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
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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because the Emergency Regulation was no longer in effect.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 COVID19. 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-RICR20-15-7 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 AlexanderScott, 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 AlexanderScott, 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.