UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Bourque

v. Civil No. 06-cv-090-JM

Town of Hampton,

William L. Wrenn and

Daniel Gidley

O R D E R

Plaintiff William Bourque (“Officer Bourque” or “plaintiff”)

brought this action against defendants for their allegedly

retaliatory treatment of him, based on plaintiff’s disagreement

with their handling of charges against third parties who had

assaulted plaintiff while he was on duty as a police officer in

the Town of Hampton, New Hampshire. Plaintiff asserts that

defendants have engaged in conduct intended to intimidate and

harass him, in violation of his constitutional rights, and seeks

redress for those violations under 42 U.S.C. § 1983. He also

asserts several pendent state law claims, based on the same

incidents. Defendants move for summary judgment. Plaintiff

objects. After carefully considering the arguments on both

sides, for the reasons set forth below, defendants’ motion for

summary judgment is granted.

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 1 of 42
2

Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248. 

In ruling on a motion for summary judgment, the court

construes the evidence in the light most favorable to the

nonmovant. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st

Cir. 2001). The party moving for summary judgment “bears the

initial responsibility of . . . identifying those portions of

[the record] which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Once the moving party has met its burden,

the burden shifts to the nonmovant to “produce evidence on which

a reasonable finder of fact, under the appropriate proof burden,

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 2 of 42
3

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323, and Anderson, 477 U.S. at 249). While all

reasonable inferences must be indulged in favor of the party

opposing summary judgment, conclusory allegations, improbable

inferences, or unsupported speculation are not sufficient to

defeat summary judgment. Carroll v. Xerox Corp., 294 F.3d 231,

236-37 (1st Cir. 2002). Summary judgment will be granted if a

party bearing the burden of proof fails to establish an essential

element of its case. See Rojas-Ithier v. Sociedad Espanola de

Auxilio Mutuo, 394 F.3d 40, 43 (1st Cir. 2005). 

United States District Court for the District of New

Hampshire Local Rule 7.2(b)(2) provides in pertinent part: 

All properly supported material facts set

forth in the moving party’s factual statement

shall be deemed admitted unless properly

opposed by the adverse party. 

Fed. R. Civ. P. 56(e) makes clear what is necessary to “properly

oppose” a motion: 

an adverse party may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 3 of 42
1Plaintiff filed an affidavit as Exhibit O as part of his

opposition on February 16, 2007. Document no. 9. Because the

filing was not in accordance with local rules on electronic

filing he was ordered to refile. In refiling, document no. 10,

plaintiff failed to electronically include the affidavit as part

of Exhibit O. He has added it as an addendum. Document no. 14. 

4

showing that there is a genuine issue for

trial. 

In addition to affidavits, the adverse party may proffer

deposition testimony, answers to interrogatories and admissions

on file to defeat summary judgment. See Fed. R. Civ. P. 56(c).

Facts

Plaintiff was and still is a police officer employed by the 

Hampton Police Department.1 In August 2003, plaintiff was

assaulted and injured on the job. Four of the individuals

involved were charged. The police prosecutor who investigated 

the incident, Sergeant Joseph Galvin (“Sergeant Galvin”),

identified several problems with the case, including difficulty

in identifying one of the primary assailants, who never was

apprehended. After several months of working on the case,

Sergeant Galvin spoke with Hampton’s Chief of Police, William L.

Wrenn (“Chief Wrenn”) about how he would like to proceed. In May

2004, Chief Wrenn urged plaintiff to agree to reduced charges. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 4 of 42
5

Plaintiff refused. The matter was resolved by a plea agreement

in which all four defendants pled guilty.

Prior to these events, plaintiff asserts he had never been

disciplined or investigated by the Hampton Police Department. 

Plaintiff now complains that his disagreement with the plea

bargain caused a number of investigatory and disciplinary acts

against him. These acts are described below seriatim. 

a. Fire Department

Hampton Police Lieutenant Daniel Gidley (“Lieutenant

Gidley”) states that in November 2004, he observed plaintiff’s

cruiser in the parking lot of the fire station for at least an

hour while plaintiff was on duty; that he verified that plaintiff

was not at dinner; and that he spoke to plaintiff about spending

excessive time at the fire department while on patrol. See

Defs.’ Mot. Summ. J. (document no. 7), Br. in Support, Ex. 6,

Gidley Aff. (document no. 7.6), ¶ 3. For his part, plaintiff

denies being spoken to about visiting the fire station until

after he raised the subject with Lieutenant Gidley, but he did

not factually controvert any of Gidley’s affidavit except the

allegation that the visit lasted an hour. Plaintiff claims the

visit lasted only twenty minutes. See Defs.’ Mot. Summ. J., Ex.

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 5 of 42
2The significance of plaintiff appearing unshaven in court

is relevant to another incident not raised by plaintiff in this

action, pertaining to plaintiff’s improper request for mileage

reimbursement, for which he was disciplined. See Pl.’s Summ. J.

Opp’n Mem., Ex. R., Mar. 8, 2007 Deposition of Richard Sawyer

(“Sawyer Dep.”) at 10-14; see also Pl.’s Answer to Interrog. No.

6

7, Pl.’s Ans. Interrogs. No. 7. Plaintiff admits he was at the

fire station, but denies doing anything wrong or fraternizing

improperly with the firemen. See id.; see also Pl.’s Summ. J.

Opp’n Mem. (document nos. 9, 10 and 14), Ex. O, Bourque Aff. ¶ 4. 

There is, therefore, no genuine issue of contested material fact

as to his being at the fire department for twenty minutes to an

hour when he should have been on patrol. Plaintiff was not

disciplined, nor is he alleged to have suffered any other adverse

consequences as a result of the incident. 

b. Unshaven in court

Lieutenant Gidley saw plaintiff unshaven during a court

appearance and reported it to another Hampton Police Lieutenant,

Richard Sawyer (“Lieutenant Sawyer”). See Gidley Aff. ¶ 4. 

Officer Bourque does not deny the statement, but instead

characterizes it as unsubstantiated and damaging hearsay, made

for the sole purpose of harassing him. See Bourque Aff. ¶ 6. He

does not explain this analysis. Plaintiff was not disciplined

for the incident.2 See ¶ 4. This allegation does not raise any

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 6 of 42
10 (admitting one day suspension on 3/14/05). Plaintiff believed

Lieutenant Gidley was behind the investigation into plaintiff’s

inaccurate mileage records. See id., No. 7. Whatever instigated

that investigation, the record indicates plaintiff in fact did

abuse the mileage reimbursement policy, and there is no evidence

that the initiation of that investigation was improper. 

7

genuine issue of material fact, because the facts are undisputed.

c. Retaliatory Parking

Plaintiff alleges that in March 2005, Lieutenant Gidley

parked his police vehicle in the parking lot in such a way that

it blocked plaintiff’s vehicle from exiting easily. Lieutenant

Gidley explains that due to snow accumulation, there were no

spaces left; that he was at the station for 15-20 minutes; that

he had taken care to block no one; and that at no time did

plaintiff ask him to move his vehicle. Plaintiff counters that

there were empty spaces in the lot and that Gidley had gone out

of his way to block plaintiff’s car. See Pl.’s Answer to

Interrog. No. 8 (document no. 7.7). Both parties agree that snow

was affecting how cars were parked that day. Although with

difficulty, plaintiff did manage to exit his parking space. Id.

Lieutenant Gidley states that plaintiff never asked him to move

the vehicle, and plaintiff does not deny that. See id.; see also

Gidley Aff. ¶ 5. Lieutenant Gidley first learned he had caused

plaintiff difficulty when plaintiff filed a grievance form

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 7 of 42
8

against him with the union. See id.; see also Pl.’s Summ. J.

Opp’n Mem., Ex. E (3/27/05 letter from Hampton Police Association

to Chief Wrenn). While the details of this incident are

disputed, the essential facts alleged do not prove that

Lieutenant Gidley intentionally blocked Officer Bourque in

retaliation for Bourque’s previous refusal to comply with Chief

Wrenn’s handling of the assault case. 

d. Denial of Motor Vehicle Rove

Plaintiff alleges a discriminatory denial of “rove” duty,

claiming he was denied it in retaliation for having filed a

grievance form with the union about Lieutenant Gidley blocking

his car in the parking lot. See Bourque Aff. ¶ 7; see also Pl.’s

Summ. J. Opp. Mem., Ex. I (4/22/05 letter from Hampton Police

Association to Chief Wrenn). Lieutenant Gidley states that the

purpose of the rove vehicle is to travel through town looking for

traffic violations. He says plaintiff was denied this duty 

“[b]ecause the plaintiff did not write tickets for motor vehicle

violations,” leading Lieutenant Gidley to conclude that it “would

make more sense to assign someone else to the rove vehicle.” 

Gidley Aff., ¶ 6. While the parties dispute the reasons for

plaintiff having been removed from rove duty, they agree that the

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 8 of 42
9

decision resulted in no loss of pay or hours or in any way

constituted a demotion or other adverse employment action. 

e. Patrolling Outside His Area

Plaintiff alleges that he was accused of patrolling outside

his assigned area, but again does not support this allegation

with any fact in his affidavit or any answer to an interrogatory. 

Lieutenant Gidley on the other hand, says he did find plaintiff

parked with his lights off on a dead-end road, clearly out of his

assigned patrol area. Gidley Aff. ¶ 7. Lieutenant Gidley

further states that, when questioned, plaintiff explained he was

in the area because reception for his phone service was better

there. Plaintiff was not disciplined for this incident. See id.

Those facts are uncontroverted. 

f. Mailbox Contraband

Plaintiff next alleges that he was falsely accused of being

untruthful about the date on which he placed a Viagra tablet in

Lieutenant Gidley’s mailbox. Plaintiff states he had found the

pill in his own mailbox and moved it to Gidley’s box on March 12,

2005. Lieutenant Gidley reported he had checked his box on the

afternoon of March 12th and the pill was not there. The incident

came before Chief Wrenn, who believed Gidley and recommended that

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 9 of 42
3The specific charges against Bourque were “insubordination,

truthfulness, evidence management, unsatisfactory performance.” 

See Pl.’s Summ. J. Opp’n Mem., Ex. H.

4The parties have not briefed the preclusive effect of the

Department of Labor findings. 

10

plaintiff be terminated for being untruthful and for illegally

disposing of a controlled substance. See Pl.’s Summ. J. Opp.

Mem., Exs. F & H (document nos. 10.6 & 10.8). On June 3, 2005,

plaintiff was suspended, with pay, pending an administrative

hearing with the Hampton Department of Labor.3 At the hearing,

plaintiff’s counsel stated that the mailbox surveillance video

from March 12th showed Gidley had not gone to his mailbox on that

day. As a result of the video, the disciplinary action was

dismissed, the charges were removed from plaintiff’s personnel

file and he was allowed to return to work.4 See Pl.’s Summ. J.

Opp’n Mem., Exh. L (document no. 10.12). The facts surrounding

this incident were established and are not now disputed. 

Plaintiff contends Lieutenant Gidley lied, but that opinion

is not substantiated by any evidence. Chief Wrenn’s assessment

was that Lieutenant Gidley had been careless, not intentionally

deceptive; Lieutenant Gidley was disciplined nonetheless. See

Pl.’s Summ J. Opp’n Mem., Ex. N (document no. 10.14). Lieutenant

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 10 of 42
11

Gidley did misstate the date on which he had checked his mailbox. 

While Lieutenant Gidley might have lied about the date, it is at

least as plausible that he simply forgot which day he went to his

mailbox. In the end, Lieutenant Gidley, not plaintiff, was

disciplined. Plaintiff’s conclusory allegations of unfair

treatment, unsubstantiated with any evidence, are insufficient to

defeat summary judgment.

 g. Unauthorized Entries

Plaintiff’s last complaint alleges that Lieutenant Gidley

made unauthorized entries in plaintiff’s personnel file. 

Lieutenant Gidley’s affidavit states unequivocally that he made

no such entries. Plaintiff’s affidavit does not address the

issue; consequently, Lieutenant Gidley’s statement is deemed

admitted. 

Plaintiff also alleges that Lieutenant Gidley maintained

unauthorized, illegal personnel files of various police officers,

including plaintiff. Again, plaintiff’s affidavit is silent on

this allegation. Lieutenant Gidley’s affidavit states that

Hampton police lieutenants kept a log of rule infractions, as a

method of tracking issues without the negative consequences of

formally recording an infraction in an officer’s personnel file. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 11 of 42
12

See Gidley Aff. ¶ 9. The practice has been discontinued and all

documentation has been deleted. These facts are deemed admitted

because they are undisputed. 

Discussion

Although the facts present some minor inconsistencies, no

genuine issue regarding a fact material to the resolution of

plaintiff’s claims exists. The question, therefore, is whether

defendants are entitled to judgment as a matter of law. 

Plaintiff brought this action under 42 U.S.C. § 1983, which

imposes liability on public officials acting under color of state

law who infringe the constitutional rights of private parties. 

See Pagan v. Calderon, 448 F.3d 16, 30 (1st Cir. 2006). Although

plaintiff has identified specific constitutional violations, the

complaint couches them in terms of an over-arching pattern of

retaliation taken in response to his refusal to drop the charges

arising out of the August 2003 assault. He attempts to weave his

subsequent difficulties together with this thread of retaliation,

but has failed to proffer the evidence needed to tie these

disconnected incidents together to support, or raise a genuine

dispute about, this alleged pattern of retaliation. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 12 of 42
5Plaintiff does not provide any evidentiary support for his

allegation that Chief Wrenn wanted to drop the case. The record

indicates that Chief Wrenn and Sergeant Galvin recognized the

weaknesses of that case and, therefore, opted to resolve the

matter with a plea bargain.

13

I. First Amendment

Plaintiff asserts his First Amendment rights were violated

by defendants’ persistent harassment of him. Plaintiff contends

this retaliatory treatment violated his First Amendment rights in

three distinct ways. The first claim addresses the general

pattern of retaliation which plaintiff argues began in 2004

because he refused to agree to Chief Wrenn’s request that he drop

the assault charges. Plaintiff asserts this retaliation violated

his to right to free speech.5 The second claim focuses on the

harassment plaintiff alleges he was subject to after visiting the

fire department in November 2004, in violation of his free

association rights. His third claim is based on the two

grievance forms plaintiff filed with the union, which he argues

defendants responded to by removing him from rove duty and

pursuing the Viagra-related charges, in violation of his free

speech rights. 

It is well-settled that “government actions, which standing

alone do not violate the Constitution, may nonetheless be

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 13 of 42
14

constitutional torts if motivated in substantial part by a desire

to punish an individual for exercise of a constitutional right.” 

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (citing

authority); see also Oropallo v. Parrish, No. 93-1953, 1994 WL

168519, at *4 (1st Cir. May 5, 1994) (explaining how conduct done

in retaliation for exercising First Amendment rights is

actionable under § 1983). To state a retaliation claim,

plaintiff must show “(1) constitutionally protected conduct, (2)

an adverse action by [government] officials ‘sufficient to deter

a person of ordinary firmness from exercising his

[constitutional] rights,’ and (3) ‘a causal link between the

exercise of his constitutional rights and the adverse action

taken against him.’” Mitchell, 318 F.3d at 530 (quoting Rauser

v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (internal quote

omitted)). “[A] retaliatory state of mind typically is not

susceptible to proof by direct evidence that can be averred in a

complaint.” Ferranti v. Moran, 618 F.2d 888, 892 (1st Cir. 1980)

(citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979)). 

Retaliatory intent, however, can be inferred from the chronology

of the cited events. See id.; see also Oropallo, 1994 WL 168519

at *4 (explaining how the challenged event must follow the

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 14 of 42
15

exercise of the constitutional right).

A. Plea Bargain for the 2003 Assault

Plaintiff first claims he was retaliated against for

exercising his right to free speech when he disagreed with Chief

Wrenn’s decision about how to handle the August 2003 assault

case. The critical question here is whether plaintiff, as a

public employee, engaged in speech that was protected by the

First Amendment when he challenged Chief Wrenn’s decision. If

plaintiff’s statement is not protected by the First Amendment,

then there was no exercise of a constitutional right and that

ends the retaliation analysis. See Mitchell, 318 F.3d at 530

(the threshold inquiry of a retaliation claim is whether the

triggering conduct is protected by the Constitution).

As a public employee, plaintiff’s speech may be limited by

the government without offending the Constitution, provided the

restrictions are necessary for the efficient and effective

administration of the public service he was employed to provide. 

See Garcetti v. Ceballos, __ U.S. __, 126 S. Ct. 1951, 1958

(2006) (explaining how the government’s interest in controlling

its operations is balanced against the employee’s interest in

free speech). Whether or not plaintiff’s disagreement with Chief

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 15 of 42
16

Wrenn is afforded First Amendment protection involves a two-step

inquiry. See id. (citing Pickering v. Bd. of Educ. of Twp. High

Sch. Dist. 205, 391 U.S. 563, 568 (1968)). First, did plaintiff,

the employee, speak as a citizen on a matter of public concern? 

If the answer is no, then the employee has no First Amendment

claim on the employer’s reaction to the speech. Garcetti, 126 S.

Ct. at 1958. “[W]hen public employees make statements pursuant

to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.” Id.

at 1960. Restrictions on an employee’s speech which occurs in

the course of performing job responsibilities reflect the

appropriate control the employer has over that which it created. 

See id. This rule essentially allows public employers to

evaluate their employees’ job performance without raising

constitutional concerns. Id.

If the employee is speaking on a matter of public concern,

however, then the second inquiry arises, which focuses on the

competing interests of the speech and its consequences. See id.

at 1961 (comparing speech as a private citizen with speech as a

public employee). Under such circumstances, “the question

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 16 of 42
17

becomes whether the relevant government entity had an adequate

justification for treating the employee differently from any

other member of the general public.” Id. at 1958. If the

employee is speaking as a “citizen[] about matters of public

concern,” the speech can be restricted only as much as is

“necessary for the employer[] to operate efficiently and

effectively,” both to promote the provision of public service on

the one hand, and to protect the employee’s liberties and to

foster public discourse on the other hand. Id. at 1958-59. 

Here, plaintiff’s opinion about how the 2003 assault charges

should have been handled was an expression about a matter of

public concern. See City of San Diego v. Roe, 543 U.S. 77, 83-84

(2004) (defining a matter of public concern as “something that is

a subject of legitimate news interest . . . and of value and

concern to the public”). Criminal charges concern the public and

present issues critical to the public’s safety and welfare. See

e.g. Press-Enterprise Co. v. Super.Ct. of Cal., County of

Riverside, 478 U.S. 1, 13 (1986) (discussing how awareness of and

access to the criminal justice system assuages community outrage

and hostility towards violent crimes). It is well-settled that

“members of the public have a right of access to criminal

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 17 of 42
18

proceedings secured by the First Amendment.” Tennessee v. Lane,

541 U.S. 509, 523 (2004) (citing Press-Enterprise Co., 478 U.S.

at 8-15, which extended the right of access to preliminary

hearings). 

The fact that plaintiff voiced his opinion in a meeting with

his superior, or that his opinion related to his job, does not

remove the speech from the realm of “public concern.” See

Garcetti, 126 S. Ct. at 1959 (expressing views that were related

to the speaker’s employment and were said inside the office,

rather than publicly, were both non-dispositive of the public

concern determination). The controlling factor is whether the

opinion was expressed pursuant to plaintiff’s duties as a police

officer. See id. (finding speech done as part of employment

duties is the critical determination). Plaintiff, however, had

no official role in prosecuting the charges. Nothing in the

record indicates plaintiff’s regular duties involved evaluating

or prosecuting cases for the Hampton Police Department. His

objection to a nol pros is properly understood as the opinion of

the victim of the assault. In that capacity, he spoke as an

ordinary citizen about a matter of public concern.

Plaintiff’s claim, however, ends here. Although the

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 18 of 42
6Chief Wrenn fairly exercised his executive authority when

he declined to follow plaintiff’s opinion about how to handle the

case. See Multimedia Holdings Corp. v. Cir.Ct. of Fl., St. Johns

Co., 544 U.S. 1301, 125 S. Ct. 1624, 1626 (2005) (recognizing the

decisions to charge and to prosecute are the responsibility of

the executive branch). The record supports the conclusion that

Chief Wrenn based his decision to plea bargain the 2003 assault

charges after fully investigating and assessing the case. 

Nothing in the record suggests that plaintiff’s opinion was

treated differently than any other citizen’s opinion would have

been. Nor does the record raise a question of fact regarding

whether Chief Wrenn would have made a different decision if

another citizen, rather than plaintiff, had voiced the objection

to his handling of the case. Plaintiff simply was not treated

“differently from any other member of the general public,”

Garcetti, 126 S. Ct. at 1958, when Chief Wrenn declined to follow

plaintiff’s desired course for resolving the assault case. 

19

critical speech pertained to a matter of public concern, his

First Amendment rights were not violated because he was not

treated differently, as a public employee, from any other member

of the general public for having voiced his opinion. See id. at

1958 (focusing on whether the government was justified in

restricting its employee’s speech compared to the freedom the

general public enjoys).6 As an initial matter, plaintiff’s

argument that the cited examples of retaliation constitute the

requisite unjustified differential treatment seems to assume that

the “general public” here was limited to other officers in the

Hampton Police Department, rather than the public at large. Even

assuming plaintiff can fairly make that distinction, his argument

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 19 of 42
7Although plaintiff was put on administrative leave during

the investigation into the Viagra incident, his suspension was

with pay and, when the investigation ended favorably for

plaintiff, he was reinstated at the same rank. Without any

demotion or loss of pay, the record amply demonstrates he

suffered no adverse employment consequences from his mishandling

of evidence. See Campagna v. Mass. Dep’t of Envtl. Prot., 334

F.3d 150, 154-55 (1st Cir. 2003) (requiring allegation of

transfer, demotion or termination to show adverse employment

action).

20

is unsupported by the factual record.

Each of the cited incidents fail to demonstrate an adverse

employment consequence that was caused by his objection to Chief

Wrenn’s decision. The investigation into plaintiff’s mileage

record, which prompted Lieutenant Gidley’s report about plaintiff

being unshaven in court, was caused by plaintiff, in fact,

abusing the mileage reimbursement policy. The undisputed record

shows that plaintiff was disciplined for that conduct. The other

cited incidents -- including time spent at the fire station,

being out of his patrol area while on duty, and mishandling

evidence by placing a Viagra tablet in Lieutenant Gidley’s

mailbox -- again, were acts plaintiff admits having done, which

were inconsistent with police department rules, and for which he

suffered no adverse employment consequences.7 The most egregious

incident involved the Viagra tablet; however, the investigation

into that incident is too remote in time from plaintiff’s May

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 20 of 42
21

2004 opposition to Chief Wrenn’s decision to support any

inference of retaliation. See Oropallo, 1994 WL 168519 at *4

(assessing the timing of the conduct and alleged consequence). 

Plaintiff’s final allegation charges that Lieutenant Gidley

intended to block him in the parking lot; however, that

conclusory allegation, which is not substantiated by the record,

is not sufficient to defeat summary judgment on plaintiff’s

retaliation claim. 

The listed incidents demonstrate a pattern of plaintiff’s

poor judgment, and the consequences suffered as a result, more

than they demonstrate defendants’ retaliatory intent. The

undisputed facts simply do not state a claim for a violation of

plaintiff’s First Amendment right to free speech based on his

opposition to the plea bargain. See Garcetti, 126 S. Ct. at

1958-60 (explaining how, to state a First Amendment claim, the

employee must have been treated differently by the employer for

having stated his opinion); see also Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 55 (1st Cir. 2006) (no First Amendment claim

where exercise of the constitutional conduct was not a

substantial or motivating factor in the adverse employment

decision). Nothing in the record supports the reasonable

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 21 of 42
8Plaintiff also asserts a vague claim for a violation of his

right to associate with other police officers “because he was

intentionally singled out amongst an entire police department; .

. . the investigations . . . were posted publicly within the

police department, [which] served to ostracize BOURQUE from his

work associations.” Pl.’s Opp’n Mem. at 10. Like the fire

station interaction, this allegation also seems to refer to his

desire to socialize and fraternize with colleagues. That

personal interest, however, without more, is not the type of

association protected by the First Amendment. See e.g. Connick

v. Myers, 461 U.S. 138, 145 (1983) (explaining how the First

Amendment protects speech concerning public affairs, “‘to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people,’” (quoting

Roth v. United States, 354 U.S. 476, 484 (1957), in contrast to 

speech related to internal office issues which government

officials are given wide latitude to control). 

22

inference or conclusion that plaintiff suffered any adverse

employment action, and thus was treated differently because he

was a public employee than he would have been as a private

citizen, for exercising his free speech rights. Since plaintiff

has not established, or raised a genuine dispute about, any

element of a retaliation claim, defendants are entitled to

judgment as a matter of law on this claim.

B. Fire Station Visit

Plaintiff next alleges his right to free association was

violated when Lieutenant Gidley investigated plaintiff for having

been at the Hampton Fire Station in November 2004.8 This claim

fails for several reasons. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 22 of 42
23

First, fraternizing with firefighters is not the type of

“free association” protected by the First Amendment. See

McConnell v. Fed. Election Comm’n, 540 U.S. 93, 255-56 (2003)

(explaining that the free association provision protects the

right to political expression and association and extends to “a

wide variety of political, social, economic, educational,

religious, and cultural ends” (internal quote omitted)); see

also Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36,

50 (1st Cir. 2005) (describing freedom of association as the

protection of groups to pursue the guarantees of speech,

assembly, petition and free exercise of religion). By

plaintiff’s own admission, he associated with members of the

Hampton Fire Department because of his personal friendship with

them. Second, it is undisputed that plaintiff was on duty at the

time that he was socializing at the fire station. Other than

plaintiff’s bald allegation of retaliation, nothing in the record

undermines Lieutenant Gidley’s justifiable questioning of why

plaintiff was there when he should have been on patrol. Third,

plaintiff was not disciplined in any way for this transgression. 

Plaintiff has not established any facts that demonstrate he

was exercising his free association rights and then was

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 23 of 42
9Although plaintiff asserts this retaliation claim as a

violation of his free speech rights, it is better described as a

violation of his right to petition the government for a redress

of grievances. See e.g. Martin v. City of Del City, 179 F.3d

882, 887 (10th Cir. 1999) (analyzing grievances directed at

24

disciplined for properly exercising those rights. Nothing about

this incident remotely supports plaintiff’s claim of retaliatory

treatment. See Mitchell, 318 F.3d at 530 (instigating conduct

must be constitutionally protected and must cause the retaliatory

action). Defendants are entitled to judgment as a matter of law

on this claim.

C. Grievance Form Filings

Plaintiff’s final retaliation claim is based on the two

grievance forms he filed. He contends that the first grievance

form, about Lieutenant Gidley intentionally blocking him in the

parking lot, prompted Lieutenant Gidley to have plaintiff removed

from rove duty. Next plaintiff contends that the second

grievance form, about having been taken off rove duty, caused

Chief Wrenn to place plaintiff on administrative suspension and

pursue charges for the Viagra incident. Plaintiff argues that

because the grievance forms were followed by adverse employment

consequences, he was retaliated against for exercising his free

speech rights, in violation of the First Amendment.9

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 24 of 42
government employer under the petitions clause); see also Rendish

v. City of Tacoma,123 F.3d 1216, 1221-22 (9th Cir. 1997)

(discussing authority for analyzing public employee petition

clause claims under the same rubric as free speech claims); see

also Belk v. Town of Minocqua, 858 F.2d 1258, 1261 (7th Cir.

1988) (treating public employee’s threat of filing a grievance as

an exercise of the right to petition the government). For

purposes of resolving plaintiff’s claims, the distinction is of

little significance, however, because both the free speech clause

and the petition clause are subject to the same analysis of

whether the issue involved was a matter of public concern. See

Martin, 179 F.3d at 887-88 (citing McDonald v. Smith, 472 U.S.

479, 485 (1985) and Connick, 461 U.S. at 147, to explain that the

petition clause enjoys no greater protection than the other

clauses in the First Amendment, requiring public employee’s

petitions, like their free speech, to involve matters of public

concern); see also Campagna, 334 F.3d at 154 (citing Boyle v.

Burke, 925 F.2d 497, 505 (1st Cir. 1991) for same rule that the

“public concern” doctrine applies to both free speech and

petition clause claims); see also Adair v. Charter Co. of Wayne,

452 F.3d 482, 492 (6th Cir. 2006) (finding no claim for either a

free speech or a petition clause violation, because public

employees do not have “the right to file lawsuits to redress

grievances without commenting on matters of public concern”); see

also Rendish, 123 F.3d at 1222 (listing authority for rule that

the “public concern” doctrine applies to both free speech and

petition clause claims). Whenever the claim involves a reaction

to government employee speech, the analysis begins by assessing

whether the speech involved a matter of public concern and, if it

does, balancing the State’s needs as employer to efficiently and

effectively operate with the employee’s rights as a citizen to

express him/herself. See Connick, 461 U.S. at 142-46 (discussing

history of public employee’s First Amendment rights). 

25

While it is well settled that “‘a State cannot condition

public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression,’”

Garcetti, 126 S. Ct. at 1955 (quoting Connick, 461 U.S. at 142),

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 25 of 42
26

when the “employee expression cannot be fairly considered as

relating to any matter of political, social, or other concern to

the community, government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment.” Connick, 461 U.S.

at 146. Here, plaintiff’s retaliation claim involves exactly

that type of expression. 

The grievance forms addressed only difficulties plaintiff

himself was having with other police officers, Lieutenant Gidley

in particular. Such speech, limited to the internal affairs of

the Hampton Police Department, does not involve a matter of

public concern to invoke protection by the First Amendment. See

id. at 147-48 (explaining that whether speech addresses a matter

of public concern must be determined by the “content, form, and

context of a given statement”); see also Vickowski v. Hukowicz,

201 F. Supp. 2d 195, 200-01 (D. Mass. 2002) (rejecting

retaliation claim based on termination following filing of

grievance and subsequent lawsuit because plaintiff police

officer’s underlying complaint involved only his own discipline

and suspension, which were not matters of public concern). “We

hold only that when a public employee speaks not as a citizen

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 26 of 42
27

upon matters of public concern, but instead as an employee upon

matters only of personal interest, absent the most unusual

circumstances, a federal court is not the appropriate forum in

which to review the wisdom of a personnel decision taken by a

public agency allegedly in reaction to the employee’s behavior.” 

Connick, 451 U.S. at 147.

Since plaintiff’s complaints involved only his difficulty

getting out of a parking space and his not being assigned rove

duty, they do not rise to the level of public concern garnering

First Amendment protection. While the analysis ends there, it

bears noting that nothing in the record supports his claim of

adverse employment action as a result of filing the grievance

forms, either. The undisputed facts were that rove duty is

simply one of several duties that could be assigned on any shift,

that not doing rove duty did not result in any less pay or fewer

privileges, or cause any other consequence that reasonably could

be understood as adverse. The undisputed facts also showed that

plaintiff was placed on administrative suspension because he, in

fact, put the Viagra tablet into Lieutenant Gidley’s mailbox, in

contravention of police department policy about handling

evidence. It was uncontroverted that plaintiff was fully

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 27 of 42
28

reinstated, with the charges deleted from his personnel file,

after the surveillance tapes proved that Lieutenant Gidley, not

plaintiff, had gotten the date wrong. Based on these facts,

plaintiff has failed to show any retaliatory treatment. See

Campagna, 334 F.3d at 154-55 (dismissing claim where no adverse

employment actions taken response to exercise of First Amendment

right); see also Nethersole v. Bulger, 287 F.3d 15, 19 (1st Cir.

2002) (explaining that defendant can defeat the claim, even if

retaliation was a motivating factor in plaintiff’s treatment, if

defendant can prove that the adverse employment action would have

resulted regardless of the protected conduct).

Nothing in the record gives rise to the inference, or raises

a genuine dispute about, plaintiff’s grievance forms having been

a substantial or motivating factor in defendants’ subsequent

decisions. Plaintiff has failed to show that any action was

taken against him because he exercised his right to file

grievance forms. “[W]hile the First Amendment invests public

employees with certain rights, it does not empower them to

‘constitutionalize the employee grievance.’” Garcetti, 126 S.

Ct. at 1959 (quoting Connick, 461 U.S. at 154). Defendant is

entitled to judgment as a matter of law on the First Amendment

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 28 of 42
29

claim based on filing of the grievance forms.

 II. Fourteenth Amendment Due Process

Plaintiff’s second and third claims are that defendants’

protracted harassment and intimidation of him, allegedly

demonstrated by the incidents set forth above, were a “deliberate

violation” of his substantive and procedural due process rights

guaranteed by the Fourteenth Amendment. Plaintiff collapses his

substantive and procedural due process arguments into one general

complaint about the Viagra-incident investigation. Specifically,

plaintiff asserts the charges and investigation stigmatized him,

which infringed his liberty interest in continued employment. He

further contends the administrative hearing process was tainted, 

because information from his confidential personnel records was

leaked to the press, which exacerbated the damage to his

reputation and denied him an impartial hearing. Plaintiff

asserts defendants’ “malevolent campaign” to “ex-communicate” him

and terminate his employment constituted the type of arbitrary

and capricious government action that violates the due process

clause.

The Supreme Court has held that the Due Process Clause

protects individuals against two types of government action. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 29 of 42
30

First, “‘substantive due process’ prevents the government from

engaging in conduct that ‘shocks the conscience,’ or interferes

with rights ‘implicit in the concept of ordered liberty.’” U.S.

v. Salerno, 481 U.S. 739, 746 (1987) (discussing the Fifth

Amendment due process clause (internal quotations omitted)). 

Second, government action that deprives a person of life, liberty

or property but survives substantive due process scrutiny still

must be implemented in a fair manner. See id. This requirement

traditionally has been referred to as “procedural” due process. 

Id.; see also DePoutot v. Raffeally, 424 F.3d 112, 117 (1st Cir.

2005) (explaining the due process clause of the Fourteenth

Amendment applies the same restrictions on municipalities and

municipal agencies). One does not turn to the procedural due

process question until the substantive due process claim is

addressed. 

A. Substantive Due Process 

To succeed on the substantive due process claim plaintiff

must prove that the conduct shocks the contemporary conscience

and that the employer deprived him of a protected interest in

life, liberty or property. See Pagan, 448 F.3d at 32. When, as

is the case here, the claim challenges executive action, any

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 30 of 42
31

abuse of power is not necessarily a constitutional tort. 

See DePoutat, 424 F.3d at 118. “Conscience-shocking” means

extreme and egregious, or truly outrageous, uncivilized or

intolerable. See Pagan, 448 F.3d at 32 (citing authority). 

“Mere violations of state law, even violations resulting from bad

faith,” do not invariably amount to conscience-shocking behavior. 

DePoutot, 424 F.3d at 119. The conduct must be “stunning.” Id. 

Plaintiff argues the public accusations that he possessed a

controlled substance constitutes conduct that “shocks the

conscience.” While news articles that were published regarding

this incident reported the event involved allegations of “an

illegal disposal of a controlled substance,” those articles do

not identify plaintiff by name. There are no affidavits or

interrogatory answers which authenticate the press reports or

provide any evidence that any of the defendants made such a

statement about plaintiff. The unauthenticated complaint

references “contraband” in plaintiff’s mailbox. In short, there

is no evidence of any act by any defendant to support plaintiff’s

claim that they intended to stigmatize him or otherwise hinder

his career. Nothing in the record supports a finding that

defendants treated plaintiff so outrageously that the conduct

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 31 of 42
32

“shocks the conscience.” See id. (comparing examples of conduct

that was conscience shocking with conduct that was not); see also

Pagan, 448 F.3d at 32-33 (emphasizing how even disquieting or

unlawful conduct does not necessarily clear the high hurdle of

extreme egregiousness required to “shock the conscience”).

Even if defendants’ conduct had shocked the conscience,

plaintiff has not alleged facts that could be construed as

violating any interest protected by the due process clause. As a

matter of law, a suspension with pay does not constitute a

violation of plaintiff’s liberty interest. The Supreme Court

has recognized that “a complete prohibition of the right to

engage in a calling” violates one’s liberty interest in choosing

a field of private employment. Conn v. Gabbert, 526 U.S. 286,

291-302 (1999). There may also be a liberty interest that

extends to a suspension without pay. See Moran v. Clarke, 296

F.3d 638, 645 (8th Cir. 2002) (en banc) (acknowledging right to

engage in work without unreasonable interference and harassment). 

However, a police officer temporarily suspended with pay does not

have a damage claim for deprivation of his liberty. See

Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir. 1984)

(rejecting notion that every police officer misconduct charge

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 32 of 42
33

that becomes part of a personnel file gives rise to liberty

interest violation claim). 

To defeat defendants’ motion for summary judgment, plaintiff

needed to proffer some evidence which at least raises a genuine

dispute about whether defendants’ treatment of him shocks the

contemporary conscience and, in so doing, deprived him of a

protected liberty interest. See DePoutot, 424 F.3d at 118

(requiring conscience shocking conduct before recognizing a

constitutional right to be free from such conduct). Since

plaintiff has failed to make a showing on either element of his

substantive due process claim, that ends the matter. See id.

Defendants are entitled to judgment as a matter of law on the

substantive due process count. 

B. Procedural Due Process

To establish a procedural due process violation, plaintiff

must identify a protected liberty or property interest and show

that defendants deprived him of that interest without adequate

process. See Aponte-Torres, 445 F.3d at 56. Plaintiff claims

defendants’ false accusations that plaintiff misrepresented the

date of the Viagra incident, and that Viagra was a “controlled

substance,” stigmatized him, violating his liberty interest in

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 33 of 42
34

continued police employment. He then asserts that the hearing

process was “tainted . . . in such a fundamental way” by the leak

to the press that it was constitutionally inadequate. The

undisputed record does not substantiate either part of

plaintiff’s procedural due process claim.

Plaintiff does enjoy a liberty interest in the individual

right “to engage in any of the common occupations of life” like

being a police office. See Conn, 526 U.S. at 291 (citing Bd. of

Regents v. Roth, 408 U.S. 564, 572 (1972) which described general

personal freedoms protected by the concept of liberty). He also

correctly asserts that his continued employment could not be

jeopardized by false and stigmatizing accusations. See Roth, 408

U.S. at 573. “‘[W]here a person’s good name, reputation, honor,

or integrity is at stake because of what the government is doing

to him, notice and an opportunity to be heard are essential.’” 

Id. (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971)).

The uncontested facts demonstrate, however, that plaintiff

was given notice of the charges against him and an opportunity to

refute them. He was afforded a hearing. He had counsel. He

prevailed and the charges were dismissed. All record of the

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 34 of 42
10While plaintiff does not claim to have had a property

interest in his job with the Hampton Police Department, the

uncontroverted facts clearly show the process he received would

have been adequate to protect such an interest. See Roth, 408

U.S. at 577 (explaining that if a person has a legitimate claim

of entitlement to a property interest, it cannot be taken away

without an opportunity for the person to be heard).

35

investigation was removed from his personnel file.

These undisputed facts show that even assuming, without

finding, that the Viagra incident did stigmatize him, he was

afforded constitutionally adequate process and, in fact, was not

deprived of any liberty interest.10 Being suspended with pay

during the course of the investigation cannot be understood as

foreclosing employment opportunities in violation of plaintiff’s

liberty interest in being a police officer. See Roth, 408 U.S.

at 573-74. Although plaintiff contends the press leak tainted

the fairness of the hearing procedure, the facts do not support

that allegation. The process clearly protected plaintiff’s

interests, because he was exonerated and continues to work as a

Hampton police officer. Defendants are entitled to judgment as a

matter of law on the procedural due process claim.

 IV. Equal Protection

Plaintiff’s fourth claim is that defendants specifically

targeted him with their harassment and intimidation, in violation

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 35 of 42
36

of his equal protection rights guaranteed by the Fourteenth

Amendment. Plaintiff asserts he was arbitrarily and maliciously

singled out, from other similarly situated police officers in

Hampton, for no rational reason. He contends this treatment was,

again, in response to his initial refusal to agree with Chief

Wrenn about how to handle the 2003 assault charges and his

subsequent complaints to the union regarding the alleged

resulting harassment. 

The Equal Protection Clause of the Fourteenth Amendment is

essentially a direction that “‘all persons similarly situated

should be treated alike.’” Pagan, 448 F.3d at 34 (quoting City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). 

It can be invoked to challenge the way a police department, as

part of the executive branch of government, treats individuals. 

See id. (explaining “[i]ts protections extend to both legislative

and executive conduct”). To defeat summary judgment, plaintiff

must establish that, or raise a genuine issue of fact about

whether, (1) he was treated differently from others similarly

situated, and (2) such selective treatment was based on an

impermissible consideration such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 36 of 42
11It is questionable whether those “similarly situated” to

plaintiff reasonably are all other Hampton police officers rather

than the other Hampton police officers who were subject to

disciplinary action because their conduct violated department

rules and policies. Because that distinction is not necessary

for the disposal of this count, I will accept plaintiff’s claim

that he should be considered “similarly situated” to the entire

Hampton Police Department.

37

malicious or bad faith intent to injure a person. See AponteTorres, 445 F.3d at 57 (citing authority). Although plaintiff

argues he was “singled out” in retaliation for exercising his

First Amendment rights, with a malicious intent to injure him,

there is no evidence to support his claim of disparate treatment

based on such impermissible considerations.

First, the evidence shows that plaintiff, in fact, was not

treated differently from all other Hampton police officers.11 As

discussed at length above, defendants’ treatment of plaintiff did

not violate his First Amendment rights. Accordingly, plaintiff

cannot establish that he was treated differently because he

exercised his fundamental rights to free speech, association, or

to petition the government for a redress of grievances.

Second, the evidence completely undermines plaintiff’s claim

that defendants treated him differently because of a malicious or

bad faith attempt to injure him. It is uncontested that he did

spend time at the fire station when he was supposed to be on

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 37 of 42
38

patrol. It is uncontested that he did appear unshaven in court. 

It is uncontested that he was found out of his patrol area. 

Plaintiff did not refute with any evidence defendants’ reasonable

explanation of the parking lot incident. Plaintiff has not

provided any evidence that he was denied “rove” patrol duty for a

retaliatory purpose. He admits that he placed a Viagra tablet in

the mailbox. None of those matters was denied or disproven. The

fact that plaintiff’s superiors noticed this behavior and

notified him that the incidents were not within the normal course

of his duties is neither surprising nor in any way irrational or

unconstitutional.

Finally, plaintiff argues he was unfairly treated when Chief

Wrenn initially believed Gidley as to when he checked the mailbox

and thought plaintiff had not been truthful about the incident,

which led to the administrative suspension and perceived damage

to plaintiff’s reputation. Plaintiff seems to argue the code of

conduct and hearing process were not applied to him as they were 

to other officers. Nothing about this series of events, however,

supports plaintiff’s claim that he was treated differently from

other Hampton police officers, in bad faith, or investigated for

no rational reason. 

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 38 of 42
39

Chief Wrenn’s conclusion that Lieutenant Gidley was more

credible than plaintiff was rationally supported by the record of

plaintiff’s conduct while on duty. When plaintiff proffered

evidence proving he correctly recalled the contested date, Chief

Wrenn considered it and, ultimately, agreed with plaintiff,

dismissing the charges against him and fully reinstating him. By

comparison, Lieutenant Gidley was disciplined for incorrectly

reporting when he checked his mailbox, because his command

position required a “standard of efficiency” that did not

tolerate carelessness. See Pl.’s Summ. J. Opp’n Mem., Ex. N. 

Unlike plaintiff, who never lost any pay, Lieutenant Gidley was

suspended for one week without pay. Under such circumstances,

the facts simply cannot support a claim of disparate treatment of

the two police officers, or unequal application of the

department’s rules of conduct. 

Plaintiff has failed to adduce any facts which support his

equal protection claim to defeat defendants’ motion. Defendants,

therefore, are entitled judgment as a matter of law that they did

not violate plaintiff’s equal protection rights.

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 39 of 42
12In relevant part, this statute provides: 

“If two or more persons . . . conspire . . . 

for the purpose of depriving . . . any persons

or class of persons of the equal protection of the

laws, or of equal privileges and immunities under

the laws . . . the party so injured or deprived may

have an action for the recovery of damages occasioned

by such injury or deprivation, against any one or

more of the conspirators.” 42 U.S.C. § 1985(3).

40

V. § 1985 Violation

Plaintiff also asserts that defendants conspired to deprive

him of his constitutional rights, in violation of 42 U.S.C. §

1985.12 To establish a claim for a § 1985(3) violation,

plaintiff must prove that “‘the conspiratorial conduct of which

he complains [was] propelled by “some racial, or perhaps

otherwise class-based, invidiously discriminatory animus.”’” 

Diva’s Inc. v. City of Bangor, 411 F.3d 30, 38-39 (1st Cir. 2005)

(internal quotations omitted). Plaintiff is not a member of a

suspect class. See Pagan, 448 F.3d at 35-36 (explaining

“invidious discrimination” means discrimination against classes

based on race, gender or religion). And the uncontroverted

record clearly demonstrates that, while he may not have liked his

treatment, plaintiff was not discriminated against by defendants. 

Under the circumstances, defendants are entitled to judgment as a

matter of law on plaintiff’s § 1985 claim. See Diva’s Inc., 441

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 40 of 42
41

F.3d at 39 (affirming dismissal of § 1985(3) claim where

plaintiff could not show membership in a suspect class).

 VI. Pendent State Law Claims

Having found that defendants are entitled to judgment as a

matter of law on all of plaintiff’s federal claims, the only

remaining claims are those based on state law. Under such

circumstances, it is well within the court’s discretion to

decline to exercise its supplemental jurisdiction. See 28 U.S.C.

§ 1367(c)(3) (providing for district court to decline to exercise

its jurisdiction when “the district court has dismissed all

claims over which it has original jurisdiction”); see also

DePoutot, 424 F.3d at 122 (affirming district court’s dismissal

without prejudice of the remaining state law claims); see also

Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998)

(requiring district court to reassess its jurisdiction over state

law claims after the foundational federal claims are dismissed). 

Given the “pragmatic and case-specific . . . variety of

considerations,” id., including the fact that plaintiff has

alleged four counts based on state law, in the interest of

fairness to the parties and comity, I conclude that the continued

exercise of this court’s supplemental jurisdiction over the

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 41 of 42
42

remaining claims is not warranted. Accordingly, those claims are

dismissed without prejudice to refiling in a court of competent

jurisdiction. 

Conclusion

For the reasons set forth above, defendants’ motion for

summary judgment (document no. 7) is granted as to counts 1, 2,

3, 4 and 9 of plaintiff’s complaint. Counts 5, 6, 7 and 8 are

dismissed, without prejudice. The clerk is ordered to close the

case.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 30, 2007

cc: Thomas J. Gleason, Esq.

 William G. Scott, Esq.

Case 1:06-cv-00090-JM Document 22 Filed 05/30/07 Page 42 of 42