United States Court of Appeals
For the First Circuit
No. 19-1406
CRAIG LAMBERT,
Plaintiff, Appellant,
v.
JAMES J. FIORENTINI, Mayor of Haverhill;
ALAN R. DENARO, Chief of the Haverhill Police Department,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
David G. Gabor, with whom Katherine A. Brustowicz and
The Wagner Law Group were on brief, for appellant.
Janelle M. Austin, with whom KP Law, P.C. was on brief,
for appellees.
January 24, 2020
LYNCH, Circuit Judge. After retiring as a City of
Haverhill police officer in 2014, Craig Lambert in 2017 sought an
identification card from Chief of Police Alan DeNaro that would
allow Lambert to carry a concealed firearm across state lines under
the Law Enforcement Officers Safety Act ("LEOSA"), 18 U.S.C.
§ 926C. Massachusetts has chosen to require the state's law
enforcement agencies to provide identification cards to certain
officers who retire in good standing, 501 Mass. Code Regs. 13.03,
and each agency's policies define the criteria for the "in good
standing" requirement in LEOSA.
Chief DeNaro denied the request on the grounds that
Lambert was not in good standing at the time of his 2014
retirement. Lambert then brought this action against DeNaro and
Haverhill Mayor James Fiorentini in state court, advancing four
causes of action. DeNaro and Fiorentini removed the case to
federal district court and moved for judgment on the pleadings,
which the district court entered for defendants on all four claims.
We hold, as a matter of first impression, that
Massachusetts has, in its state certiorari procedure, Mass. Gen.
Laws ch. 249, § 4, provided a constitutionally adequate remedy
which precludes assertion of a federal procedural due process claim
here. These LEOSA identification card denial cases in
Massachusetts are fully redressable in state court. We also hold
that Lambert has failed to plead facts sufficient to support his
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federal substantive due process claim, as he has not demonstrated
that the denial of a LEOSA identification card shocked the
conscience.
We affirm the dismissal of the § 1983 due process claim,
the only federal claim set forth in Lambert's complaint and the
only basis asserted for federal jurisdiction. We also affirm
dismissal of the negligence claim and the purported equity claim
as they plainly fail to assert a claim under state law. We vacate
the judgment on the merits as to the state certiorari claim and
direct its dismissal without prejudice.
I.
"Because this appeal follows the granting of a motion
for judgment on the pleadings, we glean the facts from the
operative pleading," accepting those facts as true. Grajales v.
P.R. Ports Auth., 682 F.3d 40, 43 (1st Cir. 2012). We also
"consider 'documents the authenticity of which are not disputed by
the parties; . . . documents central to plaintiffs' claim; [and]
documents sufficiently referred to in the complaint' . . . even
when the documents are incorporated into the movant's pleadings."
Curran v. Cousins,
509 F.3d 36, 44 (1st Cir. 2007) (alterations in
original) (quoting Watterson v. Page,
987 F.2d 1, 3 (1st Cir.
1993)). We describe the substantive legal standards for issuance
of such identification cards before setting forth the facts.
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A. Legal Standards
LEOSA provides that a "qualified retired law enforcement
officer" carrying certain identification issued by the officer's
former law enforcement agency "may carry a concealed firearm that
has been shipped or transported in interstate or foreign commerce."
18 U.S.C. § 926C(a). The statute defines "qualified retired law
enforcement officer" as, inter alia, a person that "separated from
service in good standing from service with a public agency as a
law enforcement officer," but it does not further define "in good
standing." Id. § 926C(c)(1). The identification Lambert requested
is "a photographic identification issued by the agency from which
the individual separated from service as a law enforcement officer
that identifies the person as having been employed as a police
officer or law enforcement officer" and either includes or is
accompanied by a certification of the retired officer's firearms
qualification. Id. § 926C(d). LEOSA leaves to state and local
agencies the issuance of identification cards to their retired
officers. Burban v. City of Neptune Beach, 920 F.3d 1274, 1280
(11th Cir. 2019).
The Massachusetts regulations require that "[t]he chief
law enforcement officer for a law enforcement agency shall issue
an identification card to a qualified retired law enforcement
officer who retired from that law enforcement agency." 501 Mass.
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Code Regs. 13.03.1 The regulations define "qualified retired law
enforcement officer" as, inter alia, a person who "separated from
service in good standing with a law enforcement agency as a law
enforcement officer." Id. 13.02.
The state regulations leave the definition of good
standing to local law enforcement agencies. See Frawley v. Police
Comm'r of Cambridge, 46 N.E.3d 504, 507-08 (Mass. 2016) (observing
that neither the federal statute nor state regulations establish
good standing criteria). The Haverhill Police Department's
relevant policy defines "[s]eparated in good standing" to mean
"that such officer was not charged with or suspected of criminal
activity at the time of retirement, nor was he or she under
investigation or facing disciplinary action for an ethical
violation of departmental rules, or for any act of dishonesty."
B. Facts
Lambert began work as a police officer for the City of
Haverhill in April 1994. Effective August 21, 2012, Lambert was
placed on injured leave.
After Lambert went on leave, Chief DeNaro sent Lambert
a letter dated August 22, 2012. The letter stated that DeNaro had
concluded that Lambert had violated orders from a deputy chief and
1 The Massachusetts Executive Office of Public Safety
adopted these regulations in 2008 and amended them in 2013 in
response to an amendment to the federal statute. 1095 Mass. Reg.
85 (Jan. 11, 2008);
1241 Mass. Reg. 49 (Aug. 16, 2013).
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a captain in June and July 2012. The letter informed Lambert that,
because of that violation, he was suspended for five working days,
from August 22, 2012, to August 28, 2012, and that DeNaro would
recommend to Mayor Fiorentini that Lambert also receive an
additional 55-day suspension.2
Lambert successfully challenged the loss of five days'
injury pay in state Superior Court. The court held that the
disciplinary matter could not be used as the basis for withholding
Lambert's injury pay because the City imposed the suspension after
Lambert went on leave.3 Lambert remained on leave until he retired
on March 22, 2014, more than a year and a half after he went out
on leave. In January 2017, Lambert requested a LEOSA
identification card by telephone to a Haverhill police captain,
who told him at some point that Chief DeNaro had decided Lambert
did not qualify for the card. On July 28, 2017, Lambert sent a
2 Under Massachusetts law, only Mayor Fiorentini, as the
"appointing authority," could issue a suspension of longer than
five days, and only after providing written notice and a hearing.
See Mass. Gen. Laws ch. 31, § 41.
3 We take notice of the contents of the state court
judgment to which Lambert's complaint refers and which defendants
filed in the district court as an exhibit to their motion for
judgment on the pleadings. See Lambert v. DeNaro, No. 1377-CV-
00351 (Mass. Super. Ct. Nov. 26, 2013); Boateng v. InterAmerican
Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000) ("[A] court may look
to matters of public record in deciding a Rule 12[] motion without
converting the motion into one for summary judgment. . . . And a
court ordinarily may treat documents from prior state court
adjudications as public records.").
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letter to Mayor Fiorentini asking why his request had been denied.
On October 2, 2017, Haverhill Police Department Chief Alan DeNaro
formally denied Lambert's request, stating in a letter that Lambert
did "not qualify, as he left employment under a disability prior
to the completion of an Internal Affairs Investigation, which could
have potentially resulted in discipline up to and including
termination."
Lambert then filed a four-count complaint in Essex
Superior Court against DeNaro and Haverhill Mayor James
Fiorentini. Count I is a complaint in the nature of certiorari
pursuant to Massachusetts General Laws chapter 249, section 4.
See Frawley, 46 N.E.3d at 513 ("[T]he appropriate avenue of relief"
for a LEOSA identification card denial is "a civil action in the
nature of certiorari pursuant to G.L. c. 249, § 4."). Count II is
an action under 42 U.S.C. § 1983 alleging civil rights violations
and invoking the Massachusetts Constitution. Count III asserts
that defendants acted negligently in "discharg[ing] the legal
duties" owed to Lambert as a retired police officer. Count IV,
titled "Equity," alleges that DeNaro's October 2, 2017, letter
contained inaccurate and unsupported factual assertions. Lambert
alleged that no investigation was open when he retired and that
DeNaro was acting "for personal reasons related to malice or
spite."
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C. Procedural History
On November 22, 2017, the defendants removed the case to
the U.S. District Court for the District of Massachusetts based on
federal question jurisdiction over the § 1983 due process claim.
See 28 U.S.C. §§ 1331, 1441. Defendants moved for judgment on the
pleadings, Lambert opposed, and the district court allowed the
motion as to all counts. Lambert timely appealed.
II.
We review de novo the grant of a motion for judgment on
the pleadings. Villeneuve v. Avon Prods., Inc., 919 F.3d 40, 49
(1st Cir. 2019). "Dismissal is proper if -- after accepting all
well-pleaded facts as true and viewing them in the light most
favorable to [Lambert] -- the complaint fails to allege a plausible
right to relief."
Id. "In conducting this appraisal, we are not
bound by the district court's reasoning but, rather, may affirm
the entry of judgment on any ground made manifest by the record."
Kando v. R.I. State Bd. of Elections,
880 F.3d 53, 58 (1st Cir.
2018).
We begin with the sole federal claim set forth in the
complaint, Lambert's § 1983 due process claim.4 Count II is
4 Lambert's complaint clearly frames only the § 1983 due
process claim as a federal cause of action. He does not argue
that he has a LEOSA § 1983 cause of action. We note that the
Eleventh Circuit has held that there is no such cause of action.
Burban, 920 F.3d at 1280.
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labelled as a § 1983 claim, and Lambert argued to the district
court that this claim alleged violations of his procedural and
substantive due process rights.5 "Procedural due process
guarantees that a state proceeding which results in a deprivation
of property is fair, while substantive due process ensures that
such state action is not arbitrary and capricious." Licari v.
Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994). We consider each
separately.
"A sufficient procedural due process claim must allege
'that [the plaintiff] was deprived of constitutionally protected
property because of defendants' actions, and that the deprivation
occurred without due process of law.'" Rumford Pharmacy, Inc. v.
City of E. Providence, 970 F.2d 996, 999 (1st Cir. 1992)
(alteration in original) (quoting Roy v. City of Augusta,
712 F.2d
1517, 1522 (1st Cir. 1983)). A procedural due process claim that
does not "allege the unavailability of constitutionally-adequate
remedies under state law" fails.
Id.
5 On appeal, Lambert further argues that he has a "stigmaplus" claim. See Pendleton v. City of Haverhill, 156 F.3d 57, 63
(1st Cir. 1998) ("[A] deprivation of a constitutionally protected
liberty interest [occurs] when, in addition to mere reputational
injury, words spoken by a government actor adversely impact a right
or status previously enjoyed under state law." (citing Paul v.
Davis, 424 U.S. 693, 708–09 (1976))). But "this argument was never
raised to the district court and 'arguments not made initially to
the district court cannot be raised on appeal.'" River Farm Realty
Tr. v. Farm Family Cas. Ins. Co.,
943 F.3d 27, 41 n.21 (1st Cir.
2019) (quoting DiMarco-Zappa v. Cabanillas,
238 F.3d 25, 34 (1st
Cir. 2001)).
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Even assuming LEOSA could give rise to a property right,
Lambert's complaint makes no allegation that the state remedies
available to him are constitutionally inadequate. To the contrary,
Count I of the complaint invoked the state certiorari remedy for
judicial review of DeNaro's denial of his LEOSA identification
card. The procedural due process inquiry "examine[s] the
procedural safeguards built into the statutory or administrative
procedure of effecting the deprivation, and any remedies for
erroneous deprivations provided by statute or tort law." Zinermon
v. Burch, 494 U.S. 113, 126 (1990). The Massachusetts Supreme
Judicial Court has specifically held that judicial review of a
denial of a LEOSA identification card is available through a civil
action in the nature of certiorari pursuant to Massachusetts
General Laws chapter 249, section 4. Frawley,
46 N.E.3d at 510-
11. "The constitutional violation actionable under § 1983 is not
complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process." Zinermon,
494
U.S. at 126. We hold that his procedural due process claim fails.6
Lambert's substantive due process claim fails on the
pleadings for a different reason. "In order to assert a viable
substantive due process claim, a plaintiff has 'to prove that [he]
6 Indeed, Lambert acknowledged at oral argument that the
certiorari claim provides an adequate state remedy. He does not
assert a pre-deprivation due process claim.
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suffered the deprivation of an established life, liberty, or
property interest, and that such deprivation occurred through
governmental action that shocks the conscience.'" Najas Realty,
LLC v. Seekonk Water Dist., 821 F.3d 134, 145 (1st Cir. 2016)
(quoting Clark v. Boscher,
514 F.3d 107, 112 (1st Cir. 2008)).
On these pleadings, as to substantive due process, the
denial of Lambert's LEOSA identification is not "egregiously
unacceptable, outrageous, or conscience-shocking." Licari, 22
F.3d at 347 (quoting Amsden v. Moran,
904 F.2d 748, 754 (1st Cir.
1990)).7 Lambert's § 1983 claim fails to state a claim and was
properly dismissed.8
III.
The § 1983 due process claim provided the sole basis for
federal jurisdiction, so we consider whether the district court
appropriately exercised its supplemental jurisdiction under 28
U.S.C. § 1367 over the state claim at the motion for judgment on
7 Because Lambert's substantive due process claim fails
for this reason, we need not address whether LEOSA in fact creates
a property interest in the LEOSA identification card that is
cognizable for due process purposes. Compare Henrichs v. Ill. Law
Enf't Training & Standards Bd., 306 F. Supp. 3d 1049, 1058 (N.D.
Ill. 2018) (LEOSA does not create a property interest cognizable
under § 1983), with DuBerry v. District of Columbia,
824 F.3d 1046,
1053-54 (D.C. Cir. 2016) (LEOSA does create a cognizable property
interest).
8 Lambert presents no argument that his reference to the
Massachusetts Constitution in Count II would survive dismissal of
his federal constitutional claim.
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the pleadings stage. "As a general principle, the unfavorable
disposition of a plaintiff's federal claims at the early stages of
a suit . . . will trigger the dismissal without prejudice of any
supplemental state-law claims." Rodriguez v. Doral Mortg. Corp.,
57 F.3d 1168, 1177 (1st Cir. 1995). Federal courts may retain
jurisdiction in appropriate cases but, before doing so, must
consider "the interests of fairness, judicial economy,
convenience, and comity," the last of which is "a particularly
important concern in these cases." Camelio v. Am. Fed'n,
137 F.3d
666, 672 (1st Cir. 1998). Courts may also consider whether the
state law issues are "novel or sensitive." Sexual Minorities
Uganda v. Lively,
899 F.3d 24, 35 (1st Cir. 2018); see also
28
U.S.C. § 1367(c)(1) ("The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the claim
raises a novel or complex issue of State law."). "Needless
decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them
a surer-footed reading of applicable law." United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726 (1966). "[U]nder this standard,
it can be an abuse of discretion -- if no federal claim
remains -- for a district court to retain jurisdiction over a
pendent state law claim when that state law claim presents a
substantial question of state law that is better addressed by the
state courts." Wilber v. Curtis,
872 F.3d 15, 23 (1st Cir. 2017).
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Lambert makes no argument to us that the district court's
conclusion as to his last two state law claims was error, and
vacating that ruling would promote neither comity nor justice as
both plainly fail to state a claim. Count III, which alleges that
DeNaro and Fiorentini acted negligently in performing their
duties, is barred by the Massachusetts Tort Claims Act. See Mass.
Gen. Laws ch. 258, § 2 ("[N]o . . . public employee . . . shall be
liable for any injury or loss of property . . . caused by his
negligent or wrongful act or omission while acting within the scope
of his office or employment."). The "Equity" cause of action
advanced in Count IV simply does not exist as a matter of law.
The state certiorari claim stands on different footing,
as we cannot say on the face of the pleadings that it failed to
state a claim. Lambert has argued that his five-day suspension is
no longer outstanding and was not outstanding at the time of the
denial, which the defendants dispute. That dispute appears to
raise questions of state law, which would be "best resolved in
state court." Camelio, 137 F.3d at 672. There also appear to be
disputed issues of material fact, such as the date, if any, on
which the suspension became effective, which are inappropriate for
resolution on the pleadings. Finally, the certiorari claim is not
so "inextricably intertwined" with the procedural due process
claim under § 1983 that exercising supplemental jurisdiction would
be appropriate. See Lopez v. Massachusetts,
588 F.3d 69, 81-82
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(1st Cir. 2009) (quoting Swint v. Chambers Cty. Comm'n, 514 U.S.
35, 51 (1995)); Penate v. Hanchett,
944 F.3d 358, 370 (1st Cir.
2019) ("[T]he state courts . . . are often better suited than are
federal courts to resolve questions of state law.").
IV.
We affirm dismissal of the § 1983, negligence, and
"equity" claims with prejudice. We vacate the dismissal of the
state certiorari claim on the merits and direct its dismissal
without prejudice for lack of jurisdiction. No costs are awarded.
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