USCA1 Opinion

October 31, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1554

YVONNE A. ALEXIS, ET AL.,

Plaintiffs, Appellants,

v.

McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,

MICHAEL LEPORATI and DONNA DOMINA,

Defendants, Appellees.

____________________

ERRATA SHEET

The Opinion of the Court

issued on October 10, 1995,

is amen

as follows:

On

cover sheet under list of counsel "Gilbert, Kurent & Kiern

_______

should read "Gilberg, Kurent, & Kiernan."

_______

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1554

YVONNE A. ALEXIS, ET AL.,

Plaintiffs, Appellants,

v.

McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,

MICHAEL LEPORATI and DONNA DOMINA,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Terance P. Perry, with

________________

whom Brendan J. Perry and

________________

Christopher
___________

Perry were on brief for appellants.

_____
Philip B. Benjamin, with whom Aaron K. Bikofsky was on brief
___________________
_________________
appellee Michael Leporati.

John P. Noyes, with whom John A. Kiernan and Gilberg, Kuren

______________
________________
_______________
Kiernan were on brief for appellees.
_______

____________________

October 10, 1995

____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
______________

is"),

and family

members,

Plaintiffs Yvonne

challenge a

Alexis ("Alex-

summary judgment

order

rejecting various federal civil

rights claims and related state-

law

treatment accorded

claims

restaurant

stemming from

owned and

Restaurants

the

operated by

of Massachusetts,

Alexis

at a

defendant-appellee McDonald's

Inc.

We

affirm,

in part,

and

remand other claims for further proceedings.

I
I

BACKGROUND1
BACKGROUND
__________

At

approximately

10:00

p.m.

on July

20,

1990,

in

Framingham, Massachusetts, Alexis and her family, who are African

Americans,

entered a

McDonald's

service counter, placed their

restaurant,

proceeded to

order, and paid in advance.

the

When

the food was placed before them at the service counter, it became

apparent that

had mistaken

Alexis and

Alfredo Pascacio, whose native

their order.

tongue is Spanish,

During the ensuing

exchange between

Pascacio, defendant-appellee Donna Domina, the "swing

manager," intervened in behalf of Pascacio, which prompted Alexis

to say:

taking

"[Y]ou take care of

the people in front of

care of me, and we're sorting this out."

you.

He's

Domina nonethe-

less persisted for several more minutes.

Ultimately,

listen to you."

Domina said

to Alexis,

"I don't

Alexis replied, "[Y]ou're damn right

have to

you don't

____________________

1The material facts

in genuine dispute

are related in

the

light

most

favorable

to

plaintiffs-appellants,

summary judgment was entered.

against

whom

See Velez-Gomez v. SMA Life Assur.

___ ___________
_______________

Co., 8 F.3d 873, 874 (1st Cir. 1993).

___

have to listen to me.

to him."

in a

I was not speaking to you.

Domina then instructed Pascacio:

bag and get them out

retorted:

of here."

"You're not eating here.

I was speaking

"Just put their stuff

Turning

to Alexis, Domina

If you [do] we're going to

call the cops."

Alexis responded:

do

plan to

because

we

eat

"Well you do what you have to

here."

instructions, Pascacio placed the

without bagging it.

Notwithstanding Domina's

food order on a

The entire incident at the

service tray,

service counter

had lasted approximately ten minutes.

After

the Alexis

family

went into

the dining

Sherry Topham, a managerial employee, summoned

Leporati

into the

police sergeant, had

rant by

restaurant.

defendant Michael

uniformed off-duty

been patrolling on foot outside the restau-

prearrangement

witnessed no

Leporati, a

area,

with the

Town

of Framingham,

but

had

part of the earlier exchange among Alexis, Pascacio

and Domina.

Upon entering the restaurant, Leporati

Domina

that Alexis had been

yelling, creating a

was informed by

"scene" and an

"unwarranted disturbance" over a mistaken food order, and direct-

ing abusive remarks at Pascacio.2

Alexis

Domina informed Leporati that

had argued loudly with her and another employee; that she

"just wasn't stopping"; and

area though Domina

that Alexis was still in

had "asked

her to leave."

the dining

Finally,

Domina

____________________

2At summary judgment, we must credit Alexis's statement that

she did

not yell or

But since it is

cause a "disturbance."

See supra
___ _____

uncontradicted, we must also assume

that Domina

informed Leporati that Alexis had caused a disturbance.

________

note 1.

Id.
___

told Leporati, "I would like her to leave."

___

Without further inquiry into the "disturbance" alleged-

ly

caused by Alexis, Leporati proceeded to the dining area where

Alexis and her family were seated, and informed the entire Alexis

family that the manager wanted them

to leave and that they would

have to go.

Alexis

disturbance,

and claimed a right to finish eating in the restau-

rant.

immediately asked why,

denied causing

any

When she urged Leporati to ask other restaurant customers

whether there had been any disturbance, Leporati simply reiterat-

ed

that the

family would

have to

leave, then returned

to the

service counter.3

At the service counter, Leporati relayed his

tion with Alexis and

refused to leave.

matter with

In

informed Domina that the Alexis

Sherry Topham, who

recalled having had

the

a "problem"

At that point, Domina stated,

"Well, if that's the case, then maybe we should

advised

family had

Leporati's presence, Domina discussed

with Alexis on a prior occasion.4

With that,

conversa-

Sergeant Leporati returned

have her leave."

to the Alexis

family and

Alexis that she would be arrested unless she left before

______
___

his backup arrived.

Cf. supra
__ _____

she believed she had the right

note 3.

Alexis

to finish eating.

reiterated that

Leporati

left

____________________

3The

record is silent as

to why all

Alexis family members

were

ordered to leave, though

only Alexis had

been involved in

the exchange at the service counter.

4The record
timing or
there

reflects

no other

information concerning

nature of any such "problem."

had been no prior

incident, we are

the

As Alexis attests that

required to assume as

much.

the dining area to call for backup.

Approximately

ten minutes later,

Officer William Fuer

arrived and Alexis was told by Leporati that she was being placed

under arrest.

from

the

Then, without asking or directing Alexis to get up

table, Leporati

suddenly

and

violently grabbed

and

pulled her bodily from the booth and across the table, handcuffed

her hands

Fuer,

tightly behind her back, and, with the help of Officer

dragged her

process.

asked the

from

Insisting

the booth,

that she was "not

officers to

allow her

her legs

in

the

resisting arrest," Alexis

to walk

hoisted her by her elbows and carried

the police car,

bruising

out.

Instead,

they

her from the restaurant to

where Leporati pushed her into

the car with the

instruction, "Get your ass in there."

As she

was being

and her husband repeatedly

treated in this manner.

removed from the

restaurant, Alexis

asked the officers why she

When

was being

Mr. Alexis said, "We have rights,"

Leporati

responded, "You people have no rights.

You better shut

up your [expletive] mouth before I arrest you too."

Alexis eventually was charged with criminal trespass, a

misdemeanor

1994).

filed

the

under

Mass. Gen.

Following

Laws Ann.

ch.

266,

120 (West

her acquittal by a jury, Alexis and her family

the present action in the United States District Court for

District of

under 42

claims

Massachusetts,

U.S.C.

for use

emotional

asserting

1981, 1983,

of

civil rights

& 1985(3), as well

excessive force,

distress, assault, battery,

claims

as state law

intentional infliction

of

false imprisonment, mali-

cious prosecution,

and abuse

of

process.

The district

court

granted summary judgment for the defendants on all federal claims

and on

the excessive force

Gen. Laws Ann. ch. 12,

judgment

claim against

11I.

for all defendants

without stating its grounds.

Leporati under

Mass.

Finally, the court granted summary

on the remaining

state law claims,

Plaintiffs appealed.

II
II

DISCUSSION
DISCUSSION
__________

A grant of summary judgment

is reviewed de novo

under

__ ____

the same

criteria incumbent upon

stand on appeal unless the record

of material

Cir. 1994).

discloses no trialworthy issue

Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st

_____________
___________

A.
A.

Section 1981
Section 1981
____________

Section

based on race.

458 U.S. 375,

1981

proscribes

intentional

General Bldg. Contractors Ass'n

_______________________________

discrimination

v. Pennsylvania,
____________

391 (1982); Dartmouth Review v. Dartmouth College,

________________
_________________

F.2d 13, 17

competent

it cannot

fact and the moving party is entitled to judgment as

a matter of law.

889

the district court;

(1st Cir. 1989).

evidence

of

The district

court found no

race-based

discrimination.

intentional

Alexis presses her section 1981 claims

against Domina and McDon-

ald's on the theory that her race-based exclusion from the dining

area violated

U.S.C.

her right to

1981(a).5

As

make and enforce contracts.

to defendant Leporati,

See 42
___

she alleges that

____________________

5Section 1981(a) provides in its entirety:

All

persons

States shall

within

the

have the

jurisdiction

same right

of

the United

in every State

and

her

race-based arrest

deprived her

of the

right to

"full and

equal benefit of

persons

all laws

and property

and proceedings for

as is

enjoyed by

the security

white citizens,"

of

id.
___

1981(a), and to "like punishment, pains, penalties . . . of every

kind, and to no other."

__ __ _____

1.
1.

Domina and McDonald's

Domina and McDonald's
_____________________

The

see
___

Fed. R.

summary

district court initially excluded, as incompetent,

Civ.

P. 56(e)

(affidavits

may be

considered

at

judgment only if facts attested to are based on admissi-

ble evidence);

testimony

Karen

Id. (emphasis added).

___

Fed. R.

Evid.

of six witnesses

Stauffer,

an eyewitness

701, portions

of the

deposition

the five Alexis family members and

to the

events

each

of whom

opined, in effect, that had Alexis been "a rich white woman," she

would not

that

have been treated in the same manner.

the proffered

factual

undergirding"

either Domina

basis

testimony was

to

permit a

"not supported

reasonable

or McDonald's discriminated against

of her race.

The court found

by sufficient

inference

that

Alexis on the

The court nonetheless allowed Alexis further

time to submit supplemental affidavits setting forth more partic-

ular grounds for the

racial animus.

conclusory deposition testimony relating to

Alexis failed to do so.

Opinion testimony from lay witnesses is admissible only

____________________

Territory
parties,

to make
give

and enforce

evidence, and

contracts, to
to

the

full and

sue, be

equal

benefit of all laws and proceedings for the security of

persons and

property as is enjoyed

and shall be subject

by white citizens,

to like punishment, pains, penal-

ties, taxes, licenses, and exactions of every kind, and

to no other.

if it is "rationally based on the perception of the witness and .

. . helpful to a clear understanding of the witness' testimony or

the determination of the fact in

issue."

Fed. R. Evid. 701; see

___

Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990).
_______
____________________

Rulings

on the admissibility

of lay

opinion testimony

viewed only for "manifest abuse of discretion."

are re-

United States v.

_____________

Jackman, 48
_______

F.3d 1, 4 (1st

Cir. 1995) (citing

States, 38 F.3d 16, 31 (1st Cir. 1994)).

______

Keller v. United
______
______

The exclusionary ruling

was well within the district court's broad discretion.

The

six

deponents based

their

inferences

of racial

animus on their personal observations that Domina reacted "angri-

ly" toward Alexis and

with "a negative

tone in her voice,"

"unfriendly," "uncooperative," "high strung,"

tient,"

and had

"no reason"

to eject

was

"impolite," "impa-

Alexis.

Although these

observations may be entirely compatible with a race-based animus,

there

simply

harbored a

is

no foundation

racial animus

some probative

evidence

for

an

toward Alexis or

that Domina's

inference that

Domina

anyone else,

absent

petulance

stemmed

from

something

other than

encounter plainly

including

a race-neutral

evidenced

in

Alexis's persistence

the

racial
______

excluded.

animus, the

See
___

conclusory

Fed. R.

Cir. 1988) (lay

judgment

justified).

lay

opinions were

Fed. R.

deSavary, 843
________

opinion testimony, which

10

the stressful

record,

As

the

foundation for an inference

Evid. 701(a);

Willco Kuwait (Trading) S.A.K. v.

_______________________________

(1st

summary

(however

depositions disclosed no evidentiary

of

reaction to

Civ.

properly

P. 56(a);

F.2d 618,

624

does little more

than tell the jury what result to reach, should not be admitted);

see
___

also Connell v. Bank of Boston,

____ _______
______________

Cir.) (lay opinion

. . . senior

that employer was "`determined to eliminate

employees'"

cient to buttress such a

denied,
______

924 F.2d 1169, 1177-78 (1st

pointed to no

specific facts suffi-

"broad assertion") (ADEA claim),

cert.
_____

501 U.S. 1218 (1991); cf. Gross v. Burggraf Constr. Co.,

__ _____
____________________

53 F.3d 1531, 1544 (10th Cir. 1995) (determining inadmissible the

lay opinion of co-worker that sexual harassment defendant had "`a

problem with women who were not between the ages of 19 and 25 and

who weighed

more than 115 pounds'"); Coca-Cola Co. v. Overland,

______________
_________

Inc., 692 F.2d 1250, 1254-55 (9th Cir. 1982) (upholding exclusion
____

of lay

opinion testimony by

bar and

restaurant employees

that

customers used term "Coke" in generic sense).

As Alexis

points to no competent

evidence that Domina

and McDonald's intentionally discriminated against her on account

of her race, the district court correctly ruled that this section

1981 claim was not

trialworthy.

See Dartmouth Review,

___ ________________

889 F.2d

at 18 ("`Disputes generally arise out of mutual misunderstanding,

misinterpretation

disputes do not

and

overreaction,

give rise to an

and

without

more,

such

inference of discrimination.'")

(quoting Johnson v. Legal Servs. of Ark., Inc., 813 F.2d 893, 896
_______
__________________________

(8th

Cir. 1987)).

Accordingly,

the summary judgment entered in

favor of Domina and McDonald's must be affirmed.

2.
2.

Leporati
Leporati
________

All courts

tion have held that

of appeals which have

considered the ques-

a misuse of governmental power

motivated by

11

racial animus comes squarely within the "equal benefit" and "like

punishment" clauses

of section 1981(a).

See Mahone
___ ______

v. Waddle,
______

564

F.2d 1018,

denied,
______

1341,

1027-30

(3d Cir.

438 U.S. 904 (1978);

1344-45 (9th

1981 claim

"racially-motivated

(false arrest),

see also Evans

___ ____ _____

Cir. 1989)

alleging that

1977)

arrest-boycott

F.2d 74,

(remanding

section 1981

officials denied

ings relating

on

to corporal punishment).

Coleman
_______

76-77 (5th

black pupil equal benefit of

of section

others instigated

conspiracy");

Franklin Parish Sch. Bd., 702

__________________________

for factfinding

v. McKay, 869 F.2d

_____

(reversing dismissal

police officers and

cert.
_____

v.

Cir. 1983)

claim that

school

laws and proceed-

We have

been presented

with no basis in law or reason for departing from this solid line

of authority.

During

Alexis:

the

arrest,

Sergeant Leporati

"You people have no rights.

stated

to Mr.

You better shut up your . .

mouth before

I arrest

statement betrayed a

statement

support

"You

you too."

racial animus.

people have no

the section 1981(a) claim.

Alexis

insists that

Leporati responds

rights"

is

this

that the

too general to

Given its context, we cannot

agree.

A rational factfinder who

we must at summary

credited this statement,

judgment, see supra note 1,

___ _____

infer that Leporati harbored a racial animus

a section 1981 claim,

the

only relevant
____

reasonably could

adequate to support

especially since the record reflects

behavior or

physical characteristic

apparent to Leporati and shared by the Alexis family

________
______

12

as

that

both

was their

black skin.

Indeed, a rational factfinder would be

to glean a more

has

tendered

present

hard-pressed

plausible inference, particularly since Leporati

no

record.6

statement, tarring

alternative

Viewed

the

interpretation supported

in context,

entire family

therefore, the

with

the same

by

the

Leporati

brush

absent a scintilla of evidence that any member, with the possible

exception

of Alexis, had said or done anything remotely wrong or

disorderly

cannot reasonably

be presumed so
________ __

innocent as
________ __

to
__

preclude a discriminatory animus.

________

Accordingly,

we

hold

that

summary judgment, viewed in context,

the evidence

adduced

at

was sufficient to support a

reasonable inference that Leporati not only gratuitously employed

excessive force

in arresting

Alexis but

that his actions

were

motivated by a racial animus violative of the "equal benefit" and

"like

punishment"

raised

clauses of

trialworthy issue

section

Alexis

to whether

Leporati deprived her of "the full and equal benefit"

of the law

persons and the right

section 1981

Thus,

as

accorded white

under

1981(a).

to "like punishment

. . .

____________________

6The only alternative interpretation advanced by Leporati is

that "there are objective undisputed

facts which are contrary to

plaintiffs' premise (i.e. that four black people were not ordered

to

leave and were not

arrested)."

The

undisputed facts flatly

contradict a material portion of Leporati's

tion, however.

parenthetical asser-

When Leporati first confronted them in the dining

area, he ordered the entire Alexis family to leave.

______
4.

After returning

their

to the service

See supra p.
___ _____

counter to inform Domina

of

refusal to leave, and upon learning that Topham recalled a

"problem" with Alexis in the past, Leporati returned to the table

and announced his
decision to
have

intention to

arrest only

arrest only Alexis.

Alexis, Leporati's retort,

no rights," accompanied by the

Given

his

"You people

subsequent threat to arrest

Mr. Alexis, remains unexplained by any argumentation presented on

appeal.

13

[and] no other."

B.
B.

42 U.S.C.

1981(a).7

Section 1985(3)
Section 1985(3)
_______________

Alexis alleged that

explicitly conspired

equal

to deprive

privileges and equal

Constitution and the laws

42 U.S.C.

Leporati and Domina "directly

1985(3).

rights guaranteed

class-based,

motivated the

Breckenridge, 403
____________

S. Ct.

to her

conspiracy

that "`some racial, or perhaps

invidiously

discriminatory

Bray
____

753, 758 (1993)

U.S. 88, 102

under the

violation of

trialworthy section 1985(3)

alleged conspirators.

Health Clinic, 113

_____________

equal protection,

of the United States" in

claim requires competent evidence

otherwise

[her] of the

and

(1971)).

animus'"

v. Alexandria Women's
__________________

(quoting Griffin
_______

Alexis

v.

predicated her

____________________

7Of course, qualified immunity may

defendant

in a

1981 action.

be available to a police

See Ricci v.
___ _____

Key Bancshares of
_________________

Me., Inc., 768 F.2d 456, 467 (1st Cir. 1985) (FBI agents entitled
_________
to qualified immunity

in

1981(a) action); see

___

Mississippi St. Employment Servs.,

__________________________________
Cir.),

41 F.3d

also Wicks
____ _____

991, 996

v.

n.21 (5th

cert. denied, 115 S. Ct. 2555 (1995); Gallegos v. Denver,

_____ ______
________
______

984 F.2d 358,

364 (10th

Cir.), cert.
_____

denied, 113
______

S. Ct.

2962

(1993); Johnson v. Estate of Laccheo, 935 F.2d 109, 112 (6th Cir.
_______
_________________

1991); cf. Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board
__ _____________________________________________
_____
of Selectmen,
____________
qualified

878 F.2d

immunity

analogous to

16, 19-21

(1st Cir.

defense to

1983

1989) (recognizing

equal protection

"equal benefit" claim in instant

case).

claim

Neverthe-

less, qualified immunity does "not bar inquiry into a defendant's

state of mind when the applicable law makes the defendant's state
of

mind (as distinct from

defendant's knowledge of
_________

essential element of plaintiff's

iano-Angulo
___________
also
____

the law) an

constitutional claim."

Felic______

v. Rivera-Cruz, 858 F.2d 40, 46 (1st Cir. 1988); see

___________
___

Tompkins v.
________

Vickers,
_______

26 F.3d

603,

607 (5th

Cir.

1994)

(noting that every circuit to consider the question has concluded

that

"a public official's motive or intent must be considered in

the

qualified

immunity analysis

where

unlawful motivation

or

intent is a critical element of the alleged constitutional violation")

(collecting cases).

Thus,

whether

Leporati

Alexis's civil rights under

1981(a) turns on a

of

which precluded

fact in

See
___

genuine dispute,

violated

material issue

summary judgment.

Feliciano-Angulo, 858 F.2d at 47; see also Johnson v. Jones,

________________
___ ____ _______
_____

115 S. Ct. 2151, 2158 (1995).

14

section 1985(3)

ment:

"You

conspiracy claim

people have

on Sergeant

no rights."

Leporati's state-

Although

this evidence,

viewed in context, is sufficient to enable a reasonable inference

that

Leporati harbored

Section

the requisite

racial animus,

see supra
___ _____

II.A.2, there is no evidence which would support such an

inference as to Domina.

C.
C.

Section 1983
Section 1983
____________

The gravamen

Leporati,

acting

of these federal claims

under

color of

Massachusetts

is that Sergeant

law,

deprived

Alexis of her Fourth Amendment right to be free from unreasonable

seizure of

her person in

excessive force,

without a

She also

that

process by

her

claims

effecting her misdemeanor

warrant and without

Domina deprived

summoning Leporati into the

removal under color of state law.

her

of

arrest with

probable cause.

procedural

due

restaurant and directing

Finally, she alleges that

Leporati

determined to arrest her, and effected her arrest, in a

discriminatory

manner, based on her race and in violation of the

Equal Protection Clause of the Fourteenth Amendment.

1.

Arrest Without Probable Cause

Arrest Without Probable Cause
_____________________________

a.
a.

Leporati
Leporati
________

The

Fourth

Amendment

guaranty

against

unreasonable

seizures of the person requires that arrests be based on probable

cause.

Beck v. Ohio, 379 U.S. 89, 91 (1964); Santiago v. Fenton,

____
____
________
______

891 F.2d 373, 383 (1st Cir. 1989).

entails

"`an objective

The "probable cause" analysis

assessment of

the officer's

actions in

light of the facts and circumstances confronting him at the time'

15

and

time

not [an assessment

of] the officer's

the challenged action was

taken."

state of mind

Maryland
________

at the

v. Macon, 472
_____

U.S. 463, 470-71 (1985) (quoting Scott v. United States, 436 U.S.
_____
_____________

128, 136 (1978)).

Probable cause will be found if "the facts and

circumstances within [the officer's]

knowledge and of which [he]

had reasonably trustworthy information were sufficient to warrant

a prudent [person] in believing that

the [defendant] had commit-

ted or

Rivera v. Murphy,
______
______

was committing an offense."

979 F.2d

259, 263 (1st Cir. 1992).

i.
i.

Revocation of Invitation
Revocation of Invitation
________________________

Although appellants argue that the district court erred

in finding

error.

trespass,

statute:

probable cause for

As previously

Alexis's arrest,

noted, Alexis

misdemeanor

under

Whoever,
enters
______

. . .

the

applicable

right
_____

or remains
__ _______

in or

. buildings

of another,

having been
to do by
has

was arrested for

without
_______

upon the . .

after

forbidden so

the person

lawful

control

who
of

said premises . . . shall

be punished by a

we perceive

fine of

no

criminal

Massachusetts

not more than one hundred

dollars
ment

or by

for

imprison-

not more

thirty days

than

or both such

fine and

imprisonment. .

person

found

who

committing

trespass may
___

is
such

be arrested
__ ________

by a . . . police officer
and kept in custody
convenient
more
hours,
until a

place,

than

in a
not

twenty-four

Sunday

excepted,

complaint can be

made against

him for the

16

offence, and
upon

he be taken

warrant

issued

upon such complaint.

Mass.

Gen. Laws Ann.

under chapter

ch. 266,

266, section

120

120, a

(emphasis added).

person who remains,

_______

Thus,

without

right, on the property of another commits a continuing misdemean-

or for

which she may be

subjected to a warrantless

police officer provided there is probable cause.

The undisputed facts demonstrate that

directed Alexis to

leave the restaurant, but

theless

refused to leave until

eating.

Appellants cite no

she and her

arrest by a

Id.
___

Domina expressly

that Alexis never-

family had finished

authority for their implicit sugges-

tion that Massachusetts recognizes

absolute

cause,

Cf.
__

right of a private

its implied

State v.
_____

trespass statute

where

business

461 A.2d

enter a

1065,

permits revocation

owner

"has

removal"); Model Penal Code

criminal

business owner to withdraw, without

license to

Tauvar,
______

an exception to the seemingly

business establishment.

1067 (Me.

of implied

some justification

1983)

(Maine

invitation only
____

for

requesting

221.2(3)(b) (affirmative defense to

trespass requires evidence that "premises . . . open to

members of

the public and

[defendant] complied with

conditions

imposed on access to or

all lawful

remaining in the premises").

Moreover, we have combed Massachusetts law for such an exception,

to no avail.

It

has been held, of

course, and we

do not question,

that a Massachusetts business property owner

may not violate the

constitutional

business

or statutory

rights

of its

licensees

17

under the

Hurley
______

shield of

the

Massachusetts trespass

v. Hinckley, 304 F. Supp. 704,

________

statute.

See
___

710 (D. Mass. 1969) ("The

words `without right' in the context of the historical concept of

trespass

can only mean: [`]without

any legal right; without any

right, permission or license recognized

by law as permitting

entry

statute.['] .

into the

area described

in the

. .

an

The

concept [of] legal right in the context of today's constitutional

developments includes

any right of the

plaintiffs, individually

or collectively, found in the Constitution of the United States .

. .

."), aff'd
_____

mem., 396
____

Restaurants, Inc.,
_________________

U.S. 277

373 N.E.2d 215,

(1970);

Smith v. Suburban
__________________

218 (Mass. 1978)

(noting in

libel case that "[a] place of public accommodation, as members of

the

community might know, has an obligation to treat each member

of the public equally, except for good cause") (dicta) (citations

omitted);

App. Ct.

Commonwealth v.
____________

1990) (the

tional rights).

Lapon, 554
_____

N.E.2d 1225,

term "without right"

1227 (Mass.

encompasses constitu-

Nevertheless, the Massachusetts

not limit

to revoke a

the power of a Massachusetts

business licensee's

trespass statute

does

business owner summarily

_________

right to enter

or remain

business premises held open to the general public.

upon

See Stager v.
___ ______

G.E. Lothrop Theatres Co., 197 N.E. 86, 87 (Mass. 1935) (finding
__________________________

that,

"[g]enerally speaking,"

a theater

right

to revoke theater-goer's license to enter or remain on the

premises); cf. Baseball Publishing Co. v.

___ _______________________

363 (Mass.

owner has

an absolute

Bruton, 18 N.E.2d 362,

______

1938) ("[I]t is of the essence of a license [to enter

18

private property] that it

sessor

of the

land. .

is revocable at

. .

the will of the

The revocation

of a

license may

constitute a breach of contract,

and give rise to an action

damages.

less effective

But

it

is none

the

licensee of all justification for entering or

land."); Commonwealth v. Hood,

____________
____

(stating

rights

that

to

statute

for

deprive the

remaining upon the

452 N.E.2d 188, 194 (Mass.

Massachusetts trespass

pos-

1983)

"`protect[s] the

of those in lawful control of property to forbid entrance

by those whom they are unwilling to receive, and to

exclude them

if, having entered, those in control

leave'") (quoting Commonwealth v.

____________

see fit to command them

to

Richardson, 48 N.E.2d 678, 682

__________

(Mass. 1943)); see also State v. Bowman, 866 P.2d 193, 202 (Idaho
___ ____ _____
______

Ct. App. 1993) (in case involving business invitees who purchased

movie theater tickets, holding

that Idaho trespass statute "does

not require that the owner[s] of private property have any reason

for

asking

trespassers to

Hellman Enters., Inc.,

______________________

1989) (same).

get off

537 N.Y.S.2d

their land");

659,

Impastato v.
_________

661 (N.Y.

App. Div.

Absent some invidious ulterior purpose, therefore,

once proper notice has been given

licensee nonetheless remains

trespass statute

by the owner, and the business

on the property,

the Massachusetts

permits arrest of the uncooperative trespasser.

See Hood, 452 N.E.2d at 194.

___ ____

Although

the Massachusetts

trespass statute

does not
___

enable business owners to exclude business licensees on discrimi-

natory

grounds, Hurley, 304 F. Supp. at 710, Alexis proffered no

______

competent evidence

that Domina or

McDonald's, as

distinguished

19

from Leporati, sought to

exclude her on

the basis of her

race.

See supra Section II.A.1.

___ _____

acted

within her

Thus, on the record

lawful

authority

evidence, Domina

as "the

person [having]

lawful control of said premises," Mass. Gen. Laws Ann. ch. 266,

120

in revoking Alexis's implied license to utilize McDonald's

dining facilities.

ii.
ii.

Probable Cause
Probable Cause
______________

Probable cause

exists if "the facts

within [a police officer's] knowledge

had

reasonably

themselves

believe

to

trustworthy

warrant

that a crime has

and of which [the officer]

information

[person] of

and circumstances

[are]

reasonable

been committed or

sufficient

in

caution"

to

is being committed.

Carroll v. United States, 267 U.S. 132, 162 (1925); United States
_______
_____________
_____________

v.

Drake, 673 F.2d

_____

this

arrest based

Alexis had

leave

15, 17 (1st

on

past.

the eyewitness

created an

An

Leporati effected

report

from Domina

"unwarranted disturbance" and

the premises, and

that there had been

Cir. 1982).

on the representation

refused to

by Sherry Topham

an unspecified "problem" with Alexis

objectively reasonable police

that

in the

officer so informed

the person in charge of the business premises, see supra

___ _____

by

note 2,

fairly could conclude that the implied license extended to Alexis

had been revoked

and that

there was probable

cause to

believe

that her continued presence constituted a criminal trespass.

Mass. Gen.

Laws Ann.

committing such

ch. 266,

trespass

officer . . . .");

may be

120 ("A

arrested

person .

by a

. .

see also United States v. Figueroa,

___ ____ _____________
________

See
___

. .

found

police

818 F.2d

20

1020, 1023 (1st Cir. 1987) ("The constitutionality of a

warrant-

less arrest `depends . . . upon whether, at the moment the arrest

was made, the officers had

probable cause to make it --

whether

at that moment the facts and circumstances within their knowledge

and

of which

sufficient to

they had

reasonably trustworthy

warrant a prudent

information were

[person] in believing

that the

[defendant]

had

committed

or

(quoting Beck, 379 U.S. at 91).

____

in the district court ruling

was

committing

an

offense.'")

Accordingly, we discern no error

that appellants failed to establish

a trialworthy dispute on the issue of probable cause to arrest.

b.
b.

Domina
Domina
______

A section 1983 claim does not lie absent

Casa Marie, Inc.

________________

(1st

v. Superior Court of P.R.,

_______________________

Cir. 1993); 42 U.S.C.

state action.

988 F.2d 252,

258

1983 (providing remedy for depriva-

tions "under color of any statute, ordinance, regulation, custom,

or usage" of

to the "state

be shown

any state or territory).

action" requirement.

to have been

caused by the

There

First, the

are two components

deprivation must

exercise of some

right or

privilege created by

by the state, or by

the state, or by a rule

of conduct imposed

a person for whom the state

Casa Marie, 988 F.2d at 258.

__________

is responsible.

Second, the party charged with the

deprivation must be a person who may fairly be said to be a state

actor.

Id.
___

Where

section 1983 action,

a private

individual is

there must

be a showing

a defendant

that the

in a

private

party and the state actor jointly deprived plaintiff of her civil

rights.

Wagenmann v.
_________

Adams, 829 F.2d 196, 209

_____

21

(1st Cir. 1987);

Casa Marie, 988 F.2d

__________

U.S.

24, 27-28

state

at 258-59; see
___

(1980) ("Private

officials

in the

There was

between Leporati

certed

private

party

action

and Domina

conclude that

party for

that of

engaged with

are acting

`under

joint discriminatory

whether

policy

tantamount

action,

449

1983 actions.").

no evidence of

conspiracy, custom, or

factfinder to

persons, jointly

challenged

color' of law for purposes of

also Dennis v. Sparks,

____ ______
______

which

by plan, prearrangement,

would enable a

Alexis's arrest resulted

to

substituting the

the police

to exercise state power.

action

rational

from con-

judgment

of

or allowing

the private

Compare Wagenmann,

829 F.2d at

_______ _________

209-11

(close relationship

police

chief,

police

collectively

between

together with

private citizen

evidence

determined

to

that

and deputy

private actor

arrest

plaintiff,

and

raised

inference that private actor was more than "mere complainant" and

that a "meeting of the minds" occurred between police and private

defendant sufficient to warrant

finding that defendant was state

actor) with Carey

____ _____

v. Continental Airlines, Inc.,

__________________________

823 F.2d 1402,

1404

1987)

complained

(10th

Cir.

(airline employee,

who

of

striking airline pilot's presence in airport terminal and refusal

to

leave, found

summoned

to

not

to be

airport terminal

state

asked

actor where

pilot to

police

leave

officer

and, upon

pilot's refusal, called for three additional officers who escort-

ed

pilot to airport security station where he was arrested); see

___

also
____

Adickes v.
_______

S. H. Kress & Co., 398

___________________

U.S. 144,

152 (1970)

(holding that white schoolteacher, in company of six black youths

22

denied service

at lunch

under section

1983 upon
____

counter,

proof that
_____ ____

would be

entitled to

lunch counter
_____ _______

relief

employee and
________ ___

policeman had reached an understanding to deny service to teacher

_________ ___ _______ __ _____________

because

she was a white person in

company of blacks).

As there

is no evidence in the summary judgment record from which it could

fairly be inferred that

Domina and Leporati had any

understand-

ing, tacit or explicit, to deprive Alexis of any right secured by

the Constitution or laws

of the United States, we

the district court correctly

conclude that

granted summary judgment for Domina

on this section 1983 claim.8

2.
2.

Excessive Force
Excessive Force
_______________

Alexis

asserts an

"excessive

Fourth

Amendment, which

guarantees

secure

in their persons

. . .

zures."

See Graham
___ ______

force" claim

citizens the

right "to

against unreasonable .

v. Connor, 490 U.S. 386,

______

under the

be

. . sei-

394 (1989) ("Where

[an] excessive force claim arises in

the context of an arrest or

investigatory stop of a free citizen, it is most properly charac-

terized as one invoking the protections of the Fourth Amendment .

. .

.").

In

the Fourth

Amendment setting, a

force claim must demonstrate

viable excessive

that the police defendant's actions

were not objectively reasonable, viewed in light of the facts and

circumstances confronting him and

ing intent or motivation.

tions

will not

make

without regard to his underly-

Id. at 397 ("An officer's evil

___

a Fourth

objectively reasonable use of

Amendment

violation out

force; nor will an

inten-

of

officer's good

____________________

8Alexis asserts no section 1983 claim against McDonald's.

23

an

intentions make an objectively

unreasonable use of force consti-

tutional.") (citations omitted).9

As the Supreme Court has counseled, our inquiry must be

undertaken

from the perspective of

scene, rather than

396 (citations

with the 20/20 vision of hindsight."

omitted).

the Fourth Amendment

"a reasonable officer on the

Though the reasonableness

"`is not capable

mechanical application,'" id. (quoting

___

Id. at
___

test under

of precise definition

or

Bell v. Wolfish, 441 U.S.

____
_______

520,

559 (1979)), "`[n]ot every

level required for

push or shove'"

an actionable "excessive

(citation omitted); Gaudreault

__________

will reach the

force" claim.

v. Salem, 923 F.2d

_____

Id.
___

203, 205 (1st

Cir. 1990) ("[P]olice officers making arrests are often forced to

make

split-second decisions about the

effect

an

arrest while

rapidly-changing

(1991).

"the

poses

Graham
______

tense, dangerous

an immediate

and (3)

threat

and

denied,
______

500 U.S.

956

three

criteria

for

prescribes

objective reasonableness

severity of the crime

others;"

under

circumstances."), cert.
_____

Accordingly,

evaluating the

operating

amount of force needed to

of the force

used: (1)

at issue;" (2)

"whether the suspect

to the

of the

"whether [the

safety

suspect] is

officers

or

actively resisting

arrest or attempting

to evade

arrest by flight."

Graham,
______

490

U.S. at 396; see also Gaudreault, 923 F.2d at 205.

___ ____ __________

All three Graham factors, viewed in the context of "the

______
____________________

9Of

course,

if

evidence

of

racial

presented at trial, it would be for the

ing the officer's credibility
harbored

discrimination

factfinder

were

in assess-

to determine whether the officer

ill will toward the plaintiff.

n.12.

24

Graham, 490 U.S. at 399

______

totality of the circumstances," Graham, 490 U.S. at 396; see also

______
___ ____

supra
_____

for

p. 5,

weigh heavily in favor of Alexis.

which she was

meanor.

days).

arrested

First, the crime

criminal trespass

See Mass. Gen. Laws Ann. ch. 266,

___

is a misde-

120 (maximum term 30

Second, there is no suggestion that Alexis posed a threat

to the peace or safety of anyone, including Sergeant Leporati and

Officer Fuer.

neither

Third,

anyone else.

get

value, Alexis

threatened nor attempted to evade or resist arrest.

did any Alexis

to

taking her evidence at face

family member pose

a threat to

the officers

Nor

or

Yet, without even having been requested or directed

up from

the

table

and though

all

the surrounding

circumstances, individually and in combination, plainly counseled

minimal

force in

pulled from

the

effecting any

booth, and

force to bruise her

her back and

arrest

Alexis

across the

was abruptly

table, with

legs, then handcuffed with her

dragged and carried to a police

sufficient

hands behind

cruiser and pushed

inside.

Viewed

in context

persuaded that the record

the force

and removal

reasonable, especially

she posed a

arrest,

since there is no

the

we are

not

the sudden, unannounced,

of Alexis's person

risk of flight,

or threatened

as true,

evidence compelled the conclusion that

with which Leporati effected

violent seizure

that

and accepted

was objectively

evidence or suggestion

attempted to resist

peace, property

or

or evade

safety of

any-

25

one.10

See Palmer
___ ______

1993) (finding

sheriff

arrested, tightly

car to sit

F.3d 1433,

1436 (9th

trialworthy "excessive force" claim

year-old man with

his

v. Sanderson, 9
_________

handcuffed, and

impaired mobility who

down while

Cir.

where deputy

bruised sixty-seven-

attempted to return

answering officer's

to

questions); see
___

also
____

Rowland v.
_______

Perry,
_____

41 F.3d

167,

171-74 (4th

Cir.

1994)

(finding trialworthy "excessive force" claim where police officer

injured arrestee's

after

leg ("wrenching

the knee until

it cracked")

arrestee picked up five dollar bill dropped by its owner);

cf. Lester v.
___ ______

Graham
______

Chicago, 830 F.2d 706,

_______

case) (holding that

Amendment "excessive

714 (7th Cir.

plaintiff stated

force" claim when, during

1987) (pre-

trialworthy Fourth

course of arrest

for disturbing peace, plaintiff was kneed in the back, threatened

with being struck, dragged down a hallway,

ly,

and handcuffed tight-

causing bruises on her wrists); Patzner v. Burkett, 779 F.2d

_______
_______

1363, 1371 (8th Cir. 1985) (pre-Graham case) (finding trialworthy

______

"excessive

force"

claim where

uncooperative double

amputee

arrested at home

after allegedly driving under

was pulled from

wheelchair to floor,

after promising

to cooperate).11

the influence

then dragged through

Accordingly, the

home

"excessive

____________________

10The district

court did not discuss

relation to the "excessive force" claim.

qualified immunity in
Nor do we,

as any such

defense is for the district court in the first instance.

11Contrary to Leporati's
sive force"

claim is

suggestion, a trialworthy

not precluded

merely

injuries were inflicted by the seizure.

because only

"exces-

minor

See Lester, 830 F.2d at

___ ______

714 (finding reversible error in district court "excessive force"

instruction which required jury to find "severe injury," thus may

have

led jury to

find for defendant

injuries consisted only

where plaintiff's physical

of bruises); see
___

26

also Harper v.
____ ______

Harris
______

force" claim must be remanded for further proceedings.12

3.
3.

Equal Protection
Equal Protection
________________

Alexis claims

that Leporati discriminated

on the basis of her race, both in deciding to

nal

trespass statute by

employing unreasonable

arrest,

she

argues that

immediate seizure of her

enforce the crimi-

effecting her immediate

_________

force.

against her

arrest, and by
______

Even assuming probable

Leporati

would not

person for so minor an

have

cause to

effected an

infraction, nor

used such excessive force, were it not for the color of her skin.

In order to avoid summary judgment on her Equal Protec-

tion Clause claim, Alexis had to tender competent evidence that a

state actor intentionally

discriminated against her

belonged to a protected class.

479

(5th Cir. 1989) (citing

247-48

(1976)), overruled
_________

County, 21 F.3d
______

supra
_____

Section

Alexis's

597, 600 (5th

II.A.2.

evidence of

conclude that Leporati

enforce the

Johnson v. Morel, 876 F.2d

_______
_____

Washington v. Davis,
__________
_____

on
__

because she

other grounds,
_____ _______

Cir. 1994).

A rational

factfinder,

racial animus

and excessive

resolved, on

the basis of

criminal trespass statute by

426 U.S. 229,

Harper v.
______

This

477,

Harris
______

she did.

who

See
___

credited

force, could

her race,

to

effecting an immediate

____________________

County,
______
need not

21 F.3d 597, 600 (5th Cir. 1994) (holding that plaintiff

prove "significant

injury" to assert

Fourth Amendment

"excessive force" claim).

12We likewise remand for further proceedings

force" claim under Mass. Gen. Laws Ann. ch. 12,
the

district court

granted

summary judgment

the "excessive

11I, upon which

on the

identical

grounds relied on for the section 1983 "excessive force" claim.

27

seizure of her

person.

See
___

Yick Wo v.
_______

Hopkins, 118 U.S.

_______

356,

373-74 (1886)

public

authority with an

practically

persons in

denial

("[I]f [the

to make unjust

law] is

applied and

evil eye

and an

and illegal

unequal hand,

constitution.");

viable Equal

still within the

Johnson, 876
_______

F.2d

Protection Clause

at

so as

discriminations between

similar circumstances, material to

of equal justice is

administered by

479

claim, where

their rights, the

prohibition of the

(plaintiff

stated

officer humiliated

and harassed plaintiff prior to and during lawful arrest on basis

______

of

plaintiff's race); United States

_____________

v. Scopo, 19
_____

F.3d 777, 786

(2d Cir.) ("Though the Fourth Amendment permits a pretext arrest,

if otherwise

Clause

still

supported by

imposes

probable cause, the

restraint

on

Equal Protection

impermissibly

class-based

discriminations.") (Newman, C.J., concurring), cert.

_____

denied, 115
______

S. Ct. 207 (1994); Inada v. Sullivan, 523 F.2d 485, 489 (7th Cir.
_____
________

1975)

(finding right

where

police

of

action under

officer, motivated

ancestry, threatened him with

by

Equal Protection

animus

Clause

toward plaintiff's

deportation); Tanner v. Heise, 879

______
_____

F.2d 572, 580 n.5 (9th Cir. 1989) (where plaintiff alleged "equal

protection"

state

violation, police

law would

provided

not shield

plaintiff could

officers' "mere

them from

prove

that

compliance" with

liability under

1983,

officers' motivation

for

arrest was to harass plaintiff because of his religious beliefs).

Furthermore,

rational

factfinder

could

conclude

that,

in

electing

to use excessive force to effect the violent seizure of

Alexis's

person and

her forcible

removal from

the restaurant,

28

Leporati

was motivated by a discriminatory animus.

See Smith v.
___ _____

Fontana, 818 F.2d 1411, 1420 (9th Cir.) (finding actionable claim
_______

where it was alleged

of

that decedent had been subdued

through use

excessive force because he was black), cert. denied, 484 U.S.

_____ ______

935 (1987).

We therefore hold, based on the present record, that

the Equal

Protection Clause claims under section 1983 are trial-

worthy.13

D.
D.

State Law Claims

State Law Claims
________________

Since only

merits

below, see
___

pending, the state

as well.

one state

supra
_____

note

law claim

12,

was addressed

and federal

law claims against Leporati

See 28 U.S.C.
___

claims

on the

remain

must be remanded

1367(c)(3) (district court may

decline

to exercise supplemental jurisdiction where all claims over which

court

has

dismissal of

original

jurisdiction

the state-law

have been

claims against the

dants is affirmed.

III
III

dismissed).

The

remaining defen-

CONCLUSION
CONCLUSION
__________

The district court judgment dismissing the section 1983

claim

against

cause

in violation

judgments

Leporati for

entered

of the

arresting

Alexis

Fourth Amendment

in favor

of

Domina

without probable

is affirmed.

and McDonald's

on

The

the

____________________

13Of

course,

Alexis's equal

showing that Leporati treated her

treated

a white person.

We leave

any, additional

evidence might be

this

See
___

element.

Johnson,
_______

876

opinion).

29

protection

claim

requires a

differently than he would have

open the question of what, if

required at trial
__ _____
F.2d

at 483-84

to satisfy

(concurring

section 1981 claim;

claim;

and Domina

Domina and Leporati

on the

claim are affirmed.

of

Leporati

on the

section 1983

on the section

1985(3)

procedural due

process

The district court judgment entered in favor

section

1981, excessive

force,

and Equal

Protection Clause claims is vacated, and these claims are remand-

ed for

further proceedings

consistent with this

opinion, along

with all pendent state law claims against Leporati, see 28 U.S.C.
___

1367(c)(3).

The parties shall

SO ORDERED.

bear their own costs on appeal.

SO ORDERED.
__ _______

- Separate Opinion Follows -

30

BOWNES, Senior Circuit Judge,

BOWNES, Senior Circuit Judge,
____________________

dissenting, in part.

concur in all

concurring, in part, and

of the court's

holdings

except the one dismissing the

The

section 1983 claim against Domina.

evidence taken in the light most favorable to the plaintiffs

is sufficient, I believe, for a reasonable factfinder to conclude

that

there

was

a conspiracy

between

Domina

and

Leporati to

discriminate against the plaintiff, Yvonne Alexis, because of the

color of her skin.

I.
I.

The facts from which such a conspiracy could rationally

be inferred are

order occurred

as follows.

at the McDonald's service

tiff Yvonne Alexis,

dispute was

over an incorrect

food

counter between plain-

an African American woman, Donna Domina, the

"swing manager," and the

the

A dispute

counterperson, Alfredo Pascacio.

over, Shirley

Topham, a

After

McDonald's managerial

employee, went outside the restaurant for police assistance.

returned

with

Officer

officer assigned

McDonald's and

both Topham

the Town of Framingham.

who identified

off-duty

police

an agreement between

Leporati conferred with

Yvonne Alexis

as "that

Domina told Leporati that she wanted Alexis out of

the restaurant.

Yvonne

a uniformed

to McDonald's pursuant to

and Domina,

black woman."

aware

Leporati,

She

Domina made

Alexis

and

this request even

her family

had

though she

already

was

taken seats

preparatory to eating the food they had purchased.

Officer Leporati neither asked Topham and Domina why he

should make

Alexis leave

the restaurant nor

28

made inquiries

of

anybody else

as to

the behavior of

the Alexis

family.

Based

solely on his initial discussion with Domina and Topham, Leporati

proceeded

quietly

her

to the dining room

eating their food.

table where the

He told Yvonne

entire

family had

to leave

stated that

they would

not leave

Upon

hearing

this, Officer

the

refused to leave.

Leporati left

During

this

Alexis that she and

premises.

until

conferred again with Topham and Domina.

Alexis family sat

Yvonne Alexis

they finished

eating.

the dining

area and

He told them that Alexis

second discussion,

Topham

said she

had a

problem with

this woman

on

a prior

occasion.

Domina then said, "Well, if that's the case, then maybe we should

have

her leave."

Neither Domina

nor Officer Leporati requested

information about the alleged prior problem with Alexis.

icantly,

Officer Leporati again failed

to inquire as

was being told to remove Alexis from the restaurant.

Signif-

to why he

Instead, he

said that "it wouldn't be pretty" but he would make Yvonne Alexis

leave

if Domina wanted

him to.

Domina then told

him that she

wanted Yvonne Alexis out of the restaurant.

Officer

Leporati

returned

to

the

Alexis

table and

notified Yvonne Alexis that she would be arrested unless she left

within

arrive.

the ten

minutes

it would

take

his backup

Neither Yvonne nor any member of her family

cruiser

left.

to

When

the cruiser

arrived, Officer

Alexis out of her

family

had been

Leporati physically

seat and over the table

eating, bruising

her in

pulled Yvonne

at which she and

the process.

her

Yvonne

Alexis was then handcuffed, pushed into the cruiser, and taken to

29

jail.

Both

Yvonne

Alexis

and

her

husband

protested

the

violent treatment

removal from the

claimed,

ed,"You

tive]

she received from Officer

restaurant.

"We have

rights,"

At one juncture,

to which

people have no rights.

mouth before

I arrest

Leporati during her

Mr. Alexis

Officer Leporati

ex-

retort-

You better shut up your [exple-

you too."

Officer

Leporati made

these comments while still inside the restaurant.

II.
II.

The

section 1983

majority

opinion's cursory

treatment

claims overlooks several factual

of Alexis'

bases for finding

that there was a conspiracy within section 1983's "under color of

law"

requirement

between Domina

and

Leporati.

See
___

Lugar v.
________

Edmonson Oil Co., 457 U.S. 922, 928 (1982)("'under color of law'
_________________

has consistently been

treated as

the same thing

as the

'state

action'

required under

the

submitted at trial, when

Amendment").

viewed in the "light most

the nonmoving party" and with

party's favor,"

Fourteenth

favorable to

"all reasonable inferences in that

Colonial Courts Apartment Co. v. Proc. Assocs.,

_______________________________________________

57 F.3d 119, 122 (1st Cir. 1995), supports the view

arrest

Evidence

resulted from

concerted action

that Alexis'

between Domina

and Lep-

orati.

Section 1983

conspiracies are "commonly defined

as 'a

combination of two or more persons acting in concert to commit an

unlawful

principal

act, or to

commit a lawful act

element of which

by unlawful means, the

is an agreement

30

between the parties

'to

inflict

a wrong

Earle v. Benoit, 850

_________________

against or

F.2d

injury

836,

upon another'

844 (1st

Cir.

. .. ."

1988)(quoting

Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd
____________________
_____

in part
__ ____

on other
__ _____

definition,

grounds, 446
_______

section 1983

liability

deemed "willful participant[s] in

or its

agents."

U.S.

Lugar, 457
_____

754 (1980)).

attaches to

Under

this

private actors

[a] joint action with a

State

U.S. at 941; Dennis v. Sparks, 449

_________________

U.S. 24, 27 (1980); Casa Marie, Inc. v. Superior Court of Puerto

_____________________________________________

Rico, 988 F.2d 252, 259 (1st Cir. 1993).

____

proved by circumstantial

evidence of

See Wagenmann v. Adams, 829 F.2d 196,

___ ___________________

also
____

And joint action may be

a prearranged

conspiracy.

211 (1st Cir. 1987);

Moore v. Marketplace Restaurant, Inc.,

_____________________________________

see
___

754 F.2d 1336, 1352

(7th Cir. 1985).

I do not contend that joint action existed in this case

because Leporati

worked the

McDonald's detail or

that Domina's

supervisor, Shirley Topham, requested his assistance.

has clearly stated

that "merely initiating a good

for police protection

quent unconstitutional

would not attach liability

conduct of arresting

This court

faith request

for the subse-

officers."

mann, 829 F.2d at 210; see also Lusby v. T.G. & Y.

Wagen______

Stores, Inc.,

____

___ ____ ________________________________

749

F.2d 1423, 1433 (10th

sub
___

nom. City of Lawton v. Lusby,

____ _______________________

796 F.2d 1307 (10th

police officer is not

Cir. 1984), vacated

_______

474 U.S. 805 (1985), aff'd by

_____ __

Cir. 1986)(a store that employs

an off-duty

vicariously liable under section 1983

such officer's deprivation of

am

on other grounds
__ _____ _______

persuaded by the fact

customer's civil rights).

that Domina and

31

for

But, I

Leporati conferred on

two separate occasions before Alexis' brutal arrest.

The

record

establishes that Domina, not Leporati, made the decision to expel

Alexis from McDonald's premises, and that she made

with the knowledge

that some harm

removal "would not be pretty").

that decision

could befall Alexis

(Alexis'

And it is clear that Domina knew

that Leporati would do as she requested.

Viewed

in context,

the

events

Alexis' claims against Domina cast a

majority's

Alexis'

judgment.

conclusion that

claims

against

The facts --

Yvonne

long shadow of doubt on the

there was

Domina

precipitating

should

"no evidence"

have

to suggest

survived

that Leporati consulted

two occasions; that Leporati based his decision to

summary

with Domina on

arrest Alexis

on Domina's order; and

and

that it could be found that both Leporati

Domina took Yvonne Alexis'

suggest

something more

action.

A factfinder

race into account

than independent,

could reasonably

--

certainly

race neutral,

infer that

police

Domina and

Leporati

were acting in concert with one another according to an

informal

plan

whereby

Leporati

would eject

anyone

from

the

restaurant identified by Domina as a problem without independent-

ly investigating the situation.

Evidence

provides a basis

of

such

substituted

arrangements

for extending section 1983 liability to private

actors.

See Cruz v. Donnelly, 727

___ _________________

(holding

evidence of

cause was

F.2d 79, 81

pre-arranged plan

shoplifters without independently

probable

judgment

needed

(3d Cir. 1984)

to arrest

suspected

investigating the presence

to confer

section 1983

of

liability);

32

Lusby, 749 F.2d at 1432-33.

_____

While it generally does not

suffice

to show that a police officer fulfilled a private actor's request

to

arrest someone,

courts

evident

the

police officer

private

actor's order.

will impose

would

Cruz,
____

liability

not have

727 F.2d

where it

acted

at 81.

is

without the

failure to

investigate, though not dispositive, has been deemed sufficiently

demonstrative of

conspiratorial conduct. See Lusby,

___ _____

749 F.2d at

1432.

Despite

cannot

the majority's

be squared

with

the

attempts to

holding

do so,

in Carey v. Continental
______________________

Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987).

______________

In that case the

Tenth Circuit found that there was no substituted

a police officer was

airline pilot.

an

this case

judgment where

called into an airport to arrest a striking

The police officer in Carey, however, was more of

_____

independent actor than the facts show Officer Leporati was in

this case.

into the

That officer actually

facts before arresting

Officer Leporati

conducted a separate

the pilot.

failed to investigate

823 F.2d

at all, choosing

inquiry

at 1403.

to act

solely at Domina's behest.

the

use of

marked

Additionally, it is worth noting that

excessive force

and obvious

Officer Leporati's actions in this

racial overtones

that

case were not present

in Carey.
_____

The

current case

more closely

patterns Wagenmann v.
_____________

Adams, 829 F.2d 196 (1st Cir. 1987), a case the majority attempts
_____

to distinguish.

relationship

In that

with local

case the private actor enjoyed a

police

officers and

33

close

enlisted them

in

carrying out a plan to eject a potential agitator from his

wedding

ceremony.

ed, concluding

using the law

son's

We held that a section 1983 conspiracy exist-

that the defendant

in that case

was essentially

enforcement officials involved to achieve his own,

unconstitutional ends. 829 F.2d at 211.

sound evidentiary basis exists for concluding Domina

and Leporati adhered to a substituted

the one

judgment policy not unlike

deemed constitutionally violative in

the record reveals Domina,

decision to eject Yvonne

Wagenmann.
_________

not Leporati, as the impetus

Alexis.

Second,

Domina

First,

for the

and Leporati,

as individuals who worked

had a

shared

rights.

at McDonald's, could be found

understanding

to

See Adickes v. Kress,

___ _______
_____

deprive Yvonne

398 U.S. 144, 152

Alexis

to have

of

(1970).

her

Lep-

orati worked the McDonald's detail on numerous occasions and must

have

had a

working

making

procedures

Domina

and Leporati

duration

and

convince me

the

knowledge of

for

removals.

held

number to

company

Finally,

regarding Alexis

cement

policy and

the

conversations

were sufficient

conspiracy.

that the independent police

decision

These

in

factors

actions which persuaded

Tenth Circuit that no private liability existed in Carey are

_____

not present in this case.

I am not

dissuaded by the

absence of conclusive

evi-

dence that an express plan to discriminate existed between Domina

and Leporati.

The

Supreme Court has found a section 1983 viola-

tion where there was no formal plan to

v. Kress & Co.,

________________

398 U.S.

144 (1970),

discriminate.

the

In Adickes
_______

Court held

that a

34

policeman's

presence

enough to infer a

in a

segregated

lunch

counter might

conspiracy between the police officer

establishment, where the plaintiff

be

and the

had both been refused service

and

arrested.

conspiracy

conspired

rights.

In a notable decision the Seventh Circuit found a

where the state

were

not

agents with

actively

whom the

involved in

the

private actor

deprivation

See Soldal v. County of Cook, 942 F.2d

___ _________________________

1991), rev'd
_____

on other
__ _____

grounds by 113
_______ __

of

1073 (7th Cir.

S.Ct. 538

(1992)(finding

that private owner and deputy sheriffs conspired to "get rid of a

pesky tenant"

tion).

when sheriffs passively watched

an unlawful evic-

It was not necessary that there be evidence of an express

plan between Domina and Leporati to implicate section 1983.

There was sufficient

evidence from which

a factfinder

could conclude that Domina and Officer Leporati conspired togeth-

er to

deprive Yvonne Alexis of

arrested

without probable

her due process right

cause and

that such

not to be

deprivation was

based on the color of Alexis' skin.

For the

reasons discussed

above, I would

reverse the

judgment of the district court on the section 1983 claims brought

against Donna Domina.

35