United States Court of Appeals
For the First Circuit
No. 23-1687
DR. STEPHEN T. SKOLY, JR.,
Plaintiff, Appellant,
v.
DANIEL J. MCKEE, in his official and individual capacities as
the Governor of the State of Rhode Island; DR. JAMES MCDONALD,
in his official and individual capacities as the former Interim
Director of the Rhode Island Department of Health; DR. UTPALA
BANDY, in her official and individual capacities as the current
Interim Director of the Rhode Island Department of Health; THE
STATE OF RHODE ISLAND; MATTHEW D. WELDON, in his official and
individual capacities as the Director of the Rhode Island
Department of Labor & Training; DR. NICOLE ALEXANDER-SCOTT, in
her official and individual capacities as the former Director of
the Rhode Island Department of Health; RHODE ISLAND DEPARTMENT
OF HEALTH; RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Gregory P. Piccirilli, with whom Christy B. Durant, Durant
Law, and Law Office of Gregory P. Piccirilli were on brief, for
appellant.
James J. Arguin, Special Assistant Attorney General, Rhode
Island Office of the Attorney General, for appellees.
May 31, 2024
LYNCH, Circuit Judge. Appellant Dr. Stephen T. Skoly,
Jr., an oral and maxillofacial surgeon licensed to practice
dentistry in Rhode Island, stated to a journalist from The
Providence Journal that he would not comply with a COVID-19
Emergency Regulation issued by the Rhode Island Department of
Health ("RI DOH") on August 17, 2021, and which came in effect on
October 1, 2021. Following Skoly's statement of noncompliance,
the RI DOH on October 1 issued a Notice of Violation and Compliance
Order against him, which the RI DOH dismissed on March 11, 2022,
because the Emergency Regulation was no longer in effect.
Skoly brought suit in federal court against the state
and its officials, asserting equal protection, due process, and
First Amendment violations on a variety of theories. On
defendants' motion, the district court dismissed his complaint
under Federal Rule of Civil Procedure 12(b)(6).
Conceding that his claims for declaratory and injunctive
relief are moot, Skoly appeals, asserting that the dismissal was
in error and his damages claims against the state officials in
their individual capacities survive. We affirm the complaint's
dismissal under Rule 12(b)(6).
I.
On August 17, 2021, the RI DOH issued Emergency
Regulation 216-RICR-20-15-8 ("First Emergency Regulation"), which
stated that all "health care workers and health care providers
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must be vaccinated [against COVID-19], subject to . . . medical
exemption[s] set forth in [the regulation]." 216-RICR-20-15-
8.3(A)(3). The First Emergency Regulation became effective on
October 1, 2021, and remained in effect until March 11, 2022,
applying to all health care workers and health care providers that
provided in-person care, unless they met the requirements for
medical exemptions established "in accordance with Advisory
Committee on Immunization Practices . . . guidelines" of the
federal Centers for Disease Control and Prevention ("CDC"). 216-
RICR-20-15-8.3(D)(1).
Skoly, a health care provider, decided not to comply
with the First Emergency Regulation and spoke about his decision
to a journalist, who "reported the conversation in The Providence
Journal" on September 30, 2021.
On October 1, 2021, the RI DOH, through its then-Director
Nicole Alexander-Scott, issued a Notice of Violation and
Compliance Order ("Notice") against Skoly. The Notice stated that
"[o]n October 1, 2021, the Providence Journal reported that [Skoly]
stated that (a) he was not vaccinated, (b) did not meet the medical
exemption incorporated in the regulation, and that he intended to
directly engage in patient care or activity in which he or others
would potentially be exposed to infectious agents that can be
transmitted from person to person." The Notice stated that Skoly
was "ordered to cease professional conduct as a health care
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provider . . . unless and until he . . . complied with the [First
Emergency Regulation]." The Notice did not impose penalties or
specify a deadline within which Skoly had to come into compliance.
The Notice stated further that Skoly could file "a written request
for a hearing . . . within 10 days after service of th[e] notice,"
pursuant to 23 R.I. Gen. Laws §§ 23-1-20 and 23-1-22, and that if
he did not request a hearing, the Notice would "become a compliance
order by operation of law" and Skoly could be subject to
"additional sanctions and penalties authorized by law" if he failed
to comply with the Notice.
Skoly promptly requested a hearing and filed a motion
that he be allowed to continue practicing dentistry without
complying with the First Emergency Regulation during the pendency
of his administrative appeal from the Notice. He argued that he
should be treated as equivalent to medically exempt health care
workers. Skoly asserts that his decision not to be vaccinated was
due to his history of Bell's palsy and his prior recovery from a
COVID-19 infection. He has never asserted that his opposition to
being vaccinated was based on religious grounds or complained about
the exemptions on religious grounds.
On November 8, 2021, a DOH hearing officer held a hearing
on his motion at which Skoly was represented by counsel. On
November 10, the hearing officer, in a seventeen-page decision
denying the motion, noted that Skoly had "exercised his right to
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appeal the Compliance Order" and held that "there [we]re no grounds
to find that he c[ould] continue to practice in violation of the
Regulation pending a full hearing on the [Notice]." The hearing
officer observed that Skoly had conceded that he was not vaccinated
against COVID-19 and that he was in violation of the First
Emergency Regulation. And, the hearing officer found, the Notice
itself imposed no sanctions. Rather, it "ordered [Skoly] to cease
acting as a health care provider as defined in the [First
Emergency] Regulation until he complied with the [First Emergency]
Regulation." Rejecting Skoly's argument that he should be allowed
to continue practicing pending the resolution of his
administrative appeal of the Notice, the hearing officer found
that Skoly was undisputedly "an unvaccinated health care provider"
who was in "violation of the [First Emergency] Regulation," such
that the RI DOH could validly issue a Notice ordering him to "cease
professional conduct as a health care provider . . . until he
complied with the Regulation." The hearing officer noted, further,
that the RI DOH had not sought "a sanction on [Skoly's] [l]icense"
and that Skoly could continue to engage in "activities as a
licensed dentist" that do "not directly involve[] . . . patient
care."1
1 Contrary to Skoly's new (and so waived) argument on
appeal, the state did not need to afford him a hearing prior to
issuing the Notice. Given Skoly's admitted noncompliance with the
Regulation, "it is difficult to imagine what value there would
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Despite the denial of his motion, Skoly continued to
refuse to be vaccinated. Instead, "[h]e closed his private
practice" and "terminated the employment of his . . . staff." The
Notice as to Skoly was posted on the RI DOH website.
On March 11, 2022, the RI DOH issued Emergency Regulation
216-RICR-20-15-9 ("Second Emergency Regulation"), which became
effective on that date and replaced the First Emergency Regulation.
The new regulation applied to "[h]ealth care worker[s]" but not to
"health care provider[s]" who, like Skoly, worked in a private
practice and did not have "privileges at . . . [a] health care
facility." The regulation also allowed health care workers to
"[w]ear a medical grade N95 mask" as an alternative to being
vaccinated against COVID-19. 216-RICR-20-15-9.3(D)(2). Under the
Second Emergency Regulation, Skoly was no longer required to be
vaccinated against COVID-19. On that same day, March 11, the RI
DOH withdrew the Notice and dismissed the administrative
proceedings against him. About six months later, the Notice was
removed from the RI DOH website.
have been in a pre-deprivation hearing," because Skoly never
"challenge[d] the [RI DOH's] key finding that precipitated its
action": his intention to violate the Regulation by practicing
dentistry in person while remaining unvaccinated against COVID-
19. See González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir.
2011). We also reject as waived Skoly's argument that the RI DOH
violated his due process rights by not referring his matter to the
State's Board of Examiners in Dentistry.
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On May 25, 2022, the RI DOH issued Regulation 216-RICR-
20-15-7 pertaining to COVID-19 ("Permanent Regulation"), which
became effective on June 15, 2022 and replaced the Second Emergency
Regulation. The Permanent Regulation reaffirmed that health care
workers could "[w]ear an N95 mask," 216-RICR-20-15-7.6.1(B)(2), as
an alternative to "[b]e[ing] up to date with all CDC recommended
doses of FDA approved or authorized COVID-19 vaccine[s]," 216-
RICR-20-15-7.6.1(B)(1). The Permanent Regulation also provided
that
[i]n accordance with the Center for Medicaid
and Medicare Services (CMS) 86 FR 61555, all
Medicare and Medicaid certified providers,
suppliers, and healthcare workers [were]
required to receive the primary series (e.g.,
two (2) doses of Pfizer or Moderna, or one (1)
dose of Johnson & Johnson) of a COVID-19
vaccine.
216-RICR-20-15-7.6.1(B)(2). Skoly alleges that a portion of his
practice was at two CMS facilities, the Eleanor Slater Hospital
and the Adult Correctional Institute, and that as a result of the
Permanent Regulation, he could no longer practice there while
remaining unvaccinated against COVID-19.
II.
On September 29, 2022, Skoly filed a Third Amended
Complaint, the operative complaint here,2 under 42 U.S.C. § 1983,
naming as the defendants pertinent to this appeal the RI DOH, the
2 Skoly filed his original complaint on February 4, 2022.
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State of Rhode Island, and various state officials in their
official and individual capacities: the Governor of Rhode Island
Daniel J. McKee, former Director of the RI DOH Nicole Alexander-
Scott, then-Interim Director of the RI DOH Utpala Bandy, and former
Interim Director James McDonald. The only remaining claims in
this appeal are those for money damages against the state officials
sued in their individual capacities.3
Skoly's complaint alleges that the defendants violated
his rights under the U.S. Constitution and 42 U.S.C. § 1983 by
enforcing the vaccine requirement against him. Count I alleges
that Governor McKee and Directors Alexander-Scott, McDonald, and
Bandy violated his rights under the Equal Protection Clause by
"preventing him from practicing medicine, while allowing other
healthcare workers who presented no lesser risk to the public to
treat patients," and that those defendants "had no rational basis
on which to treat the masked, unvaccinated Dr. Skoly differently
3 Skoly does not challenge the dismissal, pursuant to Will
v. Michigan Department of State Police, 491 U.S. 58 (1989), of his
claims for monetary damages against the state defendants in their
official capacities. He also dismissed by stipulation his claims
against the Rhode Island Department of Labor and Training and its
Director, Matthew D. Weldon. Skoly further concedes on appeal, as
he did to the district court, that his requests for injunctive
relief are moot. Since Rhode Island rescinded the First Emergency
Regulation, Skoly has been able to work in his private practice
"unfettered by his vaccine status." And Rhode Island has before
represented that it would no longer enforce the Permanent
Regulation's vaccination requirement for CMS-certified providers,
meaning Skoly could once more provide in-person services at Eleanor
Slater Hospital and the Adult Correctional Institute.
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from (and worse than) the masked, unvaccinated medically exempt
worker, or the masked vaccinated worker with an active infection."
Count II alleges that the same defendants, by refusing
to grant Skoly a medical exemption, deprived him of his "liberty
interest" in practicing medicine, his "property interest in his
practice," and his "liberty interest" in not being vaccinated, in
violation of the Due Process Clause of the Fourteenth Amendment.
Under that Count, Skoly seeks damages from the posting of the
Notice against him on the RI DOH website.
Count III alleges that Governor McKee and former
Directors Alexander-Scott and McDonald enforced the vaccine
requirement against him in violation of his First Amendment rights,
as retaliation for his speaking out against the First Emergency
Regulation. As to Governor McKee, the complaint alleges:
Dr Skoly was informed that, because he had
"opened his big mouth" by speaking to the
press, he had made his suspension a political
issue, not a medical one. Therefore, with the
knowledge and approval of Defendants
Alexander-Scott, McDonald and McKee -- who
could have rescinded the Notice of Violation
and Compliance Order -- Dr. Skoly was told
that his choice was to submit to vaccination
or to stay suspended.
At oral argument and in his briefing, Skoly clarified that this
hearsay information referred to "the Governor (or his
subordinates)."
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The defendants moved to dismiss the complaint, and the
district court granted their motion on July 20, 2023, after
briefing and oral argument. As relevant to this appeal, the
district court found that the state officials were entitled to
either absolute or qualified immunity for their alleged actions.
The court held, pursuant to Goldstein v. Galvin, 719 F.3d 16 (1st
Cir. 2013), that "former and current [RI DOH] directors Alexander-
Scott, McDonald and Bandy" enjoyed absolute immunity in issuing
the Notice and "enforc[ing] [the] compliance order[]" because they
were exercising prosecutorial authority delegated to them by Rhode
Island law.
As to Governor McKee, he was protected from suit by
qualified immunity, because Skoly could not "make out any clearly
established right violated by the bringing of the administrative
enforcement action against [Skoly] and for his admitted refusal to
comply with the [First] [E]mergency [R]egulation." The First
Emergency Regulation's medical exemption criteria were consistent
with CDC guidelines, and so Skoly's constitutional attack failed.
As to the claim that the posting of the Notice
constituted retaliation in violation of the First Amendment, the
district court held that the operative complaint had not asserted
such a claim. In addition, the court held that even if the claim
had been properly asserted, it would fail. Again citing Goldstein,
the court held that the posting of the Notice constituted
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government speech, which "could not form the basis of a plausible
First Amendment retaliation claim." As to Skoly's argument that
the Notice had "remained on the website for some six months after
withdrawal of the violation, . . . [Skoly] point[ed] to no legal
authority that requires the charging documents for an enforcement
action [to] be removed from an agency's website within a certain
period of time."
Skoly timely appealed.
III.
We review de novo a district court's dismissal of a
complaint under Rule 12(b)(6). See Lowe v. Mills, 68 F.4th 706,
713 (1st Cir. 2023). "Issues of law are reviewed de novo."
Buchanan v. Maine,
469 F.3d 158, 162 (1st Cir. 2006). "We take
the complaint's well-pleaded facts as true, and we draw all
reasonable inferences in [Skoly's] favor." Frese v. Formella,
53
F.4th 1, 5 (1st Cir. 2022) (quoting Barchock v. CVS Health Corp.,
886 F.3d 43, 48 (1st Cir. 2018)), cert. denied,
144 S. Ct. 72
(2023). "To survive dismissal, 'the complaint must "contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face."'"
Id. at 5-6 (quoting
Barchock,
886 F.3d at 48).
A. Claims against Rhode Island DOH officials
The district court correctly held that former and
current Directors Alexander-Scott, McDonald, and Bandy are
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entitled to absolute immunity for their roles in issuing the Notice
and enforcing the First Emergency Regulation against Skoly. "The
baseline rule is that a state official who performs prosecutorial
functions, including the initiation of administrative proceedings
that may result in legal sanctions, is absolutely immune from
damages actions." Goldstein, 719 F.3d at 26. As in Goldstein,
the former and current RI DOH Directors performed "prosecutorial
functions" in bringing the enforcement action against Skoly, and
they performed those functions pursuant to authority delegated by
statute. See
23 R.I. Gen. Laws § 23-1-20 ("Whenever the director
determines that there are reasonable grounds to believe that there
is a violation of any law administered by him or her or of any
rule or regulation adopted pursuant to authority granted to him or
her, the director may give notice of the alleged violation to the
person responsible for it."). "[A]bsolute immunity endures even
if the official[s] 'acted maliciously and corruptly' in exercising
[their] . . . prosecutorial functions," Goldstein, 719 F.3d at 24
(quoting Wang v. N.H. Bd. of Registration in Med.,
55 F.3d 698,
702 (1st Cir. 1995)), but Skoly does not plead that the officials
acted maliciously and corruptly in any event. Indeed, Skoly
concedes in his brief that Director Alexander-Scott (and
presumably her successors, too) is entitled to absolute
prosecutorial immunity.
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B. Claims against Governor McKee
Skoly argues that Governor McKee is not entitled to
absolute immunity because the Governor did not himself make the
decision to prosecute Skoly. The district court correctly found
that, regardless, the Governor would be entitled to qualified
immunity because Skoly had no clearly established right to continue
to practice while violating the vaccine mandate. See Est. of Rahim
v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) ("The doctrine of
qualified immunity shields officers from civil liability so long
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." (internal quotation omitted) (quoting City of Tahlequah v.
Bond, 595 U.S. 9, 12 (2021))). The exemption criteria under the
First Emergency Regulation were consistent with CDC guidelines,
which did not include the medical exemption that Skoly asserts.
Governor McKee (and the other state officials) had a rational
basis, then, for not exempting people with a history of Bell's
palsy from vaccination. See Brox v. Hole,
83 F.4th 87, 101 (1st
Cir. 2023) (stating that compliance with CDC guidance was "more
than sufficient" to show that Massachusetts ferry authority acted
rationally when crafting a vaccination requirement); Rocket
Learning, Inc. v. Rivera-Sánchez,
715 F.3d 1, 10 (1st Cir. 2013)
("[T]he appellant's claim falters on the 'clearly established'
prong of the qualified immunity test. The record establishes that
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a reasonable official in the [Governor's] position could have
rationally concluded that his actions were consistent with the
Constitution."). Moreover, Skoly never alleges that the CDC
guidance on which Rhode Island modeled the First Emergency
Regulation obviously lacked any rational basis. Accordingly,
Skoly has failed to state a "clearly established right" under
either the Equal Protection Clause or the Due Process Clause. See
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461, 470 &
n.12 (1981) (holding that, because Minnesota statute met rational
basis review and so "must be sustained under the Equal Protection
Clause," "it follow[ed] a fortiori that the Act d[id] not violate
the Fourteenth Amendment's Due Process Clause").
It is unclear whether Skoly's complaint attempts to
assert a class-of-one equal protection claim. But it is clear
from his allegations that he did not sufficiently plead that he
was similarly situated to other medical care providers. See Back
Beach Neighbors Comm. v. Town of Rockport, 63 F.4th 126, 130 (1st
Cir. 2023) ("In a class-of-one [equal protection] claim, the
plaintiff must show that 'she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.'" (quoting Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam))).
In his complaint, Skoly appears to identify two comparator classes:
medically exempt workers and vaccinated workers with an active
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COVID-19 infection. But he never plausibly alleges that any member
of those comparator classes openly announced an intention to
violate the First Emergency Regulation. Nor does he plausibly
allege that his comparators' roles required the same degree of
direct patient contact as his surgical role did. Accordingly,
Skoly has not alleged the "extremely high degree" of similarity
between himself and his chosen comparators that is required for a
class-of-one equal protection claim. See Cordi-Allen v. Conlon,
494 F.3d 245, 251 (1st Cir. 2007).
The Rhode Island officials also did not violate the First
Amendment by prosecuting Skoly, who had announced his intent not
to comply with the First Emergency Regulation. A passive
enforcement policy -- where the state focuses its prosecutorial
resources on those who announce their intent to violate the
law -- generally does not violate the First Amendment. See Wayte
v. United States, 470 U.S. 598, 600, 610-14 (1985) (holding that
government policy of prosecuting "only those who report themselves
as having violated the law" did not violate the First Amendment,
because, inter alia, it promoted prosecutorial efficiency and, by
"prosecuting visible" violators, "was thought to be an effective
way to promote general deterrence"). To be sure, such a policy
may still run afoul of the First Amendment when it is "motivated
by a discriminatory purpose."
Id. at 608. But Skoly does not
plausibly allege that McKee or any other official targeted him
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solely due to his opposition to the First Emergency Regulation.
He alleges only that he was "informed that, because he had 'opened
his big mouth' by speaking to the press, he had made his suspension
a political issue, not a medical one." He further alleges that,
"[t]herefore, with the knowledge and approval of Defendants
Alexander-Scott, McDonald and McKee . . . [he] was told that his
choice was to submit to vaccination or to stay suspended." As an
initial note, this allegation verges on implausible, because Skoly
never says who "informed him" of the "opened his big mouth" remark.
But leaving that aside, Skoly's allegation is perfectly consistent
with a Wayte-compliant passive enforcement policy that -- without
any discriminatory intent -- focuses on those who publicly and
openly violate the law. Skoly merely alleges that RI DOH issued
(and refused to rescind) the Notice because he 'opened his big
mouth' and publicly announced his intention to violate the First
Emergency Regulation. In other words, RI DOH opted to bring an
enforcement action against a person who openly violated the law.
This is precisely the type of passive enforcement that Wayte
permits.
As to Skoly's separate argument on appeal that the
posting of the Notice (as opposed to the issuance of the Notice)
on the RI DOH website constituted retaliation, the claim fails.
The district court correctly found that this claim was not raised
in Count III, such that it was waived.
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For the reasons stated above, we affirm judgment in favor
of all defendants.
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