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
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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.
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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 . . .
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[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,
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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
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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).
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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,
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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
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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
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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
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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.
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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
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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.
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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.
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