          United States Court of Appeals
                        For the First Circuit


No. 19-1852

  ALI ABDISAMAD, personal representative of the estate of R.I.,

                         Plaintiff, Appellant,

                                  v.

 CITY OF LEWISTON; LEWISTON SCHOOL DEPARTMENT; MAINE DEPARTMENT
           OF AGRICULTURE, CONSERVATION, AND FORESTRY,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Lance E. Walker, U.S. District Judge]


                                Before

                    Torruella, Lynch, and Kayatta,
                            Circuit Judges.


     Verne Paradie on brief for appellant.
     Edward R. Benjamin, Jr., Kasia S. Park, and Drummond Woodsum
on brief for appellees City of Lewiston and Lewiston School
Department.
     Jason Anton, Assistant Attorney General, Christopher C. Taub,
Deputy Attorney General, and Aaron M. Frey, Attorney General, on
brief for appellee Maine Department of Agriculture, Conservation
& Forestry.


                             June 2, 2020
             LYNCH, Circuit Judge.    Ali Abdisamad brought federal and

state civil rights claims and state wrongful death claims against

the City of Lewiston, the Lewiston School Department (together

"the City Defendants"), and the Maine Department of Agriculture,

Conservation, and Forestry ("DACF").           These claims were based on

his seventh-grade son R.I.'s death while on a Lewiston school field

trip to a state park.       The district court dismissed his claims.

Abdisamad    has   waived   any   challenge    to   the   district   court's

dismissal of his claims against DACF, and his allegations are

insufficient to state a constitutional tort claim against the

municipal City Defendants.        We affirm.

                                     I.

A.   Facts

             "We recite the facts as alleged in the plaintiff['s]

complaint, accepting all well-pleaded facts as true and drawing

all reasonable inferences in favor of the non-moving party."

Squeri v. Mount Ida Coll., 954 F.3d 56, 61 (1st Cir. 2020) (citing

Penate v. Hanchett, 944 F.3d 358, 362 (1st Cir. 2019)).

             The amended complaint's description of the events giving

rise to this case is unusually spartan.             On June 12, 2018, R.I.

took part in "a school-sponsored field trip to Range Pond State

Park in Poland, Maine for a group of seventh-graders." One-hundred

eleven students were accompanied on the trip by eleven chaperones,

all of whom were Lewiston School Department employees. The amended


                                    - 2 -
complaint does not allege whether any parents accompanied the field

trip.

             When the students arrived at Range Pond, "the team leader

discussed ground rules with the students."       DACF "only provided

one lifeguard at the beach area" and "did not offer or provide a

lifeguard or other representative to discuss safety rules within

the group."

             As to the circumstances of R.I.'s death, the amended

complaint alleges only that, at some point after 11 a.m.,

             a student reported to a chaperone that he
             could not locate R.I. According to witnesses,
             the lifeguard on duty appeared not to know
             what to do in the situation and asked other
             chaperones to get in the water to look for
             R.I.   After rescue personnel arrived, they
             were able to locate R.I. R.I. was taken to a
             local hospital where he was pronounced dead
             after arrival.

(numbering omitted).     The amended complaint's final allegation is

that the defendants' "failure . . . to follow their protocols[]

created a danger to R.I. from which they had a duty to protect

him."

B.      Legal Proceedings

             On April 25, 2019, Abdisamad filed suit in the U.S.

District Court for the District of Maine.       His amended complaint

brought four claims: a due process violation against the City

Defendants, a due process violation against DACF, a wrongful death

claim against the City Defendants, and a wrongful death claim


                                 - 3 -
against DACF.     The amended complaint did not specify under which

statutes, if any, each claim was advanced.

            On May 31, 2019, DACF filed a motion to dismiss, which

Abdisamad    opposed.     The   district    court       granted    the   motion.

Abdisamad v. City of Lewiston, No. 2:19-CV-00175-LEW, 2019 WL

2552194, at *3 (D. Me. June 20, 2019).             It held that sovereign

immunity, as protected by the Eleventh Amendment, insulated DACF

from Abdisamad's claims in federal court.           Id. at *2.

            On June 24, 2019, the City of Lewiston filed a motion to

dismiss, in which the Lewiston School Department joined. Abdisamad

opposed the motion.        The district court granted the motion.

Abdisamad v. City of Lewiston, No. 2:19-CV-00175-LEW, 2019 WL

3307039, at *4 (D. Me. July 23, 2019).                  The court construed

Abdisamad's     due   process   violation       claim     against     the   City

Defendants as a substantive due process claim under 42 U.S.C.

§ 1983 and the Maine Civil Rights Act, Me. Rev. Stat. Ann. tit. 5,

§ 4682.     Id. at *1.   It held that Abdisamad's complaint included

"no   factual   allegations     that   reveal    any     conscience-shocking

conduct on the part of the City Defendants' team leader or the

other chaperones," required to state such a claim.                Id. at *3.   As

to the remaining wrongful death claim under state law, the court

declined to exercise supplemental jurisdiction "[g]iven that the

case is still in the pleading stage and the matter now consists of

a solitary state law claim."      Id. at *4.


                                   - 4 -
          On   July   25,   2019,   Abdisamad   filed   a   motion   for

reconsideration of the district court's rulings on the motions to

dismiss, which the City Defendants opposed.     The motion, which did

not seek leave to amend the complaint again, offered further

allegations in support of Abdisamad's claims.       Abdisamad alleged

that the defendants "did not require . . . students to display

swimming proficiency or get information from parents regarding the

same prior to allowing them to go in the water," "had no mechanism

in place to inform the students of dangerous drop offs in the roped

in swimming area or to warn the students that could not swim of

the dangers of being in the water," "made no efforts to ensure

that the lifeguard g[a]ve any safety instructions whatsoever to

the students" before they swam, "did not engage a buddy system,"

did not "assign[ students] to specific areas based on their

swimming abilities," "allowed students in the water with only one

apparently inept lifeguard" despite a Lewiston policy requiring

more than one lifeguard to be on duty during field trips, and "were

not . . . as vigilant as they should have been," causing them not

to notice R.I.'s absence immediately.      The district court denied

the motion in a minute order without explanation.

          On August 21, 2019, Abdisamad timely appealed from the

district court's rulings on the two motions to dismiss and the

motion for reconsideration.




                                - 5 -
                                  II.

           "We review the grant of a motion to dismiss de novo."

Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d

111, 114 (1st Cir. 2019).      To overcome a motion to dismiss, the

plaintiff's complaint "must contain sufficient factual matter

. . . to state a claim to relief that is plausible on its face."

Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (alteration in

original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))

(internal quotation marks omitted).        "If the factual allegations

in the complaint are too meager, vague, or conclusory to remove

the possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal."         Barchock v. CVS Health Corp.,

886 F.3d 43, 48 (1st Cir. 2018) (quoting SEC v. Tambone, 597 F.3d

436, 442 (1st Cir. 2010)).

           On appeal, Abdisamad argues that "[a]ppellees were not

entitled to dismissal of [a]ppellant's claims on the basis that

they have qualified immunity for their actions," although the

district court did not reach qualified immunity in either of its

dismissal orders. He does not dispute at any point in his briefing

the   district   court's   conclusion    that   the   Eleventh   Amendment

protected DACF from suit in federal court.            Abdisamad has thus

waived any such argument.        See Pignons S.A. de Mecanique v.

Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983).               Because the

district court's dismissal of the claims against DACF rested


                                 - 6 -
exclusively on its sovereign immunity, we need not go further to

affirm the dismissal as to DACF.1

             As to the City Defendants, Abdisamad argues that the

district court's dismissal "flies directly in the face of" this

court's decision in Irish v. Maine, 849 F.3d 521 (1st Cir. 2017).

He argues that, under the holding of Irish, his allegation that

the   defendants     "departed    from     their   established      protocol,

procedures and/or training and . . . created a danger to R.I. as

the result" is sufficient by itself to state a claim of denial of

substantive due process against the City Defendants.             But neither

the law of substantive due process nor Irish say any such thing.

             "In the realm of executive action, the Due Process Clause

'does not entail a body of constitutional law imposing liability

whenever someone cloaked with state authority causes harm,' nor

does it 'guarantee due care' by government officials."              DePoutot

v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005) (quoting Cty. of

Sacramento    v.   Lewis,   523   U.S.   833,   848-49   (1998)).      To   be

cognizable, a substantive due process claim under 42 U.S.C. § 1983



      1   Abdisamad's factual allegations as to DACF also fail to
shock the conscience as required for a substantive due process
claim. See Martínez v. Cui, 608 F.3d 54, 65 (1st Cir. 2010). He
alleges that DACF, who provided the lifeguard at the beach area,
"did not offer or provide a lifeguard or other representative to
discuss safety rules within the group" and that the lifeguard
appeared not to know what to do when R.I. was missing.       This
alleged conduct is not sufficiently "arbitrary and egregious" to
have "constitutional significance." Id.


                                   - 7 -
must allege facts "so extreme and egregious as to shock the

contemporary     conscience."        Id.           Only    after    "show[ing]      a

constitutionally significant level of culpability" may a plaintiff

"turn   to   establishing   that     a    protected       right    was    offended."

Martínez, 608 F.3d at 65.

             Abdisamad argues that his claims fall into a "state-

created danger" exception discussed in Irish.                But that is simply

not accurate.    Our opinion in Irish observed that other "circuits

have recognized the existence of the state-created danger theory"

but that "[w]hile this circuit has discussed the possible existence

of   the   state-created    danger       theory,    we    have    never    found   it

applicable to any specific set of facts."                 849 F.3d at 526.         We

also noted that "we 'may elect first to address whether the

governmental action at issue is sufficiently conscience shocking'

before considering the state-created danger element," id. (quoting

Rivera v. Rhode Island, 402 F.3d 27, 36 (1st Cir. 2005)), and that

"mere negligence would be insufficient to maintain a claim of

substantive due process violation," id. at 528.                     The record in

Irish contained no information about police protocol and training.

Given the specific facts alleged as to the individual defendants,

these were "relevant both to the substantive due process and

qualified immunity inquiries," id., and we vacated the dismissal

and remanded for discovery, id. at 529.                   Abdisamad argues that

Irish requires vacatur of the dismissal in this case to allow him


                                     - 8 -
to take discovery about what protocol and training might have been

violated in the events that gave rise to this lawsuit.           Not so.

This case does not resemble Irish for many reasons, including that

Irish dealt with the liability of individual police officers, not

municipal liability, and that Abdisamad does not allege that the

City Defendants' policies caused R.I.'s death, but rather that

R.I.'s death resulted from the City Defendants' failure to follow

those policies.

          "[A] different standard is used to determine liability

for individual and municipal defendants."        Kelley v. LaForce, 288

F.3d 1, 6 (1st Cir. 2002).   Individual government officials may be

sued "for federal constitutional or statutory violations under

§ 1983," though "they are generally shielded from civil damages

liability under the principle of qualified immunity."           Id.     But

"liability can be imposed on a local government only where that

government's policy or custom is responsible for causing the

constitutional violation or injury."        Id. at 9 (citing Monell v.

Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)).            Municipal

liability "cannot be based on respondeat superior but requires

independent   liability   based   on   an   unconstitutional   policy    or

custom of the municipality itself."         Dirrane v. Brookline Police

Dep't, 315 F.3d 65, 71 (1st Cir. 2002).        Although municipalities'

policies "not authorized by written law" can nevertheless be

actionable, they must be "so permanent and well settled as to


                                  - 9 -
constitute a 'custom or usage' with the force of law."                Monell,

436 U.S. at 691 (quoting Adickes v. S. H. Kress & Co., 398 U.S.

144, 167–68 (1970)).       A "municipality's failure to train or

supervise . . . only becomes a basis for liability when 'action

pursuant to official municipal policy of some nature caused a

constitutional tort.'"      Kennedy v. Town of Billerica, 617 F.3d

520, 531–32 (1st Cir. 2010) (emphasis omitted) (quoting Monell,

436 U.S. at 691).

            Abdisamad's amended complaint does not plausibly allege

that a Lewiston policy or custom led to R.I.'s death.          Its factual

allegations do not support a plausible inference that the City

Defendants' actions resulted from an unconstitutional policy or

custom.    They include no facts whatsoever about a Lewiston policy

that would be unconstitutional and create municipal liability.            To

the contrary, the amended complaint alleges that R.I.'s death

resulted    from   defendants'    "failure   . . .    to     follow     their

protocols,"    rather   than   from   defendants'    actions    that    were

consistent with a Lewiston policy or custom.               That allegation

cannot serve as the basis for municipal liability and in fact

precludes such liability.      See Dirrane, 315 F.3d at 71 (explaining

that a constitutional tort claim against a municipality "requires




                                 - 10 -
independent   liability   based      on   an   unconstitutional      policy    or

custom of the municipality itself").2

           Abdisamad    does   not    argue    that    the   district   court's

decision   not   to   exercise    supplemental        jurisdiction   over     his

wrongful death claim against the City Defendants was error.                 That

argument, too, is waived.        Pignons S.A. de Mecanique, 701 F.2d at

3.3

                                      III.

           Affirmed.




      2   Even if construed as an action under the Maine Civil
Rights Act, Me. Rev. Stat. Ann. tit. 5, § 4682, Abdisamad's claim
fails because "the disposition of a 42 U.S.C. § 1983 claim also
controls a claim under the [Maine Civil Rights Act]." Berube v.
Conley, 506 F.3d 79, 85 (1st Cir. 2007).
      3   At any rate, "[w]e review a district court's decision
regarding the exercise of supplemental jurisdiction for abuse of
discretion." Allstate Interiors & Exteriors, Inc. v. Stonestreet
Constr., LLC, 730 F.3d 67, 72 (1st Cir. 2013). Given that "the
unfavorable disposition of a plaintiff's federal claims at the
early stages of a suit, well before the commencement of trial,
will trigger the dismissal without prejudice of any supplemental
state-law claims," we cannot say that the district court abused
its discretion. Rodríguez v. Doral Mortg. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995).


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