FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District
Richard A. Sinapi for appellant.
J. Sholes, Assistant Attorney General, with whom Kate Brody,
Special Assistant Attorney General, was on brief, for
Kayatta, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit
case begins with a termination. Plaintiff-appellant Robert
Kando, a quondam employee of the Rhode Island State Board of
Elections (the Board), alleges in relevant part that his
constitutional rights were violated by the manner in which
his employment was brought to an abrupt end. Concluding that
the plaintiff had not shown a deprivation of any
constitutionally protected interest, the district court
granted the Board's motion for judgment on the pleadings
with respect to the plaintiff's claims under 42 U.S.C.
§ 1983. Although our reasoning differs somewhat from
that of the district court, we affirm.
this case was decided on a motion for judgment on the
pleadings, see Fed.R.Civ.P. 12(c), we assume the
accuracy of the well-pleaded facts adumbrated in the
complaint and "supplement those facts by reference to
documents incorporated in the pleadings, "
Jardín De Las Catalinas Ltd. P'ship v.
Joyner, 766 F.3d 127, 130 (1st Cir. 2014). The plaintiff
served as the Board's executive director from 2005 until
his dismissal in August of 2016. He asserts that his job
performance during the first eight years of his tenure was
efficient, effective, and devoid of controversy. As time
progressed, personality conflicts with new Board members led
to animosity, acrimony, and criticism of the plaintiff's
job performance. In the plaintiff's view, this
dissatisfaction often stemmed from matters over which the
plaintiff had little control.
point prior to January 11, 2016, the Board tentatively
decided to terminate the plaintiff's employment. At its
January 11 meeting, though, the Board changed course and
voted to treat its previous termination decision as
"null and void." The Board proceeded to suspend the
plaintiff without pay for fifteen days and directed him to
enroll in the next three semesters of management courses at
an educational facility of his choosing. The Board stated
that it would review the plaintiff's role as the
Board's executive director and his working relationship
with its members at the end of the third semester of
coursework. Apart from this statement, nothing in the minutes
of the meeting indicates that the Board set a deadline for
the plaintiff either to enroll in or to complete the required
days later, the Board sent the plaintiff a letter over the
signature of its acting chair. The January 19 letter
purported to summarize what had transpired at the January 11
meeting and elaborated on the "management courses"
requirement. The letter instructed the plaintiff to take two
courses per semester (starting "this month"), to
notify the Board of his chosen courses, and to keep the Board
advised of his progress (by, for example, informing the Board
of grades received). Among other things, the letter also
stated that, after the plaintiff had completed the third
semester of management courses, his employment status would
be "subject to review by the Board."
complaint alleges that, by the time of the Board's next
meeting (March 16, 2016), the plaintiff had enrolled in
management courses at Johnson & Wales University (JWU).
The plaintiff concedes, however, that he did not enroll in
these courses prior to the end-of-January deadline limned in
the January 19 letter (which he characterizes as arbitrary
and unreasonable). Noting that he had failed to enroll by the
deadline, the Board suspended him for six weeks without pay.
August 31, 2016, the Board held a special meeting. Without
allowing the plaintiff to speak, the Board voted to terminate
his employment. At that time, the plaintiff was still
enrolled at JWU and had not yet completed the required three
semesters of management courses.
plaintiff repaired to the federal district court and brought
suit against the Board and its members. His complaint
contained an array of claims under both federal and state
law, including (as relevant here) claims for alleged
deprivation of due process under 42 U.S.C. § 1983. After
answering the complaint, the defendants moved for judgment on
the pleadings. See Fed.R.Civ.P. 12(c). With respect
to the section 1983 claims, the defendants argued that
because the plaintiff was an at-will employee, the Board had
every right to cashier him at the August 31 meeting. The
district court agreed, finding that the plaintiff had failed
to establish a cognizable property interest in his continued
employment and that the absence of such a property interest
foreclosed all of his section 1983 claims. See Kando v.
R.I. Bd. of Elections, 254 F.Supp.3d 335, 340 & n.4
(D.R.I. 2017). Having granted judgment for the defendants on
the plaintiff's federal claims, the court declined to
exercise supplemental jurisdiction over the plaintiff's
state-law claims and dismissed those claims without
prejudice. See id at 341; see also 28
U.S.C. § 1367(c). After unsuccessfully moving for
reconsideration, the plaintiff now appeals from the entry of
judgment on his federal claims.
review the entry of judgment on the pleadings de novo.
See Pérez-Acevedo v. Rivero-Cubano, 520 F.3d
26, 29 (1st Cir. 2008). In conducting this appraisal, we are
not bound by the district court's reasoning but, rather,
may affirm the entry of judgment on any ground made manifest
by the record. See InterGen N.V. v. Grina, 344 F.3d
134, 141 (1st Cir. 2003).
motion for judgment on the pleadings bears a strong family
resemblance to a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), and these two types of motions are
treated in much the same way. See Aponte-Torres v. Univ.
of P.R., 445 F.3d 50, 54 (1st Cir. 2006). Consequently,
we take the well-pleaded facts and the reasonable inferences
therefrom in the light most favorable to the nonmovant (here,
the plaintiff). See R.G. Fin. Corp. v.
Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).
In addition, our review may include facts drawn from
documents "fairly incorporated" in the pleadings
and "facts susceptible to judicial notice."
Id. Withal, any new facts contained in the answer,
to which no responsive pleading by the plaintiff is required,
are deemed denied. See id.
all is said and done, this standard requires us to
"separate wheat from chaff; that is, [to] separate the
complaint's factual allegations (which must be accepted
as true) from its conclusory legal allegations (which need
not be credited)." Morales-Cruz v. Univ. of
P.R., 676 F.3d 220, 224 (1st Cir. 2012). Judgment on the
pleadings should be allowed only if the properly considered