Alston v. Spiegel, 021921 FED1, 20-1434

Docket Nº:20-1434
Party Name:GERALD ALSTON, Plaintiff, Appellant, v. STANLEY SPIEGEL, Defendant, Appellee.
Attorney:Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant. Naomi R. Shatz, with whom Martin R. Rosenthal, David Duncan, and Zalkind Duncan & Bernstein LLP were on brief, for appellee.
Judge Panel:Before Lynch and Selya, Circuit Judges, and Laplante, District Judge.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

GERALD ALSTON, Plaintiff, Appellant,


STANLEY SPIEGEL, Defendant, Appellee.

No. 20-1434

United States Court of Appeals, First Circuit

February 19, 2021

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] [Hon. M. Page Kelley, U.S. Magistrate Judge]

Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant.

Naomi R. Shatz, with whom Martin R. Rosenthal, David Duncan, and Zalkind Duncan & Bernstein LLP were on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and Laplante, [*] District Judge.


Plaintiff-appellant Gerald Alston filed this civil rights action alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985. The operative pleading - his second amended complaint (the SAC) - named as defendants the Town of Brookline, Massachusetts (the Town), the Brookline Board of Selectmen (the Board), certain members of the Board, the Town's counsel and human resources director, Local 950, International Association of Firefighters (the Union), and Stanley Spiegel (a Town Meeting member). Alston, a former Town firefighter who is black, alleges that the defendants discriminated against him on the basis of race; retaliated against him for exercising his First Amendment rights; and conspired to enforce the Town's policy of opposing racial equality, favoring white residents and employees, and retaliating against those who oppose the Town's views.

After Alston had filed his second amended complaint, the district court dismissed with prejudice his claims against Spiegel. See Alston v. Town of Brookline, No. 15-13987, 2017 WL 3387132, at *4-6 (D. Mass. Aug. 7, 2017). In serial orders, the district court later granted summary judgment in favor of the remaining defendants. See Alston v. Town of Brookline, No. 15-13987, 2020 WL 1649915 (D. Mass. Apr. 2, 2020) (addressing motions by the Town, the Board, and the remaining individual defendants); Alston v. Town of Brookline, No. 15-13987, 2020 WL 1615408 (D. Mass. Apr. 2, 2020) (addressing the Union's motion).

Alston appealed from all of these adverse orders. For ease in exposition, we have carved his appeal into discrete segments. In this opinion, we address Alston's appeal only insofar as it relates to the district court's dismissal of his claims against Spiegel.1 We conclude that the allegations against Spiegel fail to state a claim upon which relief can be granted and, therefore, affirm the order of dismissal. We retain appellate jurisdiction over all other aspects of his appeal.


We briefly rehearse the relevant allegations of the SAC, accepting as true the well-pleaded facts. See Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). We then limn the travel of the case.

Alston is a black firefighter who began working for the Brookline Fire Department (the Department) in 2002. On May 30, 2010, Paul Pender, a lieutenant in the Department, left a voicemail on Alston's telephone in which he used a racial slur when referring to Alston. Alston reported the lieutenant's comment to the Department's chief operating officer, but the Department took no corrective action. The Department did, however, communicate to Pender that Alston had reported the incident. Pender responded by telling Alston that reporting him "was the stupidest thing [Alston] could have ever done."

Alston alleges that the Board, the entity responsible for hiring, firing, and disciplining the Town's firefighters, failed to take appropriate action. Instead of disciplining Pender for his racist comment, the Board protected and rewarded the lieutenant. Alston asserts that, since the 2010 incident, the Town and other defendants, as well as the Department, have punished him in various ways, including the stonewalling of his complaints, insufficiently investigating those complaints, covering up the truth, encouraging the ostracization of Alston by other firefighters, denying him promotions, and constantly harassing him. These punitive actions allegedly continued even after Alston filed suit in state court and complained to the Massachusetts Commission Against Discrimination.

In the fall of 2013, the Boston Globe reported on Alston's state-court suit. At that point, Alston says, the Town increased its efforts to discredit his claims and force him out of the Department on a pretextual basis.

Against this backdrop, we introduce the appellee. Spiegel is an elected Town Meeting member and an appointed member of the Advisory Committee.2 Alston alleges that Spiegel has frequent contact with the Board and that (until Alston sued him) he acted as an "unofficial surrogate" for the Board.

According to the SAC, Spiegel distributed a "letter to the editor," by email, to members of the Town Meeting on September 19, 2013. The letter, authored by a retired black fire lieutenant, had been passed out at a public meeting the day before by Selectwoman Nancy Daly. It attacked Alston's credibility and cast him in a negative light. In the same email, though, Spiegel directed Town Meeting members to a quote from Selectwoman Daly taken from that day's local newspaper in which she cautioned against a rush to judgment before the remainder of the facts relevant to Alston's complaint could be made public. Spiegel echoed Daly's sentiments about reserving judgment and noted only that the letter provided some "additional insight."

Alston further alleges that, in early 2014, the Town arranged for a psychiatrist to deem Alston "unfit for duty" and placed him on unpaid leave with the intent to terminate his employment. In December of that year, Alston's case received wider publicity in the media. Thereafter, Alston says, the Town retaliated against him by giving Spiegel access to Alston's personnel file. Spiegel is alleged to have told several people gathered in the Board's public meeting room that he had such access as a result of his position as a Town Meeting member. He is also alleged to have told a woman who was wearing an "I support Gerald Alston" sticker that she would not support Alston if she knew the real story contained in his personnel file. In this conversation, Spiegel allegedly represented to the Alston supporter that he was speaking on behalf of the Town.

Additionally, Spiegel claimed (falsely, according to the SAC) that two black firefighters had told him that they did not support Alston. When questioned about his statements, Spiegel allegedly grew extremely agitated and put his face close to the supporter's face and raised his voice. The conversation ended when Spiegel shouted, "I'm disgusted," and left the room.

On February 13, 2015, Alston was placed on paid administrative leave. He asserts that despite the Selectmen's publicly conciliatory stance toward him, "they tacitly encouraged their unofficial surrogates, including advisory committee member and town meeting member, Stanley Spiegel to smear Mr. Alston and undermine public support for him." Just over a year later - on February 16, 2016 - the Board terminated Alston's paid administrative leave. Alston was formally dismissed from his firefighter position by unanimous vote of the Board on October 5, 2016.

Alston filed suit in the federal district court roughly ten months before his formal discharge. Two months later, he filed an amended complaint, adding seven other plaintiffs. Various defendants filed motions to dismiss, which the district court referred to a magistrate judge. See Fed.R.Civ.P. 73(a). As relevant here, the magistrate judge recommended dismissing Alston's claims against Spiegel with prejudice for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). Alston objected to this recommendation. The district court overruled his objection, except that the court dismissed Alston's claims against Spiegel without prejudice, thus allowing Alston to attempt to re-plead those claims. Alston proceeded to file the SAC in an effort, inter alia, to rejuvenate his claims against Spiegel. Once again, Spiegel moved to dismiss, and the district court referred his motion to the magistrate judge. The magistrate judge found that the factual allegations as to Spiegel were essentially the same as in the previously dismissed complaint, except for a few "minimal" changes, and again recommended dismissal with prejudice for failure to state a claim. Alston, 2017 WL 3387132, at *5. Alston objected to this recommendation but, in April of 2017, the district court adopted the recommendation and dismissed Alston's claims against Spiegel with prejudice. A hiatus ensued, during which the district court disposed of Alston's remaining claims against the other defendants. This timely appeal followed.


We afford de novo review to a district court's order granting a motion to dismiss for failure to state a claim. See Santiago, 655 F.3d at 72. The district court's rationale is not binding upon us, and we may affirm an order of dismissal on any ground made manifest by the record. See id. (citing Román-Cancel v. United States, 613 F.3d 37, 41 (1st Cir. 2010)).

When reviewing the grant of such a motion, "we accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the pleader's favor." Id. Even so, we need not credit a plaintiff's "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At bottom, a complaint will survive a motion to dismiss when it alleges "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible when the factual content adumbrated in the complaint permits a reasonable inference that...

To continue reading