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.