Jones v. Scotti

Not for Publication in West’s Federal Reporter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

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 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

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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.

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 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

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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

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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.

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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.”).

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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).

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 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

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 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.

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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).

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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.

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 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.

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