first amendment without retaliation by city officials such as the defendant's surfing a call or a and god at all there are two forms of petitioning activity specifically described snyder's original complaint that his first post after firing sir if you know laura for misconduct on the job working for snyder he communicated with the division of unemployment assistance about the circumstances of her firing and specifically exhibit two of the original complaint and also paragraphs twenty one twenty three of the original complaint allege that he communicated with the division of unemployment assistance by telling them that he fired her for deliberate misconduct of his company policy we are here standouts that's certainly not in the allegations the paragraph just state that they requested info from them right and then exhibit two which is actually attached to the complaint so you think that's the that exactly that's the that's the communication and then what do you do about the fact that then in paragraph twenty four you then say that the retaliation was for her terminations of employment the complaint that there was a television for termination of employment that does not implicate and there's nothing that says that it was retaliation for done providing information to the unemployment assistance to the well the complaint read as a whole the complaint alleges really a pattern of retaliation that was ongoing there was a number  a number of acts of retaliation i admit i admit that the retaliation for of going and filing a complaint with the city the day that she was terminated doesn't implicate any federal right but this was a long there was a complaint describes a pattern of retaliation beginning with that first day when she was fired and continuing over a number of years but it never says that she picked up another motive and it says your client fired her and then the next allegation says she thereupon immediately because she was fired launched this long campaign of going after what happened is when she would never say that any other motivation added well the other aspect i mean i think red as a whole the complaint alleges a pattern of retaliation and alleges conduct engaged fishing activity engage in my by my client privilege puts granted that it describes a pattern of retaliation because she was fired not well what your complaint alleges that there was a pattern of or allegation because of this other bees well one place in the complain paragraphs forty four to forty six where he did he describes the small claims lawsuit that my client filed against the defendant cole or as brother and immediately following that instance well the problem i'm having is you file a complaint that says they fired me and then that launched retaliation because they fired because i fired collar collar then retaliated by launching this campaign elsewhere in the complaint you mention one or two other things your client did but you don't suggest at all that and so you did anybody tell you tory behavior that it already started and to add frosting on the cake when you then come up to the first circuit on your prior appeal you indeed don't mention at all that you've got these other claims in your complaint so they're gone how do you get around that you can't sandbag on an appeal and then revive some other  well there's summary judgment motion said dismissed the complaint but the summary judgment motion actually only moved addressed to basically two two bases of the complaint that was equal protection and because that's all they thought that was in the complaint and you never came back and said well this is first amendment claim the should survive so the only reason that they didn't appeal that was you never argued oh i don't think we were obligated to argue with if it wasn't raised by the defendant so you think if you file a complaint and bury it in some way or is this as you say implicit theory and the other side moves to dismiss and they don't spot that implicit theory then you can sit there silently and not say anything about it and then when they win and let that motion to dismiss you can say well aha i thought this other theory well i think the complaint supports a number of supported a number of theories it turned out that the theory that we thought would be the focus of our litigation we turned it turned out that that was not viable that doesn't mean that i mean the case law is very clear what what is our first circuit one of the first you can say in it at that time to address and second that were not the subject of the summary judgment motion that was filed by you by the defendants and i want to bring to the corsican attention one case mandate in the prior appeal and one of the parties was suggesting that the district court ceded or violated the mandate in by sending the case back to arbitration and this court interlocutory appeal except for the equal protection substantive due process claims that was the subject of the interlocking tory appeal and that were declared by the court is not viable any other claims that were supported by the facts error correct ok and so then what all you want to have happen i mean maybe no more but just remit it to the district court they can then decide whether or not anything beyond the two that were in and your take i think i think the district court did pass on that question they specifically stated that no federal claims remain the do but the only reason as i read the district court's opinion that's given that maybe this is wrong is because of the first circuits ruling but if i saw what you were just saying you said the first circuit sperm ruling does not address all federal claims it addressed only the ones on it talking to people correct so that you are of the district court would be in thinking that the reason all federal plans must be dismissed is the puzzle the pair first circuit ruling you said that's not what happened so this is a court you just decide whether there is any other federal claim in the complaint i  does the complaint the original complaint or the proposed amended claim does it state sufficient facts to rise to a possible claim for relief for violation of mr snyder's first amendment rights that i think that's what i would like the court and then claims you also say there's a state constitutional correct massachusetts civil rights what's your business with respect to what the district court did as to that claim i think district court sort of first lying on the  mistaken premise that no federal claims remained misread the complaint also in a way that construed as not stating any state law claims whereas in fact we do viable claim possible claim for relief or the facts and that's what snyder did he gave the defendants all the facts they needed to do discovery to evaluate his claims and you need to know more in the recent supreme court case from need to have a specific legal theory it could even have the wrong legal theory as long as the facts rise to a close claim using title to proceed thank you called only addressed say an issues and that there were other issues that could be addressed later on quite clearly if you come up to the face second especially where i was arguing on behalf of my clients qualified immunity i'm before us is is that complaint should it be read a certain way i think what i hear you saying is that we can look at the history of the prior he'll shedding light on how in fact everyone wasn't reading that one co using rule fifty day that is incorrect i will fifteen a is the freely given standard with respect to a motion to land in fact you should be using sixteen b fifteen a has a time limit to it it only goes to the point very little need to add an expressed reference but they don't even actually say that the caller and the others your clients retaliated because which a motion to amend should have been filed four years five years after the complaint thank you was issued any other questions on the futility found by the district or so any first dirty amendment claims are futile because as grounded in the summary judgment record there is no violation of a clearly established its right in this case when it all fight immunity is claimed by city officials the burden is on the plaintiff to show that the constitutional right at issue is clearly established and beyond debate in the specific context of this case so you saying we could avoid all the issues we've discussed so far if we simply ask assuming he could amend the complaint taking it as amended there is not sufficient factual support in the record to support klein that's exactly right in that's what the district court found when it said in any event the district court found there were no such claims pleaded in any event any motion to amend is denied because the claims are futile so the plaintiff in his brief doesn't even its attempt to establish the constitutional right at issue here with any specificity just says there's a she had already made that following up on that would somehow violate the first amendment of the constitution because the plaintiff responded to the demur of me within the hour of the time when especially in this case where essentially probable cause for her allegations has been determined because as this court found previously the plaintiff's use of his building differs drastically from the admits the use of his building drastically different than under the variance for the two former occupants so in that sense there is actually some type of arguable at least probable cause for my client's allegations through the building department but that brings me back to whatever my client is did in the light most fat facts most favorable to the plaintiff it's not a constitutional violation of a clearly established right the plaintiff has not identified one especially in this case not only has not identified a constitutionally protected right he has not identified that it's of substantial motivating factor it's more akin to the case in this court involving the failure of access to the courts and certainly that's not clear here thank you if there are any other questions and you have to answer them thank you would just like to return to the question and nationally posed from the first motion to dismiss that was filed to the first summary judgment motions that were filed to the summary judgment motion  that was renewed to the arguments made here before this court what the defendant's head was you haven't established an me constitutional deprivation over and over and over again and he claimed to have never said that's when it shifts we say there's there's none and he didn't say oh but i have an eighth amendment oh i have a first a t at any point before this court in the interlocutory appeal the question was actually posed do you have anything else and the answer was no all of the assumed facts of concerted effort are based on former counselor koloa and together with the building inspector godat and powell looking at the entire complaint this court reached the conclusion that there were no federal  violations with respect to the city of waltham and in addition to the fact that their equal protection was the only preserved claim and that was dismissed it is court we have that a lack of showing of any final policy making authority establishing a particular policy decision that causes the alleged constitutional injury so the any theory of municipal to dismiss and the art if you go back it does say we repeatedly say any constitutional declaration and then that and then the district court ruled what  then so why isn't that so so your position would be to forget the first circuit there was a ruling dismissing all claims but due process and equal protection there was never appeal that wrong it just missed it again some but not all attorneys are yeah to attorney because up i can i can definitely jump forward to the summary judgment motion and ok with that point specify that at that point we've already got the situation where everybody is now just talking about due process and equal protection again but the but in in response to our motions district court had already identified only two claims as even viable for summary judgment i believe so and then where that summary judgment absolutely at that stage and then certainly when we're here before the first circuit there are six express in fact the decision actually specifically says after review of the complaint they did raise substantive due process the fourth a equal protection but only one that preserves equal protection and then goes through and says that that's dismissed on its merits that it doesn't rise to the level and then it says oh and when you're trying to raise later in the unclear to me well if you need a constitutional deprivation and for the massive all rights acts of procedure well and there certainly was no constitutional deprivation alleged  there's no state bar or state constitutional action that was alleged so the judge sobell sorry rests on the fact that this court has decided that there's no other federal  conspired together to do this but neither the few from lack but they do that in any event for private reasons in their individual capacity i believe they would lead paragraph six makes what is what is alleged as a whole in the complaint it makes explicit and it says it's not just right some of the first amendment to be free from retaliation for petitioning government claims can go forward is that true correct ok if you think you've got a first amendment economic claim that also should have gone forward don't you have to say to somebody he wait a second more should be going forward why why why is there any basis for thinking that more went forward than what the district court o allowed to go forward after being faced with a blanket dismissal of all the constitutional clients well it wasn't i mean it wasn't a blanket dismissal that this saw well it was a blanket dismissal but the only specific arguments they made and they required you know under the pleading standards there we have a generous notice standard under the legal argument standard they must fill out their arguments much more specifically and identify what theories or partial theories and so your position is that at that stage when the district court is ruling and says those two go forward it was also saying and whatever else i didn't mention also goes forward yes and i would bring to the attention this court case in new york she versus bolter where a very similar argument in the defendants in that case was made at the summary judgment state where they said wait a second we moved for summary judgment on all claims but they only argued they only specifically argued as to specific legal theories and then when it came on the plaintiff in that case said wait a second hold on the complaint actually the facts in the complain actually called the argument i like this race too cute by half because that again the summary judgment stage was set by the defendant summary judgment motion briefly i don't think i have anything else to me just oh one other thing i  did prior to the motion in court before judge the bell that was not the first time that i raised my first amendment claim i did in that there was a second round of summary judgment preceding that hearing and i didn't specifically raise the first amendment an theories in those summary judgment the first time that i learned that judge the bell didn't think that the complaint supported such theories that's why that's what i learned in the hearing in open court and i immediately moved to him and was denied in rules in the public policy favor a disposition of cases on the merits i asked the court to find that he has sufficiently stated a claim for first amendment tell you by lation of his eight minute bites and violation of the state's civil rights act and ask the court to