Knowlton v. Shaw

United States Court of Appeals
For the First Circuit

No. 12-1251

ALAN D. KNOWLTON,

Plaintiff, Appellant,

v.

JUDITH SHAW; ANDREW BLACK; GLENN GRISWOLD,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Boudin,* and Thompson,
Circuit Judges.

Eric M. Mehnert, with whom Hawkes & Mehnert, LLP, was on brief
for appellant.
Rosie M. Williams, with whom Edward R. Benjamin, Jr. and
Thompson & Bowie, LLP, were on brief for appellee Andrew Black.
Martin J. Ridge, with whom Beagle & Ridge, LLC, was on brief
for appellee Judith Shaw.
Russell B. Pierce, with whom Norman, Hanson & DeTroy, LLC, was

*
Judge Boudin heard oral argument in this matter, and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C. §
46(d).
on brief for appellee Glenn Griswold.

January 4, 2013
 THOMPSON, Circuit Judge. An investigation into the

questionable business practices of Appellant Alan D. Knowlton's

employer, Bankers Life and Casualty Co. ("Bankers Life" or "the

Company"), eventually led the Maine Bureau of Insurance ("the

Bureau") and the Maine Attorney General's Office ("the AG's

Office") to Knowlton's front door. In exchange for Knowlton

accepting responsibility for his own unlawful conduct, Appellees

Judith Shaw, Glenn Griswold and Andrew Black (collectively, "the

state officials"), representing the Bureau and the AG's Office,

agreed to take no further action against Knowlton. That promise

turned out to be short-lived, however, when they agreed to

Knowlton's termination in a separate agreement with Bankers Life.

Knowlton appeals the district court's dismissal of his complaint

against the state officials. We affirm.

BACKGROUND

As this case comes before us on a grant of a motion to dismiss,

we treat as true all well-pleaded facts, viewing those facts in the

light most favorable to the plaintiff, and drawing all reasonable

inferences therefrom for him. Gagliardi v. Sullivan, 513 F.3d 301,

305 (1st Cir. 2008). We recite only the relevant facts.

In or around 2001, the Bureau began investigating Bankers

Life's improper marketing practices targeting elderly consumers.

Shaw, the Bureau's Deputy Superintendent, became involved and

initiated a parallel investigation into Bankers Life's sales

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practices. Griswold, Director of the Consumer Healthcare Division

of the Bureau, led that investigation. In or around January 2005,

after finding that Bankers Life had engaged in improper sales

practices in Maine, Assistant Attorney General Black, Shaw and

Griswold began negotiating with Bankers Life to resolve those

claims.

Bankers Life was not the only one on the state officials'

radar, however. Shaw, Griswold and Black quickly turned their

attention to Knowlton, the Company's Branch Sales Manager in

Bangor, Maine, after learning about his November 2004 sales

recruitment meeting. At that meeting, he distributed materials

representing that Bankers Life had an "A" rating by A.M. Best

Company,1 when its rating was actually a "B++." In response to an

attendee's comment that he was pleased about the "A" rating,

Knowlton said he hoped to see it improve.

On the heels of the investigation into Knowlton's actions,

Knowlton entered into a consent agreement with the AG's Office and

the Bureau to resolve licensing violations associated with the

sales recruitment meeting and his conversation with the potential

recruit. In the agreement, Knowlton admitted that he violated the

Maine Insurance Code, Me. Rev. Stat. tit. 24-A, § 1, et seq., by

distributing materials containing a misleading representation about

1
A.M. Best Company is the leading provider of financial
ratings for insurance companies.

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Bankers Life's financial condition and by acknowledging the

attendee's comment about the A.M. Best Company rating. In addition

to accepting responsibility for those violations, he agreed to

submit to a 60-day suspension of his insurance producer license and

a 270-day period of license probation, pay a civil penalty of

$750.00, and comply with other requirements regarding recruiting

materials and the reporting of consumer complaints. In exchange,

the Bureau and the AG's Office agreed to "forgo pursuing further

disciplinary measures or other civil or administrative sanctions

against [him] for the violations" described in the agreement.

Not one week passed before the Bureau and the AG's Office

entered into a separate consent agreement with Bankers Life to

resolve the claims against it. During their negotiations, the

Bureau accepted Bankers Life's proposal that the branch managers of

its South Portland and Bangor branch offices (which included

Knowlton's position as the Bangor branch manager) be terminated.

Thus, the agreement called for Bankers Life to "relieve the

managers of its South Portland and Bangor branch offices of their

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positions as branch managers."2 Bankers Life terminated Knowlton's

position as branch manager on April 14, 2005.3

Knowlton's complaint asserts claims against Shaw, Black and

Griswold in their individual capacities for violations of 42 U.S.C.

§ 1983 and 42 U.S.C. § 1985(2). Specifically, the complaint

alleges that by agreeing to Bankers Life's termination of

Knowlton's position as branch manager, the appellees deprived

Knowlton of continued employment with the Company without due

process under § 1983. The complaint adds that Shaw, Black and

Griswold violated his rights under § 1985(2) by participating in a

conspiracy with the Bureau and Bankers Life to deprive him of his

rights to challenge the termination provision in the consent

agreement.

The state officials moved to dismiss the complaint on several

grounds, including absolute immunity for the § 1983 claim. In

granting the motion, the district court agreed that absolute

immunity protected the state officials from liability. The court

2
Knowlton claims that Bankers Life proposed terminating his
employment to avoid an audit (originally requested by the Bureau)
of the Company's Bangor and South Portland Branch Sales Managers'
practices which would have involved an investigation of a sales
manager who was one of Bankers Life's top producers.
3
After Bankers Life relieved Knowlton of his position as
branch manager, he took a 90-day paid leave of absence and worked
as a Unit Sales Manager in Bankers Life's Boston office until
around July 2006. As best we can tell from the record, Knowlton's
employment with the Company ended sometime thereafter.

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further concluded that Knowlton failed to plead a plausible §

1985(2) claim, and rejected his argument that the state officials

were judicially estopped from denying liability under § 1983 based

on a prior civil suit Knowlton had filed against the State for

breach of contract (more on that later). Knowlton now appeals.

DISCUSSION

We review de novo the grant of a motion to dismiss under Rule

12(b)(6). Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527,

532 (1st Cir. 2011), cert. denied, __ U.S. __, 132 S. Ct. 2742

(2012).

Absolute Immunity

We first consider whether the district court erred in

dismissing Knowlton's due process claim on the basis that the state

officials had absolute immunity from suit.

While "[t]he presumption is that qualified rather than absolute

immunity is sufficient to protect government officials in the

exercise of their duties," Burns v. Reed, 500 U.S. 478, 486-87

(1991), "there are some officials whose special functions require

a full exemption from liability." Butz v. Economou, 438 U.S. 478,

508 (1978).4 Judges and prosecutors are entitled to absolute

4
Qualified immunity will bar a civil action against a
government official unless the plaintiff has alleged the
deprivation of a constitutional right that was clearly established
at the time of the alleged violation. Conn v. Gabbert, 526 U.S.
286, 290 (1999). Absolute immunity, on the other hand, acts as a
"complete bar" to damages claims of any sort, constitutional or
otherwise. Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 22

-7-
immunity when functioning in their official capacities. Butz, 438

U.S. at 508-10. Prosecutors, for example, are absolutely immune

for actions, taken as advocates for the State, which are closely

associated with the judicial process such as initiating and

pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409,

430-31 & n.33 (1976); Burns, 500 U.S. at 479. That absolute

immunity, as Knowlton concedes, extends to non-prosecutor officials

of government agencies "performing certain functions analogous to

those of a prosecutor." Butz, 438 U.S. at 515. Absolute immunity,

however, is not available to either prosecutors or agency officials

whose actions are primarily administrative or investigative in

nature and unrelated to their functions as advocates in preparing

for the initiation of a prosecution or for judicial proceedings.

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see Burns, 500

U.S. at 495 (no absolute immunity for prosecutor providing legal

advice to police regarding interrogation practices).

In considering whether absolute immunity attaches to an

official's conduct, we employ a "functional approach," Buckley,

509 U.S. at 269; Harrington v. Almy, 977 F.2d 37, 40 (1st Cir.

1992) ("[T]he availability of absolute immunity turns on a

functional analysis."), which looks to the "nature of the function

performed," not the identity of the actor who performed it. See

Forrester v. White, 484 U.S. 219, 229 (1988); Buckley, 509 U.S. at

(1st Cir. 1992).

-8-
269; Frazier v. Bailey, 957 F.2d 920, 931 n.12 (1st Cir. 1992)

("Absolute immunity depends not on the titles of officials but

their functions."). Officials claiming absolute immunity, like the

state officials here, bear the burden of proving their actions

warrant that protection. Buckley, 509 U.S. at 274.

Knowlton argues that the district court got it wrong:

negotiating and executing the consent agreements to resolve the

civil violations against Bankers Life and Knowlton, he argues, were

not prosecutorial-type functions protected by absolute immunity,

but rather were actions taken in the state officials'

administrative and investigative capacities which do not afford

them absolute immunity. The question before us is whether the

state officials' actions were, as the district court found,

prosecutorial in nature to warrant absolute immunity. We agree

that they were.

Shaw and Griswold, as representatives of the Bureau, have the

duty and authority to enforce Maine's insurance laws, and through

the AG (Black), may "invoke the aid of the Superior Court through

proceedings" to enforce any action taken by the Bureau or pursue

criminal prosecution based on violations of the Code. Me. Rev.

Stat. tit. 24-A, § 214; see also id., § 211.5 An enforcement

5
As indicated in the consent agreement, "[t]he Superintendent
of [the Maine Bureau] of Insurance is the official charged with
administering and enforcing the insurance laws of the State of
Maine."

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petition need not, however, reach an administrative proceeding or

even the courthouse door. The Bureau may decide to execute consent

agreements that impose penalties or fines authorized by law to

"resolve[] a complaint or investigation without further

proceedings." Me. Rev. Stat. tit. 10 § 8003(5)(B).6 Vested with

that authority, Shaw, Griswold, and Black made a judgment call on

how to best address Bankers Life's and Knowlton's violations of the

Maine Insurance Code. On the Bureau's and AG's behalf, they

decided to forego further proceedings (be it administrative or in-

court) related to those violations and entered into consent

agreements to resolve them instead (including the agreement with

Bankers Life that called for Knowlton's termination).7 The

decision to resolve the violations before pursuing further

proceedings not only arose directly from their roles as the State's

advocates in enforcing Maine's insurance laws, but was inextricably

related to the judicial process. The state officials took these

6
Those agreements may only be entered into if the Bureau, the
AG, and, as relevant in this case, the licensee consent. Me. Rev.
Stat. tit. 10, § 8003(5)(B). These consent agreements are not
subject to review or appeal and may be enforced by an action in
Superior Court. Id.
7
Knowlton entered into the consent agreement specifically "to
resolve, without an adjudicatory proceeding, the charges against
[him] contained in the Petition to Enforce in this matter dated
January 4, 2005" regarding his violations of the Maine Insurance
Code. Bankers Life entered into the consent agreement "to resolve,
without resort to an adjudicatory proceeding, [its] failure to
comply with the requirements of the Maine Insurance Code" as set
forth in the agreement.

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actions in preparing for the initiation of the enforcement

proceeding -- a proceeding that would have surely followed had no

consent agreement been executed.

An agency official's decision to initiate administrative

proceedings "aimed at legal sanctions," Wang v. New Hampshire Bd.

of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995), is

discretionary, "very much like [a] prosecutor's decision to

initiate or move forward with a criminal prosecution" and is,

therefore, entitled to absolute immunity. Butz, 438 U.S. at 515;

see Wang, 55 F.3d at 701 (finding that state medical board counsel

involved in disciplinary proceedings before state medical licensing

board were entitled to absolute immunity). Absolute immunity

"insulate[s] the decisionmaking process from the harassment of

prospective litigation." Westfall v. Erwin, 484 U.S. 292, 295

(1988), superseded by statute on other grounds, Pub. L. No. 100-

694, 102 Stat. 4563 (1988), codified at 28 U.S.C. § 2679(d). Such

harassment "would cause a deflection" of an official's energies

from carrying out his official duties, and "the possibility that he

would shade his decisions instead of exercising the independence of

judgment required by his public trust." Imbler, 424 U.S. at 423.

In this way, absolute immunity promotes "effective government,"

where officials are "freed of the costs of vexatious and often

frivolous damages suits," Westfall, 484 U.S. at 295, that may

result from their decisions.

-11-
 While no administrative proceeding was initiated in this case

(only a petition to enforce was issued), we see no meaningful

difference between the nature of an agency official's decision to

pursue an administrative proceeding and that of her decision to

resolve a violation before reaching that step. In both instances,

the agency official acts as the State's advocate, exercising her

"broad discretion in deciding whether a proceeding should be

brought and what sanctions should be sought." Butz, 438 U.S. at

515; see Romano v. Bible, 169 F.3d 1182, 1187 (9th Cir. 1999)

(finding that Gaming Control Board was entitled to absolute

immunity for initiating disciplinary proceedings against the

plaintiff and entering into settlement negotiations with him,

actions which were prosecutorial in nature). The discretion

officials exercise in deciding which cases should move forward to

further legal proceedings and which may be resolved with consent

agreements "might be distorted if their immunity from damages

arising from that decision was less than complete." Butz, 438 U.S.

at 515. Indeed, in noting the "serious danger" that an official's

"decision to authorize proceedings will provoke a retaliatory

response," Butz considered it unlikely that anyone would be

"willing and legally able to seek damages from the officials" for

"not authoriz[ing] [an] administrative proceeding." 438 U.S. at

515 (emphasis in original).

-12-
 In an attempt to show that absolute immunity is nonetheless

unavailable here, Knowlton argues that the state officials'

decision to execute the consent agreements was administrative and

investigative in nature but he fails to fully develop that

argument. As best we can tell, Knowlton appears to argue that his

case is analogous to Burns and Buckley.8 The state officials'

actions here, however, are far from those the Supreme Court found

to be administrative and investigative in those cases. Burns held

that absolute immunity protected a prosecutor's appearance at a

probable cause hearing, but did not similarly protect his actions

in giving legal advice to the police.9 In finding that giving

legal advice to the police was not a function "closely associated

with the judicial process," but closer to an investigative

function, the Court explained that "[a]lmost any action by a

prosecutor, including his or her direct participation in purely

investigative activity, could be said to be in some way related to

8
Knowlton cites Buckley but refers to the holding in Burns to
support his argument. We nonetheless address both Burns and
Buckley.
9
There, the § 1983 suit challenged a prosecutor's act in
giving legal advice to the police on the propriety of hypnotizing
a suspect and on whether probable cause existed to arrest the
suspect, and participating in a probable cause hearing. The
prosecutor's appearance at the probable cause hearing was entitled
to absolute immunity since it was "'intimately associated with the
judicial phase of the criminal process,'" Burns, 500 U.S. at 492
(quoting Imbler, 424 U.S. at 430), and involved his "'role as
advocate for the State.'" Burns, 500 U.S. at 491 (quoting Imbler,
424 U.S. at 431 n.33).

-13-
the ultimate decision whether to prosecute, but we have never

indicated that absolute immunity is that expansive." Burns, 500

U.S. at 495. Similarly, Buckley held that the prosecutors were not

entitled to absolute immunity for allegedly "fabricating evidence

during the preliminary investigation of a crime" which the Supreme

Court found to be "entirely investigative" activity. 509 U.S. at

261, 274. There, the prosecutor had not asserted "probable cause

to arrest petitioner or to initiate judicial proceedings during

that period," and without probable cause to have anyone arrested,

the Court reasoned, a prosecutor "neither is, nor should consider

himself to be, an advocate." Id. at 274. Buckley warned that a

prosecutor cannot "shield his investigative work with the aegis of

absolute immunity merely because, after a suspect is eventually

arrested, indicted, and tried, that work may be retrospectively

described as 'preparation' for a possible trial." Id. at 276.

Burns and Buckley teach us that investigative steps taken to

search for "clues and corroboration" that might lead to an arrest

are more removed from the judicial process and merit only qualified

immunity. Buckley, 509 U.S. at 273; see Giraldo v. Kessler, 694

F.3d 161, 166 (2d Cir. 2012) (noting that "investigative acts that

are entitled to only qualified immunity are those undertaken in the

phase of law enforcement that involves the gathering and piecing

together of evidence for indications of criminal activities and

determination of the perpetrators"). But here, the state

-14-
officials' execution of the consent agreements was not part of any

investigative activity. By the time the consent agreements were on

the table, the investigation had already revealed Knowlton's and

Bankers Life's violations of Maine's insurance laws. The

agreements resolved those violations and allowed all parties to

avoid further legal proceedings on the matter.

In one last ditch effort to save his case, Knowlton argues that

the state officials' actions were not subject to "judicial

oversight" and, as a result, cannot be entitled to absolute

immunity. To support that argument, Knowlton relies on Butz, a §

1983 case involving administrative proceedings brought by federal

agency officials. Butz, 438 U.S. at 480.10 In finding the

officials were entitled to absolute immunity for initiating

administrative proceedings, Butz noted the proceedings provided

certain safeguards to the defendant -- i.e., "checks on agency

zeal" and an "opportunity" for the defendant to challenge the

"legality" of the proceeding itself. 438 U.S. at 515-16. Latching

onto that language, Knowlton claims that under Butz, absolute

immunity is available to agency officials only if an administrative

proceeding is held to provide those safeguards. While Butz in no

way stands for such a broad proposition, Knowlton applies that

10
Knowlton also cites Wang, 55 F.3d at 701 (disciplinary
proceedings before state medical licensing board), to support his
argument that the agency officials there would not have been able
to claim absolute immunity had no administrative proceeding taken
place. Wang says nothing of the sort.

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distorted reading of Butz to his case and argues that the state

officials' actions cannot be absolutely immune because no

administrative proceeding took place here. Without an

administrative proceeding, he says, no safeguards were present to

protect his employment when the state officials agreed to the

termination provision in their consent agreement with Bankers Life.

Knowlton contends that the proceeding would have given him the

opportunity (as a non-party to the agreement) to contest the

termination provision and that without that opportunity, he was

left defenseless and unable to protect his employment.

The state officials' decision to agree to the termination

provision, however, need not be "put in the framework for

adversarial testing and judicial supervision," for absolute

immunity to apply. Harrington, 977 F.2d at 42. The "availability

of the safeguards" which arise from an adversarial setting or

judicial supervision are "not necessary preconditions" to claiming

absolute immunity. Id. (discussing Imbler). The crux of

Knowlton's argument is that the state officials abused their

discretion when they agreed to allow Knowlton's termination in one

agreement after they had agreed to take no additional action

against him in another.11 Those, like Knowlton, who believe they

11
Although it is true, as Knowlton argues, that Bankers Life's
compliance with the agreement (of which Knowlton had no part)
harmed Knowlton given that he lost his job, it is simply
"irrelevant" to the question whether the conduct (namely, the
negotiation and execution of the consent agreements) in the first

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have been wronged have "readily available safeguards," Harrington,

977 F.2d at 42, to "deter" or "punish" that type of alleged

"misconduct" when absolute immunity protects the official from

liability in a § 1983 suit. Imbler, 424 U.S. at 428-29. In

Knowlton's case, filing a State Personnel Complaint in Maine and

reporting any attorney misconduct to Maine's Board of Overseers of

the Bar are among the safeguards available to address the

discretionary abuse he claims occurred.12

In sum, the state officials carried their burden in

establishing they are entitled to absolute immunity for entering

into the consent agreements with Knowlton and Bankers Life. Given

our ruling, we need not reach whether qualified immunity applies or

delve into the merits of Knowlton's due process claim.

instance is protected by absolute immunity. Buckley, 509 U.S. at
272. The functional approach requires us to keep our focus "on the
conduct for which immunity is claimed, not on the harm that the
conduct may have caused or the question whether it was lawful."
Id. at 271. And, the conduct at the heart of Knowlton's complaint
is the state officials' execution of the consent agreements at
issue.
12
Knowlton also argues that the state officials' actions cannot
be considered prosecutorial functions because his consent agreement
was not an enforceable plea agreement. Despite the questionable
legal basis for this assertion, it is sufficient to point out that
Knowlton failed to raise this argument before the district court
(at least according to the record before us) and has thus waived
it. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No.
59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)
("[L]egal theories not raised squarely in the lower court cannot be
broached for the first time on appeal.").

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 Judicial Estoppel

Knowlton next argues that the state officials should have been

judicially estopped from asserting an immunity defense for the §

1983 claim. We review the district court's decision not to invoke

judicial estoppel for abuse of discretion. Alt. Sys. Concepts,

Inc. v. Synopsys, Inc., 374 F.3d 23, 30 (1st Cir. 2004); Perry v.

Blum, 629 F.3d 1, 8 (1st Cir. 2010). "Within that rubric, we

accept the trial court's findings of fact unless they are clearly

erroneous, and evaluate its answers to abstract questions of law de

novo." Perry, 629 F.3d at 8 (internal citations omitted).

"[J]udicial estoppel is an equitable doctrine," New Hampshire

v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks and

citation omitted), intended to "prevent[] a litigant from pressing

a claim that is inconsistent with a position taken by that litigant

either in a prior legal proceeding or in an earlier phase of the

same legal proceeding." InterGen N.V. v. Grina, 344 F.3d 134, 144

(1st Cir. 2003). It protects "the integrity of the courts by

preventing parties from improperly manipulating the machinery of

the judicial system." Alt. Sys. Concepts, 374 F.3d at 33.

Although the contours of judicial estoppel may be hazy, courts

generally consider three factors before invoking the doctrine in a

particular case. Perry, 629 F.3d at 8-9. First, a party's earlier

and later positions must be "clearly inconsistent." New Hampshire,

532 U.S. at 750; Alt. Sys. Concepts, 374 F.3d at 33. Second, the

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party must have succeeded in persuading a court to accept the

party's earlier position. Alt. Sys. Concepts, 374 F.3d at 33.

"Third, the party seeking to assert the inconsistent position must

stand to derive an unfair advantage if the new position is accepted

by the court." Perry, 629 F.3d at 9; New Hampshire, 532 U.S. at

751.

Knowlton contends that the state officials should not be able

to claim immunity for the § 1983 claim when, in his view, they had

just represented to the Maine Supreme Judicial Court in a previous

lawsuit that he had a viable claim. See Knowlton v. Attorney

General, 976 A.2d 973, 975-76 (Me. 2009). In that lawsuit,

Knowlton sued the State for breach of contract (the consent

agreement between Knowlton and the State). Id. at 975.13

Knowlton faces an uphill battle with his argument. For one

thing, a party against whom judicial estoppel is invoked,

typically, must be the same party who made the prior inconsistent

representation. See, e.g., Perry, 629 F.3d at 8 (explaining that

judicial estoppel "operates to prevent a litigant from taking a

litigation position that is inconsistent with a litigation position

13
Specifically, Knowlton asserted that the State had breached
his consent agreement by entering into the subsequent consent
agreement with Bankers Life because the subsequent agreement called
for Knowlton's termination as the Bangor branch manager, and
Knowlton maintained that requirement constituted further
disciplinary action against him. The Maine Supreme Judicial Court
vacated a judgment in favor of Knowlton, concluding that sovereign
immunity shielded the State from liability. Knowlton, 976 A.2d at
980.

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successfully asserted by him" in the same or earlier proceeding);

Brewer v. Madigan, 945 F.2d 449, 455 (1st Cir. 1991) (explaining

that judicial estoppel prevents "a party from taking a position

inconsistent with one successfully and unequivocally asserted by

that same party in a prior proceeding"). As the district court

recognized, the party asserting the alleged "position" in state

court and the parties here are not the same. In the state court

action, Knowlton sued the State. In this case, Knowlton sued three

state officials in their individual capacities only.

For another, even assuming the parties were the same, we see

no clear inconsistency between the position taken before the Maine

Supreme Judicial Court and that taken below. A close look at the

record tells us why. During oral argument before the Maine Supreme

Judicial Court, in response to Justice Silver's comment that the

State may be immune from suit but had not acted "honorably," the

State, represented by an Assistant Attorney General ("AAG"), said

that it "may or may not have acted properly in this case" but that

"there is a section 1983 remedy for that I think." Justice Silver

followed up with the more direct question, asking whether Knowlton

indeed had a § 1983 remedy. The AAG clarified that the State was

"not saying [Knowlton] would prevail on a [section] 1983 claim" but

that he thought "a [section] 1983 claim is the vehicle by which

[Knowlton] could address whether what the State did was fair."

Contrary to Knowlton's interpretation of the AAG's statements, the

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AAG specifically declined to take a position one way or the other

regarding the viability of a § 1983 claim, merely noting that

bringing a section 1983 action may be the "vehicle" through which

Knowlton could address a potential due process claim.

Finally, as we have made clear, "a proponent of judicial

estoppel must affirmatively show, by competent evidence or

inescapable inference, that the prior court adopted or relied upon

the previous inconsistent assertion." Perry, 629 F.3d at 11-12.

On this record, Knowlton, as the party pressing judicial estoppel,

has failed to demonstrate that the Maine Supreme Judicial Court

accepted the AAG's alleged representation that Knowlton had an

actionable § 1983 claim to seek redress for the alleged unfair

treatment he received. The Court's ruling in that case resolved

one issue: whether the State had waived its sovereign immunity

regarding Knowlton's breach of contract claim. Knowlton, 976 A.2d

at 978. Nothing about the decision permits us to draw even the

slightest inference that the Court determined the State had not

waived its sovereign immunity based on any acceptance of or

reliance upon the AAG's representation that Knowlton might have a

viable § 1983 claim. See id.14 We therefore cannot conclude that

14
While "courts sometimes have allowed judicial estoppel when
the estopped party was responsible in fact for the earlier
representation, or when the estopped party was the assignee of a
litigation claim or assumed the original party's role," Perry, 629
F.3d at 9 (internal citations omitted), Knowlton does not contend
that any of these exceptions apply.

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the district court abused its discretion in refusing to invoke the

doctrine of judicial estoppel.

42 U.S.C. § 1985(2) claim

Lastly, Knowlton challenges the district court's finding that

the complaint failed to plead a plausible § 1985(2) claim. The

second clause of § 1985(2), which Knowlton claims applies here,

prohibits conspiracies to obstruct "the due course of justice in

any State or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his property for

lawfully enforcing, or attempting to enforce, the right of any

person, or class of persons, to the equal protection of the laws."15

Because that language is "directed toward 'the equal protection of

the laws,'" a plaintiff must allege a "class-based, invidiously

discriminatory animus" to state a plausible § 1985(2) claim. Hahn

v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975) (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)); Schneider v. Tretola, 8

F.3d 809 (1st Cir. 1993) (per curiam) (unpublished).

While the complaint alleges that the state officials conspired

with others to deprive Knowlton of a constitutionally protected

property interest -- i.e., his job with Bankers Life -- it fails to

15
The first clause of § 1985(2) covers conspiracies to
interfere with justice in the federal courts. The second clause,
on the other hand, covers conspiracies to interfere with justice in
the state courts "with intent to deny to any citizen the equal
protection of the laws." 42 U.S.C. § 1985(2); see Kush v.
Rutledge, 460 U.S. 719, 725 (1983) (identifying the different
classes of unlawful conspiratorial activity under § 1985).

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allege any racial, or otherwise class-based, invidiously

discriminatory animus underlying the state officials' actions. As

the district court properly concluded, the complaint's failure to

do so dooms Knowlton's § 1985(2) claim. See, e.g., Hahn, 523 F.3d

at 469 (finding allegation of invidiously discriminatory animus is

required to state a claim under the portion of § 1985(2)

proscribing conspiracies to interfere with the administration of

justice in state courts); Schneider, 8 F.3d at 809 (finding

meritless plaintiff's § 1985(2) claim for obstruction of state

court proceedings for failure to allege that defendants were

motivated by any class-based, invidiously discriminatory animus);

see also Mason v. Village of El Portal, 240 F.3d 1337, 1340 (11th

Cir. 2001) (failure to establish invidiously discriminatory racial

animus behind conspiratorial decision defeated § 1985(2) claim).

Accordingly, Knowlton's § 1985(2) claim was properly dismissed.

CONCLUSION

In the end, we affirm the district court's dismissal of

Knowlton's claims against the state officials.

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