Diva's, Inc. v. Bangor, City of

United States Court of Appeals
For the First Circuit

No. 03-1917

DIVA'S INC. d/b/a DIVAS;
DIANE CORMIER, formerly known as DIANE CORMIER-YOUNGS,

Plaintiffs, Appellants,

v.

CITY OF BANGOR; MICHAEL R. CROWLEY, Bangor City Council;
NICHI FARNHAM, Bangor City Council;
FRANK FARRINGTON, Bangor City Council;
GERRY G.M. PALMER, Bangor City Council;
JOHN ROHMAN, Mayor of Bangor;
JUDITH VARDAMIS, Bangor City Council,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,* Senior Circuit Judge,

Jeffrey M. Silverstein, with whom Billings & Silverstein, was
on brief for appellant.
Mark V. Franco, with whom Thompson & Bowie, LLP, was on brief
for appellees.

June 9, 2005

* Of the District of the District of Columbia, sitting by
designation.
 STAHL, Senior Circuit Judge. This case is part of a

lengthy dispute between Plaintiff-Appellant Diva's, Inc.

("Diva's"), an adult entertainment bar located in Bangor, Maine,

Plaintiff-Appellant Dianne Cormier-Youngs, the owner of Diva's, and

Appellee City of Bangor, Maine. Also involved in the instant

action are various Bangor government officials in their official

and individual capacities (collectively, "Individual Appellees").

We decide today an appeal from two district court orders which

together dismissed all of Appellants' claims, affirming in part and

reversing and remanding in part.

I. STATUTORY BACKGROUND

There are several ordinances and statutes involved in

this dispute. The first is Bangor City Code ("Bangor Code")

Chapter 228 on Public Morals. Chapter 228 contains a provision

that regulates the location of commercial establishments offering

nude dancing. See Bangor Code § 228-14. That section provides

that establishments offering nude entertainment can only be located

in certain zoned districts, and that operators of a commercial

establishment offering nude entertainment must obtain a certificate

of occupancy, which will not be granted if the establishment is

located within 500 feet of a litany of establishments including:

another nude entertainment establishment, an establishment licensed

to sell alcohol, a church, school, public park, public library, or

residentially-zoned district.1 Diva's cannot obtain a certificate

1
"Nude entertainment" is defined in the Bangor Code as "Any
display of live persons in a state of nudity, or in a visible state

-2-
of occupancy without a variance as it is located within 500 feet of

a church.2 Chapter 228 also regulates the operation of nude

establishments by prohibiting such establishments from serving

alcohol. See Bangor Code § 228-15(c).

The second provision of the Bangor Code at issue here

applies to establishments that sell alcohol in conjunction with the

provision of non-nude entertainment. See Bangor Code Chapter 61.

A liquor licensee desiring to have live entertainment, that is,

dancing or music performed by something other than a mechanical

device, must apply for a special amusement permit pursuant to

Article II of Chapter 61 of the Bangor Code.3 Although an

applicant may properly seek a special amusement permit for

"dancing," the dancing cannot be "nude entertainment," as defined

of sexual excitement whether or not clothed." Bangor Code § 228-
13(B). The Bangor Code defines "Nudity" as "The showing of the
human male or female genitals, pubic area or buttocks or the female
breast below the top of the nipple . . . ." Bangor Code § 228-2.
The Bangor Code section regulating the conduct of commercial
establishments offering nude entertainment further provides that
"Nude entertainment presented in a commercial establishment shall
not include any showing of the male or female genitals, pubic area,
perineum or anus of any person with less than a fully opaque
covering." Bangor Code § 228-15(G).
2
Although both parties discuss the zoning problem as arising
because Diva's is next door to a church, the record indicates that
Diva's is also located in the "Downtown District," which is not one
of the permitted zones for nude entertainment, and apparently is
also located within 500 feet of a residentially-zoned district and
an establishment that sells alcohol.
3
Bangor Code section 61-17 provides: "No licensee for the sale
of liquor to be consumed on his or her licenses premises shall
permit on such licensed premises . . . any music, except a radio or
mechanical device, any dancing or entertainment of any sort unless
the licensee shall have first obtained a special amusement permit
approved by the City Council."

-3-
by Bangor Code Chapter 228. This means, in essence, that female

dancers in an establishment that serves alcohol must, in addition

to not violating the provisions of Chapter 228, have their buttocks

and the areola area of their breasts covered with an opaque

covering.4

With this background in mind, we turn to the history of

Diva's.

4
Bangor Code section 61-17(c) provides:

C. Live entertainment regulated.
(1) No licensee shall permit entertainment on the licensed
premises . . . when the entertainment involves:
(a) The performance of acts or simulated acts of sexual
intercourse, masturbation, sodomy, beastiality [sic],
oral copulation, flagellation or any sexual acts which
are prohibited by law.*
(b) The actual or simulated touching, caressing or
fondling on the breasts, buttocks, anus or genitals.*
(c) The actual or simulated displaying of the genitals,
pubic hair, buttocks, anus or any portion of the female
breasts at or below the areola area thereof.
(d) The permitting by any licensee of any person to
remain in or upon the licensed premises who exposes to
any public view any portion of his or her genitals or
anus.
(2) For the purposes of this subsection, the term "displaying"
or "expose" shall mean unclothed or uncostumed and not covered
by a fully opaque material.
*It appears that nude dancing establishments operating with a
certificate of occupancy issued pursuant to Section 228-14 are also
prohibited from offering entertainment involving these acts. See
Bangor Code §§ 228-2, 228-15(F).

-4-
 II. FACTUAL BACKGROUND5

Diva's opened as nude dancing establishment and juice bar

in 1996. In 1999, Bangor amended Chapter 228 of the Bangor Code to

add, inter alia, the provision prohibiting nude entertainment

establishments from being located within 500 feet of a church.

Because Diva's is located next to a church, it is unable to obtain

a certificate of occupancy without being granted a variance.6

Diva's challenged the ordinance in the Maine Superior Court and

lost. Diva's appealed the Superior Court decision, but entered

into a settlement agreement ("settlement agreement") before the

appeal was decided. In the settlement agreement, the City of

Bangor gave Diva's the right to continue to operate as a nude

dancing establishment, essentially in violation of the new Section

228-14, until May 31, 2001. In return, Diva's agreed to withdraw

the appeal, cease nude dancing on its premises on or before May 31,

2001, and to never challenge the constitutionality or validity of

Bangor Code Chapter 228 as written at the time of the settlement in

any forum.

In anticipation of the May 31, 2001 deadline, Diva's

began the process of converting into a "bikini lounge"; that is, an

establishment that would serve alcohol in conjunction with bikini-

5
The Appellants devote approximately one, double-spaced page
in their Opening Brief to their "Statement of Facts." Thus, we are
forced to glean the pertinent facts from the complaint, the
district court's orders of dismissals, and the Appellees' Brief.
6
Neither party discusses whether the revised Chapter 228
contained a grandfather clause that might have applied to Diva's.

-5-
clad dancing.7 Diva's applied for a liquor license and special

amusement permit which would allow it to provide live dancing and

musical entertainment in conjunction with the provision of alcohol.

On May 30, 2001, as part of the permitting process, the

City Council of Bangor ("City Council") held a public hearing.

Although the City Council approved the permit for the liquor

license, it denied the special amusement permit. As entitled by

statute, Diva's requested a written explanation of the reasoning

for the denial of the special amusement permit, and the City

Council responded by stating in writing that it was concerned that

the "bikini lounge" would soon revert back to a nude dancing

establishment in violation of Sections 228-14 and 61-17 of the

Bangor Code, and that granting the permit would negatively affect

public health, safety and welfare.

In response, Diva's and Cormier-Youngs appealed the

decision of the City Council to the Bangor Board of Appeals and

filed a federal lawsuit against the City of Bangor in the United

States District Court for the District of Maine ("federal district

court"). On June 20, 2001, the Bangor Board of Appeals reversed

the decision of the City Council and on June 21, 2001, issued an

7
There was an issue during the permitting process as to what
is considered a "bikini." Although the generic term "bikini" may
imply that a "G-string-type" bottom qualifies as a "bikini," there
appears to be a consensus on the part of both parties on appeal
that a "bikini" is an article of clothing that covers the entire
buttock area, and the portion of the female breasts at or below the
areola area.

-6-
order granting the special amusement permit for the "bikini

lounge."8

One day later, on June 22, 2001, Diva's and Cormier-

Youngs invited the public to witness an "act of civil

disobedience." When the invitees arrived, they observed the Diva's

dancers performing in "pasties" and "G-string" underwear, in

violation of Bangor Code Section 61-17 for liquor licensees because

the dancers exposed their buttocks.

The City of Bangor responded by filing a civil

enforcement action against Diva's in the State of Maine District

Court ("state district court") for violating Bangor Code Sections

228-14 and 61-17. Diva's moved to dismiss, arguing, inter alia,

that Bangor Code Sections 228 and 61-17 as written violated the

First and Fourteenth Amendments to the Federal Constitution. On

August 29, 2001, the Maine District Court denied Diva's motion.

Diva's and Cormier-Youngs subsequently were permitted to

amend their federal complaint ("amended complaint") to include as

defendants the Mayor of Bangor and the City Council members who

voted against granting Diva's a special amusement permit. The

amended complaint also asserted: (1) a facial challenge to the

constitutionality of Bangor Code Section 61-17 and several claims

8
In making this decision, the Bangor Board of Appeals was
required to find that the City Council had acted "arbitrarily and
capriciously" in its denial of the permit. See Bangor Code § 61-24
("The Board of Appeals may grant or reinstate the permit only if it
finds that the denial, imposition of restrictions or revocation or
suspension was arbitrary or capricious.").

-7-
under 42 U.S.C. § 1983 (collectively, "Count One")9; (2) a state

law breach of contract claim alleging that the City of Bangor had

violated the 1999 settlement agreement by denying the special

amusement permit ("Count Two"); (3) a claim alleging tortious

interference with Diva's and Cormier-Youngs' ability to contract

with "talent, support staff and vendors" ("Count Three"); (4) a

claim that Appellees had conspired to violate Diva's and Cormier-

Youngs' constitutional rights in violation of 42 U.S.C. § 1985

("Count Four"); and (5) an intentional infliction of emotional

distress claim on behalf of Cormier-Youngs individually ("Count

Five"). The claims requested monetary, declarative, punitive and

injunctive relief.

9
"Count One" provides, in relevant part:
"3. That the Bangor Code sec. 61-17 as written violates the
plaintiffs right of free expression under the 1st Amendment to
the U.S. Constitution.
4. That the Bangor Code sec. 61-17 as written violates the
plaintiffs' substantive due process rights under the 14th
Amendment.
5. That the Bangor Code is unconstitutionally vague. . . .
13. That the defendant, under color and guise of Maine State law,
unjustifiably[,] unreasonably, and intentionally refused to
issue a special amusement permit in violation of the
plaintiffs' 14th amendment substantive and procedural due
process right under the U.S. Constitution.
14. That the defendant under color and guise of Maine State law
arbitrarily and capriciously denied the issuance of a special
amusement permit to the plaintiff in violation of the
plaintiffs['] 1st Amendment Rights to Freedom of Speech. . .
.
16. That the defendant's ordinances are an unlawful prior
restraint on Free Speech in violation of the 1st Amendment of
the U.S. Constitution."

And, although not explicitly stated in the amended complaint, the
district court interpreted Appellants' Section 1983 claim as being
against the Individual Appellees in both their official and
individual capacities.

-8-
 The City of Bangor and the Individual Appellees moved to

dismiss, and, while the motion to dismiss was pending in federal

court, trial was held on October 5, 2001 in the state court civil

enforcement action against Diva's. The state district court

decided in favor of the City of Bangor, and Diva's appealed the

decision to the Supreme Judicial Court of Maine. On December 20,

2001, the federal district court dismissed Diva's and Cormier-

Youngs' claims contained in Counts Two (breach of contract), Three

(tortious interference), Four (Section 1985 conspiracy), and Five

(intentional infliction of emotional distress). The district court

also dismissed Appellants' Section 1983 claims contained in Count

One against the Individual Appellees in their individual

capacities, and determined that Cormier-Youngs lacked standing to

pursue individually the Section 1983 claim portion of Count One.

This left only Diva's and Cormier-Young's facial challenge to

Bangor Code Section 61-17 and Diva's Section 1983 claim against the

City of Bangor and the Individual Appellees in their official

capacities.

As to Diva's and Cormier-Youngs' challenge to the facial

constitutionality of Bangor Code Section 61-17, the federal

district court raised the issue of Younger10 abstention sua sponte,

and concluded that principles of comity dictate that it should

abstain from deciding the facial constitutionality of the Bangor

Code Section 61-17 because there was an ongoing state proceeding

against Diva's to enforce that provision. The court also found

10
Younger v. Harris, 401 U.S. 37 (1971).

-9-
that comity dictated that it refrain from deciding whether Diva's

had given up the right to challenge the facial constitutionality of

the Bangor Code provisions by signing the settlement agreement.11

The court then dismissed the facial challenge portion of Count One.

As to Diva's Section 1983 challenge portion of Count One

against the City of Bangor and the Individual Appellees in their

official capacities, the federal district court issued a stay

pending the Maine Supreme Judicial Court's decision in the state

court enforcement proceeding.

On April 15, 2003, the Maine Supreme Judicial Court

issued its decision in the enforcement action upholding the

constitutionality of Bangor Code Sections 228-14 and 61-17, and

finding Diva's liable for violation of those provisions. See City

of Bangor v. Diva's, Inc., 830 A.2d 898 (Me. 2003). On April 21,

2003, the federal district court issued an order requesting the

parties to file a "short written submission" discussing the effects

of the state court decision on the remaining claim--Diva's Section

1983 challenge against the City of Bangor and the Individual

Appellees in their official capacities. The City of Bangor and the

Individual Appellees filed a submission, but Diva's declined to do

so.

11
We note that, at times, both parties and the district court
refer to the Appellants' claims in federal court as related or
against the "Bangor code provisions" in the plural, implying that
the Appellants are challenging both Bangor Code Sections 228-14 and
61-17. We note, however, that the amended complaint only
references Bangor Code Section 61-17, and thus our analysis is
confined as such.

-10-
 On June 3, 2003, the federal district court dismissed the

remaining portion of Count One. In ruling on that motion, the

federal district court stated that "Plaintiff's federal free speech

claim can succeed 'only to the extent that the state court wrongly

decided the issues before it,'" and "[t]he Rooker-Feldman doctrine12

prohibits district courts from ruling on federal claims where the

ruling would effectively defeat or negate a state judgment to which

the federal claimant was a party." The federal district court went

on to state that "Diva's had ample opportunity to pursue its

Fourteenth Amendment objection to the licensing procedures before

the state court," and because it did not present its claims in the

state court proceeding, the Rooker-Feldman doctrine also precludes

federal court review.

Judgment entered in favor of Appellees on June 9, 2003,

and Diva's and Cormier-Youngs filed this timely appeal of both the

December 20, 2001 and June 3, 2003 orders of dismissal.

II. ANALYSIS

We engage in plenary review of the district court's

allowance of a motion to dismiss, accepting all well-pleaded facts

as true and making all reasonable inferences in favor of the

Appellants. Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir.

1994). We begin our review with the district court's order of

dismissal dated December 20, 2001, leaving that order's discussion

of Count One for last, and then conclude with our review of the

12
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C.
Court of Appeals v. Feldman, 460 U.S. 462 (1983).

-11-
dismissal of the remainder of Count One as contained in the June 3,

2003 order.

A. Count Two: Breach of Contract

The substance of the Appellants' breach of contract claim

is that it was a breach of the settlement agreement for the City of

Bangor to deny Diva's application for a special amusement permit--

that is, that the Appellees breached their "obligation not to

frustrate, retard, or disallow the plaintiff's ability to practice

her art form, consistent with the terms of the agreement." On

appeal, the Appellants raise only a procedural challenge to the

district court's order of dismissal: they argue that the district

court improperly dismissed their breach of contract claim because

the second amended complaint pled all the elements necessary to

state a claim for breach of contract and that the court

"transcended the applicable scope of review" when it considered the

settlement document in rendering its decision on the motion to

dismiss. The Appellants are incorrect.

The City of Bangor attached a copy of the settlement

agreement to its motion to dismiss. And, although "[o]rdinarily,

a court may not consider any documents that are outside of the

complaint, or not expressly incorporated therein, unless the motion

is converted into one for summary judgment," Alternative Energy,

Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.

2001), "[u]nder First Circuit precedent, when 'a complaint's

factual allegations are expressly linked to--and admittedly

dependent upon--a document (the authenticity of which is not

-12-
challenged),' then the court can review it upon a motion to

dismiss." Id. at 34 (quoting Beddall v. State St. Bank & Trust

Co., 137 F.3d 12, 17 (1st Cir. 1998)). Here, the Appellants' claim

that the Appellees breached the settlement agreement is dependent

on the scope of the settlement agreement, and thus, that document

was properly considered by the district court. Furthermore, the

settlement agreement provides only that the City of Bangor would

permit Diva's to operate as a nude entertainment establishment

until May 31, 2001, in violation of the amended Bangor Code Section

228. There is nothing in the settlement agreement that explicitly

or implicitly creates a contract between the parties with regards

to a special amusement permit. The Appellants have failed to state

claim for breach of contract.

B. Counts Three and Five: State Tort Claims

Appellants next challenge the dismissal of the two state

tort claims against the City of Bangor and the Individual

Appellees: Count Three alleging tortious interference with Diva's

and Cormier-Youngs' contracts with "talent, support staff and

vendors"; and Count Five, alleging, on behalf of Cormier-Youngs

only, intentional infliction of emotional distress. We do not

address the substance of either claim, however, because the

district court correctly determined that all of the Appellees enjoy

immunity under the Maine Tort Claims Act. See 14 M.R.S.A. §§ 8104-

B(2), 8111(1)(B). The Maine Tort Claims Act provides statutorily

created absolute immunity for the City of Bangor and Individual

Appellees from suit for claims "which result[] from . . .

-13-
[u]ndertaking or failing to undertake any judicial or quasi-

judicial act, including, but not limited to, the granting . . . or

refusal to grant . . . [a] permit." Id. The district court's

dismissal of the state tort claims is affirmed.

C. Count Four: Violation of 42 U.S.C. § 1985

Appellants next allege that Appellees conspired to

violate their First and Fourteenth Amendment constitutional rights

in violation of 42 U.S.C. § 1985(3). Section 1985(3) creates a

private cause of action "for injuries occasioned when 'two or more

persons . . . conspire . . . for the purpose of depriving, either

directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under

the laws.'" Burns v. State Police Ass'n of Mass., 230 F.3d 8, 12

n.3 (1st Cir. 2000) (quoting 42 U.S.C. § 1985(3)). In Griffin v.

Breckenridge, 403 U.S. 88 (1971), the Supreme Court clarified that

in order to state a claim under Section 1985(3), the plaintiff

must, among other requirements, allege that the "conspiratorial

conduct of which he complains is propelled by 'some racial, or

perhaps otherwise class-based, invidiously discriminatory animus.'"

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (quoting Griffin,

403 U.S. at 102).

The district court, in dismissing Appellants' Section

1985(3) claim, found that "Plaintiffs fail to state class-based

animus on the part of Defendants, and indeed, the Court does not

perceive any class into which the Plaintiffs might fall." The

district court went on to find that even if it were to assume,

-14-
arguendo, that "Plaintiffs had claimed that they belonged to a

class of purveyors of adult entertainment for 1985(3) purposes,

that class would be fatally indeterminate in that it is, at best,

a 'vague and amorphous' grouping of individuals." On appeal,

Appellants do not advance the argument that their class is one of

purveyors of adult entertainment, and therefore we deem that

argument waived. See Van Haaren v. State Farm Mut. Auto. Ins. Co.,

989 F.2d 1, 7 n.6 (1st Cir. 1993) ([A]rguments neither presented to

the district court nor presented in appellant's opening brief on

appeal [are] deem[ed] waived."). Instead, Appellants state in

their Opening Brief that:

the complaint alleges that Ms. Cormier is a woman. Women
are a protected class of persons under § 1985(3).
Because the Court is obliged to draw all reasonable
inferences in favor of the Plaintiffs and against the
Defendants, the Court erred in finding that the Plaintiff
fatally excluded reference to a protectable class.

(Citation omitted.) In support of this argument against dismissal,

Appellants cite to paragraph 25 of their amended complaint, which

states that:

the Plaintiff enjoys a right to free speech and
expression in the presentation and performance of her art
form of semi-nude dancing recognized under the First
Amendment to the United States Constitution, and Erie v.
Pap's A.M., TBDA "KANDYLAND," 529 U.S. 277 (2000).

(Emphasis added.) We presume that it is Appellant Cormier-Youngs'

contention that by using the feminine possessive pronoun "her" in

paragraph 25 of the amended complaint, she has alleged that the

state class-based animus she has suffered is a result of her being

-15-
a member of the class of "women" in general.13 We find this

argument unpersuasive.

First, even under the most liberal of pleading standards,

using a possessive pronoun that signals that the Appellant Cormier-

Youngs is a woman is insufficient to set forth an allegation that

she suffered class-based animus because she belongs to the class of

women. Second, Appellant has failed to allege in her complaint any

facts that the Individual Appellees conspired against her because

she was a woman (as opposed to her being, for example, a purveyor

of nude entertainment, regardless of her gender). Appellants have

failed to state a claim under Section 1985(3).

D. Count One: Section 1983 and Facial Challenge

As previously mentioned, the district court construed the

Appellants' "Count One" as being comprised of two separate counts:

a Section 1983 claim and a challenge to the facial

constitutionality of Section 61-17 of the Bangor Code. In its

December 20, 2001 order, the district court addressed first whether

Count One of the complaint stated a claim under Section 1983

against the Individual Appellees in their individual capacities,

and concluded in the negative. The district court next addressed

whether Appellant Cormier-Youngs had standing in her personal

capacity to pursue a claim against the City of Bangor and the

Individual Appellees in their official capacities, and similarly

concluded in the negative. This left only Diva's Section 1983

13
We also presume that Diva's has waived any argument that it
belongs to a protected class, as it alleges none.

-16-
claim against the City of Bangor and the Individual Appellees in

their official capacities and its facial challenge to the

constitutionality of the Bangor Code Section 61-17.

The district court then raised the issue of Younger

abstention sua sponte and dismissed the facial challenge to the

Bangor Code under principles of comity.14 As to the remaining

claim, Diva's Section 1983 claim attacking the propriety of the

City Council's denial of its permit application, the district

court, in its December 20, 2001 order, raised the issue of Colorado

River abstention sua sponte,15 and stayed its decision of that claim

pending the outcome of the state enforcement action. The

Appellants do not challenge on appeal the district court's decision

to abstain from deciding the Section 1983 claim until after the

state court decision, and make no mention of the district court's

decision to exercise Younger abstention and dismiss the facial

challenge to Section 61-17. Thus, we review de novo the district

14
See Younger v. Harris, 401 U.S. 37, 53-54 (1971) (holding
that abstention was required where a plaintiff, who was defending
criminal charges in state court, sought to have the federal court
enjoin the ongoing state criminal proceedings). The principles
behind Younger abstention are "grounded in notions of comity: the
idea that the state courts should not, in certain circumstances, be
interfered with," Rio Grande Cmty Health Ctr., Inc. v. Rullan, 397
F.3d 56, 68-69 (1st Cir. 2005), and the doctrine has been expanded
into the civil context. See Maymó-Meléndez v. Álvarez-Ramírez, 364
F.3d, 27, 31 (1st Cir. 2004).
15
See Col. River Water Conservation Distr. v. United States,
424 U.S. 800, 817 (1976) (holding that in "extraordinary
circumstances," it may be appropriate for a federal court to
abstain from exercising jurisdiction over an issue that is the
subject of a parallel state proceeding, for purposes of "wise
judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.") (quotation
omitted).

-17-
court's December 20, 2001 decision to (1) dismiss the claims

against the Individual Appellants in their individual capacities;

(2) dismiss Cormier-Youngs as a plaintiff for lack of standing; and

its June 3, 2003 decision to (3) dismiss the remaining Section 1983

claims under the Rooker-Feldman doctrine. We treat as waived any

challenges Appellants may have to the district court's (1)

dismissal of the facial challenge to Section 61-17 under principles

of Younger abstention and (2) the district court's decision to stay

its decision on the Section 1983 claim until the Maine Supreme

Judicial Court decided the City of Bangor's enforcement action

against Diva's. See, e.g., Smilow v. Southwestern Bell Mobile

Sys., Inc., 323 F.3d 32, 43 (1st Cir. 2003) ("Issues raised on

appeal in a perfunctory manner (or not at all) are waived.").

1. Individual Appellees in their Individual Capacities

The district court found that the Individual Appellees

enjoyed both absolute and qualified immunity for their actions

during the permitting process. The district court's justification

for finding absolute immunity was that the City Council members had

acted in both a quasi-judicial and legislative capacity. We agree

that the officials enjoy absolute immunity from personal liability

because they were acting in a quasi-judicial capacity when they

denied the special amusement permit, and thus, we do not need to

determine whether the officials are qualifiedly immune for their

actions or whether they are absolutely immune because their actions

were also legislative in nature.

-18-
 We must take a "functional approach" to determining

whether the City Council members are absolutely immune from suit

for their denial of the special amusement permit. See Desetek

Group, Inc. v. State of N.H. Pub. Util. Comm'n, 318 F.3d 32, 40-41.

(1st Cir. 2003). And, even though the City Council members "at

various times may perform legislative, executive and judicial

functions, each of which may entitle the official to a different

level of immunity, the functional approach to immunity requires

that actions taken in the performance of a particular function are

to be accorded the level of immunity appropriate to that function."

Bettencourt v. Bd. of Registration, 904 F.2d 772, 782 (1st Cir.

1990) (citing Scott v. Cent. Me. Power Co., 709 F. Supp. 1176, 1187

(D. Me. 1989)) (emphasis in Scott).

In Bettencourt, 904 F.2d at 783, we described the

analysis for determining whether an official has engaged in a

quasi-judicial act:

Proper analysis involves answering three questions, each
designed to determine how closely analogous the
adjudicatory experience of a Board member is to that of
a judge. First, does a Board member, like a judge,
perform a traditional "adjudicatory" function, in that he
decides facts, applies law, and otherwise resolves
disputes on the merits (free from direct political
influence)? Second, does a Board member, like a judge,
decide cases sufficiently controversial that, in the
absence of absolute immunity, he would be subject to
numerous damages actions? Third, does a Board member,
like a judge, adjudicate disputes against a backdrop of
multiple safeguards designed to protect [the complaining
party's] rights?

Here, first, the Council members performed an "adjudicatory"

function when they reviewed and voted on Diva's special amusement

permit: they held a hearing, heard testimony, asked questions,

-19-
discussed the matter, made their decision, and then provided a

written explanation of their reasoning. Second, the act of denying

a special amusement permit can be controversial, and can prompt

litigation, as it did in this case. Without the proper protection

from personal liability, it would be extremely difficult to get

people to serve as City Council members. Cf. Bogan v. Scott-

Harris, 523 U.S. 44, 52 (1998) ("[T]he threat of liability may

significantly deter service in local government, where prestige and

pecuniary rewards may pale in comparison to the threat of civil

liability."). Lastly, there are procedural safeguards that operate

to protect a special amusement permit applicant from the violation

of its constitutional rights. Indeed, this case presents a perfect

example: Diva's exercised its statutory right to (1) request a

written explanation of the reasons justifying the Council's denial

of the special amusement permit, see Bangor Code § 61-21, and (2)

appeal the decision to the Bangor Board of Appeals, see Bangor Code

§ 61-24. As a result of the appeal, the faulty decision of the

City Council was reversed, and Diva's received its special

amusement permit. The process worked. And, if Diva's had lost its

appeal to the Bangor Board of Appeals, it had recourse to the Maine

state courts, see Bangor Code § 23-3H.

To the extent that the Appellants' amended complaint

raises a claim against the Individual Appellees in their individual

capacities, the district court was correct to grant their motion to

dismiss, because the City Council members are absolutely immune in

-20-
their personal capacities from a suit arising from their denial of

the special amusement permit.

2. Corimer-Youngs' Lack of Standing

The district court next dismissed Cormier-Youngs as a

plaintiff in the remaining Section 1983 claims. "Article III of

the Constitution confines the federal courts to deciding actual

cases and controversies." Cotter v. City of Boston, 323 F.3d 160,

166 (1st Cir. 2003). In order to establish Article III standing,

a plaintiff must have a "personal stake in the outcome of the

controversy." Baker v. Carr, 369 U.S. 186, 204 (1962). And,

"[a]ctions to enforce corporate rights or redress injuries to [a]

corporation cannot be maintained by a stockholder in his own name

. . . even though the injury to the corporation may incidentally

result in the depreciation or destruction of the value of the

stock." Pignato v. Dein Host, Inc., 835 F.2d 402, 406 (1st Cir.

1987) (quoting Brictson v. Woodrough, 164 F.2d 107, 109 (8th Cir.

1947)). This standing rule applies even when there is only one

shareholder in a corporation. See id. And, although we have not

yet had the opportunity to explicitly state, we join the circuits

who have already addressed the issue to hold that this standing

requirement also applies to actions brought to redress injuries to

a corporation under Section 1983. See Potthoff v. Morin, 245 F.3d

710, 717 (8th Cir. 2001) (holding that the shareholder standing

rule applies to civil rights actions brought pursuant to § 1983);

Flynn v. Merrick, 881 F.2d 446, 450 (7th Cir. 1989) (holding that

"filing suit under § 1983 does not diminish the requirement that

-21-
the shareholder suffer some individual, direct injury."); Gregory

v. Mitchell, 634 F.2d 199, 202 (5th Cir. 1981) (extending

shareholder standing rule to civil rights actions under § 1983);

Erlich v. Glasner, 418 F.2d 226, 228 (9th Cir. 1969) (finding

"nothing in the Civil Rights Act" which would permit a plaintiff-

stockholder to circumvent the rule that "even though a stockholder

owns all, or practically all, of the stock in a corporation, such

a fact of itself does not authorize him to sue as an individual").

Here, Appellant Cormier-Youngs does not allege any

injury, separate from the injury to Diva's, resulting from her

claim that the Appellees violated Section 1983 when they acted

under color of state law to deny Diva's the special amusement

permit in violation of the First and Fourteenth Amendments. As the

district court correctly determined, once it dismissed all but the

Section 1983 claim of the second amended complaint, Appellant

Cormier-Youngs no longer had Article III standing. We affirm the

dismissal of Cormier-Youngs as a plaintiff in the remaining Section

1983 claim.

3. Section 1983 Claims

After the Maine Supreme Judicial Court rendered its

decision, the federal district court requested submissions on the

effect of the decision on the pending federal case, and then

dismissed the remaining Section 1983 claim under the Rooker-Feldman

doctrine. The federal district court held that the Rooker-Feldman

doctrine prevented it from ruling on Diva's federal claim because

-22-
a decision in favor of Diva's would "effectively defeat or negate

a state judgment to which the federal claimant was a party."

After this court heard argument and took this case under

advisement, the Supreme Court decided Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 125 S. Ct. 1517 (2005). In Exxon Mobil, the

Supreme Court cautioned that the Rooker-Feldman doctrine "is

confined to cases of the kind from which the doctrine acquired its

name: cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments." Id. at 1521-22. And, the Court

held that "neither Rooker nor Feldman supports the notion that

properly invoked concurrent jurisdiction vanishes if a state court

reaches judgment on the same or related question while the case

remains sub judice in a federal court." Id. at 1527.

The Rooker-Feldman doctrine does not apply in this case

because Diva's filed its case in federal court before the

enforcement action was filed against it in state court. And,

Diva's was not seeking an "appeal" of a state court judgment in

federal district court, but instead was, among other things,

seeking redress for the City Council's arbitrary and capricious

denial of the special amusement permit for impermissible reasons.

Thus, it was an error for the district court to invoke the Rooker-

Feldman doctrine to dismiss Appellant Diva's remaining Section 1983

claim.

-23-
 Our inquiry does not end, however, with the determination

that the federal district court erroneously invoked the Rooker-

Feldman doctrine, as we may uphold the dismissal on any ground

supported by the record. See Wilson v. Town of Mendon, 294 F.3d 1,

10 n.23 (1st Cir. 2002). In our review of whether there is an

alternate ground to support the dismissal, we find our

jurisprudence on damages resulting from delays caused by the

improper denial of building permits instructive. In Chiplin

Enters. v. City of Lebanon, 712 F.2d 1524, 1526-28 (1st Cir. 1983),

we held that a building developer who had to wait five years

between the denial of a building permit and the determination that

the permit had been improperly denied, could not state a Section

1983 claim for deprivation of either substantive or procedural due

process. Taking all facts alleged as true, even though the

plaintiff "had met all legal requirements for the permit" and "the

town had no valid reason to reject the application" and that

defendants "maliciously den[ied] [plaintiff] a building permit for

invalid and illegal reasons and in bad faith," we held that the

plaintiff could not state a valid Section 1983 claim. Id. at 1526.

We found that even though the conduct complained of was concededly

carried out under the color of state law, the plaintiff could not

"identify a constitutional right of which [he] ha[d] been denied."

Id. at 1527. This is because "property is not denied without due

process simply because a local planning board rejects a proposed

development for erroneous reasons or makes demands which arguably

-24-
exceed its authority under the relevant state statutes." Creative

Env'ts, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1981).

But, although an erroneous denial of a permit for the use

of property does not amount to a denial of due process, it may, in

certain circumstances, "give rise to genuine constitutional

issues." Chiplin, 712 F.2d at 1527. In Packish v. McMurtrie, 697

F.2d 23, 25-26 (1st Cir. 1983), we held that a firefighter who had

initially been denied reimbursement for medical expenses, allegedly

in retaliation for his published criticism of town officials, and

who sought damages for the delay in receiving the reimbursement,

could not state a claim for denial of due process, but "might have

viable claims if [he] could in fact demonstrate that [he] was

denied indemnification in retaliation" for his exercise of his

First Amendment rights. Similarly, in Manego v. Cape Cod Five

Cents Sav. Bank, 692 F.2d 174, 177 (1st Cir. 1982), we found that

the plaintiff had stated a claim under Section 1983 because he

alleged that the reason for the denial of an entertainment license

was based on race--even though this was a claim the plaintiff

ultimately could not prove. Furthermore, in Nestor Colon Medina &

Sucesores, Inc. v. Custodio, 964 F.2d 32, 40 (1st Cir. 1992), we

considered "whether the denial of a land use permit in

unjustifiable retaliation for the applicant's expressions of his

political views is a First Amendment violation," and found, at

least with respect to one of the plaintiff's claims, that summary

judgment was inappropriate because plaintiff had "stated a prima

-25-
facie case of denial in retaliation for his political expressions."

Id. at 41.

Here, even though Bangor Code Section 61-17 has been

determined by the Maine Supreme Judicial Court to be constitutional

on its face, and, even though Diva's cannot state a claim for a

violation of procedural or substantive due process, we believe that

Diva's has stated a claim that the City of Bangor and the

Individual Appellees in their official capacities acted under color

of state law to deprive Diva's of its First Amendment right to

freedom of speech. We caution, however, that the First Amendment

right that is implicated here is not the right for Diva's to allow

nude dancers on its premises,16 but for Diva's right, if any, to

offer dancing that is consistent with the type of dancing permitted

under Section 61-17. We also caution that if the district court on

remand determines that the City Council did act arbitrarily and

capriciously with the intent of depriving Diva's of its First

Amendment right to free speech, the only available damages are

those incurred by Appellant Diva's during the three week period

from when the City Council denied the permit, to when the Bangor

Board of Appeals reversed that decision and granted the permit. We

16
The Maine Supreme Judicial Court has upheld the
constitutionality of Section 228-14 as a valid time, place, and
manner restriction on establishments offering nude entertainment,
and, it appears that Diva's gave up the right to challenge the
constitutionality of Bangor Code Section 228-14 when it executed
the settlement agreement. In any event, Diva's conceded at
argument that it could not challenge the constitutionality of
Chapter 228 in this forum.

-26-
express no opinion on whether Diva's can ultimately prove her

claim.

CONCLUSION

The district court's order of dismissal of Appellant

Diva's, Inc. and Appellant Cormier-Young's claims for (1) breach of

contract, (2) conspiracy to deprive under 42 U.S.C. § 1985(3), (3)

tortious interference with contractual relations, and (4)

intentional infliction of emotional distress is AFFIRMED. The

district court's order dismissing all claims against the Mayor and

the City Council members in their individual capacities and the

dismissal of Appellant Cormier-Youngs as a plaintiff in the Section

1983 claims is AFFIRMED. The district court's order of dismissal

of Appellants' challenge to the facial constitutionality of Bangor

Code Section 61-17 is AFFIRMED. The district court's order of

dismissal of Appellant Diva's claim that Appellees violated Section

1983 by depriving it of its Fourteenth Amendment right to due

process is AFFIRMED. The district court's order of dismissal of

Appellant Diva's claim that Appellees violated Section 1983 by

depriving it of its First Amendment right to free speech under

color of state law is REVERSED and REMANDED to determine whether

Appellant Diva's can show that the City Council members denied the

special amusement permit with the intent to curtail Diva's First

Amendment right to free speech. And, as noted above, although we

do not express any opinion on the viability of Diva's claim, the

potential damages, if any, are limited to the three-week period

-27-
between the denial of the permit by the City Council, and the

reversal of that denial by the Bangor Board of Appeals.

-28-