972 F.2d 440 (1st Cir. 1992), 91-2191, Coyne v. City of Somerville

Docket Nº:91-2191.
Citation:972 F.2d 440
Party Name:Robert P. COYNE, Plaintiff, Appellant, v. CITY OF SOMERVILLE, et al., Defendants, Appellees.
Case Date:August 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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972 F.2d 440 (1st Cir. 1992)

Robert P. COYNE, Plaintiff, Appellant,

v.

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

No. 91-2191.

United States Court of Appeals, First Circuit

August 17, 1992

Heard May 4, 1992.

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[Copyrighted Material Omitted]

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Joan A. Lukey, Boston, Mass., for plaintiff, appellant.

Richard L. Neumeier with whom Robert L. Farrell and Harry A. Pierce, Boston, Mass., were on brief, for defendants, appellees.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

This is an appeal from the district court's order dismissing plaintiff Coyne's 42 U.S.C. § 1983 action and state law claims against defendants. We affirm.

I.

We discuss only so much of the background of this case as is necessary to provide context and support for our decision. Plaintiff Coyne has been employed by the Somerville public school system since 1969. Between 1979 and 1989, he sought four job promotions and was awarded none of them. In 1979 and again in 1982 Coyne applied for the position of building master; in either 1985 or 1986 he applied for the position of head of the health and physical education department; and in 1989 Coyne applied for the position of department chairperson. Under Massachusetts law, job vacancies within the public school system must be filled by persons certified by the state as qualified. Mass.Gen.Laws Ann. ch. 71, § 38G (West 1982) ("section 38G"). Coyne possessed the required certification for each of the jobs he sought. The promotions, however, were awarded to non-certified applicants. Moreover, according to Coyne, they went exclusively to "friends, cronies, and others in favorable relationships with decision-makers" in the Somerville school system.

Coyne sued defendants (the City of Somerville, the director of personnel and assistant superintendent of schools, and past and present members of the school committee) alleging that the promotion of non-certified applicants violated his rights to due process, equal protection of the laws, and freedom of speech under the Fourteenth and First Amendments of the United States Constitution. Coyne also alleged violations of Massachusetts law. The magistrate judge recommended dismissal of the federal constitutional counts for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6), and dismissal of the state law claims for lack of jurisdiction. Coyne then moved to amend his (second amended) complaint ("the complaint"). The district court, adopting the magistrate's recommendation, dismissed the complaint and denied the motion for leave to file anew. Coyne appeals.

II.

In reviewing a dismissal under Rule 12(b)(6) we take the well-pleaded facts as

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they appear in the complaint, extending plaintiff every reasonable inference in his favor. Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). We have given Coyne's complaint the indulgent reading it deserves, but find it legally insufficient nonetheless.

Due Process

On appeal Coyne advances both procedural and substantive federal due process claims. 1 On the procedural front, he argues that section 38G (the certification statute) gave him a property interest in the promotions sought. 2 By awarding the jobs to uncertified applicants, defendants purportedly denied plaintiff his property without due process of law. We do not reach the question of whether Coyne received "due process" since he has failed to allege facts sufficient to state a property interest in the promotions. For an interest in a statutorily created benefit to become a protected property interest under the Fourteenth Amendment, a person "must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see also Hoffman v. City of Warwick, 909 F.2d 608, 619 (1st Cir.1990) (quoting Roth ); Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir.1981) (same).

Our decisions do not rule out the possibility of a regulatory scheme creating a "legitimate claim of entitlement" to a job promotion. See Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.1980) (but for discretion built into statutes governing promotion of police officers, employee "may well have enjoyed a protected right to promotion"). However, the certification provision relied upon by Coyne gives rise to no such claim. To be sure, section 38G speaks in mandatory rather than discretionary terms: "No person shall be eligible for employment by a school committee ... unless he has been granted ... a certificate with respect to the type of position for which he seeks employment...." Mass.Gen.Laws Ann. ch. 71, § 38G (West 1982). By no reasonable interpretation, however, can this general directive be said to confer a job "entitlement" upon any particular applicant. Even where one is the only certified finalist--as Coyne apparently was on three occasions--the school board...

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