Rosenfeld v. Egy

United States Court of Appeals
For the First Circuit

No. 03-1320

JOEL ROSENFELD,

Plaintiff, Appellant,

v.

DAVID C. EGY and ALBERT J. BAIMA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Boudin, Chief Judge,

Howard, Circuit Judge,

and DiClerico,* District Judge.

Robert W. Walker for appellant.
Stephen C. Pfaff, with whom Douglas I. Louison and Merrick,
Louison & Costello, LLC, were on brief, for appellee David Egy.
William P. Breen, Jr., with whom Murphy, Hesse, Toomey &
Lehane, LLP, were on brief for appellee Albert J. Baima.

October 2, 2003

*Of the District of New Hampshire, sitting by designation.
 HOWARD, Circuit Judge. Challenging certain decisions of

the police chief and the conduct of a fellow officer, a discharged

police officer sought relief in federal court under

42 U.S.C. § 1983 and Massachusetts law. The district court granted

summary judgment for the defendants on the merits of all claims

except one for assault and battery, over which it declined to

exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c). The

discharged officer now appeals. Having viewed the evidence and

all reasonable inferences in the light most favorable to the

discharged officer, we conclude that summary judgment was properly

entered.

I.

Plaintiff-appellant Joel Rosenfeld was suspended from the

Millis, Massachusetts, Police Department on May 3, 1998. On that

date, Rosenfeld was also required to surrender both his service

firearm and his firearms license. Defendant-appellee Police Chief

Albert Baima ordered these actions pending an investigation of the

circumstances surrounding an April 30th station-house altercation

between Rosenfeld and fellow officer David Egy, the other

defendant-appellee. For his own part in the altercation, Egy was

placed on administrative leave and ordered to surrender both his

service firearm and firearms license.

Although Egy eventually was reinstated to the active

roster, Rosenfeld was not. Nor did Rosenfeld's troubles end there.

-2-
On October 13, 1998, Baima denied Rosenfeld's license-to-carry

renewal application,1 which Rosenfeld had submitted (along with

several letters of recommendation) following the expiration of his

confiscated license.

Rosenfeld also was experiencing problems at home. In

December 1998, Rosenfeld's wife, Charlotte, filed for divorce.

Based on an affidavit filed with the probate court, Charlotte soon

thereafter obtained an ex parte restraining order against

Rosenfeld.2 Subsequently, a hearing was held to determine whether

the ex parte order should be continued in effect. Rosenfeld, Egy,

and Baima were present at this hearing, during which Egy submitted

to the probate judge a written police report detailing Rosenfeld's

alleged failure to comply with the initial order. The court

ultimately continued Charlotte's restraining order.

Although the above events are undisputed, their causes

are hotly contested. Specifically, the parties dispute the actual

motivations behind Charlotte's procurement of the restraining order

and Baima's decision to deny the renewal application. An

1
Massachusetts law invests firearms-licensing authority in the
chief of police. See Howard v. Chief of Police of Wakefield, 794
N.E.2d 604, 606 (Mass. App. Ct. 2003) ("[A] chief of police may
issue a carrying license 'if it appears that the applicant is a
suitable person to be issued such license' and has an acceptable
reason for requesting such a license.") (quoting Mass. Gen. Laws
ch. 140, § 131(d)).
2
Charlotte's Affidavit of Irreparable Harm alleged, inter
alia, that she twice had been raped by Rosenfeld.

-3-
appreciation of the parties' competing versions requires some

backtracking.

In 1986, Officer Rosenfeld had sued Chief Baima for

trespassing on his property. Apparently, Baima had entered

Rosenfeld's home to ensure that Rosenfeld, who had called in sick

to work that day, was genuinely sick. In 1987, the Millis Board of

Selectmen held seemingly unrelated hearings to determine whether

Baima should be removed as police chief.3 Although Rosenfeld, Egy,

and several other police officers testified against Baima at the

hearings, the Board took no adverse action. Rosenfeld believes

that Baima has held a grudge against him ever since.

Despite any grudge that may have existed, Baima and

Rosenfeld enjoyed a "professional" working relationship during the

ten years that followed the 1987 hearings. But in 1997, a series

of events caused the relationship to sour. The problems began when

Charlotte Rosenfeld informed Officer Egy that her husband had been

abusing her. Egy thereafter began calling the Rosenfeld home

three-to-four times per day, allegedly out of concern for

Charlotte's safety. Rosenfeld contends, however, that he never

3
Baima testified during his deposition that these hearings
were motivated by political differences, including a running
dispute between himself and the Board of Selectmen over who should
control certain functions within the Millis Police Department.
Rosenfeld contends that Baima also believed that Rosenfeld's mother
had some responsibility for instigating the hearings.

-4-
abused Charlotte and that, in fact, Egy and Charlotte were involved

in an extramarital affair.

Disgusted with the "constant interaction between

Charlotte and Egy under the guise of friendship," Rosenfeld

initiated the April 30, 1998 altercation. Upon encountering Egy at

the station house, Rosenfeld demanded that Egy stay away from

Charlotte. Egy refused, stating that he knew all about Rosenfeld's

spousal abuse. To prove his point, Egy produced a photograph

depicting Charlotte with a black eye. At some point, Egy also

struck Rosenfeld in the chest.

The following day, Rosenfeld notified Chief Baima of

Egy's assault. When asked to explain his actions, Egy informed

Baima that Rosenfeld had been abusing Charlotte. Thereafter, Baima

turned the investigation over to the district attorney, removed

Rosenfeld from the active duty roster, and ordered Rosenfeld to

surrender his service firearm and firearms license.

These decisions, together with Egy's assault, Egy's

involvement in the subsequent restraining-order proceedings, and

Baima's eventual denial of Rosenfeld's firearms renewal

application, were the primary bases for Rosenfeld's lawsuit.

Rosenfeld's somewhat-rambling complaint contained fourteen separate

counts, collectively alleging violations of the First, Fourth, and

Fourteenth Amendments, as well as several constitutional and

common-law torts under Massachusetts law.

-5-
 Following discovery, Egy and Baima moved for summary

judgment on all of Rosenfeld's claims. As noted earlier, the

district court granted summary judgment on all counts except an

assault-and-battery count, which it dismissed without prejudice

under 28 U.S.C. § 1367(c). See Rosenfeld v. Egy, No. Civ. A. 01-

10730-DPW, 2003 WL 222119 (D. Mass. Jan. 29, 2003) (memorandum and

order on motion for summary judgment). The court reasoned, inter

alia, that (1) Baima was entitled to qualified immunity on claims

arising out of his denial of Rosenfeld's firearms renewal

application, and (2) the Rooker-Feldman doctrine barred certain

claims against Egy.

This appeal followed.

II.

We review summary judgment decisions de novo, after

viewing the evidence and all reasonable inferences in the light

most favorable to the non-moving party. Rosenberg v. City of

Everett, 328 F.3d 12, 17 (1st Cir. 2003). Summary judgment is

proper when "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c).

Rosenfeld raises several arguments on appeal challenging

the district court's entry of summary judgment. Having considered

-6-
all such arguments, we agree with the district court that summary

judgment was proper on all counts except the assault-and-battery

count. Because we are convinced by the court's thorough reasoning

with respect to most of Rosenfeld's claims, we affirm its entry of

judgment on those claims without further elaboration. In our view,

only two issues warrant further discussion: (1) whether the

district court properly granted summary judgment for Baima on

Rosenfeld's claim that the denial of his firearms renewal

application deprived him of his rights under the First and

Fourteenth Amendments to the United States Constitution, and (2)

whether the district court properly granted Egy summary judgment on

Rosenfeld's constitutional claim against him. We discuss these

issues in turn.

A. The Denial of the Renewal Application

We first consider Rosenfeld's claim that Baima's "refusal

to renew [Rosenfeld's] license to carry ...[,] after receiving no

corroborating evidence of Rosenfeld's alleged domestic abuse[,] was

nothing more than retaliatory discipline originating from Baima's

discriminatory animus." Rosenfeld contends that this

"discriminatory animus," allegedly rooted in hard feelings about

Rosenfeld's 1986 trespass suit and 1987 testimony before the Millis

Board of Selectmen, caused Baima to deny the renewal application in

violation of Rosenfeld's rights under the First and Fourteenth

Amendments.

-7-
 In granting summary judgment for Baima on this claim, the

district court ruled that Baima was entitled to qualified immunity.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("[G]overnment

officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not

violate 'clearly established' statutory or constitutional rights of

which a reasonable person would have known."). The able district

court judge may well have decided this question correctly, but we

need not and do not reach it; Rosenfeld's claim fails because no

reasonable jury could find either a First or Fourteenth Amendment

violation on the facts that Rosenfeld has adduced. Cf. Saucier v.

Katz, 533 U.S. 194, 201 (2001) ("A court required to rule upon the

qualified immunity issue must consider, then, this threshold

question: Taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer's conduct

violated a constitutional right? This must be the initial

inquiry." (citation omitted)).

Before turning to the First Amendment claim, we dispose

of Rosenfeld's Fourteenth Amendment equal protection and

substantive due process claims, which do not require extensive

analysis. As to equal protection, Rosenfeld has not presented

sufficient evidence to show that he was treated differently than

similarly situated individuals. Moreover, this claim substantially

overlaps with his stronger First Amendment claim addressed below.

-8-
See Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32,

44-45 (1st Cir. 1992) ("There is an obvious danger to opening up

local permitting decisions to detailed federal judicial scrutiny

under equal protection rubric. If disgruntled permit applicants

could create constitutional claims merely by alleging that they

were treated differently from a similarly situated applicant, the

correctness of virtually any state permit denial would become

subject to litigation in federal court. . . . Given the overlap of

[plaintiff's First Amendment and equal protection claims], and the

vast problems that would be created, we see little basis or

justification for applying equal protection analysis in the present

situation.").

Regarding substantive due process, Rosenfeld has neither

demonstrated a trialworthy issue as to whether Baima's decision

"shocks the conscience" nor identified a protected property or

liberty interest infringed by the non-renewal of his license. See

Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622 (1st Cir. 2000)

("There are two theories under which a plaintiff may bring a

substantive due process claim. Under the first, a plaintiff must

demonstrate a deprivation of an identified liberty or property

interest protected by the Fourteenth Amendment. Under the second,

a plaintiff is not required to prove the deprivation . . ., but,

rather, he must prove that the state's conduct 'shocks the

conscience.'" (citation omitted)); Howard, 794 N.E.2d at 607 ("The

-9-
Declaration of Rights of the Massachusetts Constitution provides

the private citizen no right to keep and bear arms, and thus there

is no question of a property right or deprivation of liberty

involved in the statutory procedures for obtaining a license to

carry firearms." (citations and internal quotation omitted)).

To prevail on his First Amendment retaliation claim,

Rosenfeld must show that his constitutionally protected conduct --

his 1986 lawsuit and 1987 testimony -- was a "substantial factor"

behind Baima's decision to deny the renewal application. See

Collins v. Nuzzo, 244 F.3d 246, 251-52 (1st Cir. 2001). If

Rosenfeld meets this threshold burden, the burden shifts to Baima

to prove by a preponderance of the evidence that he would have

reached the same decision even in the absence of Rosenfeld's 1986

lawsuit and 1987 testimony. See id.; see also Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

Rosenfeld attempts to satisfy his threshold burden by

calling our attention to a few random comments allegedly made by

Baima during the ten years that followed the 1987 hearings. We are

presented with the deposition testimony of three department

officers, all of whom testified that, at one time or another, Baima

expressed to them his displeasure with the events surrounding the

1987 hearings. Relevant portions of these depositions are

reproduced below.

-10-
Deposition of Officer Dixon

Q: Now, you testified previously that Mr.
Baima had said at one point in time in the
locker room that he was going to get the
people involved in the hearings, do you recall
that testimony?
A: Yes.
Q: When was it that he said that?
A: That wasn't all that long ago. He had
always expressed that up until a short time
before he stopped being chief [in June 1999].
Q: How many times did you hear him say, I am
going to get everybody involved in that?
...
A: Three, four times.
Q: Would it be fair to say the time in the
locker room was ten years after the hearings
had taken place?
A: Basically.

Deposition of Officer MacLeod

Q: Are you aware of any conversation in which
Baima stated that it was his intent to
retaliate against individuals that had
previously provided testimony against him
before the board of selectmen?
A: That isn't the wording he used, but the
substance.
Q: Well, tell me about the wording he used.
A: We were going to [a seminar].... On the
way over he was talking about the new board
of selectmen, he said, "They're just as bad
as the last; they're after me.... I am
going to get everybody that tried to screw
me during those years."

-11-
 Deposition of Officer Quinn

Q: What conduct or statements did Baima make
that you are aware of which led you to
conclude or believe that [Baima] did not
like [Rosenfeld]?
A: He had made a comment one time about the
fact that Joel had sued him and that he'd
never forget it.
Q: Any other comments?
A: Not that I recall exactly anything. He
made comments in passing sometimes, but I
don't recall any comments that were
directed against [Rosenfeld].

"While ambiguous remarks may, under some circumstances,

help to illuminate the summary judgment record, such remarks rarely

will suffice to conceive an issue of material fact when none

otherwise exists." National Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 743-44 (1st Cir. 1995). Baima's statements, even if

viewed in the most cynical light, are at best ambiguous references

to a decade-old grudge held against a number of individuals. In

fact, the only testimony concerning Rosenfeld himself, that

provided by Officer Quinn, speaks in terms of an unpleasant memory

and not in terms of revenge. As the district court properly noted

in its discussion of a parallel claim, evidence of a free-floating

desire to get even is simply not enough to establish the requisite

"substantial factor." Were it otherwise, the threshold hurdle

required by the Constitution would amount to little more than a

stepping stone.

-12-
 Additionally, Rosenfeld's 1987 testimony is too far

removed in time from Baima's 1998 decision to ground a reasonable

inference of retaliation. As we frequently have observed in

antidiscrimination cases, "the inference of a causal connection

becomes tenuous with the passage of time." Dressler v. Daniel, 315

F.3d 75, 80 (1st Cir. 2003) (affirming summary judgment upon

finding that no reasonable factfinder could find a causal

connection between the protected conduct and an adverse action

taken two years later); see also Lewis v. Gillette Co., 22 F.3d 22,

25 (1st Cir. 1994) (granting summary judgment where more than two

years had elapsed between the protected conduct and the alleged

retaliation); Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st

Cir. 1991) (holding that a nine-month period between the protected

conduct and alleged retaliation undermined the inference of

causation).

We have previously stated:

[A] court pondering a [summary judgment]
motion need not embrace inferences that are
wildly improbable or that rely on 'tenuous
insinuation.' . . . [E]ven in cases where
elusive concepts such as motive or intent are
at issue, summary judgment may be appropriate
if the nonmoving party rests merely upon
conclusory allegations, improbable inferences,
and unsupported speculation.

National Amusements, Inc., 43 F.3d at 743-44 (citations omitted and

emphasis added). Given the tenuous nature of Rosenfeld's evidence

-13-
and the stronger competing evidence on which we next focus, we

believe that the inferences Rosenfeld invites us to draw are

improbable.

Even assuming arguendo that Baima's comments are

unambiguous and that the 1986 lawsuit and 1987 testimony are close

enough in time to the 1998 license denial to establish a reasonable

inference of retaliatory motive, such an inference is considerably

weakened by other facts in the record. See Lewis v. City of

Boston, 321 F.3d 207, 220 (1st Cir. 2003) (finding that, in this

particular case, "the inference carried by the temporal

proximity . . . dissipates when consideration is given to the

attendant circumstances" (emphasis added)). Not only does the

record contain evidence disputing the assertion that Baima held a

grudge against Rosenfeld, it also contains strong evidence that

Baima's non-renewal of Rosenfeld's license would have occurred

irrespective of their history.

First, the evidence portrays the Rosenfeld-Baima

relationship in a way that calls into question Rosenfeld's

description of Baima as a person he perceived to be a grudge-

holding, revenge seeker. For example, during his deposition,

Rosenfeld testified that Baima had been an invited guest at his

wedding and that Baima "might have" attended not only the wedding

but also other family functions such as a bar mitzvah and a post-

funeral reception in the Rosenfeld home. Both men testified that

-14-
they enjoyed a professional relationship with the other, and

Rosenfeld acknowledged that Baima had displayed no animosity toward

him during the ten years following the 1987 hearings. Officer

Dixon, one of the three officers who testified concerning comments

allegedly made by Baima, also testified that it was his

understanding that Chief Baima was a friend to Rosenfeld. While

such evidence is not dispositive, it serves to weaken further an

inference that already is too speculative.

Second, and more importantly, Baima had a compelling

reason for denying Rosenfeld's renewal application: substantiated

allegations of spousal abuse. Specifically, Baima had before him

a photograph depicting Charlotte with a bruised face, a report from

Egy detailing Charlotte's accusations, and a report from a third

officer, Officer MacLeod, stating that he had "seen first-hand

examples of [Rosenfeld's] physical violence towards [Charlotte] and

[had] heard talk through members of the Norfolk Hunt Club

[regarding] this." This considerable evidence of spousal abuse

available to Baima at the time of his decision strongly suggests

that Baima denied the renewal application because Rosenfeld failed

to satisfy the "suitable person" standard used in Massachusetts to

govern the issuance of firearm permits. See Mass. Gen. Laws ch.

140, § 131(d); see also Howard, 794 N.E.2d at 606 (noting that the

-15-
"suitable person" standard "vests in the chief broad discretion or

'considerable latitude'").4

In summary, there was insufficient evidence to establish

a trialworthy issue on Rosenfeld's retaliation claim. On the

record as a whole, the isolated comments to which Rosenfeld points

are insufficient to ground a finding that Baima's non-renewal of

Rosenfeld's license was grounded in retaliation and would not have

occurred absent the parties' tangled history. No reasonable

factfinder could conclude that Baima's conduct deprived Rosenfeld

of his First Amendment rights.

B. The Federal Constitutional Claim Against Egy

In his complaint, Rosenfeld contended that his

constitutional rights were violated as a result of Egy's improper

involvement in both the issuance and continuance of Charlotte's

restraining order. As we understand it, Rosenfeld's position is

4
Whether or not Baima acted within the state-law bounds of
discretion is, of course, a different question. For example,
Rosenfeld contends that Baima should have given more weight to the
district attorney's letter, which stated that the prosecution could
not go forward due to Charlotte's failure to cooperate. Rosenfeld
also alleges that the photograph of Charlotte was "doctored" by
Egy. If Rosenfeld wants to argue that he is, in fact, a "suitable
person," his proper recourse is with the state courts. See Mass.
Gen. Laws ch. 140, § 131(f) ("Any applicant or holder aggrieved by
a denial, revocation or suspension of a license . . . [may] file a
petition to obtain judicial review in the district court having
jurisdiction in the city or town wherein the applicant filed for,
or was issued, such license."). At oral argument, we were advised
that an appeal on these matters was still pending before the
Wrentham District Court.

-16-
that a viable § 1983 claim exists because Egy "redirected the

Probate Court's attention away from the truth and [deprived]

Rosenfeld [of] the opportunity to address Charlotte's fabricated

allegations which would have cleared his name and terminated the

restraining order which seized his liberty." For support,

Rosenfeld argues that Egy both coerced Charlotte into obtaining the

ex parte restraining order and presented to the probate court at

the continuance hearing a false report, which called into question

Rosenfeld's compliance with the ex parte order. Neither issue was

raised before the probate court.

Without reaching the merits of this amorphous claim,5 the

district court entered summary judgment for Egy on the threshold

ground that the claim was barred by the Rooker-Feldman doctrine.

See Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st Cir. 2003)

(noting that the Rooker-Feldman doctrine is "at least quasi-

jurisdictional") (citing Picard v. Members of the Employee Ret. Bd.

of Providence, 275 F.3d 139, 145 (1st Cir. 2001)); see also

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of

App. v. Feldman, 460 U.S. 462 (1983). In the court's view, an

assessment of the merits of Rosenfeld's claim would effectively

require it to review judgments made by the probate court in

issuing, and then continuing, the restraining order. Rosenfeld

5
The district court assumed, as do we, that Rosenfeld is
alleging a violation of his Fourth Amendment rights.

-17-
argues that the doctrine does not apply because he is not here

attacking the restraining order per se. He is wrong.

We have described the contours of the Rooker-Feldman

doctrine as follows:

The Rooker-Feldman doctrine prohibits federal
district and circuit courts from reviewing
state court judgments. Where a party did not
actually present its federal claims in state
court, Rooker-Feldman forecloses lower federal
court jurisdiction over claims that are
inextricably intertwined with the claims
adjudicated in a state court. A federal
claim is inextricably intertwined with the
state-court claims if the federal claim
succeeds only to the extent that the state
court wrongly decided the issues before it.

Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000) (citations and

quotation marks omitted); see also Mandel, 326 F.3d at 271

("Although res judicata doctrine would often achieve similar

effects, Rooker-Feldman . . . is widely used by the federal court

to prevent end-runs around state judgments."); Wilson v. Shumway,

264 F.3d 120, 126 (1st Cir. 2001) (observing that 42 U.S.C. § 1983

is not to be used as a vehicle for avoiding application of the

Rooker-Feldman doctrine).

Rosenfeld's alleged constitutional injury -- the

restraining order that "seized his liberty" -- could only exist to

the extent that the probate court wrongly decided to issue, and

later continue, the restraining order. In other words, Rosenfeld's

liberty never would have been "seized" -- and his dubious

-18-
constitutional claim never raised -- had the probate court

determined that a restraining order was not warranted.

Rosenfeld's claim against Egy is, then, essentially a challenge to

the reliability of the evidence supporting the continuance of the

restraining order –- an issue that is "inextricably intertwined"

with the claims adjudicated in state court. The Rooker-Feldman

doctrine prevents us from addressing it.

III.

For the reasons stated above, the judgment of the

district court is affirmed.

-19-