Gagliardi v. Sullivan, 06-2680.

• Decision Date: 18 January 2008
• Docket Number: No. 06-2680.,06-2680.
• Citation: 513 F.3d 301
• Parties: Michael GAGLIARDI, Plaintiff, Appellant, v. Michael J. SULLIVAN and the City of Lawrence, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

513 F.3d 301

Michael GAGLIARDI, Plaintiff, Appellant, v. Michael J. SULLIVAN and the City of Lawrence, Defendants, Appellees.

No. 06-2680.

United States Court of Appeals, First Circuit.

Submitted October 1, 2007.

Decided January 18, 2008.

Walter H. Underhill, on brief for appellant.

Before TORRUEL LA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

Michael Gagliardi lost his position on the Merrimack Valley Workforce Investment Board ("Board") in Lawrence, Massachusetts, when the Board was dissolved for failure to achieve the required state certification. He brought suit under 42 U.S.C. § 1983,¹ claiming that Michael Sullivan, Lawrence's mayor ("Mayor Sullivan"), along with the. City of Lawrence itself ("City") and three state officials, were responsible for the Board's dissolution and his consequent dismissal, and that such conduct amounted to a violation of his First and Fourteenth Amendment rights. The three state officials moved to dismiss Gagliardi's claim for failure to state a claim on which relief could be granted, see Fed. R.Civ.P. 12(b)(6), and the district court granted the motion with respect to all five defendants. Gagliardi appeals this dismissal, but only with respect to Mayor Sullivan and the City. After careful consideration, we affirm.

I. Background

A. Facts

Since the district court dismissed Gagliardi's complaint pursuant to Rule 12(b)(6), we assume the truth of the well-pleaded facts therein. Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 5 (1st Cir. 2007); see also Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007), We draw our recounting of the relevant facts from the complaint and the documents annexed to it or fairly incorporated within it. See Wetmore v. MacDonald, Page, Schatz, Fletcher & Co., LLC, 476 F.3d 1, 2 (1st Cir.2007).

The Board was a nonprofit corporation established pursuant to the Workforce Investment Act §§ 101-195, 29 U.S.C. §§ 2801-2945 (2007). Its duties included determining how to allocate federal, state, and local funds to occupational training in Lawrence and surrounding communities, establishing workforce development policy, and assisting in overseeing two "one-stop career centers" in the Lawrence area. During the relevant period, Mayor Sullivan served as the Board's Chief Elected Official. Among Mayor Sullivan's duties as Chief Elected Official was to appoint members to the Board. See id. § 2832(c)(1)(A).

The Workforce Investment Act requires that local boards be certified by the governor of the state every two years, based on certain specified criteria. See id. § 2832(c)(2). During the relevant period, then-Governor Mitt Romney ("Governor Romney") delegated responsibility for certifying workforce investment boards, along with receiving and evaluating certification-related documents, to the Massachusetts Division of Career Services ("DCS"), headed by Susan V. Lawler ("Commissioner Lawler"). DCS was a subunit of the Massachusetts Department of Workforce Development ("DWD"), headed by Ranch Kimball ("Secretary Kimball").² DCS conditionally certified Gagliardi's Board sometime in 2004 pending the fulfillment of certain criteria.

At a certain point, the Board became concerned with the way Mayor Sullivan was using grant money subject to the Board's jurisdiction. It set up a task force, which in the summer of 2005³ uncovered a covert fund of some $1.1 million which Mayor Sullivan was using for his own purposes. The Board produced a report exposing the existence of the fund and criticizing Mayor Sullivan's use of Board funds in general.

In the meantime, the Board was having problems obtaining its biennial certification from DCS. It had submitted a certification package sometime in 2004, but DCS stated that it would not certify the Board until Mayor Sullivan had completed certain tasks,⁴ which he failed to do throughout 2005. DCS cited this failure as a reason for its inability to grant full certification to the Board.

In September 2005, the City acknowledged that the Board had compiled all the certification documents "within its purview," but that "there [were] a few items that remain[ed] which [were] dependent on City of Lawrence Decisions." Soon thereafter, Gagliardi and the Board's chair disclosed Mayor Sullivan's inaction to a local newspaper, which published an article on the matter on September 13, 2005. According to Gagliardi's complaint, this publicity infuriated Mayor Sullivan's brother, Kevin Sullivan, who purportedly threatened to use his "influence with the state" to cause the Board to be decertified.

On October 21, 2005, Commissioner Lawler informed the Board that, due to its continued conditionally certified status, it was no longer authorized to undertake workforce development business, and would be confined to whatever business was necessary to rectify outstanding certification issues. Mayor Sullivan put attorney William DiAdamo in charge of compiling and presenting a final certification package to DCS. Apparently as part of this package, DiAdamo drafted a new set of Board bylaws which, inter alia, would give Mayor Sullivan the power to dismiss board members at will. The Board chair refused to go along with the termination provision, claiming it was inconsistent with the Workforce Investment Act. Gagliardi claims that, in response to this refusal, DiAdamo's father "said he had powerful allies in ... Ranch Kimball's office, who would decertify the [Board] on a moment's notice."

According to the complaint, at some point in November 2005, Mayor Sullivan met "at a secret location with four DCS and/or DWD officials." At the end of the meeting, "the Mayor announced that he had disbanded the Board." Mayor Sullivan and DCS took the position that the Board had to be dissolved because of its failure to submit a complete certification package, and Mayor Sullivan expressed the view that conflicts among the Board's members had prevented it from functioning effectively.

B. Procedure in the District Court

On March 28, 2006, Gagliardi filed suit in the district court under 42 U.S.C. § 1983, claiming that Mayor Sullivan, the City, Commissioner Lawler, Secretary Kimball, and Governor Romney had infringed his constitutional rights to free speech and procedural due process. He averred, inter alia, that "[t]he Board, members were fired for performing an oversight function required by federal law," and that Mayor Sullivan and DCS conspired to destroy the Board by interfering with the certification process. Gagliardi sought, inter alia, a declaration that the termination of the Board was unlawful, an injunction reinstating the Board and requiring Mayor Sullivan to assist it in achieving certification, and compensatory and punitive damages.

Governor Romney, Secretary Kimball, and Commissioner Lawler moved jointly under Rule 12(b)(6) to dismiss Gagliardi's complaint for failure to state a claim on which relief could be granted. Neither Mayor Sullivan nor the City joined the motion. At the hearing on the motion, counsel for Governor Romney, Secretary Kimball, and Commissioner Lawler presented arguments, as did counsel for Gagliardi; counsel for Mayor Sullivan and the City was in attendance, but made no submissions and acknowledged that he was "not obviously participating substantively in the discussions . . . ." The district court dismissed all of Gagliardi's federal claims—not only against Governor Romney, Secretary Kimball, and Commissioner Lawler, but also against Mayor Sullivan and the City—and remanded the state claims to Massachusetts court.⁵

C. Procedure on Appeal

DJ Gagliardi appealed the dismissal of his complaint, only with respect to Mayor Sullivan, the City, and Commissioner Lawler. Commissioner Lawler filed a response brief; Mayor Sullivan and the City did not, and did not appear for oral argument. Before oral argument, Commissioner Lawler and Gagliardi moved pursuant to Federal Rule of Appellate Procedure 42(b) to dismiss the appeal with respect to her. We granted the motion.⁶

II. Discussion

A. Standard of Review

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the factual allegations in a complaint must "possess enough heft" to set forth "a plausible entitlement to relief." Bell AU. Corp. v. Twombly, ___ U.S. ___, 27 S.Ct. 1955, 1966-67, 167 L.Ed.2d 929 (2007). Dismissal for failure to state a claim is appropriate if the complaint fails to set forth "`factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005) (quoting Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997)).

We review a district court's order granting a motion to dismiss de novo. Id. at 5. Although we take the well-pleaded facts in the light most favorable to the plaintiff and indulge him all reasonable inferences, Berner, 129 F.3d at 23, we need not credit "bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation," or "subjective characterizations, optimistic predictions, or problematic suppositions." Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir.1993) (citation and internal quotation marks omitted); accord Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir.1989), overruled on other grounds by Educadores Puertorrigueños en Acción v. Hernandez, 367 F.3d 61 (1st Cir.2004). We may augment the facts in the complaint by reference to "(i) documents annexed to [the complaint] or fairly incorporated into it, and (ii) matters susceptible to judicial notice." Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir.2006).⁷

B. 42 U.S.C. § 1983

Section 1983 is a vehicle through which individuals may sue certain persons for depriving them of federally assured rights, such as the First Amendment's right to free speech or the Fourteenth...