United States Court of Appeals
For the First Circuit
No. 10-1800
STEPHEN HARRON,
Plaintiff, Appellant,
BIG TIME, INC.,
Plaintiff,
v.
TOWN OF FRANKLIN; STEPHEN T. WILLIAMS, Chief of Police; JEFFREY
D. NOTTING, Town Administrator; CERTAIN OTHER OFFICIALS OF THE
TOWN OF FRANKLIN, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES FOR THE TOWN OF FRANKLIN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Lipez, and Howard,
Circuit Judges.
Edward J. McCormick, III, with whom McCormick & Maitland was
on brief, for appellant.
Adam Simms, with whom John J. Davis and Pierce, Davis &
Perritano, LLP were on brief, for appellees.
October 31, 2011
LIPEZ, Circuit Judge. Pursuant to 42 U.S.C. § 1983,
Stephen Harron and Big Time, Inc. sued the Town of Franklin,
Massachusetts (the "Town"), and several Town officials, claiming
violations of the Equal Protection and Due Process Clauses of the
United States Constitution, for allegedly forcing out of business
a tavern leased and operated by them. The district court dismissed
the amended complaint for failure to state a claim upon which
relief could be granted, and Harron now appeals. We affirm.
I.
A. Factual Background
To describe the factual background of this case, we take
the facts as set forth in the amended complaint.
In early 2007, Harron entered into negotiations to lease
a tavern located near the Franklin Town Hall from Repsac, Inc. and
to arrange for the transfer of Repsac's liquor license to Harron.
Harron spent the first five months of 2007 renovating the premises
and securing various building permits and food-service licenses
from the Town in order to open and operate his tavern. However,
Harron was unsuccessful in securing a liquor license for the
tavern; the transfer of Repsac's license to Harron was not approved
by the Town, and no new license was issued. Undeterred, Harron
opened the tavern in May 2007, and started serving liquor without
a license. Over the ensuing months, he was assured by unidentified
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persons associated with the Town that a license would be
forthcoming.
Meanwhile, in July 2007, the Franklin Police Department
began to crack down on the tavern. Police officers regularly
parked their marked cars near the tavern, conducted undercover
investigations of the tavern's business practices, and placed under
surveillance the tavern, its employees, and its patrons as they
left the premises.
The police crack-down continued until September 2007,
when it culminated in a raid on the tavern. Although no criminal
charges were filed against Harron or Big Time, the negative
publicity generated by the raid hurt the tavern's business. In
addition, the Town subsequently made the final decision neither to
transfer Repsac's liquor license to Harron nor to issue Harron a
new license. No hearing was held prior to this decision; to
Harron's knowledge, the Town never before had dispensed with such
a hearing. Harron then received a letter from the Town informing
him that Stephen Williams - the Town's Chief of Police - had
strongly opposed the issuance or transfer of a liquor license to
Harron. At some time thereafter, due at least in part to its
inability to secure a liquor license, the tavern was forced to
close its doors.
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B. Procedural Background
On August 27, 2009, Harron filed this suit in the United
States District Court for the District of Massachusetts against the
Town, Williams, Jeffrey Nutting - the Town's Administrator - and
other Town officials who were not identified in the complaint.1
Williams, Nutting, and the unidentified officials were sued in
their official and individual capacities.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Town, Williams, and Nutting moved to dismiss the complaint for
failure to state a claim upon which relief could be granted.
Harron opposed the motion and moved concurrently for leave to amend
the complaint in order to supplement the factual allegations and
add Big Time as a plaintiff. After a hearing, the district court
allowed Harron's motion to amend but then dismissed the amended
complaint, which contained state law negligence claims and federal
civil rights claims brought pursuant to 42 U.S.C. § 1983 for the
violation of the equal protection and due process rights of Harron
and Big Time. The court held that the negligence claims were
barred by the Massachusetts Tort Claims Act and that the civil
rights claims did not state a plausible case for relief.
1
The spelling of Nutting's name is inconsistent in the record
and appears in the caption of this case as "Notting." We
understand "Nutting," not "Notting," to be the correct spelling and
use that spelling herein.
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Harron filed a timely notice of appeal, which was not
joined by Big Time. Although he is not appealing the dismissal of
his negligence claims, he argues that the district court erred in
dismissing his civil rights claims.2 We affirm.
II.
We review the district court's dismissal de novo, Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011),
construing in Harron's favor all well-pleaded facts in the amended
complaint and any reasonable inferences to be drawn therefrom,
Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010). In
order to survive a motion to dismiss, an amended complaint must
"contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). We identify and disregard any
statements in the amended complaint that are either legal
conclusions couched as facts or bare bones recitals of the elements
of a cause of action. See Iqbal, 129 S. Ct. at 1949-50; Ocasio-
Hernández, 640 F.3d at 12. Taking the remaining factual statements
2
Harron also argues in passing that the district court erred
by considering materials outside of the amended complaint. This
argument is limited to one sentence in the summary section of
Harron's brief and is unsupported by any citations or facts. We do
not consider such perfunctory arguments. See Nat'l Foreign Trade
Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) ("We have
repeatedly held that arguments raised only in a footnote or in a
perfunctory manner are waived."). In any event, the argument has
no merit.
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as true, we determine whether those statements permit a reasonable
inference of liability for the misconduct alleged. See Iqbal, 129
S. Ct. at 1949.
Harron's due process and equal protection claims are
brought pursuant to 42 U.S.C. § 1983. "Section 1983 supplies a
private right of action against a person who, under color of state
law, deprives another of rights secured by the Constitution or by
federal law." Santiago v. Puerto Rico, No. 10-1449, 2011 WL
3689000, at *3 (1st Cir. Aug. 24, 2011) (quoting Redondo-Borges v.
U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005)).
Accordingly, "[t]o make out a viable section 1983 claim, a
plaintiff must show both that the conduct complained of transpired
under color of state law and that a deprivation of federally
secured rights ensued." Id. Here, Harron's civil rights claims
fail because he has not adequately alleged the deprivation of a
federal right.
A. Due Process
The Due Process Clause of the Fourteenth Amendment
prohibits a state from depriving any person of "life, liberty, or
property, without due process of law." U.S. Const. amend. XIV,
§ 1. This prohibition guards against "the arbitrary exercise of
the powers of government." Cnty. of Sacramento v. Lewis, 523 U.S.
833, 845 (1998) (quoting Hurtado v. California, 110 U.S. 516, 527
(1884)). It "applies fully to a state's political subdivisions,
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including municipalities and municipal agencies." DePoutot v.
Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (citing Home Tel. &
Tel. Co. v. City of Los Angeles, 227 U.S. 278, 286-87 (1913)).
The Due Process Clause has both procedural and
substantive components. The former "ensures that government, when
dealing with private persons, will use fair procedures." DePoutot,
424 F.3d at 118. The latter "safeguards individuals against
certain offensive government actions, notwithstanding that facially
fair procedures are used to implement them." Id. Harron's claims
implicate both components.
1. Substantive Due Process
Where, as here, a plaintiff's substantive due process
claims challenge the constitutionality of certain executive acts,
"the plaintiff must show both that the acts were so egregious as to
shock the conscience and that they deprived him of a protected
interest in life, liberty, or property." Pagán v. Calderón, 448
F.3d 16, 32 (1st Cir. 2006); see also Martínez v. Cui, 608 F.3d 54,
64 (1st Cir. 2010) ("[P]laintiffs must show, not only that the
official's actions shock the conscience, but also that the official
violated a right otherwise protected by the substantive Due Process
Clause."). We have not adopted a rigid two-step analysis in which
one showing necessarily must precede the other, see Martínez, 608
F.3d at 65 n.9, but we typically have looked first to whether the
acts alleged were conscience-shocking. We do so here.
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"There is no scientifically precise formula for
determining whether executive action is - or is not - sufficiently
shocking to trigger the protections of the substantive due process
branch of the Fourteenth Amendment." Pagán, 448 F.3d at 32.
However, certain principles have emerged from the case law.
Executive acts that shock the conscience must be "truly outrageous,
uncivilized, and intolerable," Hasenfus v. LaJeunesse, 175 F.3d 68,
72 (1st Cir. 1999), and "the requisite arbitrariness and caprice
must be stunning, evidencing more than humdrum legal error," Amsden
v. Moran, 904 F.2d 748, 754 n.5 (1st Cir. 1990). Indeed, "[a]
hallmark of successful challenges is an extreme lack of
proportionality, as the test is primarily concerned with violations
of personal rights so severe[,] so disproportionate to the need
presented, and so inspired by malice or sadism rather than a merely
careless or unwise excess of zeal that it amounted to a brutal and
inhumane abuse of official power literally shocking to the
conscience." González-Fuentes v. Molina, 607 F.3d 864, 881 (1st
Cir. 2010) (internal quotation marks and ellipses omitted). With
particular relevance to this case, we have said that "any permit or
license denial, no matter how unattractive, that falls short of
being 'truly horrendous' is unlikely to qualify as
conscience-shocking." Pagán, 448 F.3d at 33 (quoting Nestor Colon
Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.
1992)).
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As the district court noted, there are no "truly
horrific" circumstances alleged here relating to the refusal to
transfer or issue a liquor license for the tavern. Cf. González-
Droz v. González-Colón, No. 10-1881, 2011 WL 4346673, at *11 (1st
Cir. Sept. 16, 2011) (rejecting "out of hand" substantive due
process claim based on suspension of physician's license for
practicing cosmetic surgery without board certification). Even
coming on the heels of the issuance to Harron of various building
permits and food-service licenses, the police crack-down on the
tavern - which had been serving liquor for four months without a
license - was not "truly outrageous, uncivilized, and intolerable,"
Hasenfus, 175 F.3d at 72, particularly in light of the government
interest in enforcing the Town's liquor licensing laws, see
González-Fuentes, 607 F.3d at 883 ("[T]he executive actions most
likely to shock the conscience are those that are 'intended to
injure in some way unjustifiable by any government interest.'"
(quoting Lewis, 523 U.S. at 849)). Harron's allegations of other
actions taken by the Town are similarly deficient, and his
allegations that the interest of the Town and its officials was not
legitimate - that it was "wrongful" or "discriminatory" or
"designed to put the tavern out of business" - are conclusory in
the way proscribed by Twombley, 550 U.S. at 555, and Iqbal, 129 S.
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Ct. at 1949-50. Accordingly, Harron's substantive due process
claims fail.3
2. Procedural Due Process
"We examine procedural due process questions in two
steps: the first asks whether there exists a liberty or property
interest which has been interfered with by the State; the second
examines whether the procedures attendant upon that deprivation
were constitutionally sufficient." González-Fuentes, 607 F.3d at
886 (quoting Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460
(1989)).
In this case, Harron's procedural due process claims fail
at the first step. Harron has not articulated any liberty
interest, and the only property in which he has claimed a protected
interest is the liquor license that was never transferred or issued
to him. However, property interests are defined by state law. See
Jeneski v. City of Worcester, 476 F.3d 14, 17 (1st Cir. 2007). As
a would-be holder of a liquor license, Harron had no property
interest in the license. See Mass. Gen. Laws. ch. 138, § 23;
3
Because the acts alleged by Harron do not shock the
conscience, we do not consider whether the right identified by
Harron - the right to freedom of enterprise - is so fundamental as
to be protected by the substantive component of the Due Process
Clause. See González-Fuentes, 607 F.3d at 880 n.13 ("[B]ecause we
determine that the challenged executive action is not
conscience-shocking, it is unnecessary for us to determine whether
[plaintiffs] possess a liberty interest so fundamental as to be
protected by substantive due process.").
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Grendel's Den, Inc. v. Goodwin, 662 F.2d 88, 90 n.4 (1st Cir.
1981). Accordingly, Harron's procedural due process claims fail.
B. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment
"contemplates that similarly situated persons are to receive
substantially similar treatment from their government." Tapalian
v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004). At a minimum, in order
to "provide fair notice to the defendants and state . . . facially
plausible legal claim[s]," Ocasio-Hernández, 640 F.3d at 12, Harron
had to identify his putative comparators and put forth some facts
showing the existence of malice or some other impermissible
consideration, see Barrington Cove Ltd. P'ship v. R.I. Hous. &
Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001) ("[Plaintiff]
needed to allege facts indicating that, compared with others
similarly situated, [it] was selectively treated . . . based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.") (alterations
and internal quotation marks omitted). Harron's allegations are
woefully deficient on these points. Accordingly, his equal
protection claims fail.
Affirmed.
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