Alexis v. McDonald's Restaurants of Massachusetts, Inc.

responded: you “Well you do what SELYA, Before BOWNES, Circuit Judge, have to do plan because we to eat here.” Judge, CYR, Senior Circuit Circuit Notwithstanding instructions, Domina’s Pas- Judge. placed eacio the food order on a tray, service bagging without it. The entire incident at CYR, Circuit Judge. the service counter had lasted approximately (“Alexis”), Plaintiffs Yvonne Alexis and ten minutes. family members, challenge summary judg- After went into the din- ment order rejecting various federal civil ing area, Sherry Topham, a managerial em- rights claims and related state-law claims ployee, summoned defendant Lepo- Michael stemming from the treatment accorded Alex- rati into the Leporati, restaurant. a uni- is at a restaurant operated owned by and off-duty formed police sergeant, had been defendant-appellee McDonald’s Restaurants patrolling on foot outside the restaurant Massachusetts, affirm, Inc. We part, in prearrangement with the Town of Framing- and remand other claims for proceed- further ham, had but part witnessed no of the earlier ings. exchange among Alexis, Paseacio and Domi- na.

I Upon entering restaurant, the BACKGROUND1 was informed by Domina that Alexis had n At yelling, approximately p.m. 10:00 July 20, creating on a “scene” and an “un- 1990, in Framingham, Massachusetts, warranted disturbance” over a Alexis mistaken food order, family, and her and Americans, directing who are abusive African remarks at Pas- entered a eacio.2 restaurant, proceeded McDonald’s Domina informed Leporati that Alex- counter, to is argued the placed loudly service had order, with their her and another paid and employee; “just advance. that When the she food wasn’t stopping”; placed before them at that counter, the Alexis service was still in dining it the area apparent though became Paseacio, that Domina had “asked Alfredo her to leave.” whose tongue Finally, native Spanish, Leporati, Domina told “I had mistak- would like en her their order. to During leave.” ensuing the ex- change Paseacio, between Alexis and defen- Without inquiry further into the “distur- dant-appellee Domina, Donna the “swing bance” allegedly caused Alexis, Leporati manager,” Paseacio, intervened behalf of proceeded to dining area where Alexis prompted say: Alexis to “[Y]ou take family seated, her were and informed the care of people you. front of He’s family entire Alexis manager wanted taking me, care of sorting we’re this them to leave they and that go. would have to out.” Domina persisted nonetheless for sev- Alexis immediately why, asked denied caus- eral more minutes. ing any disturbance, and right claimed a to Ultimately, Domina said to Alexis, “I don’t eating finish in the restaurant. When she have you.” listen replied, Alexis urged Leporati ask other restaurant cus- 1. genuine dispute material facts in summary relat- At judgment, we must credit Alexis’s light ed in the most yell favorable to statement that plaintiffs-appel- she did not cause a “distur- lants, against supra bance.” See summary note 1. judgment But since it is whom uncon- was en- tradicted, we also must assume that tered. See Domina v. SMA Assur. Velez-Gomez Life Leporati that Alexis had caused dis- a Cir.1993). informed turbance. Id. charged crimi- eventually was with Alexis any distur- had been there

tomers whether under Mass. misdemeanor trespass, a nal simply reiterated bance, Leporati 1994). (West 266, § 120 eh. Ann. Gen.Laws leave, returned then have to family would by jury, Alexis acquittal Following her counter.3 the service action family present filed the her counter, relayed service At the District for the District Court United States and informed Alexis with rights his conversation Massachusetts, asserting civil family refused had Alexis & §§ Domina 42 U.S.C. claims under dis- Domina presence, use of Leporati’s 1985(3), In claims for as law leave. as well state who Sherry Topham, force, of emo- infliction matter with intentional excessive cussed assault, battery, impris- distress, false “problem” having had tional recalled onment, abuse prosecution, and Domina malicious point, At occasion.4 prior on a granted sum- court process. The district case, maybe stated, “Well, then if that’s on all defendants mary judgment for the that, Ser- her leave.” With have we should force excessive and on the claims federal to the Alexis Leporati returned geant Leporati under Mass.Gen.Laws arrest- that she would and advised grant- Finally, § 111. the court Ann. ch. backup arrived. his she left before ed unless judgment for all defendants summary ed that she reiterated supra note 3. Alexis Cf. claims, stat- without remaining state law eating. right to finish had the she believed appealed. grounds. Plaintiffs ing its for back- dining area to call left the up. II later, Officer minutes Approximately ten DISCUSSION was told and Alexis Fuer arrived William judgment is re summary grant A under being placed she was in the same criteria novo under viewed de directing Then, asking or without arrest. court; it cannot upon the cumbent district table, Leporati up the get to from Alexis discloses appeal the record unless stand pulled violently grabbed and suddenly and fact and the trialworthy material issue of no the across bodily from booth and the her judgment as a to moving party is entitled behind table, tightly hands her handcuffed Rivera- v. law. Guzman-Rivera matter of Fuer, back, and, help the of with Officer her Cir.1994). (1st Cruz, 3, 4 F.3d booth, bruising her the dragged her from she was Insisting process. legs A. Section arrest,” the offi- Alexis asked resisting “not proscribes intentional Section Instead, they walk out. allow her to cers to Bldg. based on race. General discrimination and carried her her her elbows hoisted Pennsylvania, 458 U.S. Ass’n Contractors car, where to the from the restaurant 375, 391, 102 73 L.Ed.2d S.Ct. the with into the car Leporati pushed her (1982); v. Dartmouth Review Dartmouth instruction, your ass in there.” “Get Cir.1989). The College, 889 the res- removed from of being competent was As she found no evidence district court repeatedly taurant, Alexis Alexis and her husband discrimination. race-based intentional being Do why against treated claims she was section presses asked the officers her said, her theory “We Mr. Alexis McDonald’s on the When mina and in this manner. dining area peo- from the responded, “You exclusion race-based have rights,” con right to and enforce your make up violated her rights. You better have no shut ple 1981(a).5 to de- § As 42 U.S.C. you tracts. too.” I [expletive] mouth before no family that there had lem." As Alexis attests why Alexis to is as all 3. The record silent incident, required to assume as leave, prior we though only members were ordered exchange at the much. the in Alexis had been involved counter. service 1981(a) entirety: provides in its 5.Section Unit- jurisdiction persons within All con- no other information 4. The record reflects every right in have the same “prob- ed shall States timing such cerning nature or Leporati, alleges fendant she that her race- tions that Domina reacted'“angrily” toward deprived right based arrest her of the to “full Alexis and negative with “a tone in her equal voice,” benefit of all proceedings laws and was “unfriendly,” “uncooperative,” persons for the security of and property “high as is strung,” “impolite,” “impatient,” and citizens,” enjoyed by 1981(a), § white id. eject and had “no reason” to Alexis. Although punishment, pains, penalties “like ... of these may observations entirely be compati kind, every to no (emphasis other.” Id. animus, ble a race-based simply there added). no foundation for an inference that Domina harbored a racial animus toward 1. Domina and McDonald’s anyone else, probative absent some evidence petulance Domina’s stemmed excluded, from initially district court in- as something other than a 56(e) (affidavits competent, race-neutral reaction see Fed.R.Civ.P. to the stressful plainly encounter may evidenced summary judgment considered summary judgment record, including only if facts attested to are based on admissi- (however persistence Alexis’s justified). evidence); ble As Fed.R.Evid. portions of depositions disclosed no evidentiary deposition testimony foun of six witnesses— for an animus, dation inference of racial the five members and Karen conclusory lay opinions Stauffer, were properly exclud eyewitness to the events —each 701(a); ed. See Fed.R.Evid. effect, opined, whom Fed.R.Civ.P. that had Alexis 56(a); Willco (Trading) Kuwait woman,” S.A.K been “a rich white she would not deSavary, (1st Cir.1988) 843 F.2d have been treated the same manner. The (lay opinion testimony, which does little proffered court found more testimony that the jury than tell reach, what result to “not supported by should sufficient factual under- admitted); not be see also girding” Connell v. Bank permit a reasonable inference Boston, 1169, 1177-78 (1st Cir.) (lay that either Domina or McDonald’s discrimi- “ opinion employer was nated ‘determined to Alexis on the basis of her race. — that ... employees’ eliminate senior pointed The court nonetheless allowed Alexis further ”— specific facts sufficient buttress such a supplemental time to submit affidavits set- assertion”) (ADEA “broad claim), ting cert. de particular forth grounds more for the nied, conclusory deposition testimony relating to (1991); L.Ed.2d 997 Gross Burggraf v. racial animus. Alexis failed to do so. cf. (10th 53 F.3d Constr. 1544 Cir. Opinion testimony lay from wit 1995) (determining lay inadmissible opin nesses is only admissible if “rationally it is ion of co-worker that sexual harassment de based on the perception of the witness and problem fendant had “‘a with women who ... helpful to a clear understanding of the were not ages between the of 19 25 and and testimony witness’ or the of determination weighed ”); who than pounds’ more 115 701; the fact in issue.” Fed.R.Evid. see Overland, Inc., Coca-Cola Co. v. 692 F.2d Swajian v. Corp., General Motors (9th Cir.1982) 1254-55 (upholding ex (1st Cir.1990). 36 Rulings on admis lay opinion, clusion of testimony by bar and sibility lay of opinion testimony are reviewed restaurant employees that customers used only for “manifest abuse of discretion.” sense). term “Coke” in generic Jackman, (1st United States v. 48 4 F.3d Cir.1995) States, (citing Keller v. United 38 As points to no competent evi Cir.1994)). F.3d 31 exclusionary dence that Domina and McDonald’s inten ruling was within well the district court’s tionally discriminated on her account broad discretion. race, of her correctly court district ruled deponents The six based their inferences that this section 1981 claim was trialwor of racial personal animus their thy. Review, observa- See Dartmouth 889 F.2d at 18 Territoiy State and citizens, to make erty and enforce con- enjoyed as is white and shall

tracts, sue, evidence, parties, give to be subject and punishment, pains, to be taxes, licenses, to penalties, like equal the full and pro- kind, benefit of all laws and every and exactions of ceedings security persons for the prop- of and to no other. 348 general rights” too have people no mutual out of arise generally (‘“Disputes —is 1981(a) , Given its claim. support section misinterpretation and ov

misunderstanding, context, agree. we cannot more, disputes such erreaction, and without of discrimina inference to an give rise do not this who credited factfinder A rational Legal ”) Servs. (quoting Johnson tion.’ judg- summary statement, of must at as we Cir.1987)). (8th Ark., Inc., F.2d 1, reasonably ment, could note supra summary judgment entered Accordingly, the racial animus Leporati harbored a infer must be and McDonald’s of claim, in favor Domina a support section adequate to affirmed. that the record reflects especially since the physical character- or only relevant behavior Leporati and shared apparent istic—both family have consid black skin. their appeals by the Alexis All courts —was be hard- Indeed, that a misuse of factfinder would held a rational have question ered the inference, ani plausible racial more glean motivated a power pressed governmental “equal bene tendered has squarely particularly within the since mus comes by the of section interpretation supported clauses punishment” alternative fit” and “like Waddle, context, 1981(a). F.2d in there- Viewed present record.6 Mahone Cir.1977) (false arrest), statement, tarring (3d the en- fore, 1027-30 a denied, the same brush —absent with tire cert. member, (1978); Evans v. see also of evidence scintilla L.Ed.2d 1147 (9th Alexis, said or exception Cir. had possible 1344-45 McKay, F.2d remotely disorder- 1989) wrong of section 1981 (reversing anything dismissal done reasonably presumed others so inno- ly officers alleging claim —cannot arrest-boycott discriminatory animus. “racially-motivated preclude cent as instigated Parish v. Franklin conspiracy”); Coleman evi Accordingly, we that the hold Cir.1983) (5th Bd., 76-77 Sch. summary judgment, viewed dence adduced factfinding on section 1981 (remanding for context, support a reason sufficient pupil black officials denied school only gratu Leporati not inference that able proceedings relat equal of laws benefit arresting itously employed excessive force We have corporal punishment). ing to motivated his actions Alexis but that were or reason for no basis law presented with “equal bene violative a racial animus authority. solid line this departing from of section punishment” “like clauses fit” and 1981(a). Thus, trial-worthy Alexis raised arrest, Sergeant Leporati During the Lepo as to under whether no issue section people have “You Alexis: stated to Mr. equal bene of “the full and deprived her your ... mouth rati up shut rights, better You persons accorded white fit” of the law insists that you I too.” before ... no punishment [and] right to “like Le the betrayed animus. a racial this statement 1981(a).7 § 42 U.S.C. other.” the responds that statement —“You porati Alexis, unexplained by to Mr. remains interpretation threat arrest only advanced 6. The alternative appeal. argumentation presented by any on objective undisputed are Leporati that "there is plaintiffs’ premise contrary to facts which course, immunity may be available qualified 7. Of (i.e. people not ordered to were four black that § a 1981 action. in to a defendant arrested).” undisputed The not and leave were Maine, Inc., 768 F.2d Key v. Bancshares Ricci Lepo- portion of flatly a material facts contradict Cir.1985) (FBI 456, (1st agents entitled 467 assertion, When however. parenthetical rati’s 1981(a) action); immunity § see also qualified area, dining Leporati them confronted first Servs., Mississippi Employment 41 St. v. Wicks family to leave. See - Alexis the entire denied, he ordered 991, (5th Cir.), 21 n. cert. F.3d 996 returning to the service supra p. After 345-46. -, 809 132 L.Ed.2d S.Ct. U.S. 115 their refusal Denver, Domina of counter to inform leave, (1995); 364 Gallegos v. 984 F.2d Topham learning denied, -U.S. -, recalled a upon Cir.), (10th 113 S.Ct. cert. Leporati past, (1993); re- "problem” Alexis in v. Estate with 662 125 L.Ed.2d Johnson Cir.1991); (6th Laccheo, intention his table and announced F.2d 112 turned to the 935 cf. Lounge, v. Moody arrest Inc. only decision to St. Restaurant & Given his Yerardi’s to arrest Alexis. (1st Selectmen, retort, 19-21 Alexis, people have only Leporati’s “You Board of 1989) immunity (recognizing qualified de- subsequent Cir. accompanied by the rights,”

349 1985(3) B. Section 1. Arrest Without Probable Cause alleged Leporati a. “directly Domina conspired and explicitly deprive equal protection, [her] of the equal The Fourth guaran Amendment privileges equal rights guaranteed ty her unreasonable seizures of per

under the Constitution and the laws of the requires son that arrests be based on proba United States” of 42 violation Ohio, U.S.C. ble cause. Beck v. 89, 91, 379 U.S. 85 1985(3). 1985(3) § trialworthy A section 225-26, con S.Ct. (1964); 13 L.Ed.2d 142 spiracy requires competent Fenton, Santiago evidence (1st F.2d racial, that “‘some or perhaps Cir.1989). otherwise “probable The analysis cause” en “ class-based, invidiously discriminatory ani objective tails ‘an assessment of the offi mus’” alleged motivated the conspirators. cer’s light actions in of the facts and circum Bray Clinic, v. Alexandria Women’s Health stances confronting him the time’ and not 263, -, 753, 758, 506 U.S. 113 S.Ct. 122 [an assessment of] the officer’s state of mind (1993) L.Ed.2d (quoting v. Breck at the time the challenged action was taken.” Griffin enridge, 88, 102, 1790, 1798, 403 U.S. 91 S.Ct. Macon, Maryland 470-71, (1971)). predicated L.Ed.2d 2778, 2783, (1985) S.Ct. 86 L.Ed.2d 370 1985(3) her conspiracy section claim on (quoting Ser States, Scott v. United geant Leporati’s statement: ‘You people 56 L.Ed.2d 168 rights.” have no Although evidence, (1978)). this Probable cause will be found if “the context, viewed in is sufficient to enable facts and circumstances within [the officer’s] reasonable inference that harbored knowledge and of [he] had reasonably requisite animus, racial swpra trustworthy Section information were sufficient II.A.2, there is no sup evidence which would warrant prudent [person] in believing that port such an inference as to Domina. the [defendant] had committed or com mitting an offense.” Murphy, Rivera v. C. Section 1983 Cir.1992). gravamen federal these claims Sergeant Leporati, acting under color i. Revocation of Invitation law, Massachusetts deprived Alexis of her Although appellants argue that Fourth right Amendment to be free from district finding probable court erred in cause seizure of person unreasonable her effect- arrest, for Alexis’s we perceive no error. As ing her misdemeanor excessive noted, previously Alexis was for arrested force, without a warrant proba- and without trespass, criminal a misdemeanor under ble cause. She also claims that Domina de- applicable Massachusetts statute: prived procedural her of process by due sum- moning Leporati into the Whoever, restaurant di- right without enters or remains recting her removal under color of upon state law. in or ... buildings ... of anoth- Finally, alleges she er, determined having after forbidden so to do her, to arrest arrest, and effected her person in a who has lawful control of said discriminatory maimer, premises based her race ... punished shall a fine of and in violation of Equal Protection not than more one hundred dollars or Clause of the Fourteenth imprisonment Amendment. thirty more than equal § protection fense to 1983 analogous public that “a concluded official's motive or in “equal case). to benefit” claim in instant Never- tent qualified must be considered the immuni theless, qualified immunity inquiry ty does “not bar analysis where unlawful motivation or intent is into a state defendant's of appli- mind when the a alleged critical element of the constitutional (as cable law violation”) makes the cases). Thus, defendant’s state of (collecting mind Le- whether law) distinct knowledge from defendant’s porati of the rights violated Alexis’s civil under plaintiff’s an 1981(a) essential element of § constitutional turns on a material issue of fact in Rivera-Cruz, Feliciano-Angulo claim.” v. genuine dispute, precluded 858 summary judg 40, (1st Cir.1988); 46 Tompkins 47; see also v. ment. Feliciano-Angulo, See 858 F.2d at see Vickers, 603, (5th Cir.1994) — Jones, (noting 607 -, -, also v. Johnson U.S. 115 every

that question circuit to (1995). consider the has S.Ct. 132 238 L.Ed.2d 350 today’s constitutional context of right the imprison- and fine such days or both plain the ment_ any right of includes developments commit- who is found person A collectively, tiffs, individually found or may arrested a be trespass ting such States....”), the of United custody in a Constitution kept in and police officer aff'd ... 608, 277, L.Ed.2d mem., 24 twenty- 396 than place, not more convenient Restaurants, (1970); v. Suburban Smith 469 until a com- hours, Sunday excepted, four 215, 528, 218 Inc., 373 N.E.2d 374 Mass. the him for be made plaint can of (1978) place “[a] case that (noting libel upon a warrant offence, taken he accommodation, the of as members public complaint. upon such issued know, obligation to has an community might 266, (empha- § 120 ch. Ann. Mass.Gen.Laws equally, public of the each member treat 266, added). Thus, chapter section under sis (citations cause”) (dicta) except good for remains, right, on 120, without person who a Mass. omitted); Lapon, 28 v. Commonwealth continuing a another commits property of

the (1990) 1225, 681, 1227 N.E.2d App.Ct. 554 subjected may be which she misdemeanor (the encompasses con right” term “without a officer to a warrantless rights). stitutional Id. probable cause. there is provided that Do- demonstrate facts undisputed Nevertheless, Massachusetts the to leave the expressly directed mina power of not limit the trespass does statute restaurant, re Alexis nevertheless but summarily to owner business Massachusetts her had until she and fused leave right to enter licensee’s a business revoke authority Appellants eating. finished cite open to premises held upon business remain Massachu suggestion that implicit for their Loth Stager v. G.E. general public. See the seeming to the exception an recognizes setts 464, 197 N.E. 291 Mass. rop Theatres private business owner right of a ly absolute (1935) that, speak “[generally (finding 87 cause, implied li withdraw, its without right to owner has absolute ing,” a theater a business establishment. to enter cense Cf. or re theater-goer’s license to enter revoke (Me. Tauvar, 1067 461 A.2d v. State Publish Baseball premises); main on the cf. 1983) (Maine permits revo trespass statute Bruton, N.E.2d 18 v. 302 Mass. ing Co. only where busi invitation implied of cation (“[I]t (1938) essence of a is of the 363 re justification for “has some ness owner it is private property] license enter [to removal”); Penal Code Model questing the of possessor at the will of the revocable (affirmative 221.2(3)(b) to criminal defense § may license of a The revocation land.... “premises evidence trespass requires contract, give rise of constitute breach public [de members of the open ... damages. it is none But to an action for all conditions complied with lawful fendant] licensee of all deprive to- less effective remaining in to or access imposed on remaining upon entering or justification for Moreover, have combed premises”). we Hood, land.”); v. Commonwealth exception, such an law for Massachusetts (stat (1983) N.E.2d Mass. no avail. trespass statute ing that Massachusetts “ con rights in lawful of those held, course, ‘protects] the we do not It has been by those property to forbid entrance trol business a Massachusetts question, receive, and to unwilling to they whom the constitu- may not owner violate property entered, if, those in having them licen- exclude statutory rights of business its tional or ”) leave’ to command them control see fit Massachusetts under shield sees Richardson, 313 (quoting Hurley Hinckley, Commonwealth trespass statute. (1943)); (“The (D.Mass.1969) N.E.2d Mass. F.Supp. Bowman, 124 Idaho also State v. context of right’ in words “without (in involving (Ct.App.1993) case only P.2d can mean: concept trespass historical the purchased movie who any right, business invitees n without legal right; without tickets, trespass stat holding that Idaho ater recognized law as license permission or of require owner[s] the ute “does not entry into area described the permitting asking any for have property reason legal private concept [of] ... The statute.[’]

351 trespassers get land”); off Impastato their by rested a ... police officer_”); see also Enters., Inc., 788, v. Heilman 147 A.D.2d 537 Figueroa, United States v. 818 F.2d (1989) (same). (1st Cir.1987) (“The N.Y.S.2d 661 Absent 1023 constitutionality of therefore, purpose, some invidious ulterior a warrantless ‘depends ... upon proper given once notice has by whether, the at the moment the made, arrest was owner, and the business licensee nonetheless the officers had probable cause to make it— property, remains the the Massachusetts at whether that moment the facts and cir- trespass permits statute arrest of the un- cumstances within their knowledge and of cooperative trespasser. Hood, See they 452 which had reasonably trustworthy infor- N.E.2d 194. mation were sufficient to prudent warrant a [person] believing that the [defendant] had Although the Massachusetts tres ”) committed or was committing an offense.’ pass statute does not enable business owners Beck, (quoting 379 U.S. at 85 S.Ct. at to exclude business licensees on discriminato 225). Accordingly, we discern no error in grounds, ry Hurley, 304 F.Supp. at the district ruling court appellants failed proffered competent no evidence that trialworthy establish a dispute on the issue McDonald’s, Domina or distinguished as probable of cause to arrest. Leporati, sought from her on exclude the basis of her supra race. Section II.A.1. b. Domina Thus, evidence, on the record Domina acted A section 1983 claim does not lie within her authority lawful person “the—as absent Marie, state action. Casa Inc. v. [having] lawful control of premises,” said Superior P.R., Court 988 F.2d 258 of § Mass.Gen.Laws Ann. ch. 120—in re (1st Cir.1993); § 42 U.S.C. 1983 (providing voking Alexis’s implied license to utilize Mc remedy deprivations for “under any color of dining Donald’s facilities. statute, ordinance, regulation, custom, or us age” territory). state or There are ii. Probable Cause components two to the require “state action” Probable cause exists if “the facts First, ment. deprivation the must be shown within police circumstances [a officer’s] to have been by caused the exercise of some knowledge and of which [the had officer] right or privilege by state, created the byor reasonably trustworthy information suf [are] a rule of imposed conduct state, or ficient in [person] themselves to warrant a person for whom the responsible. state is reasonable caution” believe that a crime Marie, Second, Casa F.2d at has been being committed or is committed. party charged with deprivation must be a States, Carroll United 267 U.S. person may fairly who be said to a state (1925); 45 S.Ct. 69 L.Ed. Unit actor. Id. private aWhere individual is a Drake, States v. ed action, defendant in a section 1983 there Cir.1982). Leporati effected this arrest must be a showing that private party and eyewitness based on the report from Domina the state actor jointly deprived plaintiff of that Alexis had created an “unwarranted dis rights. Adams, her civil Wagenmann v. turbance” and premises, refused to leave the (1st Cir.1987); Marie, Casa representation and on the by Sherry Topham 258-59; 988 F.2d at see also Dennis v. that there had unspecified been an “problem” Sparks, 24, 27-28, past. Alexis in objectively An rea 186-187, (1980) (“Private per L.Ed.2d sonable officer so informed sons, jointly engaged with state officials in person in charge of premises, the business action, challenged acting ‘under color’ swpra 2, fairly note could conclude that actions.”). law purposes § implied license extended to Alexis had been revoked probable there was joint There evidence of dis cause to believe presence that her criminatory continued action between and Do constituted a trespass. criminal See Mass. by plan, mina —whether prearrangement, (“A 266, § Gen.Laws Ann. ch. person ... conspiracy, custom, policy would —which committing found such trespass may be ar- enable a rational factfinder to conclude

352 Connor, v. Graham ... seizures.” action able from concerted resulted Alexis’s arrest 1865, 1871, 386, 394, 104 109 S.Ct. of a 490 U.S. judgment substituting the tantamount (“Where (1989) excessive [an] 443 allow L.Ed.2d police or of the for that party private of an arrest in the context claim arises power. force state to exercise party ing private the citizen, it is stop of a free investigatory 209-11 F.2d at or 829 Wagenmann, Compare invoking as one characterized properly citizen private most (close relationship between Amend- the Fourth chief, with evi of together protections the police deputy and ment_”). set- Amendment In the Fourth collective police and actor private dence that must dem- claim raised infer force plaintiff, ting, a viable excessive to arrest ly determined “mere actions police than the defendant’s was more actor onstrate private ence reasonable, “meeting objectively of the viewed not and were complainant” private confront- police and circumstances light between of the facts occurred minds” finding underlying regard to his to warrant without ing sufficient him and defendant actor) Carey at at 109 S.Ct. state Id. or motivation. defendant intent Inc., Airlines, (“An 823 will not intentions evil officer’s Continental 1872 Cir.1987) (airline employee, who (10th out of Amendment violation make a Fourth presence force; pilot’s striking airline of of nor complained objectively reasonable use an leave, refusal ob- airport terminal make an good intentions will an officer’s actor where state not to be constitu- found use of force jectively unreasonable airport terminal asked omitted).9 tional.”) (citations officer summoned refusal, and, called pilot’s upon pilot to leave who escorted officers for three additional has coun Supreme Court theAs he was security where station airport pilot to seled, undertaken from inquiry must be our & Kress arrested); Adickes v. S.H. also officer on of “a reasonable perspective 1598, 1605-06, 90 S.Ct. 398 U.S. scene, than with the vision rather 20/20 (1970) (holding that white 26 L.Ed.2d 142 at S.Ct. hindsight.” Id. at of youths schoolteacher, of black company six omitted). (citations Though the reasonable “ counter, would be at lunch denied service ‘is Fourth Amendment under the ness test upon under section entitled relief or mechani definition capable precise po ” employee and counter proof that lunch Wolfish, (quoting Bell v. id. application,’ cal understanding to an had reached liceman 99 S.Ct. was a she deny to teacher because service (1979)), every push or “‘[n]ot L.Ed.2d blacks). As company ” person in white required for an the level will reach shove’ summary judg no there is evidence (cita claim. Id. force” actionable “excessive fairly it could be which from ment record Salem, omitted); Gaudreault tion Leporati had that Domina inferred Cir.1990) (“[P]olice officers deprive explicit, to tacit or understanding, to make often forced making arrests by the Constitu any right secured amount of decisions about split-second States, con we United laws tion or operat while to effect force needed correctly granted court clude that the district tense, rapidly- dangerous and ing under sec on this for Domina summary judgment denied, circumstances.”), cert. changing tion 1983 claim.8 L.Ed.2d 718 111 S.Ct (1991). prescribes Accordingly, Graham Force 2. Excessive objective evaluating the three criteria (1) used: “the of the force reasonableness an “excessive asserts (2) issue;” “whether severity crime Amendment, of the the Fourth force” claim under threat to the suspect an immediate poses right “to citizens guarantees others;” (3) safety of officers unreason- ... persons against in their secure credibility assessing the officer's finder—in section 1983 —to 8. Alexis asserts ill harbored will the officer whether determine McDonald's. Graham, n. 490 U.S. at 399 plaintiff. toward course, of racial discrimination evidence 9. Of if n. at 1873 trial, the fact- be for presented at it would were suspect] actively resisting anyone.10 Sanderson, [the “whether See Palmer v. 9 F.3d (9th Cir.1993) attempting arrest or to evade arrest (finding trialworthy Graham, flight.” 490 U.S. at deputy “excessive force” claim where sheriff Gaudreault, 1872; arrested, tightly handcuffed, at see also 923 F.2d at and bruised six ty-seven-year-old 205. impaired man with mobility who attempted to return to his car to sit factors, All three Graham viewed in the down answering while questions); officer’s totality circumstances,” context of “the of the see also Rowland v. Perry, 41 F.3d Graham, 1872; 490 U.S. at 109 S.Ct. at (4th Cir.1994) 171-74 (finding trialworthy “exces supra p. weigh heavily see also in favor sive force” claim police injured where officer First, of Alexis. the crime for which she was leg (“wrenching arrestee’s until knee it trespass arrested —criminal a misde- —is cracked”) picked after up arrestee five dollar meanor. See Mass.Gen.Laws Ann. ch. dropped by owner); bill its Lester v. Chi cf. (maximum § days). Second, term 30 (7th Cir.1987) cago, 830 F.2d (pre- suggestion posed there is no that Alexis case) (holding Graham plaintiff stated peace safety anyone, threat to the or trialworthy Fourth Amendment “excessive including Sergeant Leporati and Officer when, force” claim during course of arrest Third, taking Fuer. her evidence at face disturbing peace, plaintiff was kneed value, attempt- Alexis neither threatened nor back, being struck, threatened with any or ed evade resist arrest. Nor did dragged hallway, down a and handcuffed pose member a threat to the tightly, causing wrists); bruises on her Patz Yet, anyone officers or else. without even Burkett, (8th ner v. 779 F.2d having requested get up or directed to Cir.1985) case) (pre-Graham (finding trial- though from the table —and all the surround- worthy “excessive force” claim where un circumstances, ing individually and in combi- cooperative amputee double —arrested nation, plainly counseled minimal force in allegedly home driving after under the influ effecting any abruptly arrest —Alexis was pulled floor, ence—was from wheelchair to booth, table, pulled from the and across the dragged through then promising home after legs, with sufficient force to bruise her then cooperate).11 Accordingly, the “excessive handcuffed with her hands behind her back force” claim must be remanded for further dragged to a carried cruiser proceedings.12 pushed inside. accepted Viewed context and Equal 3. Protection true, persuaded as we are not that the record compelled evidence conclusion that Alexis claims that discriminated force with which race, effected the sud her on the basis of her both den, unannounced, violent deciding seizure and remov trespass enforce the criminal person al of objectively arrest, Alexis’s effecting reason statute her immediate able, especially by employing since there is no evidence or unreasonable force. Even suggestion posed flight, arrest, that she assuming probable risk cause she ar- attempted arrest, gues to resist or evade or would not have effected peace, property safety threatened the person immediate seizure of her for so bruises); qualified only 10. The district court did not Harper discuss consisted see also immunity (5th in relation to the "excessive force” Cir.1994) County, Harris we, claim. Nor do as such defense is for the (holding plaintiff prove “significant need not district court in the first instance. injury” to assert Fourth Amendment "excessive claim). force” Contrary Leporati’s suggestion, a trialwor- thy precluded "excessive force” is not proceedings 12.We likewise remand for further merely only injuries because minor were inflicted Lester, "excessive force" claim under Mass.Gen. (find- by the seizure. See 830 F.2d at 714 12, 111,upon § Laws Ann. ch. which the district ing reversible error in district court “excessive granted summary judgment required jury court on the identi- force" instruction which to find grounds injury,” may jury "severe thus have led cal relied on for the section "ex- to find plaintiff's physical injuries for defendant where cessive force” claim. liability § from under infraction, not shield them used such excessive nor minor an prove plaintiff her skin. could that officers’ force, provided the color of it not for were plaintiff harass for arrest was to motivation summary judg In to avoid order beliefs). Further religious of his because claim, Equal Protection Clause on her ment more, factfinder could conclude a rational competent evidence that to tender Alexis had that, excessive force to electing in to use intentionally discriminated a state actor person violent seizure of Alexis’s effect the pro belonged to a she against her because restaurant, from the and her forcible removal Morel, 876 F.2d v. tected class. Johnson by discriminatory Leporati a was motivated Cir.1989) (5th Washington 477, (citing Fontana, 818 F.2d See Smith v. animus. 2040, 247-48, Davis, 229, 96 S.Ct. 426 U.S. Cir.) (9th (finding actionable claim (1976)), 2051-52, on overruled 48 L.Ed.2d 597 had alleged it was that decedent where County, 21 Harper v. Harris grounds, other through of excessive force be subdued use Cir.1994). (5th This she did. F.3d denied, black), cert. cause he was A rational factfin supra II.A.2. See Section (1987). 98 L.Ed.2d 269 108 S.Ct. der, racial evidence of who credited Alexis’s hold, present on the therefore based We force, could conclude and animus excessive record, Equal Protection Clause resolved, Leporati on the basis of her trialworthy.13 claims under section 1983 race, trespass criminal statute to enforce the effecting immediate seizure of her an D. Law Claims State Hopkins, 118 U.S. person. Yick Wo v. See 356, 373-74, 30 L.Ed. 220 6 S.Ct. only state law claim was ad- Since one (1886) (“[I]f applied and adminis [the law] below, supra the merits note dressed on eye authority an public with evil and tered pending, claims remain and federal hand, practically to make unequal so as Leporati against law claims must be state between unjust illegal discriminations remanded as well. 28 U.S.C. circumstances, in material to persons similar 1367(c)(3) (district may § court decline to equal justice rights, is still their the denial jurisdiction supplemental where all exercise constitution.”); prohibition of the within jurisdic- original court has claims over which Johnson, (plaintiff stated 876 F.2d at 479 dismissed). The dismissal of tion have been claim, Equal where viable Protection Clause remaining the state-law claims plaintiff prior humiliated and harassed officer is affirmed. defendants plain during arrest on basis of to and lawful race); Scopo, tiffs United States Ill (2d Cir.) (“Though the Fourth arrest, pretext if oth permits Amendment CONCLUSION cause, supported by probable erwise judgment dismissing The district court imposes re Equal Protection Clause still against Leporati for ar- section 1983 impermissibly class-based discrimi straint resting probable cause in vio- Alexis without nations.”) C.J., (Newman, concurring), cert. — lation of the Fourth Amendment is affirmed. denied, -, 207, 130 judgments in favor of Domina The entered Sullivan, (1994); Inada v. L.Ed.2d 136 claim; McDonald’s on the section 1981 (7th Cir.1975) (finding right F.2d 1985(3) Leporati Domina and on the section Equal Protection Clause where action under claim; pro- and Domina on the section 1983 officer, motivated animus toward process cedural due claim are affirmed. The ancestry, him with de- plaintiffs threatened Heise, judgment district court entered favor portation); Tanner v. force, Cir.1989) (where (9th excessive on the section plaintiff al- 580 n. 5 violation, Equal Protection Clause claims is vacat- police offi- leged “equal protection” ed, and these claims are remanded for fur- compliance” “mere with state law would cers’ course, might required equal protection at trial to claim re- additional evidence 13. Of Alexis’s Johnson, showing quires differ- satisfy treated her 876 F.2d at this element. See person. ently he have treated a white than would (concurring opinion). 483-84 what, any, open question We if leave proceedings opinion, consistent with this had premises. ther to leave the Yvonne Alexis pendent they along with all state law claims stated that would they not leave until 1367(c)(3). this, § against Leporati, eating. Upon hearing see 28 finished U.S.C. Officer parties dining shall bear their own costs on left the area and conferred again appeal. Topham and Domina. He told them that Alexis refused to leave. SO ORDERED.

During discussion, this second Topham BOWNES, said problem she had a Judge, Senior Circuit with this woman on a prior said, “Well, occasion. concurring, part, dissenting, part. Domina then if case, maybe that’s the then we should have holdings I in all of concur the court’s ex- her leave.” Neither Domina nor Officer Le- cept dismissing the one the section 1983 porati requested information about the al- against Domina. The evidence taken leged prior problem with Significant- Alexis. light plaintiffs most favorable to the ly, Leporati again Officer inquire failed to as sufficient, believe, I for a reasonable fact- why being he was told to remove Alexis conspira- finder to conclude that there awas Instead, from the restaurant. he said that cy Leporati between Domina and to discrimi- “it pretty” wouldn’t be but he would make against plaintiff, Alexis, nate Yvonne be- Yvonne Alexis if leave Domina him wanted cause of the color of skin. her to. Domina then told him that she wanted Yvonne Alexis out of the restaurant. I. Leporati Officer returned to the Alexis The facts from which a conspiracy such table and notified Yvonne Alexis that she rationally could be inferred are as A follows. would be arrested unless she left within the dispute over an incorrect food order occurred ten it backup minutes would take his cruiser at the McDonald’s service counter between to arrive. Neither Yvonne nor member Alexis, plaintiff Yvonne an African American family arrived, of her left. When the cruiser woman, Domina, “swing Donna manag- Leporati physically Officer pulled Yvonne er,” counterperson, and the Alfredo Pascado. Alexis out of her seat and over the table at over, dispute Sherry Topham, After the family she and her had eating, been managerial employee, McDonald’s went bruising process. her Yvonne Alexis outside the restaurant assistance. handcuffed, cruiser, pushed was then into the Leporati, She returned Officer a uni- jail. and taken to off-duty police assigned formed officer to Mc- Both pro- Yvonne Alexis and her husband pursuant agreement Donald’s to an between tested the violent treatment she received Framingham. McDonald’s and the Town of Leporati during from Officer her removal Leporati conferred with Topham both juncture, from the restaurant. At one Mr. Domina, who identified Yvonne Alexis as exclaimed, rights,” ‘We have to which “that black Leporati woman.” Domina told retorted, Officer people ‘You have that she wanted Alexis out of the restaurant. rights. your up [exple- You better shut request though Domina made this even she you mouth before I tive] too.” Officer family was aware Yvonne Alexis and her had Leporati made these comments while still already preparatory eating taken seats inside the restaurant. they purchased. food had Officer Topham neither asked II. why and Domina he should make Alexis leave inquiries anybody the restaurant nor made majority opinion’s cursory treatment family. else as to the behavior of the Alexis of Alexis’ section 1983 claims overlooks sev solely Based on his initial discussion with finding eral factual bases for that there was a Topham, Domina Leporati proceeded conspiracy within section 1983’s color “under dining requirement room table where the fami- of law” between Domina and ly quietly eating sat Leporati. Lugar their food. He told v. Edmondson Oil Yvonne Alexis that she and her entire (a off-duty (“ employs police offi- (1982) of law has store ‘under color

L.Ed.2d vicariously liable under section thing is not as the same cer consistently treated deprivation of custom- the Four 1983 for such officer’s required under action’ as the ‘state Amendment”). But, persuaded I am rights). Evidence submitted civil er’s teenth trial, “light most favor Domina and conferred fact that when viewed nonmoving party” and with “all Alexis’ brutal separate occasions before able to the two favor,” Domina, party’s in that inferences record establishes that reasonable arrest. The Proc. As Apartment expel Co. v. Leporati, Courts made the decision to Colonial Cir.1995), socs., sup premises, and that Alexis from McDonald’s that Alexis’ arrest resulted ports knowledge the view made that decision with the she (Alexis’ Domina and action between from concerted harm could befall Alexis that some Leporati. pretty”). And it is removal “would not be Leporati would that Domina knew that clear “commonly conspiracies Section requested. do as she more ‘a combination of two or defined as un acting in concert to commit an persons context, precipitating Viewed in the events act, a lawful act or to commit lawful claims Domina cast Yvonne Alexis’ means, principal element unlawful majority’s long of doubt on the con- shadow parties to agreement is an between the sug- “no evidence” to clusion that there was injury wrong against upon anoth inflict a against Domina should gest Alexis’ claims er’_” Benoit, Earle v. 850 F.2d 844 summary judgment. The have survived Cir.1988) (1st Hampton Hanra (quoting Leporati consulted with Domina facts —that (7th Cir.1979), han, 620-21 600 occasions; Leporati based his on two grounds, 446 part in on other U.S. rev’d order; to arrest Alexis on Domina’s decision (1980)). 1987, L.Ed.2d Un 100 64 670 S.Ct. Leporati that it could be found that both definition, liability 1983 at this section der into and Domina took Yvonne Alexis’ race par- private actors deemed “willful taches certainly something suggest more account — joint in action with a State or ticipantes] [a] neutral, independent, police race action. than Lugar, at agents.” 457 U.S. its reasonably could infer that Do- A factfinder 2756; Sparks, 449 at Dennis v. S.Ct. acting in mina and were concert (1980); 27, 101 66 L.Ed.2d 185 S.Ct. according one another to an informal Marie, Superior Puerto Inc. v. Court Casa of eject anyone plan whereby Leporati would (1st Cir.1993). Rico, 252, 259 And 988 F.2d restaurant identified Domina as fi-om the may joint proved action be circumstantial independently investigat- problem without a prearranged conspiracy. See evidence of a ing the situation. Adams, 196, 211 Wagenmann 829 F.2d (1st Cir.1987); see also Moore v. Market judgment of substituted ar Evidence such Restaurant, Inc., 1336, 1352 place 754 F.2d provides extending a for rangements basis (7th Cir.1985). liability private actors. See section (3d Donnelly, 727 F.2d Cir. Cruz v. joint in action existed I do not contend 1984) (holding pre-arranged of a evidence Leporati worked the Mc this case because suspected shoplifters without plan to arrest supervisor, that Domina’s Donald’s detail or presence independently investigating the of Sherry Topham, requested his assistance. “merely probable cause was needed to confer section clearly This court has stated liability); Lusby, 749 F.2d at 1432-33. request police pro initiating good faith generally it does not suffice to show liability attach for the sub While tection would not police private officer fulfilled a actor’s arresting of that a sequent unconstitutional conduct someone, 210; impose request to arrest courts will Wagenmann, 829 F.2d at officers.” Stores, Inc., police liability it is evident the officer Lusby Y. 749 F.2d where v. T.G. & also (10th Cir.1984), private not have acted without vacated on other would Cruz, at A Lusby, order. City Lawton v. actor’s grounds sub nom. investigate, though dispositive, failure to 88 L.Ed.2d 33 474 U.S. S.Ct. Cir.1986) (10th (1985), sufficiently demonstrative has been deemed by 796 F.2d 1307 aff'd conspiratorial Lusby, regarding conduct. Alexis were sufficient in duration F.2d at 1432. conspiracy. number to cement a These factors convince me that independent so, majority’s Despite attempts to do police persuaded actions which the Tenth squared holding this case cannot be with the private Circuit that no liability existed in Airlines, Inc., Carey in v. Continental Carey present are not in this case. (10th Cir.1987). F.2d 1402 In that ease the Tenth Circuit found that there was no substi- I am not dissuaded the absence of judgment police tuted where officer was conclusive express evidence that an plan to airport called into an striking arrest a discriminate existed between Domina and pilot. police Carey, airline The in officer Leporati. Supreme Court has found a however, independent was more of an actor section 1983 violation where there was no than the facts show Officer was in plan formal to discriminate. In Adickes v. actually this case. That officer conducted a S.H. Kress & separate inquiry into the facts before arrest- (1970), 26 L.Ed.2d 142 the Court held that a ing pilot. 823 F.2d at 1403. Officer policeman’s presence segregated in a lunch all, investigate choosing failed to might enough counter conspira to infer a solely to act at Domina’s behest. Additional- cy between the officer and the estab ly, noting it is worth that the use of excessive lishment, plaintiff where the had both been force and obvious racial overtones refused service and arrested. In a notable Leporati’s marked Officer actions this case decision the Seventh conspir Circuit found a present Carey. were not acy agents where the state with whom the closely The current patterns ease more private conspired actor actively were not in Adams, Wagenmann v. 829 F.2d 196 deprivation volved rights. See Sol Cir.1987), majority attempts a case the Cook, (7th dal v. County 942 F.2d 1073 distinguish. private In that case the actor Cir.1991), grounds rev’d on other by 506 U.S. enjoyed relationship a close with local (1992) 121 L.Ed.2d 450 carrying officers and enlisted them in out a (finding private deputy owner and sher plan eject potential agitator to from his conspired “get pesky iffs rid of a tenant” wedding ceremony. son’s We held that a passively when sheriffs watched an unlawful existed, conspiracy section 1983 concluding eviction). It necessary was not that there be that the defendant that case was essential- express plan evidence of an between Domina ly using the law enforcement in- officials implicate section 1983. own, volved achieve his unconstitutional There was sufficient evidence from which a ends. 829 F.2d at 211. factfinder could conclude that Domina and evidentiary A sound basis exists for con Leporati conspired Officer together to de- cluding Domina and adhered to a prive process right Yvonne Alexis of her due judgment policy substituted not unlike the not to probable be arrested without cause constitutionally Wag- one deemed violative deprivation and that such was based on the First, Domina, enmann. the record reveals color of Alexis’ skin. Leporati, impetus as the for the decision eject Second, Yvonne Alexis. Domina and above, For the reasons discussed I would Leporati, as individuals who worked at Mc judgment reverse the of the district court on Donald’s, could be found to have had a brought against the section 1983 claims Don- understanding deprive shared Yvonne na Domina. rights. Alexis of her See Adickes v. S.H. Kress & 90 S.Ct.

1605-06, (1970). Leporati 26 L.Ed.2d 142

worked the McDonald’s detail on numerous

occasions and must working have had a

knowledge company policy and decision

making procedures Finally, for removals.

the conversations Domina and held

Case Details

Case Name: Alexis v. McDonald's Restaurants of Massachusetts, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 10, 1995

Citation: 67 F.3d 341

Docket Number: 94-1554

Court Abbreviation: 1st Cir.