(concurring).
Plaintiff’s complaint and amended complaint stated a cause of action for conspiracy to deprive plaintiff of federal *417constitutional rights under the First Amendment.
As the Court’s per curiam points out, however, the District Judge dismissed this case on the basis of a motion for summary judgment supported by sworn affidavits which gave an entirely different set of reasons for the City’s failure to issue plaintiff a building permit.
Plaintiff has a right under Rule 56 of the Federal Rules of Civil Procedure to respond with sworn affidavits showing, if plaintiff could, that plaintiff’s application did comply with the City’s zoning ordinances. Alternatively plaintiff could have filed affidavits attesting under oath to facts, if they were available, which showed that the City’s reliance upon the zoning ordinance’s parking provisions was a mere pretext to hide an unconstitutional purpose. No such affidavits, however, were filed.
I concur.