Pendleton v. Haverhill
Case Date: 09/03/1998
Court: United States Court of Appeals
Docket No: 97-2376
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For the First Circuit No. 97-2376 TONEY PENDLETON, Plaintiff, Appellant, v. CITY OF HAVERHILL, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] Before Torruella, Chief Judge, Selya, Circuit Judge, and Schwarzer,* Senior District Judge. Thomas J. Gleason for appellant. Stephen C. Pfaff, with whom Douglas I. Louison and Merrick and Louison were on brief, for appellees. September 1, 1998 _______________ *Of the Northern District of California, sitting by designation. SELYA, Circuit Judge. This appeal presents a problematic First Amendment question as to whether the plaintiff was a "limited-purpose public figure" required to prove actual malice in order to recover for defamation. After careful consideration of this, and other, issues, we reject the plaintiff's appeal. I. THE PREDICATE FACTS Plaintiff-appellant Toney Pendleton, an African American in his mid-forties, hails from Haverhill, Massachusetts. He is well known in the community both because of his family ties and because of his exploits as a high-school athlete. A. The Job Market. Starting in the late 1980s, Pendleton tried to land a full-time teaching position in the Haverhill public school system. Although he worked as a substitute teacher from time to time, he progressed no further. In August 1993, he vented his frustration to a reporter, Anita Perkins, who found considerable irony in Pendleton's inability to secure a permanent teaching position notwithstanding a student-led outcry for a more diverse public school faculty. She wrote an article to that effect in the Lawrence Eagle-Tribune, a newspaper serving the Haverhill area. See Anita Perkins, Black Teacher Has Grown Impatient Awaiting A Chance, Eagle-Trib., Aug. 17, 1993, at 13. Perkins's article profiled Pendleton and described his family, educational background, career aspirations, temporary teaching assignments, and his trepidation that school officials were not giving appropriate priority to minority hires. Reflecting on his experience as an African-American student in the Haverhill schools, Pendleton was quoted as saying: "Twenty years later things are still the same." He also was quoted as asking, rhetorically: "How can you expect a black child who is called a 'n_ _ _ _ _' to go to a white counselor and teacher with his feelings?" The article commented on the dearth of minority teachers in the Haverhill schools, described some of the steps that Haverhill had taken to increase minority representation within the school system, and concluded with Pendleton's plaintive comment: "I'm tired of substitute teaching. I just want a chance to show my qualifications." That fall, Pendleton accepted a Haverhill-based position as a vocational counselor with Jobs For Bay State Graduates, Inc. (JBSG), a private, nonprofit organization. JBSG counselors advise public school students who do not plan to attend college about career opportunities. Pendleton held this job at the time of his arrest. B. Arrest and Prosecution. On the evening of May 27, 1994, Pendleton parked his car on a busy, well-lit street in his home town, ran some errands, and then repaired to a local tavern. At some point, Arnaldo Pagan, a boyhood friend, asked Pendleton to give him a ride home. After Pagan grew increasingly insistent, Pendleton acquiesced. The two men then proceeded to Pendleton's automobile. The vehicle was still parked when two Haverhill policemen on routine neighborhood patrol shined a flashlight into it. The officers, John Arahovites and Lawrence Newman, claimed that "two heads popped up" from behind the dashboard and that they noticed a powdery substance on Pendleton's face. Upon further investigation, the officers observed powder on Pagan's lap and throughout the car's interior. They also saw a small bag containing what appeared to be cocaine on the floor of the vehicle. Based on these observations, the gendarmes promptly arrested Pendleton and Pagan. Pendleton's arrest made front-page news in both the Eagle-Tribune and a competing newspaper, the Haverhill Gazette. The stories revealed that charges of cocaine possession and conspiracy to violate the drug laws had been brought against Pendleton in the state district court. The articles described Pendleton as a "school jobs counselor" and a "high school advisor" who worked in a classroom five days a week with 30 to 40 high- school seniors. Pendleton entered a not guilty plea. At a court hearing on July 12, 1994, he asserted that when Pagan, after entering his vehicle, produced a small plastic bag, he (Pendleton) suspected the bag contained drugs and slapped it out of Pagan's hand. In turn, this act caused the contents to spill onto Pagan's lap and scatter throughout the car. In responding to an unrelated inquiry from the court, the prosecutor admitted that, due to a mix-up, the powder seized from Pendleton's car had not been tested. The judge obviously did not like what he had heard. He declared Pendleton not guilty and dismissed the charges. C. Subsequent Events. A flurry of media reports followed the case's termination. In them, the district attorney's office accused the police of bungling the investigation and the police chief responded that delays in laboratory testing are sometimes an inevitable concomitant of the evidence-gathering process. As part of this coverage, a local reporter interviewed Pendleton and his attorney. The lawyer theorized that Pendleton had been in the wrong place at the wrong time, and that he now could "get back to doing . . . positive things in the community," such as "helping kids." Bill Burke, Pendleton Tells His Side: But Did Police Drop The Ball?, Haverhill Gazette, July 14, 1994, at A1. Pendleton asserted that he was "the happiest guy in America that my innocence has been borne out." Id. On July 18, the arresting officers responded to a call from the Eagle-Tribune. At the newspaper's offices, Arahovites and Newman voiced indignation over the disposition of the charges, emphasizing that they had not been notified about the July 12 proceeding and expressing disappointment that the judge had refused to order Pendleton to undergo drug rehabilitation. See Bill Cantwell & Eileen Pendleton, Judge's Release Of Suspect Outrages Police, Eagle-Trib., July 18, 1994, at 1. The article quoted Arahovites as saying that the police were "not trying to crucify Pendleton," but "[t]hat guy should be in rehab right now." Id. When arrested, Arahovites said, Pendleton "had coke all over his face, from the tip of his chin to his eyebrows," unlike "[a] first- time user [who] would not have had it all over his face." The same article reported Arahovites's claims that he had "never made an arrest where there was this much cocaine on a person's face," and that he had found "a big bag of cocaine at [Pendleton's] feet." Id. Finally, the journalists noted Arahovites's protest that the officers should not be held accountable for Pendleton's predicament. In Arahovites's words, "[t]hese guys [Pendleton and Pagan] were doing cocaine and they got caught. Period." Id. Thus, despite the fact that Pendleton "was fighting for a school department job" and "outside forces [were] fighting for him to become a teacher," he had only himself to blame if the negative publicity hampered his bid. Id. On August 18, 1994, JBSG terminated Pendleton's employment. II. THE PROCEEDINGS BELOW On December 19, 1995, Pendleton sued the city of Haverhill, Arahovites, and Newman in the federal district court. In pertinent part, his complaint invoked 42 U.S.C. 1983 (1994) and claimed that the officers' post-acquittal statements to the press violated his constitutional rights. The complaint also alleged various state-law claims, including counts for defamation, infliction of emotional distress, invasion of privacy, negligence, negligent supervision, and malicious interference with employment relations. After protracted pretrial discovery, the defendants moved for summary judgment. The district court, ruling from the bench, granted brevis disposition (i) in Newman's favor on all claims, (ii) in Arahovites's and the city's favor with respect to the section 1983 claims, and (iii) exercising supplemental jurisdiction, see 28 U.S.C. 1367(c), in the defendants' favor on all other causes of action save for the defamation claim against Arahovites. Trial on the surviving count commenced on October 27, 1997. At the conclusion of the evidence, the court entertained arguments as to whether Pendleton should be deemed a public figure, and if so, to what extent. Noting the nature of Pendleton's work in the public schools, his stature in the Haverhill community, the fact that charges against him were a matter of public interest, and his willingness to "engage[] in th[e] process of communication in the form of a newspaper interview, just as the defendant did," the court concluded that Pendleton was a limited-purpose public figure and instructed the jury accordingly. The jurors returned a take- nothing verdict. This appeal followed. Pendleton now assigns error to the pretrial entry of partial summary judgment, three evidentiary rulings that occurred at trial, and the public figure status determination. We address his asseverations in accordance with these groupings. III. THE PRETRIAL RULINGS The district court granted summary judgment on seven of the enumerated counts lodged in Pendleton's complaint. Pendleton does not challenge any of them as they pertain to Newman, but he does challenge four of the rulings as they pertain to Arahovites and Haverhill. We review these determinations de novo, taking the facts as they appeared in the summary judgment record in the light most hospitable to Pendleton. See Elliot v. S.D. Warren Co., 134 F.3d 1, 9 (1st Cir. 1998). A. The Section 1983 Claims. Section 1983 "provides a cause of action when an individual, acting under color of state law, deprives a person of federally assured rights." Camilo-Robles v. Hoyos, ___ F.3d ___, ___ (1st Cir. 1998) [No. 97-2260, slip op. at 7]. Pendleton's section 1983 claims hypothesize that Arahovites's scurrilous statements to the press led JBSG to discharge Pendleton, thereby depriving him of a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Supreme Court has determined authoritatively that defamation, even from the lips of a government actor, does not in and of itself transgress constitutionally assured rights. See Paulv. Davis, 424 U.S. 693, 700-01 (1976) (establishing that although state law may provide a remedy for defamatory statements uttered by a government official, no cognizable constitutional harm ordinarily occurs). In an effort to avoid this holding and to state an actionable section 1983 claim grounded upon defamation, Pendleton strives to fit his case into the narrow category of situations that involve more than simple stigmatization. These precedents discern a deprivation of a constitutionally protected liberty interest when, in addition to mere reputational injury, words spoken by a government actor adversely impact a right or status previously enjoyed under state law. See id. at 708-09; Rodriguez de Quinonezv. Perez, 596 F.2d 486, 489 (1st Cir. 1979); Dennis v. S & S Consol. Rural High Sch. Dist., 577 F.2d 338, 341 (5th Cir. 1978). Because his case juxtaposes slanderous language and loss of employment, Pendleton posits that it comes within this "stigma plus" rubric. The district court did not agree. Nor do we. In the first place, to achieve a sufficient "plus" in a loss-of-job context, words spoken must be "uttered incident to the termination." Siegert v. Gilley, 500 U.S. 226, 234 (1991). Here, however, the alleged defamation and the decision to cashier Pendleton came from two separate, unrelated sources, and the former cannot plausibly be said to have occurred "incident to" the latter. As such, the allegedly defamatory remarks cannot be viewed as working a denial of a previously recognized right or status. In the second place, a violation of constitutional proportions under a "stigma plus" theory exists only if, and to the extent that, the opportunities lost are government benefices denied as a result of governmental action. See Paul, 424 U.S. at 708-09; Rodriguez de Quinonez, 596 F.2d at 489. Pendleton's claim founders on these shoals: he worked for a non-governmental employer and lost a private (not a public) position. Although JBSG receives some financial assistance from the Commonwealth of Massachusetts and operates within the public school system, it is not an arm of the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). To the extent that Pendleton asserts section 1983 claims apart from his claim that Arahovites deprived him of a liberty interest, we dismiss them out of hand. Some of these claims (e.g., his allegations that the officers falsified their reports and acted out of racial animus) are simply unsupported by the evidence. Others (e.g., Pendleton's assertion that his federal civil rights were violated because Arahovites spoke out in contravention of departmental rules) are legally impuissant. See, e.g., Snowden v. Hughes, 321 U.S. 1, 11 (1944); Colon v. Schneider, 899 F.2d 660, 672 (7th Cir. 1990). Finally, in the absence of individual liability on any officer's part, Pendleton's counterpart section 1983 claims against Haverhill, as the officers' municipal employer, cannot succeed. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); Evans v. Avery, 100 F.3d 1033, 1039 (1st Cir. 1996), cert. denied, 117 S. Ct. 1693 (1997). B. The Tort Claims. On appeal, Pendleton concedes the propriety of summary judgment on many of his state-law tort claims, but challenges the rejection of his claims for negligence, invasion of privacy, and malicious interference with employment relations. The subject warrants scant comment. To prevail on a negligence claim under Massachusetts law, a plaintiff must show (1) that the defendant owed him a duty, (2) that the defendant breached the duty, and (3) that the breach caused the plaintiff's injuries. See Cannon v. Sears, Roebuck & Co., 374 N.E.2d 582, 584 (Mass. 1978). In this case, Pendleton conclusorily attributed the loss of his employment to Arahovites's remarks, but he did not produce evidence at the summary judgment stage sufficient to permit a finding that these remarks prompted JBSG to fire him. Absent such evidence, his claim is untenable. See, e.g., Poskus v. Lombardo's of Randolph, Inc., 670 N.E.2d 383, 385-86 (Mass. 1996). Pendleton's malicious interference claim suffers from the same defect. And, moreover, Pendleton failed to proffer any evidence related to another essential element of this claim; the summary judgment record contains no proof that Arahovites knowingly attempted to induce JBSG to act. See G.S. Enters., Inc. v. Falmouth Marine, Inc., 571 N.E.2d 1363, 1369 (Mass. 1991). The privacy claim is no more substantial. Pendleton never identified the specific statements that supposedly intrude upon his privacy, nor can we glean the essentials of an actionable claim from the summary judgment record. Massachusetts law prohibits unreasonable public disclosure of private information. See Mass. Gen. Laws. ch. 214, 1B; see also Bratt v. International Bus. Mach. Corp., 467 N.E.2d 126, 134 (Mass. 1984). But this does not profit Pendleton because neither Arahovites's descriptions nor perceptions of Pendleton's conduct in a public place constitute private information. See generally United States v. Dionisio, 410 U.S. 1, 14 (1973) (concluding that there is no reasonable expectation of privacy in one's appearance); Brown v. Hearst Corp., 862 F. Supp. 622, 631 (D. Mass. 1994) (explaining that there can be no expectation of privacy vis- |