USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1623
JESSICA L. HAYDEN, NICOLE C. MERRILL AND
COLLEEN M. RHOADS,
Plaintiffs, Appellants,
v.
RICHARD GRAYSON, CHIEF OF POLICE
OF THE TOWN OF LISBON, ET AL.
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Godbold* and Cyr, Senior Circuit Judges.
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Edward M. Van Dorn, Jr., with whom Brad W. Wilder and Van Dorn &
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Cullenberg were on brief for appellants.
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John T. Alexander, with whom Michael Lenehan and Ransmeier & Spellman
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P.C. were on brief for appellees.
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January 22, 1998
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*Of the Eleventh Circuit, sitting by designation.
CYR, Senior Circuit Judge. Plaintiffs appeal from a
CYR, Senior Circuit Judge.
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district court judgment dismissing their equal protection claims
against the Town of Lisbon, New Hampshire, and its chief of
police, Richard Grayson, for failing to investigate allegations
that their father abused them sexually while they were minors.
We affirm.
I
I
BACKGROUND
BACKGROUND
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Although the three sisters first lodged these
allegations in 1983, Grayson took no action other than to
misrepresent that the district attorney had declined to
prosecute. Seven years later, after attaining their majority,
plaintiffs discovered Grayson's misrepresentation and took their
allegations to the district attorney. Their father presently is
serving a lengthy prison sentence, following his conviction for
aggravated sexual assault.
Plaintiffs filed the instant action against the Town
and Grayson, in his individual and official capacities, claiming
inter alia that Grayson refrained from investigating their
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allegations either because plaintiffs were female, children, or
victims of domestic sexual abuse, and that such selective law
enforcement violated their individual rights under the Equal
Protection Clause. See U.S. Const. amend XIV; 42 U.S.C. 1983.1
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In due course, the equal protection count against the Town was
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1It is undisputed that Grayson at all times acted under
color of state law. See 42 U.S.C. 1983.
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2
dismissed for failure to state a claim. See Fed. R. Civ. P.
___
12(b)(6). Following discovery, defendant Grayson was awarded
summary judgment on the individual-capacity claim because
plaintiffs had failed to adduce sufficient evidence that he
intended to discriminate due to their membership in any of the
three classes alleged in their complaint. The district court
thereafter denied plaintiffs' postjudgment motion for
reconsideration. See Fed. R. Civ. P. 59.
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II
II
DISCUSSION
DISCUSSION
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A. The Equal Protection Claim Against Grayson2
A. The Equal Protection Claim Against Grayson
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The Fourteenth Amendment mandates that no State "deny
to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend XIV. Thus, although there is no
constitutional right to police protection, State executive and
law enforcement officials may not "selectively deny . . .
protective services to certain disfavored minorities." DeShaney
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v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197 n.3
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(1989).
Plaintiffs rely on City of Cleburne v. Cleburne Living
________________ _______________
Ctr., 473 U.S. 432 (1985), for their contention that the district
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court should not have applied the equal protection test governing
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2After examining all competent evidence in the light most
favorable to the party opposing summary judgment, we are required
to make a de novo determination as to whether a trialworthy issue
__ ____
remained or the moving party was entitled to judgment as a matter
of law. See Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir.
___ _________ ____
1996).
3
race and gender classifications, which necessitated that
plaintiffs show that Grayson acted with discriminatory intent.
Instead, plaintiffs argue, in cases involving less invidious but
nonetheless arbitrary classifications, such as child victims of
domestic sexual abuse, Cleburne simply envisions that plaintiffs
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prove that the defendant's decision lacked a "rational basis,"
without regard to any discriminatory intent.3
Plaintiffs misconstrue the Cleburne decision. There
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the Supreme Court expressly noted the finding made by the
district court that the municipality's principal reason for
denying the requested zoning permit had been "that the residents
of the [plaintiff] home would be persons who are mentally
retarded," id. at 437, a finding which was never challenged on
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appeal. Thus, it was only because the city's discriminatory
motive had been established ab initio that the Court addressed
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whether the city need demonstrate a "compelling" or "important"
state interest criteria theretofore reserved for race and
gender discrimination or need simply articulate a "rational
basis" for its decision. Id. at 440-41. Accordingly, Cleburne
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did not hold that no threshold proof of intent to discriminate is
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3The Equal Protection Clause safeguards not merely against
such invidious classifications as race, gender and religion, but
any arbitrary classification of persons for unfavorable
governmental treatment. Cf. Wayte v. United States, 470 U.S.
___ _____ ______________
598, 608 (1985) (noting, in relation to selective prosecution
cases, that "the decision to prosecute may not be 'deliberately
based upon an unjustifiable standard such as race, religion, or
other arbitrary classification'") (emphasis added; citations and
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internal quotation marks omitted).
4
required in cases involving less invidious arbitrary
classifications.4
The motivation underlying a municipal decision is not
always so apparent as in Cleburne, of course, especially if the
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challenged decision does not expressly single out a particular
class of persons for disadvantageous treatment. Even in such
instances, however, members of the plaintiff class quite
understandably may consider it no mere coincidence that a
facially neutral decision causes a disproportionately unfavorable
impact on their particular class. Nevertheless, even evidence of
a widely disproportionate impact on the plaintiff class normally
is not enough, standing alone, to establish an equal protection
violation. See, e.g., Personnel Adm'r of Mass. v. Feeney, 442
___ ____ _________________________ ______
U.S. 256, 274-75 (1979) (upholding veteran's preference in civil
service hiring, although vast majority of veterans hired were
male). Rather, plaintiffs must adduce competent evidence of
"purposeful discrimination." Washington v. Davis, 426 U.S. 229,
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243-44 (1976); Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir.),
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cert. denied, 118 S. Ct. 71 (1997).
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The burden is an onerous one: "'Discriminatory
purpose' . . . implies that the decisionmaker . . . selected or
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4The other case relied upon by plaintiffs in this regard is
to the same effect. See Navarro v. Block, 72 F.3d 712, 715-16
___ _______ _____
(9th Cir. 1996) (vacating summary judgment for County on equal
protection claim because there existed a trialworthy issue as to
whether County policy according different treatment to domestic
and nondomestic violence had a "rational basis," but only after
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the County had conceded, arguendo on appeal, "that it had a
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policy of affording victims of domestic violence less police
protection").
5
reaffirmed a course of action at least in part 'because of,' not
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merely 'in spite of,' its adverse effects upon an identifiable
group." Feeney, 442 U.S. at 279 (emphasis added; citation
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omitted); Soto, 103 F.3d at 1067. Thus, unless these plaintiffs
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established the requisite discriminatory intent, their equal
protection claim cannot succeed even assuming the Grayson
decision not to investigate lacked a "rational basis." See
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Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,
_____________________________ ______________________________
429 U.S. 252, 265 (1977); Semple v. City of Moundsville, 963 F.
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Supp. 1416, 1433 (N.D. W. Va. 1997).
Plaintiffs claim that the district court disregarded
competent evidence that Grayson harbored "archaic stereotypes"
regarding female-child sexual abuse in the home and singled out
its victims for unfavorable treatment in determining whether to
investigate. The record does not support their contention,
however.5
At no time did Grayson indicate to anyone that he would
not investigate allegations of child sexual abuse in the home
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5Plaintiffs adduced no evidence that Grayson's reluctance to
pursue criminal investigations was based on their gender. On the
contrary, plaintiffs proffered evidence that Grayson failed to
investigate a 1990 allegation that a 12-year-old boy had been
sexually molested by his grandfather. Nor did plaintiffs adduce
statistical or other evidence relating to whether females
comprise a majority of (1) sexual abuse victims; (2) domestic
sexual abuse victims; (3) sexually abused minors; or (4) minors
sexually abused in the home. Furthermore, Officer Boutin
attested that though Grayson often did not pursue allegations of
crimes committed against children if a nonoffending adult family
member urged him not to do so, this "policy" did not depend on
whether the victims were male or female. See infra note 8.
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Given its serious deficiencies, the gender classification claim
quite properly was rejected by the district court.
6
because he thought the victims were undeserving of equal law-
enforcement protection. Instead, he explained to a fellow
officer that he had refrained from investigating plaintiffs'
allegations at their mother's request.6 Another police officer
confirmed that it was Grayson's policy not to intervene where a
family member (e.g., nonabusive parent or spouse) requested that
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there be no investigation.
Plaintiffs essentially claim, nonetheless, that their
evidence supported, respectively, rational inferences that
Grayson intended to treat all domestic crime differently from
nondomestic crime, all crimes against children differently from
crimes against adults, and all sexual abuse crimes differently
from nonsexual crimes.7 Once again the evidence does not bear
out their claim.
Plaintiffs' proffer disclosed that the nonintervention
policy attributed to Grayson may have been much broader than
plaintiffs allow, in that it applied not merely to domestic child
sexual abuse, but to other crimes in circumstances where general
concerns for family integrity and family privacy predominated.8
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6Specifically, the mother told Grayson that "she did not
want the girls involved in a prosecution." Plaintiffs have not
contested this evidence.
7The district court reserved the question whether the
evidence relating to Grayson's own statements would be
admissible. See Fed. R. Evid. 801(d)(2) (admission by party-
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opponent).
8In the portion of Officer Boutin's deposition proffered
below, the inquiry is ambiguously phrased by plaintiffs in terms
of how Grayson acted "in these kinds of cases" compared to "other
[] more conventional kinds of crimes," without particularizing
7
Thus, their proffer may be seen to belie their contention that
Grayson sought to discriminate against them because of, rather
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than in spite of, their status as victims of child sexual abuse
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in the home. See Feeney, 422 U.S. at 279. Far from
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demonstrating general condonation of child sexual abuse in the
home, therefore, the proffer simply supported a reasonable
inference that Grayson would investigate virtually any allegation
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of crime absent an appropriate request from a nonoffending spouse
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to refrain from intervention in circumstances where legitimate,
competing family interests were thought to predominate.
Accordingly, although the evidence may well have demonstrated
that the Grayson nonintervention policy had a disproportionate
adverse impact in cases involving allegations relating to the
various victim classes in which plaintiffs claimed membership, it
did not demonstrate that Grayson harbored a discriminatory animus
toward those victim classes. Id. at 274 (upholding veteran's
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any characteristic of these alleged crimes which was
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unconventional in their view (e.g., domestic, sexual abuse, or
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crimes against children or female victims), or which triggered
the Grayson nonintervention policy. Perhaps for this very
reason, then, Officer Boutin ambiguously responded that the
police "took into [account] what the mother had to say or the
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victim's rights were, I mean, emotions were," and "if the
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family's wishes were that it didn't get prosecuted, then it
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didn't." Although Boutin allowed that the Grayson
nonintervention policy would apply to crimes against children, at
no time did he state that it applied exclusively to such crimes.
These unaddressed ambiguities plainly invited a rational
inference that the challenged nonintervention policy was
predicated on a generalized concern for family integrity and
privacy, which would be activated, for example, at the instance
of a nonoffending spouse even though the allegations may have
related to nonsexual criminal activity directed against an adult
family member.
8
preference in civil service hiring, even though vast majority of
veteran hirees were male).
Similarly, plaintiffs presented evidence that Grayson,
on two other occasions, failed to investigate allegations of
child sexual abuse in the home. Once again, however, there was
no evidence that Grayson was motivated by a discriminatory
animus, as distinguished from a neutral nonintervention policy.
Moreover, Grayson proffered undisputed evidence that he had
investigated at least two other domestic child sexual abuse
cases, as well as eight nondomestic child sexual abuse cases.
Cf. Willhauck v. Halpin, 953 F.2d 689, 712 (1st Cir. 1991) (in
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analogous context of equal protection claim founded on selective
prosecution, "[i]t must be shown that others similarly situated
have not been prosecuted and that the decision to prosecute has
been motivated by an impermissible reason").
Finally, in an ironic twist, the discriminatory focus
essential to plaintiffs' equal protection claims was irredeemably
blurred by their proffer that the Grayson nonintervention policy
extended well beyond domestic child sexual abuse cases (e.g., to
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DWI and vandalism), and may even have been due to Grayson's
dishonesty, chronic lassitude, alcohol abuse, or desire to wage
personal vendettas against particular individuals rather than
groups. See New Burnham Prairie Homes, Inc. v. Village of
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Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990) (noting that
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"[d]iscrimination based merely on individual, rather than group,
reasons will not suffice" to establish equal protection
9
violation). That is to say, although their scattershot approach
might enable a rational inference that Grayson was a poor police
chief, it cannot sustain a nonspeculative inference that he
failed to investigate these allegations because plaintiffs were
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children who had been sexually abused, or because plaintiffs had
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been sexually abused in the home. See Soto, 103 F.3d at 1072
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("Whether this deplorable scenario is actionable under Puerto
Rican law we leave, as we must, to others.").9
B. The Equal Protection Claim Against the Municipality
B. The Equal Protection Claim Against the Municipality
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The district court dismissed the equal protection count
against the Town for failure to state a claim. See Fed. R. Civ.
___
P. 12(b)(6). Eighteen months later, plaintiffs moved to
reinstate and amend the claim, see Fed. R. Civ. P. 15, to allege
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that the Town should be held liable either because Grayson was
the municipal official who instituted the official "policy"
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9The district court denied plaintiffs' postjudgment motion
for reconsideration, see Fed. R. Civ. P. 59, because their "new"
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evidence of discriminatory intent had been available at summary
judgment. Plaintiffs respond that Grayson's motion for summary
judgment failed to put them on adequate notice that he disputed
their allegations of discriminatory intent. We review the Rule
59 decision only for manifest abuse of discretion. See Vasapolli
___ _________
v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).
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The Grayson motion could not have been more explicit:
"Defendant Grayson denies any intent to discriminate against the
plaintiffs on any basis." Further, "[t]he plaintiffs have
produced no evidence suggesting that defendant Grayson wanted to
harm them because they were women, or because they were minors,
or because they were alleged victims of sexual assaults." True,
plaintiffs' default may flow from their misreading of Cleburne.
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See supra pp. 3-4. Nevertheless, "[Rule 59] does not provide a
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vehicle for a party to undo its own procedural failures, and it
certainly does not allow a party to introduce new evidence or
advance arguments that could and should have been presented to
the district court prior to the judgment." Aybar v. Crispin-
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Reyes, 118 F.3d 10, 16 (1st Cir. 1997).
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10
against providing law-enforcement protection to child victims of
sexual abuse in the home, see Monell v. Department of Social
___ ______ _____________________
Servs. of New York, 436 U.S. 658, 694-95 (1978), or because the
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Town failed to train Grayson adequately to deal with domestic
child sexual abuse, which constituted "much" or "most" of the
crime in the community.
The district court denied the motion to amend, on the
ground that its earlier Rule 12(b)(6) dismissal amounted to a
decision "on the merits" and, accordingly, the law of the case.10
Even assuming the rationale for the instant decision were to be
found infirm, see Griggs v. Hinds Junior College, 563 F.2d 179,
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180 (5th Cir. 1977) (noting that Rule 15 amendment is "especially
appropriate [] . . . when the trial court has dismissed the
complaint for failure to state a claim"); see also Dussouy v.
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Gulf Coast Inv. Corp., 660 F.2d 594, 598 n.2 (5th Cir. 1981), we
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would affirm on the ground that the proposed amendment would have
been futile. See Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir.
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1993).
Rule 15 permits the trial court to deny leave to file
an amended complaint which would be subject to immediate
dismissal under Rule 12(b)(6) for failure to state a viable claim
for relief. See Foman v. Davis, 371 U.S. 178, 182 (1962); Mills
___ _____ _____ _____
v. State of Me., 118 F.3d 37, 55 (1st Cir. 1997). The Town
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cannot be held vicariously liable in an action under section 1983
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10We review the Rule 15 decision for abuse of discretion.
RTC v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
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11
unless its official policy or custom was the "moving force"
behind the alleged violation of constitutional rights. See
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Monell, 436 U.S. at 694.11 Normally, therefore, a municipality
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cannot be held liable unless its agent actually violated the
victim's constitutional rights. See City of Los Angeles v.
___ _____________________
Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no
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constitutional injury at the hands of [any] individual police
officer, the fact that the departmental regulations might have
authorized [unconstitutional action] is quite beside the
point.").
Plaintiffs simply allege that the Town is liable under
section 1983 because Grayson established an official Town policy
or custom of selective law enforcement which in turn caused them
injury.12 Since their predicate claim against Grayson fails,
however, see supra Section II.A, so must their contention that
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any such discriminatory Town policy or custom existed.
Alternatively, of course, the Town could be held liable
under section 1983 were it to appear that the injury to
plaintiffs was caused by the Town's failure to train Grayson.
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The liability criteria for "failure to train" claims are
exceptionally stringent, however. See City of Canton v. Harris,
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489 U.S. 378, 388-89, 391 (1989).
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11Municipal customs, for 1983 purposes, are "such
practices of state officials ... [as are] so permanent and well
settled as to constitute a 'custom or usage' with the force of
law." Id. at 691.
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12We assume arguendo that Grayson, as police chief, was a
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Town policymaker with respect to law enforcement.
12
Only if the failure to train "amounts to deliberate
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indifference to the rights of persons with whom the police come
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into contact," and is "closely related" to, or "the moving force"
behind, the constitutional injury, can the claim against the
municipality prevail. Id. (emphasis added). For this
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"deliberate or conscious choice" to have been established,
plaintiffs needed to present evidence that (1) the Town knew when
it hired Grayson that the risk of future equal protection
violations arising and recurring in domestic child sexual abuse
cases was "so obvious" that its failure to train him therein
likely would result in continued violations; or (2) even though
__
the initial risk of recurring constitutional violations was not
"so obvious," the Town subsequently learned of a serious
recurrence, yet took no action to provide the necessary training.
Id. at 390 & n.10; see also id. at 396 (O'Connor, J., concurring
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in part).13
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13We have considerable doubt whether the failure-to-train
13
claim survived either the dismissal of the 1983 claim against
Grayson, individually, see supra Section II.A, or the Monell
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policy-based claims against the Town and Grayson, in his official
capacity, supra. If Grayson never violated plaintiffs'
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constitutional rights in the first instance, it is difficult to
see how a failure to train him could have caused any
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"constitutional injury" to plaintiffs. Compare Evans v. Avery,
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100 F.3d 1033, 1040 (1st Cir. 1997) (affirming dismissal of
1983 substantive-due-process claim against City where its agents
were found not to have violated plaintiff's constitutional
rights) (citing Heller, 475 U.S. at 799), with Simmons v. City of
______ ____ _______ _______
Philadelphia, 947 F.2d 1042, 1063 (3d Cir. 1991) (holding that
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city policymakers, who owed an independent duty to pretrial
detainees, were individually liable under 1983 for prisoner
suicide, even though factfinder determined that the turnkey had
not violated prisoner's constitutional rights); de Feliciano v.
____________
de Jesus, 873 F.2d 447, 450 (1st Cir. 1989) ("There may well be a
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basis for an agency's liability other than the conduct of the
13
To begin with, plaintiffs merely allege that "Lisbon is
__
a high crime area in northern Grafton County [and] that much or
most of the crime committed in northern Grafton County involves
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domestic violence and sexual abuse." (Emphasis added.) There is
no allegation that these circumstances obtained in 1975, however,
when Grayson became the police chief. No less importantly, even
assuming similar circumstances prevailed in 1975, the need to
train Grayson was not "so obvious, [nor] the [alleged] inadequacy
[of the training] so likely to result in the violation of
constitutional rights, that the [Town] can reasonably be said to
have been deliberately indifferent to the need [for training]."
City of Canton, 489 U.S. at 390.
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It bears reminding that the gravamen of the amended
complaint is not that Grayson did not adequately investigate
these allegations, but that he purposely chose not to investigate
them at all. It is reasonable to observe, therefore, that
whatever relevant training the Town failed to give Grayson would
________
not have entailed specialized law-enforcement investigatory
skills, but simply the commonplace understanding that police
officers may not deny law-enforcement protection based simply on
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individual defendants that the jury exonerated."). See generally
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Barbara Kritchevsky, Making Sense of State of Mind: Determining
____________________________________________
Liability in Section 1983 Municipal Liability Litigation, 60 Geo.
________________________________________________________
Wash. L. Rev. 417, 445-73 (1992) (summarizing conflicting case
law). Nevertheless, assuming arguendo that dismissal of the
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individual-capacity claim against Grayson would not necessitate
dismissal of the failure-to-train claim against the Town, the
proffered amendment would still be futile due to the stringent
definition of "deliberate indifference" prescribed in City of
________
Canton.
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14
their arbitrary classifications of various groups of crime
victims.
Thus, the amended complaint asserted no sufficient
basis for concluding that Town policymakers reasonably should
have anticipated that a new police chief would need specialized
instruction in so rudimentary a law-enforcement responsibility,
nor that the Town had been put on notice that such equal-
protection violations were routine occurrences in domestic child
sexual abuse cases, either locally or elsewhere. Rather, unlike
many other law-enforcement responsibilities, cf., e.g., id. at
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390 & n.10 (noting that it might be considered "obvious" that
armed police officers assigned to arrest fleeing felons would
need instruction regarding constitutional limitations on proper
use of deadly force), the Equal Protection Clause bar against
arbitrary law enforcement is neither obscure nor problematic of
application.14
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14City of Canton requires not only deliberate indifference
14______________
but that the alleged failure to train be shown to have been the
"closely related" cause of the constitutional injury. Id. at
___
390-91. As Grayson was a policymaking official, with discretion
in law enforcement matters, plaintiffs were required to prove
that he acted with "purposeful discrimination." Yet there has
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been no showing that whatever training was not provided to
Grayson could have thwarted any such purposeful discrimination.
Whereas law enforcement training might inform an officer about
the proper methods to be used in mediating and diffusing crimes
of domestic violence, for example, it does not necessarily follow
that an officer intent on discriminating against a particular
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class of crime victims would be deterred from doing so by
"enlightenment" training, especially given the contraindications
implicit in plaintiffs' other evidence that the challenged
decisionmaking by Grayson resulted from alcohol abuse, lassitude,
or personal animosity toward individuals. See Angel v. City of
___ _____ _______
Fairfield, 793 F.2d 737, 739 (5th Cir. 1986) ("Here, Angel has
_________
failed to allege how the failure to train resulted in the denial
15
Finally, plaintiffs have not alleged that the Town was
ever placed on notice that Grayson, after he was appointed in
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1975, routinely violated the equal protection rights of citizens
by engaging in selective and arbitrary law enforcement. See
___
Swain v. Spinney, 117 F.3d 1, 11 (1st Cir. 1997) (lack of notice
_____ _______
of prior constitutional violations defeats failure-to-train
claim). Accordingly, we conclude that the proposed amendment to
the complaint would have been futile.15
Needless to say, our conclusion represents no
endorsement of the conduct with which Grayson is charged in the
complaint. It would be dereliction of duty for a police chief to
turn over to private parties the decision whether a serious
offense should be pursued and it is hard to imagine what might
justify telling a complainant falsely that the prosecutor would
have no interest in the complaint. Nevertheless, not every form
of misconduct is a constitutional violation most wrongs find
their remedy under state law and our present holding is simply
that the allegations made in the complaint do not properly assert
a violation of the Equal Protection Clause.
Affirmed.
Affirmed.
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of his right to equal protection of the laws.").
15As no "federal question" claims remain, we also affirm the
district court's discretionary decision not to exercise its
supplemental jurisdiction over plaintiffs' state-law claims for
negligence and intentional infliction of emotional distress
against the Town and Grayson. See 28 U.S.C. 1367(c)(3).
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16