156 F.3d 57 (1st Cir. 1998), 97-2376, Pendleton v. City of Haverhill

Docket Nº:97-2376.
Citation:156 F.3d 57
Party Name:Toney PENDLETON, Plaintiff, Appellant, v. CITY OF HAVERHILL, et al., Defendants, Appellees.
Case Date:September 01, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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156 F.3d 57 (1st Cir. 1998)

Toney PENDLETON, Plaintiff, Appellant,


CITY OF HAVERHILL, et al., Defendants, Appellees.

No. 97-2376.

United States Court of Appeals, First Circuit

September 1, 1998

Heard June 3, 1998.

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Thomas J. Gleason for appellant.

Stephen C. Pfaff, with whom Douglas I. Louison and Merrick and Louison were on brief, for appellees.

Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and SCHWARZER, [*] Senior District Judge.

SELYA, Circuit Judge.

This appeal presents a problematic First Amendment question as to whether the plaintiff was a "limited-purpose public figure" required to prove actual malice in order to recover for defamation. After careful consideration of this, and other, issues, we reject the plaintiff's appeal.


Plaintiff-appellant Toney Pendleton, an African American in his mid-forties, hails from Haverhill, Massachusetts. He is well known in the community both because of his family ties and because of his exploits as a high-school athlete.

  1. The Job Market.

    Starting in the late 1980s, Pendleton tried to land a full-time teaching position in the Haverhill public school system. Although he worked as a substitute teacher from time to time, he progressed no further. In August 1993, he vented his frustration to a reporter, Anita Perkins, who found considerable irony in Pendleton's inability to secure a permanent teaching position notwithstanding a student-led outcry for a more diverse public school faculty. She wrote an article to that effect in the Lawrence Eagle-Tribune, a newspaper serving the Haverhill area. See Anita Perkins, Black Teacher Has Grown Impatient Awaiting A Chance, Eagle-Trib., Aug. 17, 1993, at 13.

    Perkins's article profiled Pendleton and described his family, educational background, career aspirations, temporary teaching assignments, and his trepidation that school officials were not giving appropriate priority to minority hires. Reflecting on his experience as an African-American student in the Haverhill schools, Pendleton was quoted as saying: "Twenty years later things are still the same." He also was quoted as asking, rhetorically: "How can you expect a black child who is called a 'n_____' to go to a white counselor and teacher with his feelings?" The article commented on the dearth of minority teachers in the Haverhill schools, described

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    some of the steps that Haverhill had taken to increase minority representation within the school system, and concluded with Pendleton's plaintive comment: "I'm tired of substitute teaching. I just want a chance to show my qualifications."

    That fall, Pendleton accepted a Haverhill-based position as a vocational counselor with Jobs For Bay State Graduates, Inc. (JBSG), a private, nonprofit organization. JBSG counselors advise public school students who do not plan to attend college about career opportunities. Pendleton held this job at the time of his arrest.

  2. Arrest and Prosecution.

    On the evening of May 27, 1994, Pendleton parked his car on a busy, well-lit street in his home town, ran some errands, and then repaired to a local tavern. At some point, Arnaldo Pagan, a boyhood friend, asked Pendleton to give him a ride home. After Pagan grew increasingly insistent, Pendleton acquiesced. The two men then proceeded to Pendleton's automobile. The vehicle was still parked when two Haverhill policemen on routine neighborhood patrol shined a flashlight into it. The officers, John Arahovites and Lawrence Newman, claimed that "two heads popped up" from behind the dashboard and that they noticed a powdery substance on Pendleton's face. Upon further investigation, the officers observed powder on Pagan's lap and throughout the car's interior. They also saw a small bag containing what appeared to be cocaine on the floor of the vehicle. Based on these observations, the gendarmes promptly arrested Pendleton and Pagan.

    Pendleton's arrest made front-page news in both the Eagle-Tribune and a competing newspaper, the Haverhill Gazette. The stories revealed that charges of cocaine possession and conspiracy to violate the drug laws had been brought against Pendleton in the state district court. The articles described Pendleton as a "school jobs counselor" and a "high school advisor" who worked in a classroom five days a week with 30 to 40 high-school seniors.

    Pendleton entered a not guilty plea. At a court hearing on July 12, 1994, he asserted that when Pagan, after entering his vehicle, produced a small plastic bag, he (Pendleton) suspected the bag contained drugs and slapped it out of Pagan's hand. In turn, this act caused the contents to spill onto Pagan's lap and scatter throughout the car. In responding to an unrelated inquiry from the court, the prosecutor admitted that, due to a mix-up, the powder seized from Pendleton's car had not been tested. The judge obviously did not like what he had heard. He declared Pendleton not guilty and dismissed the charges.

  3. Subsequent Events.

    A flurry of media reports followed the case's termination. In them, the district attorney's office accused the police of bungling the investigation and the police chief responded that delays in laboratory testing are sometimes an inevitable concomitant of the evidence-gathering process. As part of this coverage, a local reporter interviewed Pendleton and his attorney. The lawyer theorized that Pendleton had been in the wrong place at the wrong time, and that he now could "get back to doing ... positive things in the community," such as "helping kids." Bill Burke, Pendleton Tells His Side: But Did Police Drop The Ball?, Haverhill Gazette, July 14, 1994, at A1. Pendleton asserted that he was "the happiest guy in America that my innocence has been borne out." Id.

    On July 18, the arresting officers responded to a call from the Eagle-Tribune. At the newspaper's offices, Arahovites and Newman voiced indignation over the disposition of the charges, emphasizing that they had not been notified about the July 12 proceeding and expressing disappointment that the judge had refused to order Pendleton to undergo drug rehabilitation. See Bill Cantwell & Eileen Pendleton, Judge's Release Of Suspect Outrages Police, Eagle-Trib., July 18, 1994, at 1. The article quoted Arahovites as saying that the police were "not trying to crucify Pendleton," but "[t]hat guy should be in rehab right now." Id. When arrested, Arahovites said, Pendleton "had coke all over his face, from the tip of his chin to his eyebrows," unlike "[a] first-time user [who] would not have had it all over his face."

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    The same article reported Arahovites's claims that he had "never made an arrest where there was this much cocaine on a person's face," and that he had found "a big bag of cocaine at [Pendleton's] feet." Id. Finally, the journalists noted Arahovites's protest that the officers should not be held accountable for Pendleton's predicament. In Arahovites's words, "[t]hese guys [Pendleton and Pagan] were doing cocaine and they got caught. Period." Id. Thus, despite the fact that Pendleton "was fighting for a school department job" and "outside forces [were] fighting for him to become a teacher," he had only himself to blame if the negative publicity hampered his bid. Id.

    On August 18, 1994, JBSG terminated Pendleton's employment.


    On December 19, 1995, Pendleton sued the city of Haverhill, Arahovites, and Newman in the federal district court. 1 In pertinent part, his complaint invoked 42 U.S.C. § 1983 (1994) and claimed that the officers' post-acquittal statements to the press violated his constitutional rights. The complaint also alleged various state-law claims, including counts for defamation, infliction of emotional distress, invasion of privacy, negligence, negligent supervision, and malicious interference with employment relations.

    After protracted pretrial discovery, the defendants moved for summary judgment. The district court, ruling from the bench, granted brevis disposition (i) in Newman's favor on all claims, (ii) in Arahovites's and the city's favor with respect to the section 1983 claims, and (iii) exercising supplemental jurisdiction, see 28 U.S.C. § 1367(c), in the defendants' favor on all other causes of action save for the defamation claim against Arahovites.

    Trial on the surviving count commenced on October 27, 1997. At the conclusion of the evidence, the court entertained arguments as to whether Pendleton should be deemed a public figure, and if so, to what extent. Noting the nature of Pendleton's work in the public schools, his stature in the Haverhill community, the fact that charges against him were a matter of public interest, and his willingness to "engage[ ] in th[e] process of communication in the form of a newspaper interview, just as the defendant did," the court concluded that Pendleton was a limited-purpose public figure and instructed the jury accordingly. The jurors returned a take-nothing verdict. This appeal followed.

    Pendleton now assigns error to the pretrial entry of partial summary judgment, three evidentiary rulings that occurred at trial, and the public figure status determination. We address his asseverations in accordance with these groupings.


    The district court granted summary judgment on seven of the enumerated counts lodged in Pendleton's complaint. Pendleton does not challenge any of them as they pertain to Newman, but he does challenge four of the rulings as they pertain to Arahovites and Haverhill. We review these determinations de novo, taking the facts as they appeared in the summary judgment record in the light most hospitable to Pendleton. See Elliott v. S.D. Warren Co., 134 F.3d 1, 9 (1st Cir.1998).

  4. The Section 1983


    Section 1983 "provides a cause of action when an individual, acting under...

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