at 10 ("The standard

requires that the change in rights or status be directly

attributable to the challenged governmental action. Where the

stigma and the incremental harm - the 'plus' factor - derive from

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distinct sources, a party cannot make out a viable procedural due

process claim." (internal citation omitted)).

Moreover, the "plus" in this case cannot be the loss of

Mead's IA job with a private employer. As an alternate ground for

our holding in Pendleton, we noted that the plaintiff "worked for

a non-governmental employer and lost a private (not a public)

position." 156 F.3d at 63. We added that "a violation of

constitutional proportions under a stigma plus theory exists only

if, and to the extent that, the opportunities lost are government

benefices denied as a result of government action." Id. (emphasis

added) (internal quotation marks omitted). Although it is

regulated by, and receives funding from, DHHS, IA is a private

employer. Nothing in the complaint suggests otherwise. As such,

Mead's job there was not a government benefice.2

b. The Loss of a De Facto License

The "plus" in this case also cannot be the loss of Mead's

de facto license to serve as the administrator of an assisted

living facility. Some circuits have observed that, when a

government body controls entry into a profession through means

2
We are not swayed by Mead's citation to Wroblewski v. City
of Washburn, in which the Seventh Circuit suggested that the loss
of private employment could be the "plus" in a stigma plus case,
see 965 F.2d 452, 456 (7th Cir. 1992), because Pendleton is clearly
to the contrary. Of course, a plaintiff who has been discharged
from a non-government job as a result of government action still
may assert unreasonable government interference with private
employment, even if he or she is foreclosed from proceeding under
a stigma plus theory.

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short of the issuance of a formal license, a de facto licensing

scheme may exist. For example, in Philips v. Vandygriff, the Fifth

Circuit held that such a scheme existed in Texas because, by

industry custom, individual savings and loan associations would not

hire managerial employees without the approval of the Commissioner

of the Texas Savings and Loan Department. See 711 F.2d 1217, 1222

(5th Cir. 1983); see also Bannum, Inc. v. Town of Ashland, 922 F.2d

197, 201 (4th Cir. 1990) ("[The government's] power to withhold its

approval . . . is equivalent to a power to withhold a business

opportunity and amounts to a de facto licensing power").

If we were to follow these circuits, there might be some

force to Mead's argument that a de facto license is a government

benefice. In turn, the revocation of a de facto license, like the

loss of a government job, might be a valid "plus" insofar as it

effects "a change in the injured person's status or rights under

substantive state or federal law." Silva, 130 F.3d at 32. That is

essentially the conclusion reached by the Sixth Circuit in Mertik

v. Blalock, albeit without reference to the de facto license

terminology preferred by Mead. See 983 F.2d 1353, 1363 (6th Cir.

1993) (holding that the "plus" could be based on city's revocation

of instructor's permission to use public ice skating rink for

private lessons).

We need not decide whether to follow these circuits,

however, because the complaint in this case does not allege that

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any de facto license was ever taken from Mead by DHHS. Mead's

appellate briefing asserts that she "lost her status as a DHHS

approved administrator of a licensed assisted living facility" and

that "[t]his status is the functional equivalent of a license

because . . . Mead cannot be an administrator of a licensed

assisted residential care facility without this status." That

assertion, though, is belied by the allegations in the complaint.

The complaint alleges only that DHHS barred Mead from working as

the administrator of Goldeneye, not that DHHS excluded Mead from

other assisted living facilities. Indeed, the complaint makes

clear that DHHS permitted Mead to remain in her position as the

administrator of IA's fourteen other facilities, which is

inconsistent with the notion advanced in Mead's briefing that DHHS

revoked any de facto license. As we have already explained, IA

deprived Mead of her position as an administrator of licensed

assisted living facilities, not DHHS.

c. The Burdening of Employment Prospects

Nor can Mead's "plus" be the imposition of tangible

burdens on her future employment prospects. In Siegert v. Gilley,

the Supreme Court reiterated that neither reputational harm nor the

consequent impairment of future employment opportunities are

constitutionally cognizable injuries. 500 U.S. 226, 233-34 (1991)

(citing Paul, 424 U.S. at 708-09). There, a clinical psychologist

voluntarily resigned from his position at a federal hospital in

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order to avoid being fired. See id. at 227-228. Three weeks

later, his former supervisor wrote him an extremely negative

reference letter, which had the effect of foreclosing clinical

positions at other government hospitals. See id. at 228-29. The

psychologist brought suit under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting a

stigma plus claim. See Siegert, 500 U.S. at 229. In concluding

that the psychologist had not adequately alleged the deprivation of

a protected liberty interest, the Supreme Court explained that

"[t]he statements contained in the letter would undoubtedly damage

the reputation of one in his position, and impair his future

employment prospects[,] . . . [b]ut so long as such damage flows

from injury caused by the defendant to a plaintiff's reputation, it

may be recoverable under state tort law but it is not recoverable

in a Bivens action." Id. at 234.

The instant case is indistinguishable. Mead's complaint

alleges that the stigmatizing effect of the DHHS Statement has

"rendered it virtually, if not literally, impossible for [her] to

ever be employed as an administrator of an assisted living

facility." The complaint further alleges that Mead's "negative

record with DHHS" has diminished her attractiveness to potential

employers who are regulated by DHHS and who must submit candidates

for employment to DHHS for approval. These allegations, like the

allegations in Siegert, concern only those damages to employment

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prospects that predictably "flow from" reputational injury. Id.

In these circumstances, "Siegert stands for the proposition that

. . . impairment of future employment prospects does not constitute

a constitutional deprivation." Pendleton, 156 F.3d at 63 n.4

(internal quotation marks omitted); see also Vander Zee v. Reno, 73

F.3d 1365, 1369-70 (5th Cir. 1996).

We recognize that, in different circumstances, some

circuits have held that the burdening of a plaintiff's future

employment prospects might constitute a valid "plus." In Valmonte

v. Bane, for example, the Second Circuit held that the plaintiff,

a former childcare worker, had been stigmatized by the inclusion of

her name on a state registry of child abusers, and that the "plus"

was a statutory requirement that potential employers consult the

registry before making any hires and explain in writing the

decision to employ anyone on the registry. See 18 F.3d 992, 1001-

02 (2d Cir. 1994). The court explained:

This is not just the intangible
deleterious effect that flows from a bad
reputation. Rather, it is a specific
deprivation of her opportunity to seek
employment caused by a statutory impediment
established by the state. [The plaintiff] is
not going to be refused employment because of
her reputation; she will be refused employment
simply because her inclusion on the list
results in an added burden on employers who
will therefore be reluctant to hire her.

Id. at 1001; see also Doyle v. Camelot Care Ctrs., Inc., 305 F.3d

603, 617 (7th Cir. 2002). Similarly, some circuits have held that

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a statutory impediment to a plaintiff's prospective ability to

obtain government benefits might be a "plus." For example, in

Humphries v. County of Los Angeles, the Ninth Circuit held that

parents who had been stigmatized by their erroneous addition to a

state database of suspected child abusers had a valid "plus"

because state agencies were required by law to check the database

and investigate anyone appearing on it before conferring benefits

or granting certain licenses. See 554 F.3d 1170, 1187-92 (9th Cir.

2009), rev'd on other grounds, 131 S. Ct. 447 (2010).

The allegations in this case do not require us to address

the very different circumstance in which a plaintiff's prospects

have been impaired by operation of law in the wake of stigma

attributable to the government. To the extent that Mead's career

opportunities have been dimmed, the damage is solely the result of

harm to her reputation, not some statutory impediment or other

legal obstacle to her employment. Hence, she has no viable stigma

plus claim on the basis of a burdening of employment prospects.

See Siegert, 500 U.S. at 234.

In sum, Mead has not alleged that the DHHS employees

deprived her of any protected liberty interest.3 As a result, they

3
In light of this conclusion, we have no reason to consider
the DHHS employees' qualified immunity defense. See Redondo-Borges
v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 11 (1st Cir.
2005).

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were not constitutionally required to provide her with a name-

clearing hearing or other form of process.4

Affirmed.

4
After dismissing Mead's federal claims, the district court
explained its decision not to exercise supplemental jurisdiction
over the state law claims. Mead says she is challenging all the
rulings of the district court, including this one. Nevertheless,
there is no argument in her briefing that the refusal to exercise
supplemental jurisdiction after the dismissal of the federal claims
was an abuse of discretion. In any event, that decision was well
within the discretion of the district court.

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