Roe v. Lynch

• Decision Date: 12 May 2021
• Docket Number: No. 20-1702,20-1702
• Citation: 997 F.3d 80
• Parties: Richard ROE, Plaintiff, Appellant, v. Marianne LYNCH, District Attorney for Prosecutorial District V, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

997 F.3d 80

Richard ROE, Plaintiff, Appellant,

v.Marianne LYNCH, District Attorney for Prosecutorial District V, Defendant, Appellee.

No. 20-1702

United States Court of Appeals, First Circuit.

May 12, 2021

Michael A. Cunniff, with whom McCloskey, Mina, Cunniff & Frawley, LLC , Portland, ME, was on brief, for appellant.

Jonathan R. Bolton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General of the State of Maine, was on brief, for appellee.

Before Lynch, Lipez, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

Richard Roe was terminated from his employment with a police department ("the Department") by the Town Manager in a town in Penobscot County, Maine, in July 2019. His suit is based on his allegations that the local District Attorney, defendant Marianne Lynch, who was not his employer, sent a letter to the Department's police chief which led the Town to its decision. Roe alleges the letter from Lynch stated that in light of allegations made about Roe's misconduct and the prosecutor's constitutional obligations under the Supreme Court decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Lynch had determined that Roe lacked credibility and so her office would "be unwilling to prosecute cases in which Officer [Roe] has involvement in the future."

Roe's state court complaint against Lynch alleged that Lynch violated his Due Process rights under the U.S. and Maine Constitutions by failing to provide him with meaningful notice and opportunity to dispute those allegations before she sent her letter to the police chief. As to relief for the alleged violations, he sought issuance of mandamus and a declaratory judgment.

Lynch removed the case to federal court and Roe did not oppose or contest that removal then or at any time. Lynch moved to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). The district court dismissed on state law grounds. We affirm the dismissal, albeit on different grounds.

I.

A. Facts

In reviewing a motion to dismiss, "we accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the pleader's favor." Lee v. Conagra Brands, Inc., 958 F.3d 70, 74 (1st Cir. 2020) (quoting Lanza v. Fin. Indus. Regul. Auth., 953 F.3d 159, 162 (1st Cir. 2020) ).

Roe was a veteran police officer who had served in different departments over about seventeen years when he applied for a patrol officer position with the Department in July 2018. The Department is located within Lynch's prosecutorial district. During a polygraph examination conducted as part of the hiring process, Roe disclosed incidents reflecting adversely on him which he had not disclosed in his application. He disclosed that (1) he had used unclaimed knives stored at a police station when he had previously worked for a different police department which he alleged never resulted in any allegation of misconduct; (2) he had been investigated by law enforcement and prosecutors for an on-duty use of force, which he alleges was resolved in his favor; and (3) he had been terminated from a prior police job for allegedly misusing a municipal credit card, but alleged the termination had been rescinded as part of a civil settlement with the municipal employer and that he agreed to resign from the police department. Nonetheless, he was hired to the Department.

A new police chief ("the Chief") took over the Department in April 2019. Sometime before May 3, 2019, the Chief reviewed a report of Roe's polygraph examination which had been submitted to the former police chief. On May 3, 2019, based on the disclosures made in that polygraph examination, the Chief contacted a prosecutor in the District Attorney's Office and the prosecutor told the Chief to submit a form to the District Attorney's Office reporting those incidents.

The source of the Chief's concern was two Supreme Court cases. Under Brady, the prosecution is constitutionally required to disclose to a criminal defendant upon request "evidence that is both favorable to the accused and ‘material either to guilt or to punishment.’ " United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194 ). In Giglio, the Supreme Court recognized that the prosecution's Brady obligation includes the disclosure of information potentially useful to impeaching the credibility of a government witness where that information is favorable and material to guilt or punishment. 405 U.S. at 154-55, 92 S.Ct. 763 ; see also United States v. Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007).

On May 7, 2019, the Chief spoke with Roe about some of the disclosures Roe had made during the polygraph examination and told Roe that he would be submitting a letter of concern regarding those incidents to the District Attorney's Office. The Chief also requested that Roe complete a form providing further information as to those incidents, which would be submitted with any letter of concern. Roe did so; he also denied that the incidents reflected adversely on him.

On May 10, 2019, the Chief submitted the letter of concern, enclosing Roe's filled-out form, to the District Attorney's Office reporting the prior incidents and stating they reflected adversely on Roe's character and credibility. Roe alleges that the Chief's letter of concern mischaracterized those prior incidents and that he did not adequately investigate them or give Roe an opportunity to respond to the allegations before reporting them to the District Attorney's Office.

On May 30, 2019, Lynch sent a first letter to the Chief informing him that her office would disclose to defendants some of the prior incidents reported in the Chief's letter of concern as Giglio materials in cases where Roe would appear as a government witness. She did not determine at that time that Roe was " Giglio-impaired," i.e., that she would be unwilling to prosecute cases in which Roe was involved as an investigating officer. Roe alleges that neither Lynch nor the Chief notified him of Lynch's first letter and that Lynch did not notify him of or give him an opportunity to respond to the Chief's allegations in the letter of concern before she sent the first letter. He alleges that if he had been given such an opportunity, he could have shown the allegations were false or unsubstantiated. There are no allegations that the Town took any action based on this first letter with respect to Roe's employment.

On June 27, 2019, the Chief sent a second letter of concern to the District Attorney's Office regarding new alleged misconduct by Roe. That second letter set forth a further statement that Roe had lied to the Chief and an allegation that he lied on a probable cause affidavit submitted to a court as to whether he had attempted to photograph a domestic violence victim's injuries when he first responded to the scene of the assault. The victim stated that Roe had not attempted to photograph her injuries the first time he responded. Roe alleges that the Chief did not adequately investigate the allegation or give him an opportunity to respond to the second letter of concern before it was sent to the District Attorney's Office.

On July 23, 2019, Lynch sent a letter to the Chief informing him that based on his second letter of concern, she had determined "that her office could ‘be unwilling to prosecute cases in which Officer [Roe] has involvement in the future.’ " Roe alleges that Lynch made this Giglio-impairment determination without first giving him notice of or an opportunity to respond to the allegations made in the Chief's second letter of concern.

On July 30, 2019, the Town Manager terminated Roe's employment as an officer with the Department. Roe alleges that the decision to terminate his employment was made "because the District Attorney's Office would not prosecute cases in which he was involved and that he was therefore ‘not able to discharge this essential function of [his] job.’ " The Town Manager gave Roe a copy of Lynch's Giglio-impairment decision letter at the meeting in which his employment was terminated, and Roe later obtained a copy of Lynch's first Giglio-related determination letter. After he was terminated, Roe wrote to Lynch several times requesting that she rescind her Giglio-impairment decision and provide him an opportunity to respond to the allegations in the Chief's second letter of concern, but she did not respond to his requests. Roe does not allege that Lynch requested, encouraged, or directly participated in the termination by the Town of Roe's employment with the Department.

B. Procedural History

On January 24, 2020, Roe filed a complaint against Lynch in Maine state court alleging due process violations under the U.S. and Maine Constitutions. His complaint did not name the Town, the Department, the Town Manager, or the Chief as defendants. Roe alleged two counts for mandamus relief under Maine state law, seeking to compel Lynch (1) to rescind the two Giglio-related determinations which allegedly failed to comply with due process and (2) to provide Roe meaningful notice and a meaningful opportunity to respond to allegations before any further Giglio-related determinations are made. See Me. Stat. tit. 14, § 5301. He made a similar request for declaratory relief under the Maine Declaratory Judgments Act. See Me. Stat. tit. 14, §§ 5951-5963.

Based on the assertion in Roe's complaint of a federal due process claim, Lynch removed to federal court. Roe did not oppose the motion. Lynch then filed a single motion arguing the complaint must be dismissed for failure to state a claim and for lack of subject matter jurisdiction, citing to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion focused on Roe's failure to state any due process claim; it also argued that Roe's claims for mandamus relief were untimely under state law. Lynch...