                 Not for Publication in West’s Federal Reporter

          United States Court of Appeals
                        For the First Circuit
No. 07-1438
                            DANIEL MCCARTHY,

                         Plaintiff, Appellant,

                                      v.

     CITY OF NEWBURYPORT; THOMAS CAPPELLUZZO; ALAN MAGUIRE;
   THOMAS H. HOWARD; DAVID FOLEY; DAVID C. KNIGHT; LISA MEAD;
                        ALAN P. LAVENDER,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS
         [Hon. Morris E. Lasker, Senior District Judge]


                               Before
                        Boudin, Chief Judge,
                   Selya, Senior Circuit Judge,
               and Schwarzer,* Senior District Judge.


     Thomas J. Gleason with whom Gleason Law Offices, P.C. was on
brief for appellant.
     Adam Simms with whom John J. Davis and Pierce, Davis &
Perritano, LLP were on brief for appellee Thomas Cappelluzzo.
     Leonard H. Kesten with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief for appellees City of
Newburyport, Alan Maguire, Thomas H. Howard, David Foley, David C.
Knight, Lisa Mead, and Alan Lavender.



                            October 31, 2007




     *
      Of the    Northern      District      of    California,     sitting   by
designation.
           SCHWARZER, Senior District Judge.               Daniel McCarthy, a
Newburyport, Massachusetts police officer, brought this action
against the former and current chiefs of police, Thomas Cappelluzzo
and Thomas H. Howard; fellow police officers Alan Maguire, David
Foley and David Knight; former mayors of Newburyport Lisa Mead and
Alan Lavender; and the City of Newburyport.                  McCarthy alleged
claims   under   42   U.S.C.    §   1983    for    violations   of   his   First
Amendment, due process, and equal protection rights, as well as
claims under various state laws. The district court, in a thorough
and well-reasoned memorandum and order, granted defendants’ motions
for summary judgment.     We affirm.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
           McCarthy’s    lawsuit      stems       from   disciplinary   actions
against him in the wake of controversy surrounding local newspaper
reporting about the Newburyport Police Department (“NPD”).                   In
March 2001, some NPD members came to believe that McCarthy was the
source of information used in local newspaper stories that were
critical of the department, based on McCarthy’s acquaintance with
a local member of the press.          This led to a letter to the city
council (signed by Officers David Foley and David Knight, among
others), a newspaper article that McCarthy claims alluded to him as
a disruptive presence in the NPD, and a letter from McCarthy to the
newspaper editor.
           In April 2001, McCarthy made an arrest using a key to a
private establishment.         An unknown person posted in the police
department a copy of the NPD policy forbidding officers from


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possessing keys to private establishments without permission from
the police chief, and Chief Thomas Cappelluzzo orally reprimanded
McCarthy for violating the policy. McCarthy then received repeated
requests for a written report on the incident from Sergeant Alan
Maguire and Chief Cappelluzzo. In July 2001, after McCarthy failed
to comply with the requests, Cappelluzzo suspended him for three
days. When Cappelluzzo ordered him to relinquish his gun and badge
for the duration of his suspension, McCarthy allegedly tossed his
loaded gun onto Cappelluzzo’s desk.         McCarthy was then given an
additional five-day suspension.       An independent counsel reviewed
and   upheld   these   suspensions,   and   recommended   an   additional
fifteen-day suspension, which Lisa Mead, the mayor, ordered.
            In February 2002, the Essex County District Attorney’s
Office filed a criminal assault complaint against McCarthy for
tossing the gun onto Cappelluzzo’s desk.       The new chief of police,
Thomas H. Howard, placed McCarthy on administrative leave for the
duration of the criminal case. In October 2002, the court directed
a verdict for McCarthy on the charge.
            In September 2002, the new mayor, Alan Lavender, selected
Officer Maguire for promotion to sergeant.        Lavender passed over
McCarthy, who was the top-ranked candidate on the Civil Service
List, in part because of the past disciplinary actions against
McCarthy and the then-pending criminal charge.       The Massachusetts
State Human Resources Division subsequently affirmed Lavender’s
decision.
            McCarthy filed this action in June 2003. In his 31-count
complaint, he alleged that defendants violated his First Amendment


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rights to freedom of speech and freedom of association, and his
Fourteenth Amendment due process and equal protection rights. He
also asserted various state law claims, including defamation,
invasion of privacy, malicious prosecution, abuse of process,
intentional    infliction     of   emotional   distress,    negligence,   and
violation of his rights under the Massachusetts Civil Rights Act
(“MCRA”).    The   district   court   granted     the   defendants’   summary
judgment motions in February 2007.          This timely appeal followed.


                          II. STANDARD OF REVIEW
            We review a summary judgment de novo, viewing the facts
and reasonable inferences in the light most favorable to the
nonmovant plaintiff when determining whether the district court
correctly applied the law in finding no genuine issues of material
fact.     Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.
2000).     A “material” fact is a “contested fact [that] has the
potential to change the outcome of the suit under the governing law
if the dispute over it is resolved favorably to the nonmovant,” and
a “genuine issue” means that “the evidence about the fact is such
that a reasonable jury could resolve the point in favor of the
nonmoving party.” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st
Cir. 2001) (internal quotation marks and citation omitted). If the
moving party has made a preliminary showing that there is no
genuine    issue   of   material    fact,   the   nonmovant   must    “produce
specific facts, in suitable evidentiary form, to . . . establish
the presence of a trialworthy issue.”             Triangle Trading Co. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal


                                      -4-
quotation marks and citation omitted). If the nonmovant’s argument
“rests merely upon conclusory allegations, improbable inferences,
and unsupported speculation,” summary judgment is appropriate.
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).


             III. CAPPELLUZZO’S SUMMARY JUDGMENT MOTION
 A.   First Amendment
            A government employee alleging an adverse employment
action in response to the exercise of First Amendment rights “must
introduce   sufficient    evidence     to     permit    a    finding    that   his
participation in this protected activity was a substantial or
motivating factor behind the adverse employment action,”                 Perez v.
Pierluisi, 339 F.3d 43, 55 (1st Cir. 2003) (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).                   The
burden of persuasion then shifts to the defendant to demonstrate by
a preponderance that the adverse employment action would have been
taken “even in the absence of the protected conduct.”                  Id. at 56
(internal quotation marks and citation omitted).                 Summary judgment
on a First Amendment claim will be upheld “only if (1) the record
evidence compelled the conclusion that the plaintiff would have
[suffered    the   adverse   employment       action]       in   any   event   for
nondiscriminatory reasons, or (2) the plaintiff did not introduce
sufficient evidence in the first instance to shift the burden of
persuasion to the defendants.”         Id. (internal quotation marks and
citation omitted).
            McCarthy   argues   that    the    disciplinary        actions   taken


                                     -5-
against him were motivated by his letter to the editor.                   There is
no evidence to support this conclusory assertion.                As the district
court pointed out, McCarthy’s letter to the editor actually praised
Cappelluzzo, and McCarthy’s testimony at his deposition was that
Cappelluzzo never took or threatened any action against him based
on his association with the reporter.                   Cappelluzzo had ample
nondiscriminatory reason to discipline McCarthy, given McCarthy’s
repeated failure to comply with Cappelluzzo’s requests for a
written    report.      We     agree    with   the   district    court     that   no
reasonable juror could find that McCarthy’s protected speech was a
motivating factor for any alleged adverse employment action.


B.   Equal Protection
            McCarthy argues that he was denied equal protection
because the facts asserted in support of his First Amendment claim
raise an inference that he received unfavorable or malicious
treatment.    This    claim     fails    because     McCarthy    has   offered    no
evidence that he was “intentionally treated differently from others
similarly situated.”          Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam).


C.   Substantive Due Process
            McCarthy argues that the facts alleged in his First
Amendment     claim     establish       malicious       intent   or      deliberate
indifference on the part of Cappelluzzo, in violation of McCarthy’s
substantive due process rights. He contends that he suffered harm
to   his   reputation    and    that    his    rights   under    state    law   were


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adversely affected when he was passed over for a promotion, despite
his place at the top of the Civil Service List.                    This claim fails
because McCarthy cannot demonstrate that he lost governmental
benefits    as     a   result     of   “government     action”     on   the    part    of
Cappelluzzo.       See Pendleton v. City of Haverhill, 156 F.3d 57, 63
(1st Cir. 1998). The decision to bypass McCarthy for promotion was
made by Mayor Lavender and affirmed by the state Human Resources
Division.


D.   State Law Claims
            McCarthy        has    alleged   no   facts       in   support     of     his
intentional infliction of emotional distress claim that would show
that Cappelluzzo’s conduct was “beyond all bounds of decency and .
. . utterly intolerable in a civilized society,” Cady v. Marcella,
729 N.E.2d 1125, 1131 (Mass. App. Ct. 2000) (internal quotation
marks and citation omitted).
            Nor is there any evidence that Cappelluzzo violated the
MCRA by interfering with McCarthy’s rights under the Massachusetts
or federal constitution.           To prevail on an MCRA claim, a plaintiff
must demonstrate (1) an interference or attempted interference with
the exercise or enjoyment of rights secured by the Constitution,
federal     law,       or   Massachusetts       law,    (2)    through        “threats,
intimidation, or coercion.”               Howcroft v. City of Peabody, 747
N.E.2d 729, 745 (Mass. App. Ct. 2001) (internal quotation marks and
citation omitted).          McCarthy has alleged no facts that would allow
a reasonable jury find a violation.
            The malicious prosecution and abuse of process claims


                                          -7-
also fail.   A malicious prosecution claim requires a showing that
criminal   proceedings   were    instituted    without   probable    cause,
Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass. 1991). McCarthy has
not alleged any facts that would support a finding that there was
no probable cause behind Cappelluzzo’s referral of the incident to
the Essex County District Attorney’s Office.        The abuse of process
claim requires a showing of an “ulterior purpose” to the litigation
in question, Silvia v. Bldg. Inspector of W. Bridgewater, 621
N.E.2d 686, 687 (Mass. App. Ct. 451), and McCarthy has offered
nothing beyond “conclusory allegations” to support his claim that
Cappelluzzo had such an ulterior purpose.


         IV. REMAINING DEFENDANTS’ SUMMARY JUDGMENT MOTION
A.   First Amendment
           Because   Officers    Foley   and   Knight    took   no   adverse
employment action against McCarthy, they cannot be held liable for
First Amendment retaliation.       With respect to Sergeant Maguire,
McCarthy   has   produced   no   evidence   that   Maguire’s    activities
amounted to an adverse employment action or were motivated by an
intent to interfere with McCarthy’s First Amendment rights.              The
claim against Officer Howard also fails because McCarthy can point
to no evidence that Officer Howard’s approval of the decision to
place McCarthy on administrative leave or to refer the gun-tossing
incident to the district attorney’s office was motivated by any
protected speech.
           Because McCarthy cannot prevail on his First Amendment
claims against Officers Foley, Knight, Howard and Sergeant Maguire,


                                   -8-
Mayors Mead and Lavender are also entitled to summary judgment on
McCarthy’s claim that they violated his First Amendment rights by
not taking action against the NPD officers who were supposedly
retaliating against him.      McCarthy has also failed to demonstrate
that his letter to the editor was a “substantial or motivating
factor” behind the fifteen-day suspension imposed by Mead (which
was based on a recommendation by independent counsel), or behind
Lavender’s decision not to promote McCarthy.           Perez, 339 F.3d at
55.
             Finally, the City of Newburyport is entitled to summary
judgment because, as the court below observed, McCarthy has not
produced the requisite evidence of a municipal custom or policy of
deliberate indifference to a constitutional violation.            Monell v.
City of New York Dept. of Soc. Servs., 436 U.S. 658 (1978).


B.    Equal Protection
             The remaining defendants are also entitled to summary
judgment on McCarthy’s equal protection claims for the same reason
as Cappelluzzo.


C.    Substantive Due Process
             McCarthy argues that the remaining defendants’ actions
toward him reflected a malicious intent or deliberate indifference
to his welfare, and thus violated his substantive due process
rights.      The claim fails because McCarthy has offered no evidence
that   the    defendants’   actions    could   be   found   to   “shock   the
conscience” or be considered “truly outrageous, uncivilized, and


                                      -9-
intolerable.” Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir.
1999) (citations omitted).


D.   State Law Claims
           McCarthy cannot prevail on his defamation claim against
Maguire, Howard, Foley, and Knight because he has failed to allege
(1) the basis of the libel or slander claim, along with the precise
wording of at least one sentence of the statement at issue; (2) the
means and approximate dates of publication; and (3) the falsity of
those statements.     Dorn v. Astra USA, 975 F.Supp. 388, 396 (D.
Mass. 1997).
           The remaining individual defendants are also entitled to
summary   judgment   on   the   claim   for   intentional   infliction   of
emotional distress because McCarthy has failed to allege any facts
that would show that the defendants’ conduct was “beyond all bounds
of decency and . . . utterly intolerable in a civilized society,”
Cady, 729 N.E.2d at 1131.
           McCarthy’s claim for negligence against the City of
Newburyport fails because he did not comply with the Massachusetts
Tort Claims Act requirement to “first present his claim in writing
to the executive officer of such public employer within two years
after the date upon which the cause of action arose.”          Mass. Gen.
Laws ch 258, § 4; see Weaver v. Commonwealth, 438 N.E.2d 831, 834
(Mass. 1982) (presentment must be made “in strict compliance with
the statute”).
           The remaining defendants are entitled to summary judgment
on the MCRA claim. McCarthy alleges that Lavender threatened that


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McCarthy would never be promoted within the NPD if McCarthy did not
support Lavender’s selection for the open sergeant position.   Even
if this allegation were true, McCarthy has not demonstrated that
Lavender’s threat interfered with McCarthy’s rights under the
Constitution, federal law, or Massachusetts law, as required.
Howcroft, 747 N.E.2d at 745.


                            V. CONCLUSION
            For the foregoing reasons, the judgment is affirmed.


AFFIRMED.




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