Alexis v. McDonald's Restaurants of Massachusetts, Inc.

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 amended
as follows:

On cover sheet under list of counsel "Gilbert, Kurent & Kiernan"

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 M.

Perry were on brief for appellants.

Philip B. Benjamin, with whom Aaron K. Bikofsky was on brief for

appellee Michael Leporati.
John P. Noyes, with whom John A. Kiernan and Gilberg, Kurent &

Kiernan were on brief for appellees.

October 10, 1995

CYR, Circuit Judge. Plaintiffs Yvonne Alexis ("Alex-
CYR, Circuit Judge.

is"), and family members, challenge a summary judgment order

rejecting various federal civil rights claims and related state-

law claims stemming from the treatment accorded Alexis at a

restaurant owned and operated by defendant-appellee McDonald's

Restaurants of Massachusetts, 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 restaurant, proceeded to the

service counter, placed their order, and paid in advance. When

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

apparent that Alfredo Pascacio, whose native tongue is Spanish,

had mistaken their order. During the ensuing exchange between

Alexis and Pascacio, defendant-appellee Donna Domina, the "swing

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

to say: "[Y]ou take care of the people in front of you. He's

taking care of me, and we're sorting this out." Domina nonethe-

less persisted for several more minutes.

Ultimately, Domina said to Alexis, "I don't have to

listen to you." Alexis replied, "[Y]ou're damn right you don't

1The material facts in genuine dispute are related in the
light most favorable to plaintiffs-appellants, against whom
summary judgment was entered. See Velez-Gomez v. SMA Life Assur.

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

4

have to listen to me. I was not speaking to you. I was speaking

to him." Domina then instructed Pascacio: "Just put their stuff

in a bag and get them out of here." Turning to Alexis, Domina

retorted: "You're not eating here. If you [do] we're going to

call the cops." Alexis responded: "Well you do what you have to

do because we plan to eat here." Notwithstanding Domina's

instructions, Pascacio placed the food order on a service tray,

without bagging it. The entire incident at the service counter

had lasted approximately ten minutes.

After the Alexis family went into the dining area,

Sherry Topham, a managerial employee, summoned defendant Michael

Leporati into the restaurant. Leporati, a uniformed off-duty

police sergeant, had been patrolling on foot outside the restau-

rant by prearrangement with the Town of Framingham, but had

witnessed no part of the earlier exchange among Alexis, Pascacio

and Domina.

Upon entering the restaurant, Leporati was informed by

Domina that Alexis had been yelling, creating a "scene" and an

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

ing abusive remarks at Pascacio.2 Domina informed Leporati that

Alexis had argued loudly with her and another employee; that she

"just wasn't stopping"; and that Alexis was still in the dining

area though Domina had "asked her to leave." Finally, Domina

2At summary judgment, we must credit Alexis's statement that
she did not yell or cause a "disturbance." See supra note 1.

But since it is uncontradicted, we must also assume that Domina
informed Leporati that Alexis had caused a disturbance. Id.

5

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 immediately asked why, denied causing any

disturbance, and claimed a right to finish eating in the restau-

rant. 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 conversa-

tion with Alexis and informed Domina that the Alexis family had

refused to leave. In Leporati's presence, Domina discussed the

matter with Sherry Topham, who recalled having had a "problem"

with Alexis on a prior occasion.4 At that point, Domina stated,

"Well, if that's the case, then maybe we should have her leave."

With that, Sergeant Leporati returned to the Alexis family and

advised Alexis that she would be arrested unless she left before

his backup arrived. Cf. supra note 3. Alexis reiterated that

she believed she had the right to finish eating. 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 reflects no other information concerning the
timing or nature of any such "problem." As Alexis attests that
there had been no prior incident, we are required to assume as
much.

6

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. Then, without asking or directing Alexis to get up

from the table, Leporati suddenly and violently grabbed and

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

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

Fuer, dragged her from the booth, bruising her legs in the

process. Insisting that she was "not resisting arrest," Alexis

asked the officers to allow her to walk out. Instead, they

hoisted her by her elbows and carried her from the restaurant to

the police car, where Leporati pushed her into the car with the

instruction, "Get your ass in there."

As she was being removed from the restaurant, Alexis

and her husband repeatedly asked the officers why she was being

treated in this manner. When 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 under Mass. Gen. Laws Ann. ch. 266, 120 (West

1994). Following her acquittal by a jury, Alexis and her family

filed the present action in the United States District Court for

the District of Massachusetts, asserting civil rights claims

under 42 U.S.C. 1981, 1983, & 1985(3), as well as state law

claims for use of excessive force, intentional infliction of

emotional distress, assault, battery, false imprisonment, mali-

7

cious prosecution, and abuse of process. The district court

granted summary judgment for the defendants on all federal claims

and on the excessive force claim against Leporati under Mass.

Gen. Laws Ann. ch. 12, 11I. Finally, the court granted summary

judgment for all defendants on the remaining state law claims,

without stating its grounds. Plaintiffs appealed.

II
II

DISCUSSION
DISCUSSION

A grant of summary judgment is reviewed de novo under

the same criteria incumbent upon the district court; it cannot

stand on appeal unless the record discloses no trialworthy issue

of material fact and the moving party is entitled to judgment as

a matter of law. Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st

Cir. 1994). A. Section 1981
A. Section 1981

Section 1981 proscribes intentional discrimination

based on race. General Bldg. Contractors Ass'n v. Pennsylvania,

458 U.S. 375, 391 (1982); Dartmouth Review v. Dartmouth College,

889 F.2d 13, 17 (1st Cir. 1989). The district court found no

competent evidence of intentional race-based discrimination.

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 her right to make and enforce contracts. See 42

U.S.C. 1981(a).5 As to defendant Leporati, she alleges that

5Section 1981(a) provides in its entirety:

All persons within the jurisdiction of the United
States shall have the same right in every State and

8

her race-based arrest deprived her of the right to "full and

equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens," id.

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

kind, and to no other." Id. (emphasis added).

1. Domina and McDonald's
1. Domina and McDonald's

The district court initially excluded, as incompetent,

see Fed. R. Civ. P. 56(e) (affidavits may be considered at

summary judgment only if facts attested to are based on admissi-

ble evidence); Fed. R. Evid. 701, portions of the deposition

testimony of six witnesses the five Alexis family members and

Karen Stauffer, an eyewitness to the events each of whom

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

would not have been treated in the same manner. The court found

that the proffered testimony was "not supported by sufficient

factual undergirding" to permit a reasonable inference that

either Domina or McDonald's discriminated against Alexis on the

basis of her race. The court nonetheless allowed Alexis further

time to submit supplemental affidavits setting forth more partic-

ular grounds for the conclusory deposition testimony relating to

racial animus. Alexis failed to do so.

Opinion testimony from lay witnesses is admissible only

Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penal-
ties, taxes, licenses, and exactions of every kind, and
to no other.

9

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 are re-

viewed only for "manifest abuse of discretion." United States v.

Jackman, 48 F.3d 1, 4 (1st Cir. 1995) (citing Keller v. United

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

"unfriendly," "uncooperative," "high strung," "impolite," "impa-

tient," and had "no reason" to eject Alexis. Although these

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

there simply is no foundation for an inference that Domina

harbored a racial animus toward Alexis or anyone else, absent

some probative evidence that Domina's petulance stemmed from

something other than a race-neutral reaction to the stressful

encounter plainly evidenced in the summary judgment record,

including Alexis's persistence (however justified). As the

depositions disclosed no evidentiary foundation for an inference

of racial animus, the conclusory lay opinions were properly

excluded. See Fed. R. Evid. 701(a); Fed. R. Civ. P. 56(a);

Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618, 624

(1st Cir. 1988) (lay opinion testimony, which does little more

10

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

see also Connell v. Bank of Boston, 924 F.2d 1169, 1177-78 (1st

Cir.) (lay opinion that employer was "`determined to eliminate

. . . senior employees'" pointed to no specific facts suffi-

cient to buttress such a "broad assertion") (ADEA claim), cert.

denied, 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 and overreaction, and without more, such

disputes do not give rise to an 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. Leporati
2. Leporati

All courts of appeals which have considered the ques-

tion have held that 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, 1027-30 (3d Cir. 1977) (false arrest), cert.

denied, 438 U.S. 904 (1978); see also Evans v. McKay, 869 F.2d

1341, 1344-45 (9th Cir. 1989) (reversing dismissal of section

1981 claim alleging that police officers and others instigated

"racially-motivated arrest-boycott conspiracy"); Coleman v.

Franklin Parish Sch. Bd., 702 F.2d 74, 76-77 (5th Cir. 1983)

(remanding for factfinding on section 1981 claim that school

officials denied black pupil equal benefit of laws and proceed-

ings relating to corporal punishment). We have been presented

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

of authority.

During the arrest, Sergeant Leporati stated to Mr.

Alexis: "You people have no rights. You better shut up your . .

. mouth before I arrest you too." Alexis insists that this

statement betrayed a racial animus. Leporati responds that the

statement "You people have no rights" is too general to

support the section 1981(a) claim. Given its context, we cannot

agree.

A rational factfinder who credited this statement, as

we must at summary judgment, see supra note 1, reasonably could

infer that Leporati harbored a racial animus adequate to support

a section 1981 claim, especially since the record reflects that

the only relevant behavior or physical characteristic both

apparent to Leporati and shared by the Alexis family was their

12

black skin. Indeed, a rational factfinder would be hard-pressed

to glean a more plausible inference, particularly since Leporati

has tendered no alternative interpretation supported by the

present record.6 Viewed in context, therefore, the Leporati

statement, tarring the entire family with the same 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 the evidence adduced at

summary judgment, viewed in context, 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" clauses of section 1981(a). Thus, Alexis

raised a trialworthy issue under section 1981 as to whether

Leporati deprived her of "the full and equal benefit" of the law

accorded white persons and the right 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 parenthetical asser-
tion, however. When Leporati first confronted them in the dining
area, he ordered the entire Alexis family to leave. See supra p.

4. After returning to the service counter to inform Domina of
their refusal to leave, and upon learning that Topham recalled a
"problem" with Alexis in the past, Leporati returned to the table
and announced his intention to arrest only Alexis. Given his
decision to arrest only Alexis, Leporati's retort, "You people
have no rights," accompanied by the subsequent threat to arrest
Mr. Alexis, remains unexplained by any argumentation presented on
appeal.

13

[and] no other." 42 U.S.C. 1981(a).7

B. Section 1985(3)
B. Section 1985(3)

Alexis alleged that Leporati and Domina "directly and

explicitly conspired to deprive [her] of the equal protection,

equal privileges and equal rights guaranteed to her under the

Constitution and the laws of the United States" in violation of

42 U.S.C. 1985(3). A trialworthy section 1985(3) conspiracy

claim requires competent evidence that "`some racial, or perhaps

otherwise class-based, invidiously discriminatory animus'"

motivated the alleged conspirators. Bray v. Alexandria Women's

Health Clinic, 113 S. Ct. 753, 758 (1993) (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)). Alexis predicated her

7Of course, qualified immunity may be available to a police
defendant in a 1981 action. 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 also Wicks v.

Mississippi St. Employment Servs., 41 F.3d 991, 996 n.21 (5th

Cir.), 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, 878 F.2d 16, 19-21 (1st Cir. 1989) (recognizing

qualified immunity defense to 1983 equal protection claim
analogous to "equal benefit" claim in instant case). 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 the law) an

essential element of plaintiff's constitutional claim." Felic-

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

also 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 viola-
tion") (collecting cases). Thus, whether Leporati violated
Alexis's civil rights under 1981(a) turns on a material issue
of fact in genuine dispute, which precluded summary judgment.
See Feliciano-Angulo, 858 F.2d at 47; see also Johnson v. Jones,

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

14

section 1985(3) conspiracy claim on Sergeant Leporati's state-

ment: "You people have no rights." Although this evidence,

viewed in context, is sufficient to enable a reasonable inference

that Leporati harbored the requisite racial animus, see supra

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

inference as to Domina.

C. Section 1983
C. Section 1983

The gravamen of these federal claims is that Sergeant

Leporati, acting under color of Massachusetts law, deprived

Alexis of her Fourth Amendment right to be free from unreasonable

seizure of her person in effecting her misdemeanor arrest with

excessive force, without a warrant and without probable cause.

She also claims that Domina deprived her of procedural due

process by summoning Leporati into the restaurant and directing

her removal under color of state law. 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. Leporati
a. 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). The "probable cause" analysis

entails "`an objective assessment of the officer's actions in

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

15

and not [an assessment of] the officer's state of mind at the

time the challenged action was taken." Maryland 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 was committing an offense." Rivera v. Murphy, 979 F.2d

259, 263 (1st Cir. 1992).

i. Revocation of Invitation
i. Revocation of Invitation

Although appellants argue that the district court erred

in finding probable cause for Alexis's arrest, we perceive no

error. As previously noted, Alexis was arrested for criminal

trespass, a misdemeanor under the applicable Massachusetts

statute: Whoever, without right

enters or remains in or

upon the . . . buildings
. . . of another, after
having been forbidden so
to do by the person who
has lawful control of
said premises . . . shall
be punished by a fine of
not more than one hundred
dollars or by imprison-
ment for not more than
thirty days or both such
fine and imprisonment. .
. . A person who is
found committing such
trespass may be arrested

by a . . . police officer
and kept in custody in a
convenient place, not
more than twenty-four
hours, Sunday excepted,
until a complaint can be
made against him for the

16

offence, and he be taken
upon a warrant issued
upon such complaint.

Mass. Gen. Laws Ann. ch. 266, 120 (emphasis added). Thus,

under chapter 266, section 120, a person who remains, without

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

or for which she may be subjected to a warrantless arrest by a

police officer provided there is probable cause. Id.

The undisputed facts demonstrate that Domina expressly

directed Alexis to leave the restaurant, but that Alexis never-

theless refused to leave until she and her family had finished

eating. Appellants cite no authority for their implicit sugges-

tion that Massachusetts recognizes an exception to the seemingly

absolute right of a private business owner to withdraw, without

cause, its implied license to enter a business establishment.

Cf. State v. Tauvar, 461 A.2d 1065, 1067 (Me. 1983) (Maine

trespass statute permits revocation of implied invitation only

where business owner "has some justification for requesting

removal"); Model Penal Code 221.2(3)(b) (affirmative defense to

criminal trespass requires evidence that "premises . . . open to

members of the public and [defendant] complied with all lawful

conditions imposed on access to or 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 or statutory rights of its business licensees

17

under the shield of the Massachusetts trespass statute. See

Hurley v. Hinckley, 304 F. Supp. 704, 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 an

entry into the area described in the statute.['] . . . 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 U.S. 277 (1970); Smith v. Suburban

Restaurants, Inc., 373 N.E.2d 215, 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); Commonwealth v. Lapon, 554 N.E.2d 1225, 1227 (Mass.

App. Ct. 1990) (the term "without right" encompasses constitu-

tional rights).

Nevertheless, the Massachusetts trespass statute does

not limit the power of a Massachusetts business owner summarily

to revoke a business licensee's right to enter or remain upon

business premises held open to the general public. See Stager v.

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

that, "[g]enerally speaking," a theater owner has an absolute

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

premises); cf. Baseball Publishing Co. v. Bruton, 18 N.E.2d 362,

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

18

private property] that it is revocable at the will of the pos-

sessor of the land. . . . The revocation of a license may

constitute a breach of contract, and give rise to an action for

damages. But it is none the less effective to deprive the

licensee of all justification for entering or remaining upon the

land."); Commonwealth v. Hood, 452 N.E.2d 188, 194 (Mass. 1983)

(stating that Massachusetts trespass statute "`protect[s] the

rights 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 see fit to command them to

leave'") (quoting Commonwealth v. 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 get off their land"); Impastato v.

Hellman Enters., Inc., 537 N.Y.S.2d 659, 661 (N.Y. App. Div.

1989) (same). Absent some invidious ulterior purpose, therefore,

once proper notice has been given by the owner, and the business

licensee nonetheless remains on the property, the Massachusetts

trespass statute 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. Thus, on the record evidence, Domina

acted within her lawful authority 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. Probable Cause
ii. Probable Cause

Probable cause exists if "the facts and circumstances

within [a police officer's] knowledge and of which [the officer]

had reasonably trustworthy information [are] sufficient in

themselves to warrant a [person] of reasonable caution" to

believe that a crime has been committed or is being committed.

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

v. Drake, 673 F.2d 15, 17 (1st Cir. 1982). Leporati effected

this arrest based on the eyewitness report from Domina that

Alexis had created an "unwarranted disturbance" and refused to

leave the premises, and on the representation by Sherry Topham

that there had been an unspecified "problem" with Alexis in the

past. An objectively reasonable police officer so informed by

the person in charge of the business premises, see supra 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. See

Mass. Gen. Laws Ann. ch. 266, 120 ("A person . . . found

committing such trespass may be arrested by a . . . police

officer . . . ."); see also United States v. Figueroa, 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 they had reasonably trustworthy information were

sufficient to warrant a prudent [person] in believing that the

[defendant] had committed or was committing an offense.'")

(quoting Beck, 379 U.S. at 91). Accordingly, we discern no error

in the district court ruling that appellants failed to establish

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

b. Domina
b. Domina

A section 1983 claim does not lie absent state action.

Casa Marie, Inc. v. Superior Court of P.R., 988 F.2d 252, 258

(1st Cir. 1993); 42 U.S.C. 1983 (providing remedy for depriva-

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

or usage" of any state or territory). There are two components

to the "state action" requirement. First, the deprivation must

be shown to have been caused by the exercise of some right or

privilege created by the state, or by a rule of conduct imposed

by the state, or by a person for whom the state is responsible.

Casa Marie, 988 F.2d at 258. Second, the party charged with the

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

actor. Id. Where a private individual is a defendant in a

section 1983 action, there must be a showing that the private

party and the state actor jointly deprived plaintiff of her civil

rights. Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987);

21

Casa Marie, 988 F.2d at 258-59; see also Dennis v. Sparks, 449

U.S. 24, 27-28 (1980) ("Private persons, jointly engaged with

state officials in the challenged action, are acting `under

color' of law for purposes of 1983 actions.").

There was no evidence of joint discriminatory action

between Leporati and Domina whether by plan, prearrangement,

conspiracy, custom, or policy which would enable a rational

factfinder to conclude that Alexis's arrest resulted from con-

certed action tantamount to substituting the judgment of a

private party for that of the police or allowing the private

party to exercise state power. Compare Wagenmann, 829 F.2d at

209-11 (close relationship between private citizen and deputy

police chief, together with evidence that private actor and

police collectively determined to arrest plaintiff, 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 (10th Cir. 1987) (airline employee, who complained of

striking airline pilot's presence in airport terminal and refusal

to leave, found not to be state actor where police officer

summoned to airport terminal asked pilot to leave 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 counter, would be entitled to relief

under section 1983 upon proof that lunch counter 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 conclude that

the district court correctly granted summary judgment for Domina

on this section 1983 claim.8

2. Excessive Force
2. Excessive Force

Alexis asserts an "excessive force" claim under the

Fourth Amendment, which guarantees citizens the right "to be

secure in their persons . . . against unreasonable . . . sei-

zures." See Graham v. Connor, 490 U.S. 386, 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 viable excessive

force claim must demonstrate that the police defendant's actions

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

circumstances confronting him and without regard to his underly-

ing intent or motivation. Id. at 397 ("An officer's evil inten-

tions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer's good

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

23

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 "a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight." Id. at

396 (citations omitted). Though the reasonableness test under

the Fourth Amendment "`is not capable of precise definition or

mechanical application,'" id. (quoting Bell v. Wolfish, 441 U.S.

520, 559 (1979)), "`[n]ot every push or shove'" will reach the

level required for an actionable "excessive force" claim. Id.

(citation omitted); Gaudreault v. Salem, 923 F.2d 203, 205 (1st

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

make split-second decisions about the amount of force needed to

effect an arrest while operating under tense, dangerous and

rapidly-changing circumstances."), cert. denied, 500 U.S. 956

(1991). Accordingly, Graham prescribes three criteria for

evaluating the objective reasonableness of the force used: (1)

"the severity of the crime at issue;" (2) "whether the suspect

poses an immediate threat to the safety of the officers or

others;" and (3) "whether [the suspect] is 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 discrimination were
presented at trial, it would be for the factfinder in assess-
ing the officer's credibility to determine whether the officer
harbored ill will toward the plaintiff. Graham, 490 U.S. at 399

n.12.

24

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

supra p. 5, weigh heavily in favor of Alexis. First, the crime

for which she was arrested criminal trespass is a misde-

meanor. See Mass. Gen. Laws Ann. ch. 266, 120 (maximum term 30

days). Second, there is no suggestion that Alexis posed a threat

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

Officer Fuer. Third, taking her evidence at face value, Alexis

neither threatened nor attempted to evade or resist arrest. Nor

did any Alexis family member pose a threat to the officers or

anyone else. Yet, without even having been requested or directed

to get up from the table and though all the surrounding

circumstances, individually and in combination, plainly counseled

minimal force in effecting any arrest Alexis was abruptly

pulled from the booth, and across the table, with sufficient

force to bruise her legs, then handcuffed with her hands behind

her back and dragged and carried to a police cruiser and pushed

inside.

Viewed in context and accepted as true, we are not

persuaded that the record evidence compelled the conclusion that

the force with which Leporati effected the sudden, unannounced,

violent seizure and removal of Alexis's person was objectively

reasonable, especially since there is no evidence or suggestion

that she posed a risk of flight, attempted to resist or evade

arrest, or threatened the peace, property or safety of any-

25

one.10 See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.

1993) (finding trialworthy "excessive force" claim where deputy

sheriff arrested, tightly handcuffed, and bruised sixty-seven-

year-old man with impaired mobility who attempted to return to

his car to sit down while answering officer's 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 leg ("wrenching the knee until it cracked")

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

cf. Lester v. Chicago, 830 F.2d 706, 714 (7th Cir. 1987) (pre-

Graham case) (holding that plaintiff stated trialworthy Fourth

Amendment "excessive force" claim when, during course of arrest

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

with being struck, dragged down a hallway, and handcuffed tight-

ly, 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 the influence

was pulled from wheelchair to floor, then dragged through home

after promising to cooperate).11 Accordingly, the "excessive

10The district court did not discuss qualified immunity in
relation to the "excessive force" claim. Nor do we, as any such
defense is for the district court in the first instance.

11Contrary to Leporati's suggestion, a trialworthy "exces-
sive force" claim is not precluded merely because only minor
injuries were inflicted by the seizure. 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 where plaintiff's physical
injuries consisted only of bruises); see also Harper v. Harris

26

force" claim must be remanded for further proceedings.12

3. Equal Protection
3. Equal Protection

Alexis claims that Leporati discriminated against her

on the basis of her race, both in deciding to enforce the crimi-

nal trespass statute by effecting her immediate arrest, and by

employing unreasonable force. Even assuming probable cause to

arrest, she argues that Leporati would not have effected an

immediate seizure of her person for so minor 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 because she

belonged to a protected class. Johnson v. Morel, 876 F.2d 477,

479 (5th Cir. 1989) (citing Washington v. Davis, 426 U.S. 229,

247-48 (1976)), overruled on other grounds, Harper v. Harris

County, 21 F.3d 597, 600 (5th Cir. 1994). This she did. See

supra Section II.A.2. A rational factfinder, who credited

Alexis's evidence of racial animus and excessive force, could

conclude that Leporati resolved, on the basis of her race, to

enforce the criminal trespass statute by effecting an immediate

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

need not prove "significant injury" to assert Fourth Amendment
"excessive force" claim).

12We likewise remand for further proceedings the "excessive
force" claim under Mass. Gen. Laws Ann. ch. 12, 11I, upon which
the district court granted summary judgment 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) ("[I]f [the law] is applied and administered by

public authority with an evil eye and an unequal hand, so as

practically to make unjust and illegal discriminations between

persons in similar circumstances, material to their rights, the

denial of equal justice is still within the prohibition of the

constitution."); Johnson, 876 F.2d at 479 (plaintiff stated

viable Equal Protection Clause claim, where 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 supported by probable cause, the Equal Protection

Clause still imposes restraint on 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 of action under Equal Protection Clause

where police officer, motivated by animus toward plaintiff's

ancestry, threatened him with deportation); Tanner v. Heise, 879

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

protection" violation, police officers' "mere compliance" with

state law would not shield them from liability under 1983,

provided plaintiff could prove that officers' motivation for

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

Furthermore, a 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 that decedent had been subdued through use

of 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. State Law Claims
D. State Law Claims

Since only one state law claim was addressed on the

merits below, see supra note 12, and federal claims remain

pending, the state law claims against Leporati must be remanded

as well. See 28 U.S.C. 1367(c)(3) (district court may decline

to exercise supplemental jurisdiction where all claims over which

court has original jurisdiction have been dismissed). The

dismissal of the state-law claims against the remaining defen-

dants is affirmed.

III
III

CONCLUSION
CONCLUSION

The district court judgment dismissing the section 1983

claim against Leporati for arresting Alexis without probable

cause in violation of the Fourth Amendment is affirmed. The

judgments entered in favor of Domina and McDonald's on the

13Of course, Alexis's equal protection claim requires a
showing that Leporati treated her differently than he would have
treated a white person. We leave open the question of what, if
any, additional evidence might be required at trial to satisfy

this element. See Johnson, 876 F.2d at 483-84 (concurring

opinion).

29

section 1981 claim; Domina and Leporati on the section 1985(3)

claim; and Domina on the section 1983 procedural due process

claim are affirmed. The district court judgment entered in favor

of Leporati on the 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 bear their own costs on appeal.

SO ORDERED.
SO ORDERED.

- Separate Opinion Follows -

30

BOWNES, Senior Circuit Judge, concurring, in part, and
BOWNES, Senior Circuit Judge,

dissenting, in part. I concur in all of the court's holdings

except the one dismissing the section 1983 claim against Domina.

The 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 as follows. A dispute over an incorrect food

order occurred at the McDonald's service counter between plain-

tiff Yvonne Alexis, an African American woman, Donna Domina, the

"swing manager," and the counterperson, Alfredo Pascacio. After

the dispute was over, Shirley Topham, a McDonald's managerial

employee, went outside the restaurant for police assistance. She

returned with Officer Leporati, a uniformed off-duty police

officer assigned to McDonald's pursuant to an agreement between

McDonald's and the Town of Framingham. Leporati conferred with

both Topham and Domina, who identified Yvonne Alexis as "that

black woman." Domina told Leporati that she wanted Alexis out of

the restaurant. Domina made this request even though she was

aware Yvonne Alexis and her family had already 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 made inquiries of

28

anybody else as to the behavior of the Alexis family. Based

solely on his initial discussion with Domina and Topham, Leporati

proceeded to the dining room table where the Alexis family sat

quietly eating their food. He told Yvonne Alexis that she and

her entire family had to leave the premises. Yvonne Alexis

stated that they would not leave until they finished eating.

Upon hearing this, Officer Leporati left the dining area and

conferred again with Topham and Domina. He told them that Alexis

refused to leave. During this 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. Signif-

icantly, Officer Leporati again failed to inquire as to why he

was being told to remove Alexis from the restaurant. 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 the ten minutes it would take his backup cruiser to

arrive. Neither Yvonne nor any member of her family left. When

the cruiser arrived, Officer Leporati physically pulled Yvonne

Alexis out of her seat and over the table at which she and her

family had been eating, bruising her in the process. Yvonne

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

29

jail.

Both Yvonne Alexis and her husband protested the

violent treatment she received from Officer Leporati during her

removal from the restaurant. At one juncture, Mr. Alexis ex-

claimed, "We have rights," to which Officer Leporati retort-

ed,"You people have no rights. You better shut up your [exple-

tive] mouth before I arrest you too." Officer Leporati made

these comments while still inside the restaurant.

II.
II.

The majority opinion's cursory treatment of Alexis'

section 1983 claims overlooks several factual 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 Fourteenth Amendment"). Evidence

submitted at trial, when viewed in the "light most favorable to

the nonmoving party" and with "all reasonable inferences in that

party's favor," Colonial Courts Apartment Co. v. Proc. Assocs.,

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

arrest resulted from concerted action 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 act, or to commit a lawful act by unlawful means, the

principal element of which is an agreement between the parties

30

'to inflict a wrong against or injury upon another' . .. ."

Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)(quoting

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

in part on other grounds, 446 U.S. 754 (1980)). Under this

definition, section 1983 liability attaches to private actors

deemed "willful participant[s] in [a] joint action with a State

or its agents." Lugar, 457 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). And joint action may be

proved by circumstantial evidence of a prearranged conspiracy.

See Wagenmann v. Adams, 829 F.2d 196, 211 (1st Cir. 1987); see

also Moore v. Marketplace Restaurant, Inc., 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. This court

has clearly stated that "merely initiating a good faith request

for police protection would not attach liability for the subse-

quent unconstitutional conduct of arresting officers." Wagen-

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

749 F.2d 1423, 1433 (10th Cir. 1984), vacated on other grounds

sub nom. City of Lawton v. Lusby, 474 U.S. 805 (1985), aff'd by

796 F.2d 1307 (10th Cir. 1986)(a store that employs an off-duty

police officer is not vicariously liable under section 1983 for

such officer's deprivation of customer's civil rights). But, I

am persuaded by the fact that Domina and Leporati conferred on

31

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 that decision

with the knowledge that some harm could befall Alexis (Alexis'

removal "would not be pretty"). And it is clear that Domina knew

that Leporati would do as she requested.

Viewed in context, the events precipitating Yvonne

Alexis' claims against Domina cast a long shadow of doubt on the

majority's conclusion that there was "no evidence" to suggest

Alexis' claims against Domina should have survived summary

judgment. The facts -- that Leporati consulted with Domina on

two occasions; that Leporati based his decision to arrest Alexis

on Domina's order; and that it could be found that both Leporati

and Domina took Yvonne Alexis' race into account -- certainly

suggest something more than independent, race neutral, police

action. A factfinder could reasonably infer that 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 of such substituted judgment arrangements

provides a basis for extending section 1983 liability to private

actors. See Cruz v. Donnelly, 727 F.2d 79, 81 (3d Cir. 1984)

(holding evidence of a pre-arranged plan to arrest suspected

shoplifters without independently investigating the presence of

probable cause was needed to confer section 1983 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 will impose liability where it is

evident the police officer would not have acted without the

private actor's order. Cruz, 727 F.2d at 81. A failure to

investigate, though not dispositive, has been deemed sufficiently

demonstrative of conspiratorial conduct. See Lusby, 749 F.2d at

1432.

Despite the majority's attempts to do so, this case

cannot be squared with the holding 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 judgment where

a police officer was called into an airport to arrest a striking

airline pilot. The police officer in Carey, however, was more of

an independent actor than the facts show Officer Leporati was in

this case. That officer actually conducted a separate inquiry

into the facts before arresting the pilot. 823 F.2d at 1403.

Officer Leporati failed to investigate at all, choosing to act

solely at Domina's behest. Additionally, it is worth noting that

the use of excessive force and obvious racial overtones that

marked Officer Leporati's actions in this 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. In that case the private actor enjoyed a close

relationship with local police officers and enlisted them in

33

carrying out a plan to eject a potential agitator from his son's

wedding ceremony. We held that a section 1983 conspiracy exist-

ed, concluding that the defendant in that case was essentially

using the law enforcement officials involved to achieve his own,

unconstitutional ends. 829 F.2d at 211.

A sound evidentiary basis exists for concluding Domina

and Leporati adhered to a substituted judgment policy not unlike

the one deemed constitutionally violative in Wagenmann. First,

the record reveals Domina, not Leporati, as the impetus for the

decision to eject Yvonne Alexis. Second, Domina and Leporati,

as individuals who worked at McDonald's, could be found to have

had a shared understanding to deprive Yvonne Alexis of her

rights. See Adickes v. Kress, 398 U.S. 144, 152 (1970). Lep-

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

have had a working knowledge of company policy and decision

making procedures for removals. Finally, the conversations

Domina and Leporati held regarding Alexis were sufficient in

duration and number to cement a conspiracy. These factors

convince me that the independent police actions which persuaded

the 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 discriminate. In Adickes

v. Kress & Co., 398 U.S. 144 (1970), the Court held that a

34

policeman's presence in a segregated lunch counter might be

enough to infer a conspiracy between the police officer and the

establishment, where the plaintiff had both been refused service

and arrested. In a notable decision the Seventh Circuit found a

conspiracy where the state agents with whom the private actor

conspired were not actively involved in the deprivation of

rights. See Soldal v. County of Cook, 942 F.2d 1073 (7th Cir.

1991), rev'd on other grounds by 113 S.Ct. 538 (1992)(finding

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

pesky tenant" when sheriffs passively watched an unlawful evic-

tion). 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 her due process right not to be

arrested without probable cause and that such 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