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Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 1 of 9
UNITED STATES DISTRICT COURT . vay
DISTRICT OF MASSACHUSETTS 5
COREY M. GREENE, *
*
Plaintiff, * ,
*
v. * £3
* Civil Action No. 16-30017-MGM
ANDREW N. GOODWIN, MARGARET A. * e
SULLIVAN, EUGENE M. KLEPADLO, THE * 5
TOWN OF ERVING, AND CHRISTOPHER * at 2
M. BLAIR, * 3g a6 4
¥ & 3
Defendants. * 33 2305
Re s8Es
NE BES 5
MEMORANDUM AND ORDER REGARDING DEFENDANTS’ SEO 48 3
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM B35 3
(Dkt. No. 12) 8 ae
=
June 29, 2016 Hho Qo
£s
MASTROIANNI, U.S.DJ.
T. INTRODUCTION
Corey M. Greene (“PlaintifP”) originally brought this action in state court against Andrew N.
Goodwin, Margaret A. Sullivan, Eugene M. Klepadlo, and Police Chief Christopher M. Blair in their
individual and official capacities, and against the Town of Erving (“Defendants”), On January 20,
2016, Defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331 and 1441. The
case arises out of Plaintiff's suspension as a police officer for the Town of Exving and the Select
Boatd’s affirmation of the suspension. Plaintiff seeks monetary relief. Defendants filed a motion to
dismiss for failure to state a claim upon which relief could be granted.
For the reasons discussed below, the court will allow Defendants’ motion to dismiss
Plaintiff's federal claims (Counts I-IV, and VIII) and decline to exercise supplemental jurisdiction
over the remaining state-law claims (Counts V-VII, and IX—X).Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 2 of 9
II. BACKGROUND
‘The following facts come directly from Plaintiff's amended complaint. From 2004 until
2014, Plaintiff was a full-time police officer in the Town of Erving. (P1.’s Am. Compl. {{[ 8-9.) When
he was hired, Plaintiff received a copy of the Personnel Policies and Procedures handbook, which,
on three occasions, designates him an employee “at-will” whose employment “may be terminated by
either party at any time, with or without cause, and with or without notice.” (Jd. ] 10.) Moreover, the
handbook states that “[t]hese policies do not create a contract between the Town of Erving, any
employee, or any group of employees.” (Id) The handbook provides that Plaintiff was “subject to
annual reappointment by the Appointing Authority”—the Select Board—and that all disciplinary
action will be “fair and consistent.” (Id)
During his service, Plaintiff earned commendations and accolades. (Id. ff] 11, 23.) Defendant
Police Chief Christopher M. Blair praised Plaintiff's performance, noting his future employment was
assured. (Id. J 12.) Plaintiff alleges that, through these assurances, Blair “act{ed] with authority to
establish an evergreen employment relationship.” (Id. | 13.) Plaintiff also alleges that nothing in the
Personnel Policies and Procedures would have suggested to him that Defendant Blair was without
authority to make such assurances. (Jd. |] 17.)
On February 18, 2014, Plaintiff was involved in an altercation at a bar after he decided to
diffuse a “domestic disturbance” occurring between two intoxicated customers. (Id. J] 25.) He
reported this incident to Defendant Blair on February 20, 2014, (Id. 26.) Although Plaintiff had
never been disciplined before, Defendant Blair summarily suspended him without pay on March 10,
2014, accusing him of unprofessional conduct and assault and battery, and confiscated his service
weapons—one at the police station and another in Plaintiff's home. (Id. §{] 27-28, 45, 132.)
On March 17, 2014, the Select Board unanimously affirmed Plaintiff's suspension during
executive session. (Id. Jf] 29, 39.) The Select Board was composed of Defendants Andrew M.Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 3 of 9
Goodwin, Margaret A. Sullivan, and Eugene M. Klepadlo. (Jd. ff] 2-4.) Plaintiff alleges that the
Select Board exercised its ministerial duties in reviewing PlaintifPs suspension, holding a meeting
pursuant to Mass. Gen. Laws ch. 30A, § 21(a)(1). (Id. fff 32-33.) Plaintiff also alleges the March 17,
2014 meeting “was not impartial because the Select Board already made a decision in advance of the
... meting to cause the termination of [Plaintiff's] employment.” (Id. {] 37.) Specifically, Plaintiff
alleges Defendants were motived by fears of personal and municipal liability, and his discipline was
“not warranted by the facts of the incident occurring . . . on February 18, 2014.” (Id. {[f] 38, 48)
TIL. STANDARD OF REVIEW
When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court must accept the well-pled allegations of the complaint as true, drawing all reasonable
inferences in favor of the plaintiff. See S.E.C. ». Tambone, 597 F.3d 436, 441 (1st Cir, 2010). While a
court construes pleadings liberally, a court need “not credit conclusory assertions, subjective
characterizations or ‘outright vituperation.”” Barrington Cove Ltd. P'ship v. Rhode Island Hous. &
Mortgage Fin. Corp. 246 F.3d 1, 5 (1st Cir. 2001) (citing Coyne » City of Somervilly, 972 F.2d 440, 444
(1st Cir. 1992)), A complaint that states a plausible claim for relief on its face will survive a motion
to dismiss. See Ashcroft », Igbal, 556 U.S. 662, 678 (2009). The Supreme Court has explained that “[a]
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
TV. DISCUSSION
Plaintiff alleges Defendants violated his constitutional rights and committed various state-
law torts. In particular, Plaintiff seeks recovery under 42 U.S.C. § 1983 for deprivation of the
following constitutional tights: procedural due process (Count I); substantive duc process (Count
IN); and equal protection (Count III). Plaintiff also asserts that Defendants entered into a conspiracy
to deprive Plaintiff of his constitutional rights, seeking recovery under 42 U.S.C. § 1985 (CountCase 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 4 of 9
VIID." In addition, Plaintiff seeks to hold the Town of Erving liable for these alleged constitutional
violations under Monell ». Department of Social Services, 436 U.S. 658 (1978) (Count IV).
A. Count I (Procedural Due Process
The court finds that Plaintiff's amended complaint fails to sufficiently allege a procedural
due process claim. The Supreme Court requires a two-step analysis for any alleged procedural due
process violation: first, whether Plaintiff has been deprived of a protected interest in property or
liberty; and second, whether the State-provided procedure comports with due process. See 4m. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 US. 40, 59 (1999) (citing Mathews » Eldridge, 424 U.S. 319, 332 (1976).
A court must look to state law to determine whether a property interest exists, because property
interests are created not by the Constitution but by state law. See Cleveland Ba. of Educ, x. Loudermill,
470 U.S. 532, 538 (1985). At-will employees do not have a protected property interest in their
employment, and employers are not required to grant them pre-termination process. See Ossinger v.
City of Newton, 533 N.E.2d 228, 231 (Mass. App. Ct. 1989). In the present case, the Town of Erving’s
Personnel Policies and Procedures handbook, as set forth in Plaintiff's amended complaint,
unambiguously designated Plaintiff an employee at-will who could be removed for any cause or no
cause, with or without notice. As an at-will employee, Plaintiff did not have a protected interest in
his employment and, therefore, was not entitled to procedural due process protections.
Plaintiff claims that he entered into an employment contract pursuant to Police Chief Blair’s
actual or apparent authority. However, Blair did not have actual authority to create an employment
contract, because the Select Board was Plaintiff's hiring authority. Cf Matllowx ». Town of Littleton, 473
F. Supp. 2d 177, 186 (D. Mass. 2007) (a fire chief lacked actual authority to enter into contracts
"Tris not clear from the amended complaint that Plaintiff has asserted a § 1985 conspiracy rather than a common law
conspiracy. Nonetheless, a court may consider a theory of recovery even if it was not specifically named in the
complaint. See Johnson v. City of Shelly, Miss, 135 S. Ct. 346, 347 (2014) (holding that a plaintiff did not need “to invoke §
1983 expressly in order to state a claim” under § 1983)Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 5 of 9
because he lacked the authority to hire employees). Moreover, Blair did not have apparent authority
to create an employment contract because “the doctrine of apparent authority does not apply to the
government, its agencies, or its officials.” Dagastino v. Comm’r of Corr. 754 N.E.2d 150, 152 (Mass.
App. Ct. 2001). Accordingly, Plaintiffs apparent and actual authority arguments are unavailing.
Plaintiff also claims that he had an “evergreen employment relationship” and a lifelong
employment contract with Defendants. Both an “evergreen employment relationship” and a lifelong
employment contract require specific contractual provisions. See O'Brien v. Analog Devices, Inc., 606
N.E.2d 937, 939 (Mass. App. Ct. 1993); see ako S.E.C. 2, Worldcom, Inc., 2003 WL. 22004827, at *42
(S-D.N-Y. Aug. 26, 2003). As Plaintiff failed to cite to any contractual provision that would establish
either an evergreen or lifelong contract, the court also rejects this argument.
Plaintiff additionally argues that his employment was assured by the Personnel Policies and
Procedures handbook’s promise of a fair and consistent disciplinary action and by Mass. Gen. Laws
ch. 30A, § 21(a)(1).? An employee is not employed at-will if, per contract or a statute, his
employment can only be terminated “for cause.” See Bishop 2». Wood, 426 U.S. 341, 362 (1976).
Section 21(a)(1) does no more than prescribe the time and method under which the Select Board
can meet in executive session; it does not require an employee to be terminated only for cause. See
Mass. Gen. Laws. ch. 30A, § 21. The handbook, on the other hand, cautions every employee that he
or she can be removed for any or no cause, with or without notice. It further states that the “policies
do not create a contract between the Town of Erving, any employee, or any group of employees.”
2 For the first time in his opposition, Plaintiff alleges that the Town of Exving may have adopted Mass. Gen, Laws
ch. 41, §97A, under which “[tJhe selectmen may remove [the police] chief or other officers for cause” only. See Mass.
Gen. Laws ch. 41, § 97A; Stvtson ». Ba. of Selectmen of Carlist, 343 N-E.2d 382, 385-86 (Mass. 1976) (recognizing such
language would create a protected property interest in an officer's employment); see alte Ziskend », O'Leary, 79 F. Supp. 2d
10, 14 (D. Mass. 2000). As this factual allegation is entirely absent from the amended complaint, the court will not
consider it. See Doyle . Hasbro, Ine., 103 F.3d 186, 190 (1st Cir. 1996); see also Luthy », Proulx, 464 F. Supp. 2d 69, n. 25 (D.
Mass. 2006) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss.”) (quoting Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cis. 1984); Gackenberger ». Boston Univ., 957 F.
Supp. 306, 311, n. 5 (D. Mass. 1997) (“{T]he Court looks only at the allegations contained within the complaint, and
does not consider any additional facts alleged in the parties’ memoranda or exhibits.”}.
5Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 6 of 9
(Pl’s Am. Compl. ] 10). Given this express and unequivocal language, “the customary
blandishments about fair treatment” or “consistent” discipline are insufficient to transform
Plaintiff's employment status or create a binding employment contract. Ray 2. Ropes ¢ Gray LLP,
961 F. Supp. 2d 344, 352-54 (D. Mass. 2013), aff'd, 799 F.3d 99 (1st Cir. 2015).
Finally, to the extent Plaintiff has alleged a “stigma-plus” due process claim, this claim also
fails as a matter of law. The Supreme Court has allowed recovery for such “stigma-phus” claims
where a government employee suffered a public defamation that created not a hypothetical harm,
but significant impairment. See Bishop, 426 U.S. at 348. The First Circuit later explained that to
qualify for relief, the defamatory statements must have been made in a public meeting or in a
newspaper. See Beitzell ». Jeffery, 643 F.2d 870, 879 (1st Cir. 1981) (holding that defamatory statements
made within a university committee were insufficient to warrant a stigma-plus claim). In the present
case, Plaintiff claims the defamatory remarks were made in the privacy of his home and inside a
police station. Neither location is sufficiently similar to a public meeting or a newspaper. Thus, the
allegedly defamatory statements were not public enough to support a stigma-plus claim grounded in
the Due Process Clause.
B. Cou intive Due Process’
Plaintiff's amended complaint also fails to allege sufficient facts in support of a substantive
due process claim. A plaintiff may recover on a substantive due process claim only if the defendant’s
conduct was so egregious as to “shock the conscience.” See Freeman v. Town of Hudson, 714 F.3d 29,
40 (Ast Cir. 2013) (citation omitted), Examples of conduct that shocks the conscience include:
A teacher's fabrication of sexual abuse charges against a father, resulting in loss of
contact with his child for three years, see Morris ». Dearborne, 181 F.3d 657, 668 (5th
Cir.1999); rape by a police officer in connection with a car stop, see Rogers ». City of Lith
Rock, 152 F.3d 790, 797 (8th Cir.1998); a 57~day unlawful detention in the face of
repeated requests for release, see Armstrong 2. Squadrito, 152 F.3d 564, 582 (7th
Cir.1998); police officers aiding a third-party in shooting the plaintiff, see Hemphill v.
Schott, 141 F.3d 412, 419 (2d Cir.1998); an intentional assault by a police officer who
struck a pretrial detainee twice in the head and threatened to kill him, see Johnson (v.
6Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 7 of 9
Glick], 481 F.2d [1028,] 1029-30 [(1973)]; and a principal forcing his way into a room
where a student was hiding, grabbing her from the floor, throwing her against the wall,
and slapping her, see Webb », McCudlongh, 828 F.2d 1151, 1159 (6th Cir.1987).
Cummings v. Melntire, 271 F.3d 341, 346 (1st Cir. 2001). In the present case, Defendants’ conduct in
terminating Plaintiff's employment for getting into a bar fight is hardly comparable to the conduct
courts found as shocking the conscience. Accordingly, Count II fails to state a claim.
C. Count III (Equal Protection)
Plaintiff's “class of one” equal protection claim is factually and legally insufficient. Fort a
“class of one” equal protection claim, a plaintiff must allege that he was “intentionally treated
differently from others similarly situated and there is no rational basis for the difference in
treatment.” Freeman, 714 F.3d at 38. Moreover, the complaint must show “an extremely high degree
of similarity between [the plaintiffs] and the persons to whom they compare themselves.” Id.
(quoting Cordi-Allen v, Conlon, 494 F.3d 245, 251 (1st Cir. 2007)). Here, as Defendants argue,
Plaintiff alleged no individual with whom he shares a high degree of similarity. Moreover, Plaintiff's
claim is precluded by Supreme Court precedent. A plaintiff cannot recover on the class-of-one
theory in the public employment context. See Engguist ». Oregon Dept. of Agr., 553 U.S. 591, 605
(2008). Accordingly, Count III fails to state a claim.
D. Count VIII (§ 1985(3) conspiracy)
Section 1985(3)’ prohibits two or more persons from conspiring to deprive any person or
class of persons of the equal protection of the law. See Perez Sanchez u. Pub. Bldg. Auth. 531 F.3d 104,
107 (1st Cir, 2008). A claim under section 1985(3) has four elements:
First, the plaintiff must allege a conspiracy; second, he must allege a conspiratorial
purpose to deprive the plaintiff of the equal protection of the laws; third, he must
identify an overt act in furtherance of the conspiracy; and finally, he must show either
injury to person or property, or a deprivation of a constitutionally protected right.
3 Plaintiff does not specify which provision of § 1985 he alleges his claim under, but neither § 1985(1) nor (2) are
applicable in this case. See 42 U.S.C. § 1985(2) (applicable to conspiracies designed to prevent testimony at trial); Kush 2
Rutledge, 460 U.S. 719, 724 (1983) (holding that section 1985(1) applies only to federal officers)
7Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 8 of 9
Id. (citing Assn ». Blanchard, 83 F.3d 1, 3 (Ast Cir. 1996)). Every § 1985(3) claim requires a plaintiff
to show “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Id.
(holding § 1985(3) inapplicable to political-class based discrimination) (quoting Griffin ». Breckenridge,
403 U.S. 88, 102 (1971)). In the present case, Plaintiff alleges deprivation of equal protection as a
class of one and not because of racial animus. Furthermore, Plaintiff has not alleged facts from
which one could infer a deprivation of a constitutionally protected right. Accordingly, Plaintiff has
not alleged a plausible § 1985(3) claim and, therefore, Count VIII fails to state a claim.
E. Count IV (Monel liability
Plaintiff's Movel/ claim fails because there is no underlying constitutional deprivation. In
Monell, the Supreme Court permitted local governments to be sued under 42 U.S.C, § 1983 for
constitutional deprivations. See Monell, 436 U.S. at 690. Where, as here, there is no constitutional
deprivation, Moned/ has no application. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Accordingly, Count IV fails to state a claim.
F. Remaining State-Law Claims
Because Plaintiff's amended complaint failed to adequately allege claims under §§ 1983 and
1985(3) and Monell, his only federal claims and the basis for Defendants’ removal, the court declines
to exercise supplemental jurisdiction over the remaining state-law claims. See Caesars Massachusetts
Mgmt, Co, LLC ». Crosby, 778 F.3d 327, 337 (1st Cir. 2015). Rather than dismissing those claims
without prejudice, however, the court will remand the case to state court. See Carnegie-Mellon Univ, ».
Cohill, 484 U.S. 343, 357 (1988) (“{A] district court has discretion to remand to state court a removed
case involving pendent claims upon a proper determination that retaining jurisdiction over the case
would be inappropriate.”).Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 9 of 9
VV. CONCLUSION
For the foregoing reasons, the court ALLOWS Defendant’s Motion to Dismiss
(kt. No. 12) Plaintiff's amended complaint as to Counts I, II, III, IV, and VIIL The court also
declines to exercise supplemental jurisdiction over Counts V, VI, VII, IX, and X, and REMANDS
this matter to Franklin Superior Coutt.
It Is So Ordered.
/s/ Mark G. Mastroianni
MARK G. MASTROIANNI
United States District Judge
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Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 1 of 9 UNITED STATES DISTRICT COURT . vay DISTRICT OF MASSACHUSETTS 5 COREY M. GREENE, * * Plaintiff, * , * v. * £3 * Civil Action No. 16-30017-MGM ANDREW N. GOODWIN, MARGARET A. * e SULLIVAN, EUGENE M. KLEPADLO, THE * 5 TOWN OF ERVING, AND CHRISTOPHER * at 2 M. BLAIR, * 3g a6 4 ¥ & 3 Defendants. * 33 2305 Re s8Es NE BES 5 MEMORANDUM AND ORDER REGARDING DEFENDANTS’ SEO 48 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM B35 3 (Dkt. No. 12) 8 ae = June 29, 2016 Hho Qo £s MASTROIANNI, U.S.DJ. T. INTRODUCTION Corey M. Greene (“PlaintifP”) originally brought this action in state court against Andrew N. Goodwin, Margaret A. Sullivan, Eugene M. Klepadlo, and Police Chief Christopher M. Blair in their individual and official capacities, and against the Town of Erving (“Defendants”), On January 20, 2016, Defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331 and 1441. The case arises out of Plaintiff's suspension as a police officer for the Town of Exving and the Select Boatd’s affirmation of the suspension. Plaintiff seeks monetary relief. Defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. For the reasons discussed below, the court will allow Defendants’ motion to dismiss Plaintiff's federal claims (Counts I-IV, and VIII) and decline to exercise supplemental jurisdiction over the remaining state-law claims (Counts V-VII, and IX—X).Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 2 of 9 II. BACKGROUND ‘The following facts come directly from Plaintiff's amended complaint. From 2004 until 2014, Plaintiff was a full-time police officer in the Town of Erving. (P1.’s Am. Compl. {{[ 8-9.) When he was hired, Plaintiff received a copy of the Personnel Policies and Procedures handbook, which, on three occasions, designates him an employee “at-will” whose employment “may be terminated by either party at any time, with or without cause, and with or without notice.” (Jd. ] 10.) Moreover, the handbook states that “[t]hese policies do not create a contract between the Town of Erving, any employee, or any group of employees.” (Id) The handbook provides that Plaintiff was “subject to annual reappointment by the Appointing Authority”—the Select Board—and that all disciplinary action will be “fair and consistent.” (Id) During his service, Plaintiff earned commendations and accolades. (Id. ff] 11, 23.) Defendant Police Chief Christopher M. Blair praised Plaintiff's performance, noting his future employment was assured. (Id. J 12.) Plaintiff alleges that, through these assurances, Blair “act{ed] with authority to establish an evergreen employment relationship.” (Id. | 13.) Plaintiff also alleges that nothing in the Personnel Policies and Procedures would have suggested to him that Defendant Blair was without authority to make such assurances. (Jd. |] 17.) On February 18, 2014, Plaintiff was involved in an altercation at a bar after he decided to diffuse a “domestic disturbance” occurring between two intoxicated customers. (Id. J] 25.) He reported this incident to Defendant Blair on February 20, 2014, (Id. 26.) Although Plaintiff had never been disciplined before, Defendant Blair summarily suspended him without pay on March 10, 2014, accusing him of unprofessional conduct and assault and battery, and confiscated his service weapons—one at the police station and another in Plaintiff's home. (Id. §{] 27-28, 45, 132.) On March 17, 2014, the Select Board unanimously affirmed Plaintiff's suspension during executive session. (Id. Jf] 29, 39.) The Select Board was composed of Defendants Andrew M.Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 3 of 9 Goodwin, Margaret A. Sullivan, and Eugene M. Klepadlo. (Jd. ff] 2-4.) Plaintiff alleges that the Select Board exercised its ministerial duties in reviewing PlaintifPs suspension, holding a meeting pursuant to Mass. Gen. Laws ch. 30A, § 21(a)(1). (Id. fff 32-33.) Plaintiff also alleges the March 17, 2014 meeting “was not impartial because the Select Board already made a decision in advance of the ... meting to cause the termination of [Plaintiff's] employment.” (Id. {] 37.) Specifically, Plaintiff alleges Defendants were motived by fears of personal and municipal liability, and his discipline was “not warranted by the facts of the incident occurring . . . on February 18, 2014.” (Id. {[f] 38, 48) TIL. STANDARD OF REVIEW When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the well-pled allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See S.E.C. ». Tambone, 597 F.3d 436, 441 (1st Cir, 2010). While a court construes pleadings liberally, a court need “not credit conclusory assertions, subjective characterizations or ‘outright vituperation.”” Barrington Cove Ltd. P'ship v. Rhode Island Hous. & Mortgage Fin. Corp. 246 F.3d 1, 5 (1st Cir. 2001) (citing Coyne » City of Somervilly, 972 F.2d 440, 444 (1st Cir. 1992)), A complaint that states a plausible claim for relief on its face will survive a motion to dismiss. See Ashcroft », Igbal, 556 U.S. 662, 678 (2009). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. TV. DISCUSSION Plaintiff alleges Defendants violated his constitutional rights and committed various state- law torts. In particular, Plaintiff seeks recovery under 42 U.S.C. § 1983 for deprivation of the following constitutional tights: procedural due process (Count I); substantive duc process (Count IN); and equal protection (Count III). Plaintiff also asserts that Defendants entered into a conspiracy to deprive Plaintiff of his constitutional rights, seeking recovery under 42 U.S.C. § 1985 (CountCase 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 4 of 9 VIID." In addition, Plaintiff seeks to hold the Town of Erving liable for these alleged constitutional violations under Monell ». Department of Social Services, 436 U.S. 658 (1978) (Count IV). A. Count I (Procedural Due Process The court finds that Plaintiff's amended complaint fails to sufficiently allege a procedural due process claim. The Supreme Court requires a two-step analysis for any alleged procedural due process violation: first, whether Plaintiff has been deprived of a protected interest in property or liberty; and second, whether the State-provided procedure comports with due process. See 4m. Mfrs. Mut. Ins. Co. v. Sullivan, 526 US. 40, 59 (1999) (citing Mathews » Eldridge, 424 U.S. 319, 332 (1976). A court must look to state law to determine whether a property interest exists, because property interests are created not by the Constitution but by state law. See Cleveland Ba. of Educ, x. Loudermill, 470 U.S. 532, 538 (1985). At-will employees do not have a protected property interest in their employment, and employers are not required to grant them pre-termination process. See Ossinger v. City of Newton, 533 N.E.2d 228, 231 (Mass. App. Ct. 1989). In the present case, the Town of Erving’s Personnel Policies and Procedures handbook, as set forth in Plaintiff's amended complaint, unambiguously designated Plaintiff an employee at-will who could be removed for any cause or no cause, with or without notice. As an at-will employee, Plaintiff did not have a protected interest in his employment and, therefore, was not entitled to procedural due process protections. Plaintiff claims that he entered into an employment contract pursuant to Police Chief Blair’s actual or apparent authority. However, Blair did not have actual authority to create an employment contract, because the Select Board was Plaintiff's hiring authority. Cf Matllowx ». Town of Littleton, 473 F. Supp. 2d 177, 186 (D. Mass. 2007) (a fire chief lacked actual authority to enter into contracts "Tris not clear from the amended complaint that Plaintiff has asserted a § 1985 conspiracy rather than a common law conspiracy. Nonetheless, a court may consider a theory of recovery even if it was not specifically named in the complaint. See Johnson v. City of Shelly, Miss, 135 S. Ct. 346, 347 (2014) (holding that a plaintiff did not need “to invoke § 1983 expressly in order to state a claim” under § 1983)Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 5 of 9 because he lacked the authority to hire employees). Moreover, Blair did not have apparent authority to create an employment contract because “the doctrine of apparent authority does not apply to the government, its agencies, or its officials.” Dagastino v. Comm’r of Corr. 754 N.E.2d 150, 152 (Mass. App. Ct. 2001). Accordingly, Plaintiffs apparent and actual authority arguments are unavailing. Plaintiff also claims that he had an “evergreen employment relationship” and a lifelong employment contract with Defendants. Both an “evergreen employment relationship” and a lifelong employment contract require specific contractual provisions. See O'Brien v. Analog Devices, Inc., 606 N.E.2d 937, 939 (Mass. App. Ct. 1993); see ako S.E.C. 2, Worldcom, Inc., 2003 WL. 22004827, at *42 (S-D.N-Y. Aug. 26, 2003). As Plaintiff failed to cite to any contractual provision that would establish either an evergreen or lifelong contract, the court also rejects this argument. Plaintiff additionally argues that his employment was assured by the Personnel Policies and Procedures handbook’s promise of a fair and consistent disciplinary action and by Mass. Gen. Laws ch. 30A, § 21(a)(1).? An employee is not employed at-will if, per contract or a statute, his employment can only be terminated “for cause.” See Bishop 2». Wood, 426 U.S. 341, 362 (1976). Section 21(a)(1) does no more than prescribe the time and method under which the Select Board can meet in executive session; it does not require an employee to be terminated only for cause. See Mass. Gen. Laws. ch. 30A, § 21. The handbook, on the other hand, cautions every employee that he or she can be removed for any or no cause, with or without notice. It further states that the “policies do not create a contract between the Town of Erving, any employee, or any group of employees.” 2 For the first time in his opposition, Plaintiff alleges that the Town of Exving may have adopted Mass. Gen, Laws ch. 41, §97A, under which “[tJhe selectmen may remove [the police] chief or other officers for cause” only. See Mass. Gen. Laws ch. 41, § 97A; Stvtson ». Ba. of Selectmen of Carlist, 343 N-E.2d 382, 385-86 (Mass. 1976) (recognizing such language would create a protected property interest in an officer's employment); see alte Ziskend », O'Leary, 79 F. Supp. 2d 10, 14 (D. Mass. 2000). As this factual allegation is entirely absent from the amended complaint, the court will not consider it. See Doyle . Hasbro, Ine., 103 F.3d 186, 190 (1st Cir. 1996); see also Luthy », Proulx, 464 F. Supp. 2d 69, n. 25 (D. Mass. 2006) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cis. 1984); Gackenberger ». Boston Univ., 957 F. Supp. 306, 311, n. 5 (D. Mass. 1997) (“{T]he Court looks only at the allegations contained within the complaint, and does not consider any additional facts alleged in the parties’ memoranda or exhibits.”}. 5Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 6 of 9 (Pl’s Am. Compl. ] 10). Given this express and unequivocal language, “the customary blandishments about fair treatment” or “consistent” discipline are insufficient to transform Plaintiff's employment status or create a binding employment contract. Ray 2. Ropes ¢ Gray LLP, 961 F. Supp. 2d 344, 352-54 (D. Mass. 2013), aff'd, 799 F.3d 99 (1st Cir. 2015). Finally, to the extent Plaintiff has alleged a “stigma-plus” due process claim, this claim also fails as a matter of law. The Supreme Court has allowed recovery for such “stigma-phus” claims where a government employee suffered a public defamation that created not a hypothetical harm, but significant impairment. See Bishop, 426 U.S. at 348. The First Circuit later explained that to qualify for relief, the defamatory statements must have been made in a public meeting or in a newspaper. See Beitzell ». Jeffery, 643 F.2d 870, 879 (1st Cir. 1981) (holding that defamatory statements made within a university committee were insufficient to warrant a stigma-plus claim). In the present case, Plaintiff claims the defamatory remarks were made in the privacy of his home and inside a police station. Neither location is sufficiently similar to a public meeting or a newspaper. Thus, the allegedly defamatory statements were not public enough to support a stigma-plus claim grounded in the Due Process Clause. B. Cou intive Due Process’ Plaintiff's amended complaint also fails to allege sufficient facts in support of a substantive due process claim. A plaintiff may recover on a substantive due process claim only if the defendant’s conduct was so egregious as to “shock the conscience.” See Freeman v. Town of Hudson, 714 F.3d 29, 40 (Ast Cir. 2013) (citation omitted), Examples of conduct that shocks the conscience include: A teacher's fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years, see Morris ». Dearborne, 181 F.3d 657, 668 (5th Cir.1999); rape by a police officer in connection with a car stop, see Rogers ». City of Lith Rock, 152 F.3d 790, 797 (8th Cir.1998); a 57~day unlawful detention in the face of repeated requests for release, see Armstrong 2. Squadrito, 152 F.3d 564, 582 (7th Cir.1998); police officers aiding a third-party in shooting the plaintiff, see Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir.1998); an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened to kill him, see Johnson (v. 6Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 7 of 9 Glick], 481 F.2d [1028,] 1029-30 [(1973)]; and a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her, see Webb », McCudlongh, 828 F.2d 1151, 1159 (6th Cir.1987). Cummings v. Melntire, 271 F.3d 341, 346 (1st Cir. 2001). In the present case, Defendants’ conduct in terminating Plaintiff's employment for getting into a bar fight is hardly comparable to the conduct courts found as shocking the conscience. Accordingly, Count II fails to state a claim. C. Count III (Equal Protection) Plaintiff's “class of one” equal protection claim is factually and legally insufficient. Fort a “class of one” equal protection claim, a plaintiff must allege that he was “intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.” Freeman, 714 F.3d at 38. Moreover, the complaint must show “an extremely high degree of similarity between [the plaintiffs] and the persons to whom they compare themselves.” Id. (quoting Cordi-Allen v, Conlon, 494 F.3d 245, 251 (1st Cir. 2007)). Here, as Defendants argue, Plaintiff alleged no individual with whom he shares a high degree of similarity. Moreover, Plaintiff's claim is precluded by Supreme Court precedent. A plaintiff cannot recover on the class-of-one theory in the public employment context. See Engguist ». Oregon Dept. of Agr., 553 U.S. 591, 605 (2008). Accordingly, Count III fails to state a claim. D. Count VIII (§ 1985(3) conspiracy) Section 1985(3)’ prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the law. See Perez Sanchez u. Pub. Bldg. Auth. 531 F.3d 104, 107 (1st Cir, 2008). A claim under section 1985(3) has four elements: First, the plaintiff must allege a conspiracy; second, he must allege a conspiratorial purpose to deprive the plaintiff of the equal protection of the laws; third, he must identify an overt act in furtherance of the conspiracy; and finally, he must show either injury to person or property, or a deprivation of a constitutionally protected right. 3 Plaintiff does not specify which provision of § 1985 he alleges his claim under, but neither § 1985(1) nor (2) are applicable in this case. See 42 U.S.C. § 1985(2) (applicable to conspiracies designed to prevent testimony at trial); Kush 2 Rutledge, 460 U.S. 719, 724 (1983) (holding that section 1985(1) applies only to federal officers) 7Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 8 of 9 Id. (citing Assn ». Blanchard, 83 F.3d 1, 3 (Ast Cir. 1996)). Every § 1985(3) claim requires a plaintiff to show “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Id. (holding § 1985(3) inapplicable to political-class based discrimination) (quoting Griffin ». Breckenridge, 403 U.S. 88, 102 (1971)). In the present case, Plaintiff alleges deprivation of equal protection as a class of one and not because of racial animus. Furthermore, Plaintiff has not alleged facts from which one could infer a deprivation of a constitutionally protected right. Accordingly, Plaintiff has not alleged a plausible § 1985(3) claim and, therefore, Count VIII fails to state a claim. E. Count IV (Monel liability Plaintiff's Movel/ claim fails because there is no underlying constitutional deprivation. In Monell, the Supreme Court permitted local governments to be sued under 42 U.S.C, § 1983 for constitutional deprivations. See Monell, 436 U.S. at 690. Where, as here, there is no constitutional deprivation, Moned/ has no application. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). Accordingly, Count IV fails to state a claim. F. Remaining State-Law Claims Because Plaintiff's amended complaint failed to adequately allege claims under §§ 1983 and 1985(3) and Monell, his only federal claims and the basis for Defendants’ removal, the court declines to exercise supplemental jurisdiction over the remaining state-law claims. See Caesars Massachusetts Mgmt, Co, LLC ». Crosby, 778 F.3d 327, 337 (1st Cir. 2015). Rather than dismissing those claims without prejudice, however, the court will remand the case to state court. See Carnegie-Mellon Univ, ». Cohill, 484 U.S. 343, 357 (1988) (“{A] district court has discretion to remand to state court a removed case involving pendent claims upon a proper determination that retaining jurisdiction over the case would be inappropriate.”).Case 3:16-cv-30017-MGM Document 21 Filed 06/29/16 Page 9 of 9 VV. CONCLUSION For the foregoing reasons, the court ALLOWS Defendant’s Motion to Dismiss (kt. No. 12) Plaintiff's amended complaint as to Counts I, II, III, IV, and VIIL The court also declines to exercise supplemental jurisdiction over Counts V, VI, VII, IX, and X, and REMANDS this matter to Franklin Superior Coutt. It Is So Ordered. /s/ Mark G. Mastroianni MARK G. MASTROIANNI United States District Judge