Opinion

Dusenberry v. Commonwealth of Massachusetts

Court
District Court, D. Massachusetts
Filed
Jun 6, 2023
Cited by
0 cases
Authority
More cited than 22.9%

concluding that the second prong of the Pickering test ‘can rarely, if ever, be determined on a Rule 12(b)(6) to dismiss the public employee's complaint’

How later courts described this case

  • concluding that the second prong of the Pickering test ‘can rarely, if ever, be determined on a Rule 12(b)(6) to dismiss the public employee's complaint’
  • ‘In stating a prima facie case at the motion-to- dismiss stage of a case, there is a rebuttable presumption that no balancing is required to state a claim.’
  • ‘noting that ‘the Pickering balancing test’ is ‘fact-intensive’ and ‘does not easily lend itself to dismissal on a Rule 12(b)(6) motion’ (citing Jordan v. Carter, 428 F.3d 67, 73 (1st Cir. 2005))

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_________________________________

)

JESSICA DUSENBERRY )

)

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 23-10457-WGY

COMMONWEALTH OF MASSACHUSETTS, )

BRISTOL COUNTY DISTRICT )

ATTORNEY’S OFFICE; )

THOMAS M. QUINN, III, )

KYLE MCPHERSON, )

JENNIFER ST. LAURENT SOWA, )

PATRICK BOMBERG, )

KAREN O’SULLIVAN, )

STEPHEN NADEAU, JR., )

CHRISTINE LETSCHE, )

WILLIAM MCCAULEY, )

AND CYMONE MARTIN )

Defendants. )

)

_________________________________)

YOUNG, D.J. June 6, 2023

ORDER

All defendants filed a motion to dismiss, Def.’s Mot

Dismiss, ECF No. 6, and the parties have fully briefed the

issue, Pl.’s Opp’n (“Pl.’s Opp’n”), ECF No. 10, Def.’s Mem.

Supp., ECF No. 7, Def.’s Reply, ECF No. 13. This Court held

oral argument on May 17, 2023 and took Dusenberry’s First

Amendment claims 6, 7, and 11 involving individual defendants

Thomas M. Quinn, III, Kyle McPherson, Jennifer St. Laurent Sowa,

Patrick Bomberg, Karen O’Sullivan, Christine Letsche, and

William McCauley (“Individual Defendants”) under advisement.

Due to inadequate pleading, the other remaining counts were

dismissed from the bench.

This Court DENIES the motion to dismiss as to claims 6, 7,

and 11 because it would be premature to weigh mere allegations

to determine whether a First Amendment right was clearly

established for the purposes of qualified immunity. See

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty.,

Illinois, 391 U.S. 563, (1968).

A claim for qualified immunity requires assessing:

(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional

right; and (2) if so, whether the right was clearly

established at the time of the defendant’s alleged

violation. The second prong, in turn, has two parts:

(a) whether the legal contours of the right in

question were sufficiently clear that a reasonable

official would have understood that what he was doing

violated that right, and (b) whether the particular

factual violation in question would have been clear to

a reasonable official.

Diaz-Bigio v. Santini, 652 F.3d 45, 50 (2011). (emphasis

added)(internal citations omitted). Whether a public employee’s

speech is entitled to First Amendment protections and thus,

“clearly established” for the function of qualified immunity

requires this Court to engage in a Pickering analysis that is

inappropriate at the 12(b)(6) stage. See generally Connick v.

Myers, 461 U.S. 138 (1983). This Court’s decision rests on its

inability to perform the Pickering balancing because it requires

a fact specific balancing test that is not appropriate at this

stage where mere allegations are taken as true.

“[A] Rule 12(b)(6) motion is generally not the proper

vehicle to perform the balancing required under

Pickering v. Board of Educ., 391 U.S. 563 (1968), and

Garcetti v. Ceballos, 547 U.S. 410 (2006). See

Decotiis v. Whittemore, 635 F.3d 22, 35 n.15 (1st Cir.

2011) (‘noting that ‘the Pickering balancing test’ is

‘fact-intensive’ and ‘does not easily lend itself to

dismissal on a Rule 12(b)(6) motion’ (citing Jordan v.

Carter, 428 F.3d 67, 73 (1st Cir. 2005))); Lyons v.

Vaught, 781 F.3d 958, 961 n.1 (8th Cir. 2015)

(concluding that the second prong of the Pickering

test ‘can rarely, if ever, be determined on a Rule

12(b)(6) to dismiss the public employee's complaint’);

Burnside v. Kaelin, 773 F.3d 624, 628 (5th Cir. 2014)

(‘In stating a prima facie case at the motion-to-

dismiss stage of a case, there is a rebuttable

presumption that no balancing is required to state a

claim.’).”

Hayes v. IXP Corp., No. CV 19-12042-WGY, 2020 WL

30424, at *1 (D. Mass. Jan. 2, 2020). At this stage in the

litigation, qualified immunity does not shield the

individual defendants from suit because the Court cannot

determine whether there was violation of a clearly

established First Amendment right. Individual Defendants’

motion to dismiss, ECF No. 6, is denied as to First

Amendment claims 6, 7, and 11.

SO ORDERED.

/s/ William G. Young_

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES1

1 This is how my predecessor, Peleg Sprague (D. Mass. 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 45 years.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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