Freeman v. Town of Hudson

United States Court of Appeals
For the First Circuit

No. 12-1356

CHARLES FREEMAN AND DANIELA FREEMAN,

Plaintiffs, Appellants,

v.

TOWN OF HUDSON, TOWN OF HUDSON CONSERVATION COMMITTEE,
TOWN OF HUDSON POLICE DEPARTMENT, THOMAS CRIPPEN,
DAVID STEPHENS, RICHARD BRAGA, DEBBIE CRAIG, PAUL BYRNE,
DAVID ESTEVES, JEFF WOOD, THOMAS THORBURN,
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND JOSEPH BELLINO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Ripple* and Lipez,
Circuit Judges.

Barry Bachrach, with whom The Law Office of Barry Bachrach was
on brief, for appellants.
Jonathan M. Silverstein, with whom Janelle M. Austin and
Kopelman and Paige, P.C. were on brief, for appellee Town of
Hudson.
James A. Sweeney, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Ronald F. Kehoe, Assistant Attorney
General, were on brief, for appellee Joseph Bellino.

*
Of the Seventh Circuit, sitting by designation.
April 15, 2013
 HOWARD, Circuit Judge. Plaintiffs Charles and Daniela

Freeman appeal the dismissal of their section 1983 suit against the

Town of Hudson, Massachusetts, one of its agencies, and several

state and local officials. The events giving rise to this suit

grew out of an allegation that the Freemans had breached a

conservation restriction appurtenant to their Hudson home. Like

the magistrate judge and district judge, we conclude that the

Freemans' complaint does not plead facts sufficient to support any

of their federal claims, and we therefore affirm the judgment.

I. Background

As the dismissal was entered pursuant to Federal Rule of

Civil Procedure 12(b)(6), we take the facts from the Freemans'

complaint and draw all reasonable inferences in their favor. San

Juan Cable, LLC v. P.R. Tel. Co., 612 F.3d 25, 28 (1st Cir. 2010).

According to the complaint, what began as a dispute between

neighbors turned into a concerted effort by the Town and the

Commonwealth of Massachusetts to deprive the Freemans of their

constitutional rights. The plaintiffs insinuate a common

sentiment, if not a common objective, running through the

defendants' actions. For ease of exposition, however, we dissever

the allegations into smaller episodes.

A. Conservation Commission Defendants

In late fall of 2009, Hudson Police Sergeant Thomas

Crippen, the Freemans' neighbor, informed the Hudson Conservation

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Commission that the Freemans were building a tree house in a

conservation restriction area ("Parcel B") on their property. In

response, the Commission ordered the Freemans to cease and desist

from any further activity in Parcel B until a scheduled Commission

meeting in early December 2009. The property had previously been

subject to an Order of Conditions issued by the Commission in 2007.

At the December meeting, Mr. Freeman conceded that the

tree house was built in the conservation restriction area and

agreed to move it. The Commission then questioned whether the

Freemans were complying with state and local land-use laws relating

to their property. Although the Commission had previously issued

a Certificate of Compliance for the property (7 Freeman Circle) in

2008, a few weeks after the December meeting it determined that the

Freemans had subsequently breached their obligations and that

additional work was necessary to remedy the violations.

As a consequence, in January 2010 the Freemans' engineer

presented a preliminary plan relating to remediation at 7 Freeman

Circle. It appears that the Commission viewed this plan as

insufficient, as it warned the Freemans that it would involve the

Massachusetts Department of Environmental Protection ("DEP") if the

Freemans did not comply with its determinations. In June 2010 the

Commission issued a new Order of Conditions for 7 Freeman Circle

detailing what modifications were required. The Freemans appealed

this order to DEP.

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 Once involved in the case, DEP indicated that state

enforcement would follow if the Freemans and the Commission could

not resolve the issue at the local level. In response, the

Freemans terminated their appeal of the Order of Conditions in

September and began compliance work. Unaware that the Freemans had

dropped the appeal, Commission Administrator Debbie Craig,

accompanied by police escort, served Mr. Freeman a cease and desist

order the same day that work began. For the next several days,

members of the Commission ordered Mr. Freeman not to work on the

property while they ascertained the legal status of the Freemans'

appeal. On each of these visits to the Freemans' property, the

Commission members were accompanied by Hudson Police officers.

The Freemans allege that throughout this process the

defendants displayed heavy-handed tactics toward them and their

associates. At a January meeting, Commission Chairman Paul Byrne

and Commission Member David Esteves spoke with open hostility

toward Mr. Freeman.1 Moreover, Byrne and Craig spoke disparagingly

about Mr. Freeman to third parties during the course of the ongoing

dispute. Also, Esteves uprooted a portion of a silt fence on the

Freemans' property, claiming that it was installed incorrectly,

although a subsequent determination indicated that the fence met

all installation requirements. According to the complaint, this

1
Byrne made a thinly veiled reference to Mr. Freeman's
dishonesty by stating, "If I was a farmer, I would not put the fox
in charge of the hen house because all the hens will disappear."

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hostile attitude pervaded DEP thinking as well.2 The complaint

includes emails written by Joseph Bellino, a DEP employee, to show

that DEP officials lacked impartiality in dealing with the

Freemans.3

The Freemans further contend that, while zealously

enforcing land-use laws against them, the Commission took little or

no action against the Freemans' neighbors -- the Crippens and the

MacPhees. The Crippens had constructed a pool in the 100-foot

buffer zone adjacent to Parcel B, and the MacPhees had cut down

trees in Parcel B and laid down planks for a walking path. In

neither case did the Commission issue an order, and the Freemans

assert that these violations largely went uncorrected.

B. Police Department Defendants

In retaliation for the Freemans' dispute with the

Crippens, the Police Department defendants purportedly pursued

trumped-up criminal charges against Mr. Freeman. After an

unpleasant encounter with Mr. Freeman, neighbor Dana MacPhee spoke

with Crippen and Hudson Police Captain David Stephens about Mr.

Freeman's conduct. Without further investigating the matter,

2
The complaint listed DEP as a defendant. The district court
dismissed all claims against DEP, and the Freemans have not
appealed that decision.
3
The most provocative email (between Bellino and Craig)
refers to the sale of the Freemans' home in the following terms:
"1.175 million- A Bahgain !!!!! Of course that doesn't include our
$$$$$ [referring to a possible DEP fine]."

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Stephens filed charges against Mr. Freeman for criminal harassment

and threat to commit a crime. Although Mr. Freeman had committed

no physical acts of violence, Stephens successfully argued to the

court that Mr. Freeman should not be given notice of his probable

cause hearing because he posed an imminent threat of violence to

MacPhee. Stephens and Crippen both spoke with the prosecutor about

the case on separate occasions. By January 2012, all charges had

been dropped against Mr. Freeman.

C. Building Commissioner Defendant

Finally, the Freemans claim that Hudson Building

Commissioner Jeff Wood selectively enforced zoning laws against Mr.

Freeman, who had posted a sign advertising his company at a work

site. The complaint avers that the posting of such signs is

standard practice among contractors, but Wood issued a violation

notice to the property owner for displaying the sign.4

II. Discussion

A. Standard of Review

Our review of a district court's dismissal of a complaint

under Rule 12(b)(6) is de novo. See Ocasio-Hernández v. Fortuño-

Burset, 640 F.3d 1, 7 (1st Cir. 2011). As such, we are free to

affirm an order of dismissal on any basis made apparent from the

4
The complaint also alleges that Electrical Inspector Thomas
Thorburn selectively enforced licensing requirements against the
Freemans' electrician. The Freemans have not pursued this
allegation on appeal.

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record. See Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008). In

order to survive a motion to dismiss, the complaint must include

"enough detail to provide a defendant with 'fair notice of what the

. . . claim is and the grounds upon which it rests.'" Ocasio-

Hernández, 640 F.3d at 12 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)). While we need not give weight to legal

conclusions contained in the complaint, "[n]on-conclusory factual

allegations must . . . be treated as true." Id.

B. Scope of the Record

Before moving to the heart of the Freemans' appeal, we

consider the question of which documents were properly before the

district court when it decided the motion to dismiss. On a motion

to dismiss, a court ordinarily may only consider facts alleged in

the complaint and exhibits attached thereto, Watterson v. Page, 987

F.2d 1, 3 (1st Cir. 1993), or else convert the motion into one for

summary judgment. Id.; Fed. R. Civ. P. 12(d). Here, the Freemans

appended twenty-five exhibits to their complaint. Subsequently,

both parties submitted a flurry of extrinsic exhibits for the

district court's consideration on the motion to dismiss. The court

took account of some documents but excluded others. The Freemans

challenge the court's decision not to consider six documents that

they submitted, while simultaneously suggesting that the court

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relied on those very same documents in its order, presumably to the

Freemans' detriment.5

Under certain "narrow exceptions," some extrinsic

documents may be considered without converting a motion to dismiss

into a motion for summary judgment. Watterson, 987 F.2d at 3.

These exceptions include "documents, the authenticity of which are

not disputed by the parties; . . . official public records; . . .

documents central to plaintiffs' claim; [and] . . . documents

sufficiently referred to in the complaint." Id. The plaintiffs'

submissions do not fit into any of these enumerated categories.

The Freemans sought to have the court consider excerpts

from the depositions of MacPhee and Stephens, given in connection

with a separate civil suit, as documents sufficiently referred to

in the complaint. While the complaint does make passing reference

to testimony from MacPhee and Stephens, the proposed exhibits

consist of excerpts that are unrelated to any matter discussed in

the complaint, and therefore cannot be taken as referenced therein.

The mere mention of the depositions in the complaint does not

amount to sufficient reference. See Goldman v. Belden, 754 F.2d

5
We have not previously clarified the standard of review that
governs a court's determination that documents external to the
complaint cannot be relied upon under Rule 12(b)(6). Because we
would uphold the district court's judgment pursuant to either de
novo or abuse of discretion review, we need not reach the issue
here.

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1059, 1066 (2d Cir. 1985) ("[L]imited quotation does not constitute

incorporation by reference.").

The Freemans also claim that three submissions should

have been considered as public records. These include a transcript

of 911 calls and two Hudson Police incident reports. The Freemans

ask us to adopt the expansive view that any document held in a

public repository falls within the category of extrinsic materials

that may be considered. It is true that, when reviewing a motion

to dismiss for failure to state a claim, a court may "consider

matters of public record." Haley v. City of Boston, 657 F.3d 39,

46 (1st Cir. 2011). But there are limits to that license. Many

documents in the possession of public agencies simply lack any

indicia of reliability whatsoever. In that regard, they are unlike

official records, such as birth or death certificates and other

similar records of vital statistics. The Freemans cite no

authority -- other than Watterson -- for their broad

interpretation, and we have found none. Rather, the phrase

"official public records" when used in the present context, appears

limited, or nearly so, to documents or facts subject to judicial

notice under Federal Rule of Evidence 201. Watterson, in holding

that a court could consider public records on a motion to dismiss,

relied on the Ninth Circuit case Mack v. South Bay Beer

Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986), abrogated on

other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino,

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501 U.S. 104, 107 (1991). The public record at issue in that case

was a state administrative proceeding, id. at 1282, and the Ninth

Circuit used the term "public records" synonymously with a document

susceptible to judicial notice. Id. (citing Phillips v. Bureau of

Prisons, 591 F.2d 966, 969 (D.C. Cir. 1979) ("We are mindful, too,

that when passing on a motion attacking the legal efficacy of the

plaintiff's statement of his claim, the court may properly look

beyond the complaint only to items in the record of the case or to

matters of general public record.")).

Our cases applying Watterson may not have endorsed this

view explicitly, but the results have been consistent with this

approach. See, e.g., San Geronimo Caribe Project, Inc. v. Acevedo-

Vila, 687 F.3d 465, 471 n.2 (1st Cir. 2012) (taking notice of state

court decisions); Gargano v. Liberty Intern. Underwriters, Inc.,

572 F.3d 45, 47 n.1 (1st Cir. 2009) (taking notice of a state court

decision); Parker v. Hurley, 514 F.3d 87, 90-91 (1st Cir. 2008)

(taking notice of statewide curricular standards); Greene v. Rhode

Island, 398 F.3d 45, 49 (1st Cir. 2005) (taking notice of federal

statutes).

Other than invoking the label "public records," which is

too broad a term to rely on, the Freemans make no developed

argument as to why documents such as the 911 transcripts and police

incident reports, which would not be subject to judicial notice,

are either categorically or in this instance eligible to be

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considered on a motion to dismiss. They thus have waived any other

claim that the documents may be considered.

The Freemans' brief contains no argument at all with

respect to the final exhibit at issue, which is a photograph. Any

issue regarding this exhibit is thus also waived. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

We must iron out one more wrinkle on this topic,

involving the Freemans' superficial assertion in their brief that

"the district court mentioned facts from these exhibits in its

decision." This simple allegation could have non-trivial

consequences. Reliance on facts beyond the complaint's allegations

might require converting the motion to dismiss into a motion for

summary judgment. See Fed. R. Civ. P. 12(d). Although we could

ignore this question as insufficiently briefed, see Zannino, 895

F.2d at 17, we are also satisfied that neither the magistrate

judge's Report and Recommendation nor the district court's Order

touch on facts outside the complaint. We therefore proceed to a

12(b)(6) analysis.

C. Freemans' Section 1983 Claims

42 U.S.C. § 1983 grants individuals the right to sue

those acting "under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

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Columbia . . . [for] the deprivation of any rights, privileges, or

immunities secured by the constitution and laws." 42 U.S.C. §

1983. To prevail, a plaintiff must show that "the challenged

conduct [is] attributable to a person acting under color of state

law" and that "the conduct must have worked a denial of rights

secured by the Constitution or by federal law." Soto v. Flores,

103 F.3d 1056, 1061 (1st Cir. 1997).

1. Municipal Liability

The Freemans face additional requirements in order to

establish a section 1983 claim against the Town and the

Commission.6 "A municipality cannot be held liable solely because

it employs a tortfeasor." Monell v. Dept. of Soc. Servs. of the

City of N.Y., 436 U.S. 658, 691 (1978). Instead, a plaintiff must

show that the violation occurred as a result of the municipality's

"policy or custom." Id. at 694. A single decision by a municipal

policymaker constitutes official policy "only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered." Pembaur v. City of

Cincinnati, 475 U.S. 469, 481, (1986). When determining whether a

decisionmaker exercises final authority, "[c]ourts must look to

state law, including 'valid local ordinances and regulations,' for

6
The complaint also listed the Town of Hudson Police
Department as a defendant. The district court, while dismissing
all federal claims, did not specifically discuss the Police
Department's liability. However, the Freemans have also failed to
raise this issue on appeal, and therefore it is waived.

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descriptions of the duties and obligations of putative policymakers

in the relevant area at issue." Walden v. City of Providence, 596

F.3d 38, 56 (1st Cir. 2010) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 125, (1988)).

The Freemans have advanced only a "final authority"

theory of municipal liability. The complaint, however, references

no state or local laws establishing the policymaking authority of

any individual or group of individuals. The complaint alleges

misconduct from many separate actors, but gives no guidance about

which acts are properly attributable to the municipal authority.

Absent this information, the complaint fails to state more than

respondeat superior liability on the part of the Town and the

Commission. This is not enough to support a section 1983 action

against a municipality, Monell, 436 U.S. at 691, and the district

court correctly dismissed the claims against the Town and the

Commission. We turn, then, to the claims against the individual

defendants.

2. Equal Protection

The Freemans allege that Conservation Commission members

Byrne and Esteves, Administrator Craig, and Building Inspector Wood

violated the equal protection clause of the fourteenth amendment by

selectively enforcing local laws against them. An equal protection

claim requires "proof that (1) the person, compared with others

similarly situated, was selectively treated; and (2) that such

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selective treatment was based on impermissible considerations such

as race, religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to injure

a person." Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir.

1995) (citations omitted).

Claiming no membership in a protected class, the

complaint argues that the defendants arbitrarily and unfavorably

singled out the Freemans as a "class of one." To prevail on such

a claim, the Freemans must show that they were "intentionally

treated differently from others similarly situated and that there

is no rational basis for the difference in treatment." Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The complaint

fails to meet the "similarly situated" test, obviating any

discussion of the rational basis requirement. We have held that

class-of-one claims require "an extremely high degree of similarity

between [the plaintiffs] and the persons to whom they compare

themselves." Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.

2007). In the land-use context, this means more than "point[ing]

to nearby parcels in a vacuum and leav[ing] it to the municipality

to disprove conclusory allegations that the owners of those parcels

are similarly situated." Id.

a. Conservation Commission Defendants

According to the complaint, Craig, Byrne and Esteves

abridged the Freemans' equal protection rights by treating them

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differently from their neighbors, the Crippens and the MacPhees.

While the properties of all three abut the same protected area, the

similarities essentially end there. Their actions in relation to

Parcel B differed in key respects, making them inapt comparators.

The Commission determined that the Freemans had committed a number

of violations, some of them within Parcel B and specifically

governed by the Conservation Easement.7 By contrast, the complaint

alleges that the Crippens drained pool water into a buffer zone and

that the pool encroached into the buffer zone. These allegations

fail to demonstrate that the Crippens and Freemans were "similarly

situated in all relevant respects." Barrington Cove Ltd. P'ship v.

Rhode Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.

2001). In the same vein, the Freemans' allegations that the

MacPhees were allowed to plant inappropriate flora, cut down

certain trees and install removable planks for a walkway fail to

establish a claim for relief. The Conservation Easement -- which

the district court considered -- allowed for certain plant cutting

and trail maintenance. The Freemans, meanwhile, conceded that

their treehouse violated the same Conservation Easement. Indeed,

the complaint does not allege that either the Crippens or the

MacPhees were in violation of the Conservation Easement.

7
The Freemans admit to having constructed a treehouse in
Parcel B. Additionally, the 2010 Order of Conditions found
numerous violations relating to the placement of fences and walls,
the amount of fill on the property, and the construction of other
unauthorized structures.

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 Against this backdrop, the Freemans cannot demonstrate

that they were similarly situated to their neighbors, and their

equal protection claim against the Conservation Commission

defendants necessarily fails.

b. Building Commissioner Wood

The complaint also alleges that Building Commissioner

Wood violated Mr. Freeman's equal protection rights by selectively

enforcing zoning laws against a customer who displayed Mr.

Freeman's business sign. To the extent that this conduct concerned

not Mr. Freeman's rights but those of Mr. Freeman's customer, the

action cannot be maintained. While Mr. Freeman conceivably

suffered some economic harm as a result of Wood's actions -- the

lost value of advertising his work in the community -- this alone

typically does not give rise to third-party standing. True, an

"isthmian exception" does permit one to assert another's rights in

circumstances where "some barrier or practical obstacle deters a

third party from asserting its rights." Wine & Spirits Retailers,

Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005); see also

Powers v. Ohio, 499 U.S. 400, 411, (1991) (stating that, in order

to assert third-party standing "there must exist some hindrance to

the third party's ability to protect his or her own interest"

(internal quotations and citations omitted)). Here, however, there

is no allegation that the customer is incapable of asserting his or

her own rights, and therefore we lack jurisdiction over this claim.

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 Moreover, to the extent that the complaint may be read to

allege an interference with Mr. Freeman's property interest in a

display license granted him by his customer, the claim does not

fare any better. The complaint's failure to do more than

conclusorily state that the Freemans were both similarly situated

to and treated differently from unspecified "other contractors" is

insufficient to survive the defendants' motion to dismiss.

3. Substantive Due Process

The Freemans claim that the conduct of Town officials and

DEP employee Bellino were so outrageous as to constitute

substantive due process violations. Substantive due process is

said to "protect individuals from particularly offensive actions on

the part of government officials, even when the government employs

facially neutral procedures in carrying out those actions." Pagán

v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006). Such claims are

limited to government action that, by its very nature, "shock[s]

the conscience," id., and we reserve it for "truly horrendous

situations." Nestor Colon Medina & Sucesores, Inc. v. Custodio,

964 F.2d 32, 46 (1st Cir. 1992). Evidence that officials

"exceed[ed] [their] authority under the relevant statutes" does not

automatically trigger the due process clause. Amsden v. Moran, 904

F.2d 748, 757 (1st Cir. 1990). In this case, neither the complaint

as a whole nor any of its allegations meet the burden of

establishing a substantive due process violation.

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 a. Conservation Commission Defendants

Upon review, nothing in the actions of Byrne, Craig and

Esteves reaches the level of conscience-shocking behavior. The

Commission retained jurisdiction over Parcel B at all relevant

times and had the power to remedy environmental violations at 7

Freeman Circle. The Freemans disagree with the legal conclusions

of the Commission and believe that the Commission reached these

erroneous conclusions in bad faith. Even if this is true, "[s]uch

a claim is too typical of a run of the mill dispute between a

developer and a town planning agency, regardless . . . of

defendants' alleged mental states, to rise to the level of a due

process violation." Creative Env'ts, Inc. v. Estabrook, 680 F.2d

822, 833 (1st Cir. 1982). Our prior cases are replete with

plaintiffs who, alleging comparable conduct, failed to sustain

substantive due process claims. See, e.g., Mongeau v. City of

Marlborough, 492 F.3d 14 (1st Cir. 2007) (where a town official

interfered in the zoning process for improper reasons); Licari v.

Ferruzzi, 22 F.3d 344 (1st Cir. 1994) (where a town revoked

building permits due to alleged hostility and animus); PFZ Props.,

Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991) (where a planning

board refused to process construction drawings), rev'd on other

grounds en banc, San Geronimo Caribe Project, Inc. v. Acevedo-Vila,

687 F.3d 465 (1st Cir. 2012). As in those cases, here the

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Freemans' grievances do not support a substantive due process

claim.

b. Commonwealth of Massachusetts Defendant Bellino

The Freemans contend that Bellino, a DEP employee,

exercised the muscle behind the Commission's scheme; the threat of

DEP enforcement "sledgehammer[ed]" the Freemans into compliance.

But DEP is statutorily authorized to enforce applicable laws, see

M.G.L. c. 131, § 40, and the Freemans appealed the June 2010 Order

of Conditions to DEP, thereby ensuring its involvement. While

DEP's participation might have influenced the Freemans, that does

not render such participation improper. Moreover, Bellino's

conduct throughout this process was not "so shocking or violative

of universal standards of decency" as to give rise to a due process

violation. Amsden, 904 F.2d at 757 (quoting Furtado v. Bishop, 604

F.2d 80, 95 (1st Cir. 1979)). His communications to Town officials

did evince a certain hostility toward the Freemans. The plaintiffs

have not shown, however, that Bellino's third-party communications

affected their constitutional rights. While these communications

may have been in bad taste, they do not constitute violations of

the Freemans' substantive due process rights.

c. Police Department Defendants

Finally, Mr. Freeman claims that the Police Department

defendants violated his substantive due process rights by pushing

unsupported criminal charges against him for personal reasons.

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Sifting through the many aspersions contained in the complaint,

however, reveals only "a garden-variety claim of malicious

prosecution." Roche v. John Hancock Mut. Life Ins. Co, 81 F.3d

249, 256 (1st Cir. 1996). "'[S]ubstantive due process may not

furnish the constitutional peg on which to hang' [a malicious

prosecution tort]." Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.

2001) (quoting Albright v. Oliver, 510 U.S. 266, 271 n. 4, (1994)).

While the complaint may be read to allege a plot on the part of

Police Department officials and MacPhee to bring charges against

Mr. Freeman, it also acknowledges that these charges were

predicated on prior incidents between MacPhee and Mr. Freeman.

Thus, while the Police Department defendants may or may not have

acted with malice, they did not act in the absence of any evidence.

Furthermore, none of the Police Department's subsequent actions --

failing to investigate further, obtaining an ex parte probable

cause hearing, and discussing the case with the prosecutor -- shock

the conscience. If, as alleged, improper personal motivations

caused the investigation to follow a certain course, that fact may

form the basis for a claim of malicious prosecution, but not a due

process violation.8

8
The parties' briefs suggest that a malicious prosecution
claim against the Police Department defendants is pending in state
court.

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 III. Conclusion

For the foregoing reasons, the district court's judgment

dismissing the Freemans' section 1983 claims is affirmed.

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