            United States Court of Appeals
                       For the First Circuit


No. 14-2306

                          WILLIAM H. DAVIS,

                        Plaintiff, Appellant,

                                 v.

                  MARTHA COAKLEY and DEVAL PATRICK,

                       Defendants, Appellees.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. William G. Young, U.S. District Judge]


                               Before

                 Thompson and Lipez, Circuit Judges,
                   and Barbadoro,* District Judge.


     Christopher M. Perry, with whom Terance P. Perry, Brendan J.
Perry & Associates, P.C., and Datsopoulos, MacDonald & Lind, P.C.
were on brief, for appellant.
     Hélène Kazanjian, Assistant Attorney General, with whom
Andrew W. Koster, Assistant Attorney General, and Maura Healey,
Attorney General of Massachusetts, were on brief, for appellees.


                         September 18, 2015




     *   Of the District of New Hampshire, sitting by designation.
            LIPEZ,   Circuit   Judge.   Appellant   William   H.   Davis

("William"), in his capacity as the personal representative of the

estate of Jason H. Davis ("Jason"), brings this action against

former Massachusetts Governor Deval Patrick and former Attorney

General Martha Coakley, in their personal capacities, seeking

monetary damages under 42 U.S.C. § 1983.     In 1998, Jason received

a punitive damages award in a federal civil rights action that he

brought against six individual state employees who were held

responsible for restraining and beating him in a state mental

hospital.

            Appellant contends that Patrick and Coakley violated the

Davis estate's equal protection and due process rights because

they, on behalf of the Commonwealth of Massachusetts, refused to

indemnify the punitive damages award, while at the same time

agreeing to settle the civil rights claims of another individual,

Joshua Messier, who died at another state mental facility years

later while he was being subdued by corrections officers.           The

district court granted Patrick and Coakley's motion to dismiss.

Finding no merit in appellant's arguments, we affirm.

                                   I.

            Because this appeal follows the grant of a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we

recite the facts of appellant's claim as alleged in the complaint




                                    - 2 -
and documents incorporated into the complaint. See SEC v. Tambone,

597 F.3d 436, 438 (1st Cir. 2010) (en banc).

A. The Davis litigation

          At all relevant times, Jason Davis suffered from a

variety of acute psychiatric disorders, including schizo-affective

and bipolar disorders.    In May 1993, when he was 28 years old,

Jason was involuntarily committed to Westborough State Hospital

("Westborough"), a public mental health care facility. About three

months later, on August 12, Jason was severely beaten by a mental

health care worker at Westborough while five others physically

restrained him and a nurse looked on and encouraged the beating.1

          In August 1996, Jason filed suit under 42 U.S.C. § 1983

and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,

§ 11I, alleging that the mental health care workers (and their

supervisors) violated his civil rights.   The jury found for Davis

against the six mental health care workers and the nurse,2 and

awarded Davis a total of $100,000 in compensatory damages.   Those

defendants were jointly and severally liable for the compensatory




     1 We have previously described Jason's beating in detail when
we upheld the jury's verdict and damages award in his case. See
Davis v. Rennie, 264 F.3d 86, 93-95 (1st Cir. 2001). Appellant
has incorporated much of our accounting of these facts in the
complaint.

     2 The six healthcare workers were Phillip Bragg, Paul Rennie,
Richard Gillis, Thomas Michael Hanlon, Leonard Fitzpatrick, and
Nicholas Tassone.    The nurse was Joyce Weigers.


                                 - 3 -
damages.   The jury also awarded punitive damages against all but

one of those same defendants (Nicholas Tassone), based on a finding

that they "'harbored . . . ill will towards [Jason].'"                Davis v.

Rennie, 264 F.3d 86, 115 (1st Cir. 2001).          After the district court

reduced the punitive damages amount through remittitur, Davis was

owed $1.025 million in punitive damages.             On appeal, we affirmed

the jury's verdict and the damages award.            See id. at 117.

           Because Tassone was not subject to the punitive damages

award,   the   Massachusetts   Department     of    Mental   Health    ("DMH")

indemnified him and paid Davis the entire $100,000 compensatory

damage   award.    However,    DMH   refused    to    indemnify    the   other

defendants because the Commonwealth argued that Massachusetts law

prohibits state employers from indemnifying their employees for

punitive damages awards arising out of civil rights actions.               See

Mass. Gen. Laws ch. 258, § 9.        Jason died on June 14, 2004.         None

of the defendants subject to the punitive damages award have paid

their share.3      Appellant alleges that the entire outstanding

judgment   (including    attorneys'     fees,      costs,    and   interest)

currently stands at $2.1 million.




     3 In June 2014, the Massachusetts legislature passed a joint
appropriation to pay Davis $500,000 of the outstanding judgment
owed to him. In July 2014, Patrick vetoed the joint appropriation,
stating that "state law . . . prohibits indemnifying employees
under these circumstances."        According to appellant, the
Massachusetts legislature overrode the veto, but the joint
appropriation has not been paid.


                                      - 4 -
B. The Messier litigation

            Joshua     Messier   was    an     acutely    ill    patient    who   was

involuntarily committed at the Bridgewater State Hospital.                    On May

4, 2009, Messier was killed while being restrained by multiple

corrections      officers.    Using    the     "hog-tieing"       technique,      the

corrections officers placed Messier on a restraint table (back

down), securing his legs in two leg restraints and then folding

his body over his knees.         This technique caused Messier to suffer

heart failure and die.

            On    April    26,     2012,     Kevin       Messier,    as    personal

representative of the estate of Joshua Messier, filed a civil

lawsuit   in     Suffolk   Superior     Court      against      Bridgewater    State

Hospital, the Commonwealth of Massachusetts, its Department of

Corrections,     and   nine   Bridgewater       corrections       officers.       The

complaint      included    civil      rights     claims,     intentional       torts

(assault,      battery,    and   intentional        infliction      of     emotional

distress), negligence and gross negligence claims, wrongful death,

conscious pain and suffering, and loss of consortium claims.                      The

Messier case settled on July 31, 2014, resulting in the payment of

$2 million from Massachusetts.

C. The current lawsuit

            Soon after Jason's former counsel became aware of the

Messier settlement, he sent demand letters to Patrick, then-

Governor of Massachusetts, and Coakley, then-Attorney General of


                                           - 5 -
Massachusetts, requesting that the Commonwealth pay the punitive

damages award in Jason's case because it had agreed to settle the

Messier case.     The requests were denied.     On August 21, 2014,

Jason's father William H. Davis, in his capacity as the personal

representative of Jason's estate, filed a complaint in the district

court, bringing claims under 42 U.S.C. § 1983 against Patrick and

Coakley in their personal capacities.      The complaint alleges that

Patrick and Coakley violated the Davis estate's due process and

equal protection rights by agreeing to settle the Messier case

while, at the same time, refusing to pay for the outstanding

punitive damages award owed to the Davis estate.

             Patrick and Coakley moved to dismiss the complaint for

failure to state a claim under Federal Rule of Civil Procedure

12(b)(6).    On November 19, 2014, the district court held a hearing

on the motion. At the hearing, the court orally granted the motion

to dismiss.    The district court accepted the government's argument

that the Messier and Davis cases "are quite different because Mr.

Messier's lawyers accepted the settlement offer whereas Mr. Davis

did not, his lawyers did not accept the settlement offer and went

to trial."    The court added that "drawing all intendments in favor

of the well-pleaded facts in this complaint, I simply do not rule

that [those facts] create[] a cause of action . . . under the

federal Constitution on any of the theories advanced."       William

timely appealed the district court's ruling.


                                   - 6 -
                                      II.

            We review de novo a district court’s grant of a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 443 (1st Cir.

2000).     We must accept as true the factual allegations of the

complaint and draw all reasonable inferences in favor of the non-

moving party.         Id.   We will affirm the dismissal "only if, under

the facts alleged, the plaintiff cannot recover on any viable

theory."        Id.    (internal   quotation   marks   omitted)         (citation

omitted).

            Appellant argues that Patrick and Coakley violated the

Davis estate's due process and equal protection rights because

they "paid the Messier [e]state for conduct which was intent based,

even   though    expressly     prohibited   from   doing   so   .   .    .   while

depriving the similarly circumstanced Davis [e]state of this same

benefit."    Appellant's Br. at 19.         We address the Davis estate's

equal protection and due process arguments in turn.

A. Equal Protection

            "The Equal Protection Clause contemplates that similarly

situated persons are to receive substantially similar treatment

from their government."          Tapalian v. Tusino, 377 F.3d 1, 5 (1st

Cir. 2004) (citation omitted).         To establish an equal protection

claim, a plaintiff needs to allege facts showing that "(1) the

person, compared with others similarly situated, was selectively


                                       - 7 -
treated; and (2) that such selective treatment was based on

impermissible considerations such as race, religion, intent to

inhibit    or   punish   the   exercise     of   constitutional   rights,   or

malicious or bad faith intent to injure a person."             Rubinovitz v.

Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (quoting Yerardi's Moody

St. Restaurant & Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 16, 21

(1st Cir. 1989)).

            An individual is "similarly situated" to others for

equal     protection     purposes   when    "a    prudent   person,   looking

objectively at the incidents, would think them roughly equivalent

and the protagonists similarly situated."             Barrington Cove Ltd.

P'ship v. Rhode Island Hous. & Mortgage Fin. Corp., 246 F.3d 1, 8

(1st Cir. 2001) (quoting Dartmouth Review v. Dartmouth Coll., 889

F.2d 13, 19 (1st Cir. 1989)).              As we have explained, "[e]xact

correlation is neither likely nor necessary, but the cases must be

fair congeners.        In other words, apples should be compared to

apples."    Id.

            Appellant contends that the Davis and Messier estates

were similarly situated because Massachusetts law -- specifically

Massachusetts General Laws chapter 258, § 9 ("§ 9") -- prohibited

the Commonwealth from indemnifying what Davis refers to as "intent

based civil rights claims" (e.g., assault, battery, intentional

infliction of emotional distress, and the like) that were asserted

against state employees of Massachusetts mental health facilities


                                       - 8 -
in both the Davis and Messier cases.               Appellant's Br. at 38.           He

argues that the Davis estate was treated differently from the

Messier     estate    because,     while     the    statute     did     not    permit

indemnification, appellees, using their power "under the Executive

Branch Custom and the Executive Fiat Custom,"4 chose to indemnify

Messier's    claims     (by     authorizing      the   $2     million    settlement

payment) while rejecting the Davis estate's request that appellees

indemnify its punitive damages award.              See id. at 41.

             Appellant's       argument    is    premised      on   a   fundamental

misunderstanding of Massachusetts law.                 He contends that, under

§ 9, "only negligent conduct is subject to indemnification" and

"intentional torts and civil rights violations committed by public

employees . . . are not subject to indemnification."                    Appellant's

Reply Br. at 6, 9.          Appellant is incorrect.         In fact, the statute

explicitly     authorizes       public     employers     to    indemnify       public

employees    who     have    committed     "an   intentional        tort"     or   have

committed "any act or omission which constitutes a violation of

the civil rights of any person under any federal or state law."

Mass. Gen. Laws ch. 258, § 9.5             See also Venuti v. Riordan, 702


     4 Appellant does not cite any authority for these concepts,
nor does he explain what they mean.     We have found no legal
authority explaining them.

     5   Section 9 states in relevant part:

             Public   employers   may   indemnify   public
             employees . . . from personal financial loss,


                                           - 9 -
F.2d 6, 8 (1st Cir. 1983) (recognizing that § 9 provides for the

"indemnification of public employees by public employers for civil

rights liability") (emphasis added); Triplett v. Town of Oxford,

791 N.E.2d 310, 315 (Mass. 2003) (noting that § 9 provides "public

employers with the discretion to indemnify public employees for

financial loss and expenses arising from certain civil actions

(intentional torts and civil rights violations)") (second emphasis

added).6

           Because   §   9   does     not    broadly   prohibit   the

indemnification of "intent based civil rights claims," appellant



           all damages and expenses, including legal fees
           and costs . . . arising out of any claim,
           action, award, compromise, settlement or
           judgment by reason of an intentional tort, or
           by reason of any act or omission which
           constitutes a violation of the civil rights of
           any person under any federal or state law, if
           such employee . . . at the time of such
           intentional tort or such act or omission was
           acting within the scope of his . . .
           employment. No such employee . . . shall be
           indemnified under this section for violation
           of any such civil rights if he acted in a
           grossly negligent, willful or malicious
           manner.

     Mass. Gen. Laws ch. 258, § 9.

     6 Even the case that appellant claims supports the Davis
estate's   proposition    confirms   that   §   9   provides   for
indemnification of intentional torts and civil rights actions. In
City of Boston v. Boston Police Patrolmen's Ass'n, Inc., the court
expressly states that the statute permits indemnification for
certain "liabilities arising out of intentional torts or civil
rights violations." 717 N.E.2d 667, 668 (Mass. App. Ct. 1999).



                                    - 10 -
wrongly asserts that the Davis and Messier estates were similarly

situated.    The Commonwealth did not indemnify the Davis estate's

punitive    damages   award   because   §   9   bars   indemnification   for

employees who have "acted in a grossly negligent, willful or

malicious manner," Mass. Gen. Laws ch. 258, § 9, and the punitive

damages were premised on the jury's finding that Westborough staff

members acted in just this way because they harbored ill will

toward Jason.7

            No such finding or admission was made in the Messier

case, which was settled before trial.             Even assuming that the

Messier estate asserted "intent based civil rights claims," as

alleged in the complaint, we have no basis in this record to

conclude that any such torts were committed in a grossly negligent,

willful, or malicious manner.       In the absence of such a finding,

appellant provides no legitimate argument why § 9 would prohibit

the Commonwealth from settling those claims for $2 million. Hence,

because the statute prohibits payment of the Davis punitive damages

award, but does not prohibit payment of the Messier settlement,

appellant has failed to sufficiently allege that the two estates

are similarly situated.




     7Because the parties agree, we assume, without deciding, that
§ 9 prohibits indemnification of the punitive damages award.



                                    - 11 -
            To the extent appellant argues that the Messier and Davis

cases are similar because the Messier defendants were alleged to

have "acted in a grossly negligent, willful or malicious manner,"

Mass. Gen. Laws ch. 258, § 9, the Davis estate's argument has no

merit.     Unlike the Davis case, where a jury had determined that

state employees deprived Jason of his civil rights and awarded him

punitive    damages,   in    the   Messier   settlement      agreement    (which

appellant incorporated into the complaint), the state employee

defendants "expressly den[ied] any violation of rights, and . . .

any liability or wrongdoing in connection with the allegations

and/or legal claims made by" the Messier estate.

B. Due Process

            To establish a due process claim under the Fifth and

Fourteenth Amendments, a plaintiff must first assert "a legally

plausible allegation of a protected property interest."                  Caesars

Mass. Mgmt. Co., LLC v. Crosby, 778 F.3d 327, 332 (1st Cir. 2015)

(internal quotation marks omitted).            The plaintiff must identify

a "legitimate claim of entitlement to the property in question --

a claim of entitlement created and defined by existing rules or

understandings that stem from an independent source such as state

law."    Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406

F.3d 1, 8 (1st Cir. 2005) (internal quotation marks omitted).               For

this purpose, "'an abstract need or desire' or a 'unilateral

expectation'    are    not   sufficient   to    cement   a   constitutionally


                                       - 12 -
protected interest."     Id. (quoting Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972)).

            Appellant's due process claim fails because he has not

made an allegation sufficient to establish a protected property

interest.    Appellant argues that "[t]he [s]tate created property

interest at issue here consists of the indemnification benefit

which the Messier [e]state received under the Executive Branch and

Executive Fiat Customs."    Appellant's Br. at 47.

            Appellant's due process argument is premised on the same

mistaken understanding of Massachusetts law as the Davis estate's

equal protection argument.    He contends that the Commonwealth was

prohibited under § 9 to pay the Messier settlement.      Therefore, he

argues, appellees created a protected property interest by using

their "executive fiat" to indemnify the Messier claims.      Appellant

adds that the Davis estate was deprived of this property right

because appellees refused to use their executive fiat to indemnify

its punitive damages award.

            However, as explained above, appellant has provided no

valid argument for why § 9 barred the Commonwealth from paying the

Messier   settlement.    Contrary   to   appellant's   contention,   the

statute clearly does not prohibit the indemnification of "intent

based civil rights claims."     See, e.g., Triplett, 791 N.E.2d at

315.   Thus, appellant has not sufficiently alleged the creation of

a property interest through payment of the Messier settlement by


                                    - 13 -
means of "executive fiat."   Nor has appellant provided any other

argument as to how appellees created a protected property interest

for the Davis estate by agreeing to settle the Messier case.8

Because appellant has failed to allege any protected property

interest at stake, the Davis estate's due process claim has no

foundation and was correctly dismissed by the district court.9   See

Caesars Massachusetts Mgmt. Co., 778 F.3d at 335.

          Affirmed.




     8 Appellant cites no authority for the general proposition
that if a state settles a civil matter with one party it somehow
creates a protected property interest for another party seeking a
similar outcome. At most, it appears that appellant holds nothing
more than a "unilateral expectation" that the Commonwealth will
indemnify the Davis estate's punitive damages award because it
settled the Messier case.    Centro Medico del Turabo, Inc., 406
F.3d at 8.

     9 Appellant also argues that the district court violated the
Davis estate's Seventh Amendment rights when it "unilaterally
proclaimed, without the empanelment of a jury or the introduction
of any evidence, that the Messier [defendants] acted only
'negligently' and that the Davis [e]state had actually only
asserted   claims   under   the    [i]ndemnification    [s]tatute."
Appellant's Br. at 19. Appellant's argument has no merit. The
district court never made such proclamations.        After hearing
argument from both parties, the court granted appellees' motion to
dismiss because the complaint had failed to state a claim upon
which relief could be granted.


                                - 14 -
