Gilbert v. City of Chicopee

• Decision Date: 08 February 2019
• Docket Number: No. 17-2206,17-2206
• Citation: 915 F.3d 74
• Parties: Mark GILBERT, Plaintiff, Appellant, v. CITY OF CHICOPEE; William Jebb; John Pronovost; Richard J. Kos, Defendants, Appellees, John Doe; Jane Doe, Defendants.
• Court: U.S. Court of Appeals — First Circuit

915 F.3d 74

Mark GILBERT, Plaintiff, Appellant,

v.CITY OF CHICOPEE; William Jebb; John Pronovost; Richard J. Kos, Defendants, Appellees,John Doe; Jane Doe, Defendants.

No. 17-2206

United States Court of Appeals, First Circuit.

February 8, 2019

Shawn P. Allyn, with whom Allyn & Ball, P.C. was on brief, for appellant Mark Gilbert.

John J. McCarthy, with whom Doherty, Wallace, Pillsbury and Murphy, P.C. was on brief, for appellee William Jebb.

John T. Liebel, with whom Law Office of John T. Liebel was on brief, for appellee John Pronovost.

Nancy Frankel Pelletier, with whom David S. Lawless and Robinson Donovan, P.C. were on brief, for appellees City of Chicopee and Richard J. Kos.

Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

PREFACE

After a near decade-long saga within the fragmented City of Chicopee Police Department, Plaintiff-Appellant Mark Gilbert, a Captain in the police department, sued a host of Defendants-Appellees, including the City of Chicopee, Police Chief William Jebb, Mayor Richard J. Kos, and fellow police officer John Pronovost, seeking redress under 42 U.S.C. § 1983 and various state laws.¹ From what we can glean, Gilbert claims his First Amendment rights were violated after appellees improperly targeted him for "speaking out and participating in a government investigation." In this appeal (which causes us to seriously ponder "who's policing the police?"), Gilbert seeks reversal of the district court's dismissal of his claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Finding no reason to reverse, we close the curtain on this workplace drama.

GETTING OUR FACTUAL BEARINGS

In sharing this tale, we construe the facts of the complaint in the light most favorable to Gilbert.

Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011) (citing Fed. R. Civ. P. 12(b)(6) ). While doing so, we observe, as did the district court, that Gilbert's one-hundred-eighty-one paragraph complaint is particularly difficult to follow.² Because the district court already parsed as best it could the facts drawn from Gilbert's complaint and gave the narrative some coherence, we provide and adopt the district court's recitation of facts contained in its November 14, 2017 Memorandum and Order Regarding Defendants' Motions to Dismiss (and we thank the district court for its herculean effort).

Over at least the past decade, [Gilbert] has been a police officer for the City of Chicopee. Defendants Jebb and Pronovost were fellow officers during this time. In 2007, Defendant Pronovost fell into a depression after his wife died, and he began behaving strangely at work.^[*] At some point, [Gilbert] complained about this behavior to [ ] Jebb, who was at the time Captain of his shift. Nothing was done in response to [Gilbert]'s complaint. Thereafter, on an unspecified date in December, [Gilbert] and Pronovost got into an argument about Pronovost's behavior. During the interchange, Pronovost allegedly pulled out his gun and pointed it at [Gilbert]. [Gilbert] verbally reported the incident to his commanding officer Thomas Charette.²

²[Gilbert] alleges that Jebb was in the room with [him] and Pronovost during this incident. However, [ ] Jebb disputes [Gilbert]'s version, stating that the event in question "never happened."

Again, nothing was done.

In 2012, [Gilbert] was promoted to the rank of Captain, and Charette was appointed Acting Police Chief. Defendant Jebb, also a candidate for Acting Police Chief, allegedly resented Charette and other police officers, including [Gilbert], who he believed had supported Charette's appointment.

That same year, certain Chicopee Police Officers responding to a murder scene took pictures of the victim's body and shared them with one another and with civilians outside the police department in violation of department regulations. At the time, Defendant Jebb was the Internal Affairs Investigative Officer tasked with investigating this incident. Jebb concluded that only one officer was responsible for the improper conduct, and he failed to recommend, in [Gilbert]'s view, a sufficiently stringent sanction.

At some point in the 2012-2013 time frame, the investigation into the murder scene misconduct by Chicopee Police Officers resumed. This time the inquiry included an incident where photographs of the murder victim's corpse were allegedly displayed to civilians outside the police department at a football game.

In May 2013, Jebb was relieved of his duties with Internal Affairs, and he himself became a target of an investigation into his conduct as the Internal Affairs Investigative Officer. This second investigation focused, in part, on allegations that Jebb failed to look into sexual harassment charges against several officers. It also looked into whether Jebb had properly investigated the officers who had distributed the gruesome photographs from the murder scene.

Jebb had made an unsuccessful bid for the office of President of the Police Union in 2013, and the complaint refers to an allegation that he improperly numbered the ballots in that election in order to be able to identify which officers supported him and which supported his opponent, Sgt. Dan Major. Finally, [ ] Jebb was also accused of hiding evidence to thwart an internal investigation into allegations that Sgt. Major had choked a prisoner.³

³"[Gilbert]'s complaint implies that these charges formed part of the investigation(s) then pending against Jebb and not merely allegations on [Gilbert]'s part offered in this litigation. (Dkt. No. 72 at 3-4). Although the complaint is ambiguous on this point,[ ] Jebb and Kos's Memoranda in support of their Motions to Dismiss clarify the context to some extent. Jebb's Memorandum notes that [Gilbert] made "written statements and testimony ... to a government investigator relating to Jebb's alleged mishandling of ballots." (Dkt. No. 28 at 1). Kos's Memorandum observes that [Gilbert], "as a police captain and internal affairs investigator had investigated Chief Jebb's removal of evidence from the booking room."

[Gilbert] had been the investigating officer for the Major investigation, and he had recommended no discipline be taken against Sgt. Major.... [Gilbert] characterizes his participation in the ongoing investigations to include "provid[ing] information and participat[ing] in activity which focused on Police Chief William Jebb's conduct and practices of implementing less than proper discipline towards his friends and retaliating against those he was not friends with; and those who did not vote for him to be the Union President." (Dkt. No. 67-2 at 1).

In July 2013, then-Acting Police Chief Charette asked [Gilbert] to draft and file a written incident report about the episode six years earlier when [ ] Pronovost had threatened [Gilbert] with his gun. [Gilbert] did so. The report was technically late, in violation of Department policy, but Charette did not discipline [Gilbert], as [Gilbert] had verbally reported the incident to Charette and another of his immediate supervisors at the time it occurred.

According to [Gilbert], [ ] Jebb was unhappy with [Gilbert]'s participation in the ongoing investigation of the gun incident and possibly other incidents. On October 15, 2013, [Gilbert] received a phone call from [ ] Jebb in which the latter told him, "You have no idea about internal affairs, but you are going to learn. I am definitely without a doubt going to win my appeal [regarding his having been passed over for Acting Chief] and when I do, your [sic] fucked." (Dkt. No. 67-3 at 1).

In 2014, [ ] Mayor Kos appointed [ ] Jebb as Police Chief. [Gilbert] alleges that thereafter Jebb "began changing [Gilbert's] terms and conditions of employment and engaged in a concerted effort to have criminal charges initiated against [him]." (Dkt. No. 72 at 9). [Gilbert] claims [ ] Jebb ordered him off all of his overtime details, citing as a reason [Gilbert]'s filing of a false police report in regard to the 2007 gun incident. [He] claims that [ ] Jebb repeatedly "initiat[ed] pretextual discipline" against him, but he does not provide details or state when this occurred. In any event, the [amended] complaint specifies no disciplinary sanctions resulting from these proceedings.

Around this time, according to the complaint, [ ] Jebb met with [ ] Kos and Pronovost as part of a conspiracy to bring retaliatory criminal charges against [Gilbert] and Charette. Charges were eventually brought against [Gilbert] in Holyoke District Court, perhaps for filing a False Police Report. It is difficult to tell from the amended complaint, which does not provide a date these charges were brought, what exactly those charges were, or how the criminal case resolved. Count 4 in the amended complaint states that [Gilbert] was charged with Filing a False Police, which presumably is the criminal case [Gilbert] is referring to. Additionally, Gilbert states that the "process terminated in [his] favor," (Dkt. No. 72 at 17), though it is not clear if that means he was acquitted of the charge after a trial or the charge was dropped.

Gilbert, 2017 WL 8730474 at *1-3.

WHAT HAPPENED IN THE DISTRICT COURT

Gilbert filed his federal complaint on February 4, 2016, to which the defendants responded with Rule 12(b)(6) motions to dismiss. Gilbert then sought leave to amend the complaint, which the district court allowed on March 7, 2017 (but struck the proposed amended complaint due to its "extreme sloppiness"). Three days later, Gilbert filed the operative amended complaint (which we refer to herein as "the complaint") in which he asserted eight counts:

• Count 1: a claim under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12, § 11H against all defendants individually for retaliating against him for exercising his First Amendment rights to speak on a matter of public concern and for due process rights violations;³

• Count 2: a claim under 42 U.S.C. § 1983 against the City for maintaining policies and customs that resulted in

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