
USCA1 Opinion

	




          October 31, 1995  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1554                               YVONNE A. ALEXIS, ET AL.,                               Plaintiffs, Appellants,                                          v.                    McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,                          MICHAEL LEPORATI and DONNA DOMINA,                                Defendants, Appellees.                                                                                      ____________________                                     ERRATA SHEET             The Opinion of the Court  issued on October 10, 1995,  is amended             as follows:             On  cover sheet under list of counsel "Gilbert, Kurent & Kiernan"                                                    _______             should read "Gilberg, Kurent, & Kiernan."                          _______                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1554                               YVONNE A. ALEXIS, ET AL.,                               Plaintiffs, Appellants,                                          v.                    McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,                          MICHAEL LEPORATI and DONNA DOMINA,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Terance P. Perry, with  whom Brendan J. Perry and  Christopher M.             ________________             ________________      ______________        Perry were on brief for appellants.        _____             Philip B.  Benjamin, with whom Aaron K. Bikofsky was on brief for             ___________________            _________________        appellee Michael Leporati.             John P.  Noyes, with whom John  A. Kiernan and Gilberg,  Kurent &             ______________            ________________     __________________        Kiernan were on brief for appellees.        _______                                                                                      ____________________                                   October 10, 1995                                                                                      ____________________                    CYR, Circuit  Judge.  Plaintiffs Yvonne  Alexis ("Alex-                    CYR, Circuit  Judge.                         ______________          is"),  and family  members,  challenge a  summary judgment  order          rejecting various federal civil  rights claims and related state-          law  claims  stemming from  the  treatment accorded  Alexis  at a          restaurant  owned and  operated by  defendant-appellee McDonald's          Restaurants  of Massachusetts,  Inc.   We  affirm,  in part,  and          remand other claims for further proceedings.                                           I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    At  approximately  10:00  p.m.  on July  20,  1990,  in          Framingham, Massachusetts, Alexis and her family, who are African          Americans,  entered a  McDonald's  restaurant,  proceeded to  the          service counter, placed their  order, and paid in advance.   When          the food was placed before them at the service counter, it became          apparent that  Alfredo Pascacio, whose native  tongue is Spanish,          had mistaken  their order.   During the ensuing  exchange between          Alexis and  Pascacio, defendant-appellee Donna Domina, the "swing          manager," intervened in behalf of Pascacio, which prompted Alexis          to say:   "[Y]ou take care of  the people in front of  you.  He's          taking  care of me, and we're sorting this out."  Domina nonethe-          less persisted for several more minutes.                      Ultimately,  Domina said  to Alexis,  "I don't  have to          listen to you."   Alexis replied, "[Y]ou're damn right  you don't                                        ____________________               1The material facts  in genuine dispute  are related in  the          light  most  favorable  to  plaintiffs-appellants,  against  whom          summary judgment was entered.  See Velez-Gomez v. SMA Life Assur.                                         ___ ___________    _______________          Co., 8 F.3d 873, 874 (1st Cir. 1993).          ___                                          4          have to listen to me.  I was not speaking to you.  I was speaking          to him."  Domina then instructed Pascacio:  "Just put their stuff          in a  bag and get them out  of here."  Turning  to Alexis, Domina          retorted:   "You're not eating here.   If you [do] we're going to          call the cops."  Alexis responded:  "Well you do what you have to          do  because  we  plan to  eat  here."    Notwithstanding Domina's          instructions, Pascacio placed the  food order on a  service tray,          without bagging it.   The entire incident at the  service counter          had lasted approximately ten minutes.                      After  the Alexis  family  went into  the dining  area,          Sherry Topham, a managerial employee, summoned  defendant Michael          Leporati  into the  restaurant.   Leporati, a  uniformed off-duty          police sergeant, had  been patrolling on foot outside the restau-          rant by  prearrangement  with the  Town  of Framingham,  but  had          witnessed no  part of the earlier exchange among Alexis, Pascacio          and Domina.                     Upon entering the restaurant, Leporati  was informed by          Domina  that Alexis had been  yelling, creating a  "scene" and an          "unwarranted disturbance" over a mistaken food order, and direct-          ing abusive remarks at Pascacio.2   Domina informed Leporati that          Alexis  had argued loudly with her and another employee; that she          "just wasn't stopping"; and  that Alexis was still in  the dining          area though Domina  had "asked  her to leave."   Finally,  Domina                                        ____________________               2At summary judgment, we must credit Alexis's statement that          she did  not yell or  cause a "disturbance."   See supra  note 1.                                                         ___ _____          But since it is  uncontradicted, we must also assume  that Domina          informed Leporati that Alexis had caused a disturbance.  Id.           ________                                                 ___                                          5          told Leporati, "I would like her to leave."                                         ___                    Without further inquiry into the "disturbance" alleged-          ly  caused by Alexis, Leporati proceeded to the dining area where          Alexis and her family were seated, and informed the entire Alexis          family that the manager wanted them  to leave and that they would          have to go.   Alexis  immediately asked why,  denied causing  any          disturbance,  and claimed a right to finish eating in the restau-          rant.   When she urged Leporati to ask other restaurant customers          whether there had been any disturbance, Leporati simply reiterat-          ed  that the  family would  have to  leave, then returned  to the          service counter.3                      At the service counter, Leporati relayed his  conversa-          tion with Alexis and  informed Domina that the Alexis  family had          refused to leave.  In  Leporati's presence, Domina discussed  the          matter with  Sherry Topham, who  recalled having had  a "problem"          with Alexis on a prior occasion.4   At that point, Domina stated,          "Well, if that's the case, then maybe we should  have her leave."          With that,  Sergeant Leporati returned  to the Alexis  family and          advised  Alexis that she would be arrested unless she left before                   ______      ___          his backup arrived.   Cf. supra  note 3.  Alexis  reiterated that                                __  _____          she believed she had the right  to finish eating.  Leporati  left                                        ____________________               3The  record is silent as  to why all  Alexis family members          were  ordered to leave, though  only Alexis had  been involved in          the exchange at the service counter.               4The record  reflects  no other  information concerning  the          timing or  nature of any such "problem."   As Alexis attests that          there  had been no prior  incident, we are  required to assume as          much.                                            6          the dining area to call for backup.                    Approximately  ten minutes later,  Officer William Fuer          arrived and Alexis was told by Leporati that she was being placed          under arrest.  Then, without asking or directing Alexis to get up          from  the  table, Leporati  suddenly  and  violently grabbed  and          pulled her bodily from the booth and across the table, handcuffed          her hands  tightly behind her back, and, with the help of Officer          Fuer,  dragged her  from  the booth,  bruising  her legs  in  the          process.  Insisting  that she was "not  resisting arrest," Alexis          asked the  officers to  allow her  to walk  out.   Instead,  they          hoisted her by her elbows and carried  her from the restaurant to          the police car,  where Leporati pushed her into  the car with the          instruction, "Get your ass in there."                      As she  was being  removed from the  restaurant, Alexis          and her husband repeatedly  asked the officers why she  was being          treated in this manner.  When  Mr. Alexis said, "We have rights,"          Leporati  responded, "You people have no rights.  You better shut          up your [expletive] mouth before I arrest you too."                    Alexis eventually was charged with criminal trespass, a          misdemeanor  under  Mass. Gen.  Laws Ann.  ch.  266,    120 (West          1994).  Following  her acquittal by a jury, Alexis and her family          filed  the present action in the United States District Court for          the  District of  Massachusetts,  asserting  civil rights  claims          under 42  U.S.C.    1981, 1983,  & 1985(3), as well  as state law          claims  for use  of  excessive force,  intentional infliction  of          emotional  distress, assault, battery,  false imprisonment, mali-                                          7          cious prosecution,  and abuse  of  process.   The district  court          granted summary judgment for the defendants on all federal claims          and on  the excessive force  claim against  Leporati under  Mass.          Gen. Laws Ann. ch. 12,   11I.  Finally, the court granted summary          judgment  for all defendants  on the remaining  state law claims,          without stating its grounds.  Plaintiffs appealed.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    A grant of summary judgment  is reviewed de novo  under                                                             __ ____          the same  criteria incumbent upon  the district court;  it cannot          stand on appeal unless the record  discloses no trialworthy issue          of material  fact and the moving party is entitled to judgment as          a matter of law.  Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st                            _____________    ___________          Cir. 1994).  A.     Section 1981                       A.     Section 1981                              ____________                    Section  1981   proscribes  intentional  discrimination          based on race.  General Bldg. Contractors Ass'n  v. Pennsylvania,                          _______________________________     ____________          458 U.S. 375,  391 (1982); Dartmouth Review v. Dartmouth College,                                     ________________    _________________          889  F.2d 13, 17  (1st Cir. 1989).   The district  court found no          competent  evidence  of  intentional  race-based  discrimination.          Alexis presses her section 1981 claims  against Domina and McDon-          ald's on the theory that her race-based exclusion from the dining          area violated  her right to  make and enforce contracts.   See 42                                                                     ___          U.S.C.    1981(a).5  As  to defendant Leporati,  she alleges that                                        ____________________               5Section 1981(a) provides in its entirety:                    All  persons  within  the  jurisdiction  of  the United                    States shall  have the  same right  in every State  and                                          8          her  race-based arrest  deprived her  of the  right to  "full and          equal benefit of  all laws  and proceedings for  the security  of          persons  and property  as is  enjoyed by  white citizens,"  id.                                                                        ___          1981(a), and to "like punishment, pains, penalties . . . of every          kind, and to no other."  Id. (emphasis added).                    __ __ _____    ___               1.   Domina and McDonald's               1.   Domina and McDonald's                    _____________________                    The  district court initially excluded, as incompetent,          see  Fed. R.  Civ.  P. 56(e)  (affidavits  may be  considered  at          ___          summary  judgment only if facts attested to are based on admissi-          ble evidence);  Fed. R.  Evid.  701, portions  of the  deposition          testimony  of six witnesses    the five Alexis family members and          Karen  Stauffer,  an eyewitness  to the  events     each  of whom          opined, in effect, that had Alexis been "a rich white woman," she          would not  have been treated in the same manner.  The court found          that  the proffered  testimony was  "not supported  by sufficient          factual  undergirding"  to  permit a  reasonable  inference  that          either Domina  or McDonald's discriminated against  Alexis on the          basis  of her race.  The court nonetheless allowed Alexis further          time to submit supplemental affidavits setting forth more partic-          ular grounds for the  conclusory deposition testimony relating to          racial animus.  Alexis failed to do so.                    Opinion testimony from lay witnesses is admissible only                                        ____________________                    Territory  to make  and enforce  contracts, to  sue, be                    parties,  give  evidence, and  to  the  full and  equal                    benefit of all laws and proceedings for the security of                    persons and  property as is enjoyed  by white citizens,                    and shall be subject  to like punishment, pains, penal-                    ties, taxes, licenses, and exactions of every kind, and                    to no other.                                           9          if it is "rationally based on the perception of the witness and .          . . helpful to a clear understanding of the witness' testimony or          the determination of the fact in  issue."  Fed. R. Evid. 701; see                                                                        ___          Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990).          _______    ____________________          Rulings  on the admissibility  of lay  opinion testimony  are re-          viewed only for "manifest abuse of discretion."  United States v.                                                           _____________          Jackman, 48  F.3d 1, 4 (1st  Cir. 1995) (citing  Keller v. United          _______                                          ______    ______          States, 38 F.3d 16, 31 (1st Cir. 1994)).  The exclusionary ruling          ______          was well within the district court's broad discretion.                    The  six  deponents based  their  inferences  of racial          animus on their personal observations that Domina reacted "angri-          ly" toward Alexis and  with "a negative  tone in her voice,"  was          "unfriendly," "uncooperative," "high strung,"  "impolite," "impa-          tient,"  and had  "no reason"  to eject  Alexis.   Although these          observations may be entirely compatible with a race-based animus,          there  simply  is  no foundation  for  an  inference that  Domina          harbored a  racial animus  toward Alexis or  anyone else,  absent          some probative  evidence  that Domina's  petulance  stemmed  from          something  other than  a race-neutral  reaction to  the stressful          encounter plainly  evidenced  in  the  summary  judgment  record,          including  Alexis's persistence  (however  justified).    As  the          depositions disclosed no evidentiary  foundation for an inference          of  racial  animus, the  conclusory  lay  opinions were  properly              ______          excluded.   See  Fed. R.  Evid. 701(a);  Fed. R.  Civ.  P. 56(a);                      ___          Willco Kuwait (Trading)  S.A.K. v.  deSavary, 843  F.2d 618,  624          _______________________________     ________          (1st  Cir. 1988) (lay  opinion testimony, which  does little more                                          10          than tell the jury what result to reach, should not be admitted);          see  also Connell v. Bank of Boston,  924 F.2d 1169, 1177-78 (1st          ___  ____ _______    ______________          Cir.) (lay opinion    that employer was "`determined to eliminate          . . . senior  employees'"    pointed to no  specific facts suffi-          cient to buttress such a  "broad assertion") (ADEA claim),  cert.                                                                      _____          denied,  501 U.S. 1218 (1991); cf. Gross v. Burggraf Constr. Co.,          ______                         __  _____    ____________________          53 F.3d 1531, 1544 (10th Cir. 1995) (determining inadmissible the          lay opinion of co-worker that sexual harassment defendant had "`a          problem with women who were not between the ages of 19 and 25 and          who weighed  more than 115 pounds'"); Coca-Cola  Co. v. Overland,                                                ______________    _________          Inc., 692 F.2d 1250, 1254-55 (9th Cir. 1982) (upholding exclusion          ____          of lay  opinion testimony by  bar and  restaurant employees  that          customers used term "Coke" in generic sense).                    As Alexis  points to no competent  evidence that Domina          and McDonald's intentionally discriminated against her on account          of her race, the district court correctly ruled that this section          1981 claim was not  trialworthy.  See Dartmouth Review,  889 F.2d                                            ___ ________________          at 18 ("`Disputes generally arise out of mutual misunderstanding,          misinterpretation   and  overreaction,  and  without  more,  such          disputes do not  give rise to an  inference of discrimination.'")          (quoting Johnson v. Legal Servs. of Ark., Inc., 813 F.2d 893, 896                   _______    __________________________          (8th  Cir. 1987)).  Accordingly,  the summary judgment entered in          favor of Domina and McDonald's must be affirmed.               2.   Leporati               2.   Leporati                    ________                    All courts  of appeals which have  considered the ques-          tion have held that  a misuse of governmental power  motivated by                                          11          racial animus comes squarely within the "equal benefit" and "like          punishment" clauses  of section 1981(a).   See Mahone  v. Waddle,                                                     ___ ______     ______          564  F.2d 1018,  1027-30  (3d Cir.  1977)  (false arrest),  cert.                                                                      _____          denied,  438 U.S. 904 (1978);  see also Evans  v. McKay, 869 F.2d          ______                         ___ ____ _____     _____          1341,  1344-45 (9th  Cir. 1989)  (reversing dismissal  of section          1981 claim  alleging that  police officers and  others instigated          "racially-motivated   arrest-boycott  conspiracy");   Coleman  v.                                                                _______          Franklin  Parish Sch.  Bd., 702  F.2d 74,  76-77 (5th  Cir. 1983)          __________________________          (remanding  for factfinding  on  section 1981  claim that  school          officials denied  black pupil equal benefit of  laws and proceed-          ings relating  to corporal punishment).   We have  been presented          with no basis in law or reason for departing from this solid line          of authority.                    During  the  arrest,  Sergeant Leporati  stated  to Mr.          Alexis:  "You people have no rights.  You better shut up your . .          .  mouth before  I arrest  you too."   Alexis  insists that  this          statement betrayed a  racial animus.  Leporati responds  that the          statement     "You  people have no  rights"    is  too general to          support  the section 1981(a) claim.  Given its context, we cannot          agree.                    A rational factfinder who  credited this statement,  as          we must at summary  judgment, see supra note 1,  reasonably could                                        ___ _____          infer that Leporati harbored a racial animus  adequate to support          a section 1981 claim,  especially since the record reflects  that          the  only relevant  behavior or  physical characteristic     both               ____          apparent to Leporati and shared by the Alexis family    was their          ________                 ______                                          12          black skin.  Indeed, a rational factfinder would be  hard-pressed          to glean a more  plausible inference, particularly since Leporati          has  tendered  no  alternative  interpretation supported  by  the          present  record.6   Viewed  in context,  therefore, the  Leporati          statement, tarring  the  entire family  with  the same  brush              absent a scintilla of evidence that any member, with the possible          exception  of Alexis, had said or done anything remotely wrong or          disorderly     cannot reasonably  be presumed so  innocent as  to                                               ________ __  ________ __  __          preclude a discriminatory animus.          ________                    Accordingly,  we  hold  that  the evidence  adduced  at          summary judgment, viewed in context,  was sufficient to support a          reasonable inference that Leporati not only gratuitously employed          excessive force  in arresting  Alexis but  that his actions  were          motivated by a racial animus violative of the "equal benefit" and          "like  punishment"  clauses of  section  1981(a).   Thus,  Alexis          raised  a  trialworthy issue  under  section 1981  as  to whether          Leporati deprived her of "the full and equal benefit"  of the law          accorded white  persons and the right  to "like punishment  . . .                                        ____________________               6The only alternative interpretation advanced by Leporati is          that "there are objective undisputed  facts which are contrary to          plaintiffs' premise (i.e. that four black people were not ordered          to  leave and were not  arrested)."  The  undisputed facts flatly          contradict a material portion of Leporati's  parenthetical asser-          tion, however.  When Leporati first confronted them in the dining          area, he ordered the entire Alexis family to leave.  See supra p.                               ______                          ___ _____          4.  After returning  to the service  counter to inform Domina  of          their  refusal to leave, and upon learning that Topham recalled a          "problem" with Alexis in the past, Leporati returned to the table          and announced his  intention to  arrest only Alexis.   Given  his          decision to  arrest only  Alexis, Leporati's retort,  "You people          have  no rights," accompanied by the  subsequent threat to arrest          Mr. Alexis, remains unexplained by any argumentation presented on          appeal.                                            13          [and] no other."  42 U.S.C.   1981(a).7          B.   Section 1985(3)          B.   Section 1985(3)               _______________                    Alexis alleged that  Leporati and Domina "directly  and          explicitly conspired  to deprive  [her] of the  equal protection,          equal  privileges and equal  rights guaranteed  to her  under the          Constitution and the laws  of the United States" in  violation of          42 U.S.C.    1985(3).  A  trialworthy section 1985(3)  conspiracy          claim requires competent evidence  that "`some racial, or perhaps          otherwise   class-based,   invidiously  discriminatory   animus'"          motivated the  alleged conspirators.  Bray  v. Alexandria Women's                                                ____     __________________          Health Clinic, 113  S. Ct.  753, 758 (1993)  (quoting Griffin  v.          _____________                                         _______          Breckenridge, 403  U.S. 88, 102  (1971)).  Alexis  predicated her          ____________                                        ____________________               7Of course, qualified immunity may  be available to a police          defendant  in a    1981 action.   See Ricci v.  Key Bancshares of                                            ___ _____     _________________          Me., Inc., 768 F.2d 456, 467 (1st Cir. 1985) (FBI agents entitled          _________          to qualified immunity  in    1981(a) action); see  also Wicks  v.                                                        ___  ____ _____          Mississippi St.  Employment Servs.,  41 F.3d  991, 996  n.21 (5th          __________________________________          Cir.),  cert. denied, 115 S. Ct. 2555 (1995); Gallegos v. Denver,                  _____ ______                          ________    ______          984 F.2d 358,  364 (10th  Cir.), cert.  denied, 113  S. Ct.  2962                                           _____  ______          (1993); Johnson v. Estate of Laccheo, 935 F.2d 109, 112 (6th Cir.                  _______    _________________          1991); cf. Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board                 __  _____________________________________________    _____          of Selectmen,  878 F.2d  16, 19-21  (1st Cir.  1989) (recognizing          ____________          qualified  immunity  defense to     1983  equal protection  claim          analogous to  "equal benefit" claim in instant  case).  Neverthe-          less, qualified immunity does "not bar inquiry into a defendant's          state of mind when the applicable law makes the defendant's state          of  mind (as distinct from  defendant's knowledge of  the law) an                                                  _________          essential element of plaintiff's  constitutional claim."   Felic-                                                                     ______          iano-Angulo  v. Rivera-Cruz, 858 F.2d 40, 46 (1st Cir. 1988); see          ___________     ___________                                   ___          also  Tompkins v.  Vickers,  26 F.3d  603,  607 (5th  Cir.  1994)          ____  ________     _______          (noting that every circuit to consider the question has concluded          that  "a public official's motive or intent must be considered in          the  qualified  immunity analysis  where  unlawful motivation  or          intent is a critical element of the alleged constitutional viola-          tion")  (collecting cases).    Thus,  whether  Leporati  violated          Alexis's civil rights under    1981(a) turns on a  material issue          of  fact in  genuine dispute,  which precluded  summary judgment.          See  Feliciano-Angulo, 858 F.2d at 47; see also Johnson v. Jones,          ___  ________________                  ___ ____ _______    _____          115 S. Ct. 2151, 2158 (1995).                                          14          section 1985(3)  conspiracy claim  on Sergeant  Leporati's state-          ment:   "You  people have  no rights."   Although  this evidence,          viewed in context, is sufficient to enable a reasonable inference          that  Leporati harbored  the requisite  racial animus,  see supra                                                                  ___ _____          Section  II.A.2, there is no evidence which would support such an          inference as to Domina.          C.   Section 1983          C.   Section 1983               ____________                    The gravamen  of these federal claims  is that Sergeant          Leporati,  acting  under  color of  Massachusetts  law,  deprived          Alexis of her Fourth Amendment right to be free from unreasonable          seizure of  her person in  effecting her misdemeanor  arrest with          excessive force,  without a  warrant and without  probable cause.          She also  claims  that  Domina deprived  her  of  procedural  due          process by  summoning Leporati into the  restaurant and directing          her  removal under color of state law.  Finally, she alleges that          Leporati  determined to arrest her, and effected her arrest, in a          discriminatory  manner, based on her race and in violation of the          Equal Protection Clause of the Fourteenth Amendment.               1.   Arrest Without Probable Cause                     Arrest Without Probable Cause                    _____________________________                    a.   Leporati                    a.   Leporati                         ________                    The  Fourth  Amendment  guaranty  against  unreasonable          seizures of the person requires that arrests be based on probable          cause.  Beck v. Ohio, 379 U.S. 89, 91 (1964); Santiago v. Fenton,                  ____    ____                          ________    ______          891 F.2d 373, 383 (1st Cir. 1989).  The "probable cause" analysis          entails  "`an objective  assessment of  the officer's  actions in          light of the facts and circumstances confronting him at the time'                                          15          and  not [an assessment  of] the officer's  state of mind  at the          time  the challenged action was  taken."  Maryland  v. Macon, 472                                                    ________     _____          U.S. 463, 470-71 (1985) (quoting Scott v. United States, 436 U.S.                                           _____    _____________          128, 136 (1978)).  Probable cause will be found if "the facts and          circumstances within [the officer's]  knowledge and of which [he]          had reasonably trustworthy information were sufficient to warrant          a prudent [person] in believing that  the [defendant] had commit-          ted or  was committing an offense."   Rivera v. Murphy,  979 F.2d                                                ______    ______          259, 263 (1st Cir. 1992).                         i.   Revocation of Invitation                         i.   Revocation of Invitation                              ________________________                    Although appellants argue that the district court erred          in finding  probable cause for  Alexis's arrest,  we perceive  no          error.   As previously  noted, Alexis  was arrested for  criminal          trespass,  a  misdemeanor  under  the   applicable  Massachusetts          statute:            Whoever,   without  right                                         _______  _____                              enters  or remains  in or                              ______  __ _______                              upon the . .  . buildings                              . . .  of another,  after                              having been  forbidden so                              to do by  the person  who                              has  lawful   control  of                              said premises . . . shall                              be punished by a  fine of                              not more than one hundred                              dollars  or by  imprison-                              ment  for  not more  than                              thirty days  or both such                              fine and  imprisonment. .                              .  .   A  person  who  is                              found   committing   such                              trespass may  be arrested                                       ___  __ ________                              by a . . . police officer                              and kept in custody  in a                              convenient   place,   not                              more   than   twenty-four                              hours,  Sunday  excepted,                              until a  complaint can be                              made against  him for the                                          16                              offence, and  he be taken                              upon  a   warrant  issued                              upon such complaint.          Mass.  Gen. Laws Ann.  ch. 266,    120  (emphasis added).   Thus,          under chapter  266, section  120, a  person who remains,  without                                                          _______          right, on the property of another commits a continuing misdemean-          or for  which she may be  subjected to a warrantless  arrest by a          police officer provided there is probable cause.  Id.                                                            ___                    The undisputed facts demonstrate that  Domina expressly          directed Alexis to  leave the restaurant, but  that Alexis never-          theless  refused to leave until  she and her  family had finished          eating.  Appellants cite no  authority for their implicit sugges-          tion that Massachusetts recognizes  an exception to the seemingly          absolute  right of a private  business owner to withdraw, without          cause,  its implied  license to  enter a  business establishment.          Cf.  State v.  Tauvar,  461 A.2d  1065,  1067 (Me.  1983)  (Maine          __   _____     ______          trespass statute  permits revocation  of implied  invitation only                                                                       ____          where  business  owner  "has  some justification  for  requesting          removal"); Model Penal Code   221.2(3)(b) (affirmative defense to          criminal  trespass requires evidence that "premises . . . open to          members of  the public and  [defendant] complied with  all lawful          conditions  imposed on access to or  remaining in the premises").          Moreover, we have combed Massachusetts law for such an exception,          to no avail.                     It  has been held, of  course, and we  do not question,          that a Massachusetts business property owner  may not violate the          constitutional  or statutory  rights  of its  business  licensees                                          17          under the  shield of  the  Massachusetts trespass  statute.   See                                                                        ___          Hurley  v. Hinckley, 304 F. Supp. 704,  710 (D. Mass. 1969) ("The          ______     ________          words `without right' in the context of the historical concept of          trespass  can only mean: [`]without  any legal right; without any          right, permission or license recognized  by law as permitting  an          entry  into the  area described  in the  statute.['] .  . .   The          concept [of] legal right in the context of today's constitutional          developments includes  any right of the  plaintiffs, individually          or collectively, found in the Constitution of the United States .          . .  ."), aff'd  mem., 396  U.S. 277  (1970);  Smith v.  Suburban                    _____  ____                          __________________          Restaurants, Inc.,  373 N.E.2d 215,  218 (Mass. 1978)  (noting in          _________________          libel case that "[a] place of public accommodation, as members of          the  community might know, has an obligation to treat each member          of the public equally, except for good cause") (dicta) (citations          omitted);  Commonwealth v.  Lapon, 554  N.E.2d 1225,  1227 (Mass.                     ____________     _____          App. Ct.  1990) (the  term "without right"  encompasses constitu-          tional rights).                    Nevertheless, the Massachusetts  trespass statute  does          not limit  the power of a Massachusetts  business owner summarily                                                                  _________          to revoke a  business licensee's  right to enter  or remain  upon          business premises held open to the general public.  See Stager v.                                                              ___ ______          G.E.  Lothrop Theatres Co., 197 N.E. 86, 87 (Mass. 1935) (finding          __________________________          that,  "[g]enerally speaking,"  a theater  owner has  an absolute          right  to revoke theater-goer's license to enter or remain on the          premises); cf. Baseball Publishing Co. v.  Bruton, 18 N.E.2d 362,                     ___ _______________________     ______          363 (Mass.  1938) ("[I]t is of the essence of a license [to enter                                          18          private property] that it  is revocable at  the will of the  pos-          sessor  of the  land. .  . .    The revocation  of a  license may          constitute a breach of contract,  and give rise to an action  for          damages.   But  it  is none  the  less effective  to  deprive the          licensee of all justification for entering or  remaining upon the          land."); Commonwealth v. Hood,  452 N.E.2d 188, 194 (Mass.  1983)                   ____________    ____          (stating  that  Massachusetts trespass  statute  "`protect[s] the          rights  of those in lawful control of property to forbid entrance          by those whom they are unwilling to receive, and to  exclude them          if, having entered, those in control  see fit to command them  to          leave'") (quoting Commonwealth v.  Richardson, 48 N.E.2d 678, 682                            ____________     __________          (Mass. 1943)); see also State v. Bowman, 866 P.2d 193, 202 (Idaho                         ___ ____ _____    ______          Ct. App. 1993) (in case involving business invitees who purchased          movie theater tickets, holding  that Idaho trespass statute "does          not require that the owner[s] of private property have any reason          for  asking  trespassers to  get off  their land");  Impastato v.                                                               _________          Hellman  Enters., Inc.,  537 N.Y.S.2d  659,  661 (N.Y.  App. Div.          ______________________          1989) (same).  Absent some invidious ulterior purpose, therefore,          once proper notice has been given  by the owner, and the business          licensee nonetheless remains  on the property,  the Massachusetts          trespass statute  permits arrest of the uncooperative trespasser.          See Hood, 452 N.E.2d at 194.            ___ ____                    Although  the Massachusetts  trespass statute  does not                                                                        ___          enable business owners to exclude business licensees on discrimi-          natory  grounds, Hurley, 304 F. Supp. at 710, Alexis proffered no                           ______          competent evidence  that Domina or  McDonald's, as  distinguished                                          19          from Leporati, sought to  exclude her on  the basis of her  race.          See supra Section II.A.1.   Thus, on the record  evidence, Domina          ___ _____          acted  within her  lawful  authority     as "the  person [having]          lawful control of said premises," Mass. Gen. Laws Ann. ch. 266,            120    in revoking Alexis's implied license to utilize McDonald's          dining facilities.                         ii.  Probable Cause                         ii.  Probable Cause                              ______________                    Probable cause  exists if "the facts  and circumstances          within [a police officer's] knowledge  and of which [the officer]          had   reasonably  trustworthy  information  [are]  sufficient  in          themselves  to  warrant  a  [person] of  reasonable  caution"  to          believe  that a crime has  been committed or  is being committed.          Carroll v. United States, 267 U.S. 132, 162 (1925); United States          _______    _____________                            _____________          v.  Drake, 673 F.2d  15, 17 (1st  Cir. 1982).   Leporati effected              _____          this  arrest based  on  the eyewitness  report  from Domina  that          Alexis had  created an  "unwarranted disturbance" and  refused to          leave  the premises, and  on the representation  by Sherry Topham          that there had been  an unspecified "problem" with Alexis  in the          past.  An  objectively reasonable police  officer so informed  by          the person in charge of the business premises, see supra  note 2,                                                         ___ _____          fairly could conclude that the implied license extended to Alexis          had been revoked  and that  there was probable  cause to  believe          that her continued presence constituted a criminal trespass.  See                                                                        ___          Mass. Gen.  Laws Ann.  ch. 266,     120 ("A  person .  . .  found          committing such  trespass  may be  arrested  by a  . .  .  police          officer . . . .");  see also United States v. Figueroa,  818 F.2d                              ___ ____ _____________    ________                                          20          1020, 1023 (1st Cir. 1987) ("The constitutionality of a  warrant-          less arrest `depends . . . upon whether, at the moment the arrest          was made, the officers had  probable cause to make it --  whether          at that moment the facts and circumstances within their knowledge          and  of which  they had  reasonably trustworthy  information were          sufficient to  warrant a prudent  [person] in believing  that the          [defendant]  had  committed  or  was  committing  an  offense.'")          (quoting Beck, 379 U.S. at 91).  Accordingly, we discern no error                   ____          in the district court ruling  that appellants failed to establish          a trialworthy dispute on the issue of probable cause to arrest.                    b.  Domina                     b.  Domina                        ______                    A section 1983 claim does not lie absent  state action.          Casa Marie, Inc.  v. Superior  Court of P.R.,  988 F.2d 252,  258          ________________     _______________________          (1st  Cir. 1993); 42 U.S.C.   1983 (providing remedy for depriva-          tions "under color of any statute, ordinance, regulation, custom,          or usage" of  any state or territory).  There  are two components          to the "state  action" requirement.  First, the  deprivation must          be shown  to have been  caused by the  exercise of some  right or          privilege created by  the state, or by a rule  of conduct imposed          by the state, or by  a person for whom the state  is responsible.          Casa Marie, 988 F.2d at 258.   Second, the party charged with the          __________          deprivation must be a person who may fairly be said to be a state          actor.   Id.   Where  a private  individual is  a defendant  in a                   ___          section 1983 action,  there must  be a showing  that the  private          party and the state actor jointly deprived plaintiff of her civil          rights.  Wagenmann v.  Adams, 829 F.2d 196, 209  (1st Cir. 1987);                   _________     _____                                          21          Casa Marie, 988 F.2d  at 258-59; see  also Dennis v. Sparks,  449          __________                       ___  ____ ______    ______          U.S.  24, 27-28  (1980) ("Private  persons, jointly  engaged with          state  officials  in the  challenged  action,  are acting  `under          color' of law for purposes of   1983 actions.").                    There was  no evidence of  joint discriminatory  action          between Leporati  and Domina    whether  by plan, prearrangement,          conspiracy, custom, or  policy    which  would enable a  rational          factfinder to  conclude that  Alexis's arrest resulted  from con-          certed  action  tantamount  to  substituting the  judgment  of  a          private  party for  that of  the police  or allowing  the private          party  to exercise state power.   Compare Wagenmann,  829 F.2d at                                            _______ _________          209-11  (close relationship  between  private citizen  and deputy          police  chief,  together with  evidence  that  private actor  and          police  collectively  determined  to  arrest   plaintiff,  raised          inference that private actor was more than "mere complainant" and          that a "meeting of the minds" occurred between police and private          defendant sufficient to warrant  finding that defendant was state          actor) with Carey  v. Continental Airlines, Inc.,  823 F.2d 1402,                 ____ _____     __________________________          1404  (10th  Cir.  1987)  (airline employee,  who  complained  of          striking airline pilot's presence in airport terminal and refusal          to  leave, found  not  to be  state  actor where  police  officer          summoned  to  airport terminal  asked  pilot to  leave  and, upon          pilot's refusal, called for three additional officers who escort-          ed  pilot to airport security station where he was arrested); see                                                                        ___          also  Adickes v.  S. H.  Kress &  Co., 398  U.S. 144,  152 (1970)          ____  _______     ___________________          (holding that white schoolteacher, in company of six black youths                                          22          denied service  at lunch  counter,  would be  entitled to  relief          under section  1983 upon  proof that  lunch counter  employee and                              ____  _____ ____  _____ _______  ________ ___          policeman had reached an understanding to deny service to teacher          _________ ___ _______ __ _____________          because  she was a white person in  company of blacks).  As there          is no evidence in the summary judgment record from which it could          fairly be inferred that  Domina and Leporati had any  understand-          ing, tacit or explicit, to deprive Alexis of any right secured by          the Constitution or laws  of the United States, we  conclude that          the district court correctly  granted summary judgment for Domina          on this section 1983 claim.8               2.   Excessive Force               2.   Excessive Force                    _______________                    Alexis  asserts an  "excessive  force" claim  under the          Fourth  Amendment, which  guarantees  citizens the  right "to  be          secure  in their persons  . . .  against unreasonable .  . . sei-          zures."  See Graham  v. Connor, 490 U.S. 386,  394 (1989) ("Where                   ___ ______     ______          [an] excessive force claim arises in  the context of an arrest or          investigatory stop of a free citizen, it is most properly charac-          terized as one invoking the protections of the Fourth Amendment .          . .  .").  In  the Fourth  Amendment setting, a  viable excessive          force claim must demonstrate  that the police defendant's actions          were not objectively reasonable, viewed in light of the facts and          circumstances confronting him and  without regard to his underly-          ing intent or motivation.  Id. at 397 ("An officer's evil  inten-                                     ___          tions  will not  make  a Fourth  Amendment  violation out  of  an          objectively reasonable use of  force; nor will an  officer's good                                        ____________________               8Alexis asserts no section 1983 claim against McDonald's.                                          23          intentions make an objectively  unreasonable use of force consti-          tutional.") (citations omitted).9                      As the Supreme Court has counseled, our inquiry must be          undertaken  from the perspective of  "a reasonable officer on the          scene, rather than  with the 20/20 vision of hindsight."   Id. at                                                                     ___          396 (citations  omitted).   Though the reasonableness  test under          the Fourth Amendment  "`is not capable  of precise definition  or          mechanical application,'" id. (quoting  Bell v. Wolfish, 441 U.S.                                    ___           ____    _______          520,  559 (1979)), "`[n]ot every  push or shove'"  will reach the          level required for  an actionable "excessive  force" claim.   Id.                                                                        ___          (citation omitted); Gaudreault  v. Salem, 923 F.2d  203, 205 (1st                              __________     _____          Cir. 1990) ("[P]olice officers making arrests are often forced to          make  split-second decisions about the  amount of force needed to          effect  an  arrest while  operating  under  tense, dangerous  and          rapidly-changing  circumstances."), cert.  denied,  500 U.S.  956                                              _____  ______          (1991).    Accordingly,  Graham  prescribes  three  criteria  for                                   ______          evaluating the  objective reasonableness  of the force  used: (1)          "the  severity of the crime  at issue;" (2)  "whether the suspect          poses  an immediate  threat  to the  safety  of the  officers  or          others;"  and (3)  "whether [the  suspect] is  actively resisting          arrest or attempting  to evade  arrest by flight."   Graham,  490                                                               ______          U.S. at 396; see also Gaudreault, 923 F.2d at 205.                         ___ ____ __________                    All three Graham factors, viewed in the context of "the                              ______                                        ____________________               9Of  course,  if  evidence  of  racial  discrimination  were          presented at trial, it would be for the  factfinder    in assess-          ing the officer's credibility    to determine whether the officer          harbored  ill will toward the plaintiff.  Graham, 490 U.S. at 399                                                    ______          n.12.                                          24          totality of the circumstances," Graham, 490 U.S. at 396; see also                                          ______                   ___ ____          supra  p. 5,  weigh heavily in favor of Alexis.  First, the crime          _____          for  which she was  arrested    criminal trespass     is a misde-          meanor.  See Mass. Gen. Laws Ann. ch. 266,   120 (maximum term 30                   ___          days).  Second, there is no suggestion that Alexis posed a threat          to the peace or safety of anyone, including Sergeant Leporati and          Officer Fuer.  Third,  taking her evidence at face  value, Alexis          neither  threatened nor attempted to evade or resist arrest.  Nor          did any Alexis  family member pose  a threat to  the officers  or          anyone else.  Yet, without even having been requested or directed          to  get  up from  the  table     and though  all  the surrounding          circumstances, individually and in combination, plainly counseled          minimal  force in  effecting any  arrest     Alexis  was abruptly          pulled from  the  booth, and  across the  table, with  sufficient          force to bruise her  legs, then handcuffed with her  hands behind          her back and  dragged and carried to a police  cruiser and pushed          inside.                    Viewed  in context  and accepted  as true,  we are  not          persuaded that the record  evidence compelled the conclusion that          the force  with which Leporati effected  the sudden, unannounced,          violent seizure  and removal  of Alexis's person  was objectively          reasonable, especially  since there is no  evidence or suggestion          that  she posed a  risk of flight,  attempted to resist  or evade          arrest,  or threatened  the  peace, property  or  safety of  any-                                          25          one.10   See Palmer  v. Sanderson, 9  F.3d 1433,  1436 (9th  Cir.                   ___ ______     _________          1993) (finding  trialworthy "excessive force" claim  where deputy          sheriff  arrested, tightly  handcuffed, and  bruised sixty-seven-          year-old man with  impaired mobility who  attempted to return  to          his  car to sit  down while  answering officer's  questions); see                                                                        ___          also  Rowland v.  Perry,  41 F.3d  167,  171-74 (4th  Cir.  1994)          ____  _______     _____          (finding trialworthy "excessive force" claim where police officer          injured arrestee's  leg ("wrenching  the knee until  it cracked")          after  arrestee picked up five dollar bill dropped by its owner);          cf. Lester v.  Chicago, 830 F.2d 706,  714 (7th Cir.  1987) (pre-          ___ ______     _______          Graham  case) (holding that  plaintiff stated  trialworthy Fourth          ______          Amendment "excessive  force" claim when, during  course of arrest          for disturbing peace, plaintiff was kneed in the back, threatened          with being struck, dragged down a hallway,  and handcuffed tight-          ly,  causing bruises on her wrists); Patzner v. Burkett, 779 F.2d                                               _______    _______          1363, 1371 (8th Cir. 1985) (pre-Graham case) (finding trialworthy                                          ______          "excessive  force"  claim where  uncooperative double  amputee             arrested at home  after allegedly driving under  the influence             was pulled from  wheelchair to floor,  then dragged through  home          after promising  to cooperate).11    Accordingly, the  "excessive                                        ____________________               10The district  court did not discuss  qualified immunity in          relation to the "excessive force" claim.  Nor do we,  as any such          defense is for the district court in the first instance.                11Contrary to Leporati's  suggestion, a trialworthy  "exces-          sive force"  claim is  not precluded  merely  because only  minor          injuries were inflicted by the seizure.   See Lester, 830 F.2d at                                                    ___ ______          714 (finding reversible error in district court "excessive force"          instruction which required jury to find "severe injury," thus may          have  led jury to  find for defendant  where plaintiff's physical          injuries consisted only  of bruises); see  also Harper v.  Harris                                                ___  ____ ______     ______                                          26          force" claim must be remanded for further proceedings.12               3.   Equal Protection               3.   Equal Protection                    ________________                    Alexis claims  that Leporati discriminated  against her          on the basis of her race, both in deciding to  enforce the crimi-          nal  trespass statute by  effecting her immediate  arrest, and by                                                  _________  ______          employing unreasonable  force.   Even assuming probable  cause to          arrest,  she  argues that  Leporati  would not  have  effected an          immediate seizure of her  person for so minor an  infraction, nor          used such excessive force, were it not for the color of her skin.                    In order to avoid summary judgment on her Equal Protec-          tion Clause claim, Alexis had to tender competent evidence that a          state actor intentionally  discriminated against her  because she          belonged to a protected class.   Johnson v. Morel, 876 F.2d  477,                                           _______    _____          479  (5th Cir. 1989) (citing  Washington v. Davis,  426 U.S. 229,                                        __________    _____          247-48  (1976)), overruled  on  other grounds,  Harper v.  Harris                           _________  __  _____ _______   ______     ______          County, 21 F.3d  597, 600 (5th  Cir. 1994).  This  she did.   See          ______                                                        ___          supra  Section  II.A.2.    A rational  factfinder,  who  credited          _____          Alexis's  evidence of  racial animus  and excessive  force, could          conclude that Leporati  resolved, on  the basis of  her race,  to          enforce the  criminal trespass statute by  effecting an immediate                                        ____________________          County,  21 F.3d 597, 600 (5th Cir. 1994) (holding that plaintiff          ______          need not  prove "significant  injury" to assert  Fourth Amendment          "excessive force" claim).                 12We likewise remand for further proceedings  the "excessive          force" claim under Mass. Gen. Laws Ann. ch. 12,   11I, upon which          the  district court  granted  summary judgment  on the  identical          grounds relied on for the section 1983 "excessive force" claim.                                          27          seizure of her  person.  See  Yick Wo v.  Hopkins, 118 U.S.  356,                                   ___  _______     _______          373-74 (1886)  ("[I]f [the  law] is  applied and  administered by          public  authority with an  evil eye  and an  unequal hand,  so as          practically  to make unjust  and illegal  discriminations between          persons in  similar circumstances, material to  their rights, the          denial  of equal justice is  still within the  prohibition of the          constitution.");  Johnson, 876  F.2d  at  479  (plaintiff  stated                            _______          viable Equal  Protection Clause  claim, where  officer humiliated          and harassed plaintiff prior to and during lawful arrest on basis                                                     ______          of  plaintiff's race); United States  v. Scopo, 19  F.3d 777, 786                                 _____________     _____          (2d Cir.) ("Though the Fourth Amendment permits a pretext arrest,          if otherwise  supported by  probable cause, the  Equal Protection          Clause  still  imposes  restraint  on  impermissibly  class-based          discriminations.") (Newman, C.J., concurring), cert.  denied, 115                                                         _____  ______          S. Ct. 207 (1994); Inada v. Sullivan, 523 F.2d 485, 489 (7th Cir.                             _____    ________          1975)  (finding right  of  action under  Equal Protection  Clause          where  police  officer, motivated  by  animus  toward plaintiff's          ancestry, threatened him with  deportation); Tanner v. Heise, 879                                                       ______    _____          F.2d 572, 580 n.5 (9th Cir. 1989) (where plaintiff alleged "equal          protection"  violation, police  officers' "mere  compliance" with          state  law would  not shield  them from  liability under    1983,          provided  plaintiff could  prove  that  officers' motivation  for          arrest was to harass plaintiff because of his religious beliefs).          Furthermore,  a  rational  factfinder  could  conclude  that,  in          electing  to use excessive force to effect the violent seizure of          Alexis's  person and  her forcible  removal from  the restaurant,                                          28          Leporati  was motivated by a discriminatory animus.  See Smith v.                                                               ___ _____          Fontana, 818 F.2d 1411, 1420 (9th Cir.) (finding actionable claim          _______          where it was alleged  that decedent had been subdued  through use          of  excessive force because he was black), cert. denied, 484 U.S.                                                     _____ ______          935 (1987).  We therefore hold, based on the present record, that          the Equal  Protection Clause claims under section 1983 are trial-          worthy.13          D.   State Law Claims          D.   State Law Claims               ________________                    Since only  one state  law claim  was addressed  on the          merits  below, see  supra  note  12,  and federal  claims  remain                         ___  _____          pending, the state  law claims against Leporati  must be remanded          as well.  See 28 U.S.C.   1367(c)(3) (district court may  decline                    ___          to exercise supplemental jurisdiction where all claims over which          court  has  original  jurisdiction  have been  dismissed).    The          dismissal of  the state-law  claims against the  remaining defen-          dants is affirmed.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The district court judgment dismissing the section 1983          claim  against  Leporati for  arresting  Alexis  without probable          cause  in violation  of the  Fourth Amendment  is affirmed.   The          judgments  entered  in favor  of  Domina  and McDonald's  on  the                                        ____________________               13Of  course,  Alexis's equal  protection  claim  requires a          showing that Leporati treated her  differently than he would have          treated  a white person.  We leave  open the question of what, if          any, additional  evidence might be  required at trial  to satisfy                                                       __ _____          this  element.   See  Johnson,  876  F.2d  at 483-84  (concurring                           ___  _______          opinion).                                          29          section 1981 claim;  Domina and Leporati  on the section  1985(3)          claim;  and Domina  on the  section 1983  procedural due  process          claim are affirmed.  The district court judgment entered in favor          of  Leporati  on the  section  1981, excessive  force,  and Equal          Protection Clause claims is vacated, and these claims are remand-          ed for  further proceedings  consistent with this  opinion, along          with all pendent state law claims against Leporati, see 28 U.S.C.                                                              ___            1367(c)(3).  The parties shall  bear their own costs on appeal.                    SO ORDERED.                      SO ORDERED.                      __ _______                             - Separate Opinion Follows -                                          30                    BOWNES, Senior Circuit Judge,  concurring, in part, and                    BOWNES, Senior Circuit Judge,                            ____________________          dissenting, in part.   I  concur in all  of the court's  holdings          except the one dismissing the  section 1983 claim against Domina.          The  evidence taken in the light most favorable to the plaintiffs          is sufficient, I believe, for a reasonable factfinder to conclude          that  there  was  a conspiracy  between  Domina  and  Leporati to          discriminate against the plaintiff, Yvonne Alexis, because of the          color of her skin.                                          I.                                          I.                    The facts from which such a conspiracy could rationally          be inferred are  as follows.   A dispute  over an incorrect  food          order occurred  at the McDonald's service  counter between plain-          tiff Yvonne Alexis,  an African American woman, Donna Domina, the          "swing manager," and the  counterperson, Alfredo Pascacio.  After          the  dispute was  over, Shirley  Topham, a  McDonald's managerial          employee, went outside the restaurant for police assistance.  She          returned  with  Officer  Leporati,  a uniformed  off-duty  police          officer assigned  to McDonald's pursuant to  an agreement between          McDonald's and  the Town of Framingham.   Leporati conferred with          both Topham  and Domina,  who identified  Yvonne Alexis  as "that          black woman."  Domina told Leporati that she wanted Alexis out of          the restaurant.   Domina made  this request even  though she  was          aware  Yvonne  Alexis  and  her family  had  already  taken seats          preparatory to eating the food they had purchased.                      Officer Leporati neither asked Topham and Domina why he          should make  Alexis leave  the restaurant nor  made inquiries  of                                          28          anybody else  as to  the behavior of  the Alexis  family.   Based          solely on his initial discussion with Domina and Topham, Leporati          proceeded  to the dining room  table where the  Alexis family sat          quietly  eating their food.   He told Yvonne  Alexis that she and          her  entire  family had  to leave  the  premises.   Yvonne Alexis          stated that  they would  not leave  until  they finished  eating.          Upon  hearing  this, Officer  Leporati left  the dining  area and          conferred again with Topham and Domina.  He told them that Alexis          refused to leave.        During  this  second discussion,  Topham          said she  had a  problem with  this woman  on  a prior  occasion.          Domina then said, "Well, if that's the case, then maybe we should          have  her leave."  Neither Domina  nor Officer Leporati requested          information about the alleged prior problem with Alexis.  Signif-          icantly,  Officer Leporati again failed  to inquire as  to why he          was being told to remove Alexis from the restaurant.  Instead, he          said that "it wouldn't be pretty" but he would make Yvonne Alexis          leave  if Domina wanted  him to.   Domina then told  him that she          wanted Yvonne Alexis out of the restaurant.                      Officer  Leporati  returned  to  the  Alexis  table and          notified Yvonne Alexis that she would be arrested unless she left          within  the ten  minutes  it would  take  his backup  cruiser  to          arrive.  Neither Yvonne nor any member of her family  left.  When          the cruiser  arrived, Officer  Leporati physically  pulled Yvonne          Alexis out of her  seat and over the table  at which she and  her          family  had been  eating, bruising  her in  the process.   Yvonne          Alexis was then handcuffed, pushed into the cruiser, and taken to                                          29          jail.                    Both  Yvonne  Alexis  and  her  husband  protested  the          violent treatment  she received from Officer  Leporati during her          removal from the  restaurant.   At one juncture,  Mr. Alexis  ex-          claimed,  "We have  rights,"  to which  Officer Leporati  retort-          ed,"You  people have no rights.   You better shut up your [exple-          tive]  mouth before  I arrest  you too."   Officer  Leporati made          these comments while still inside the restaurant.                                         II.                                         II.                    The  majority  opinion's cursory  treatment  of Alexis'          section 1983  claims overlooks several factual  bases for finding          that there was a conspiracy within section 1983's "under color of          law"  requirement  between Domina  and  Leporati.   See  Lugar v.                                                              ___  ________          Edmonson  Oil Co., 457 U.S. 922, 928 (1982)("'under color of law'          _________________          has consistently been  treated as  the same thing  as the  'state          action'  required under  the  Fourteenth  Amendment").   Evidence          submitted at trial, when  viewed in the "light most  favorable to          the nonmoving party" and with  "all reasonable inferences in that          party's favor,"  Colonial Courts Apartment Co.  v. Proc. Assocs.,                           _______________________________________________          57 F.3d 119, 122 (1st Cir. 1995), supports the view  that Alexis'          arrest  resulted from  concerted action  between Domina  and Lep-          orati.                     Section 1983  conspiracies are "commonly defined  as 'a          combination of two or more persons acting in concert to commit an          unlawful  act, or to  commit a lawful act  by unlawful means, the          principal  element of which  is an agreement  between the parties                                          30          'to  inflict  a wrong  against or  injury  upon another'  . .. ."          Earle  v.  Benoit, 850  F.2d  836,  844 (1st  Cir.  1988)(quoting          _________________          Hampton  v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd          ____________________                                        _____          in part  on other  grounds, 446  U.S.  754 (1980)).   Under  this          __ ____  __ _____  _______          definition,  section 1983  liability  attaches to  private actors          deemed "willful participant[s] in  [a] joint action with a  State          or its  agents."  Lugar, 457  U.S. at 941; Dennis  v. Sparks, 449                            _____                    _________________          U.S. 24, 27 (1980); Casa Marie,  Inc. v. Superior Court of Puerto                              _____________________________________________          Rico, 988 F.2d 252, 259 (1st Cir. 1993).  And joint action may be          ____          proved by circumstantial  evidence of  a prearranged  conspiracy.          See Wagenmann v.  Adams, 829 F.2d 196,  211 (1st Cir. 1987);  see          ___ ___________________                                       ___          also  Moore v. Marketplace Restaurant, Inc.,  754 F.2d 1336, 1352          ____  _____________________________________          (7th Cir. 1985).                    I do not contend that joint action existed in this case          because Leporati  worked the  McDonald's detail or  that Domina's          supervisor, Shirley Topham, requested his assistance.  This court          has clearly stated  that "merely initiating a good  faith request          for police protection  would not attach liability  for the subse-          quent unconstitutional  conduct of arresting  officers."   Wagen-                                                                     ______          mann, 829 F.2d at 210; see also Lusby v. T.G. & Y.  Stores, Inc.,          ____                   ___ ____ ________________________________          749  F.2d 1423, 1433 (10th  Cir. 1984), vacated  on other grounds                                                  _______  __ _____ _______          sub  nom. City of Lawton v. Lusby,  474 U.S. 805 (1985), aff'd by          ___  ____ _______________________                        _____ __          796 F.2d 1307 (10th  Cir. 1986)(a store that employs  an off-duty          police officer is not  vicariously liable under section 1983  for          such officer's deprivation of  customer's civil rights).   But, I          am  persuaded by the fact  that Domina and  Leporati conferred on                                          31          two separate occasions before Alexis' brutal arrest.  The  record          establishes that Domina, not Leporati, made the decision to expel          Alexis from McDonald's premises, and that she made  that decision          with the knowledge  that some harm  could befall Alexis  (Alexis'          removal "would not be pretty").  And it is clear that Domina knew          that Leporati would do as she requested.                    Viewed  in context,  the  events  precipitating  Yvonne          Alexis' claims against Domina cast a  long shadow of doubt on the          majority's  conclusion that  there was  "no evidence"  to suggest          Alexis'  claims  against  Domina  should  have  survived  summary          judgment.   The facts --  that Leporati consulted  with Domina on          two occasions; that Leporati based his decision to  arrest Alexis          on Domina's order; and  that it could be found that both Leporati          and  Domina took Yvonne Alexis'  race into account  --  certainly          suggest  something more  than independent,  race neutral,  police          action.    A factfinder  could reasonably  infer that  Domina and          Leporati  were acting in concert with one another according to an          informal  plan  whereby  Leporati  would eject  anyone  from  the          restaurant identified by Domina as a problem without independent-          ly investigating the situation.                        Evidence  of  such  substituted  judgment  arrangements          provides a basis  for extending section 1983 liability to private          actors.   See Cruz  v. Donnelly, 727  F.2d 79, 81  (3d Cir. 1984)                    ___ _________________          (holding  evidence of  a  pre-arranged plan  to arrest  suspected          shoplifters without independently  investigating the presence  of          probable  cause was  needed  to confer  section 1983  liability);                                          32          Lusby, 749 F.2d at 1432-33.  While it generally does not  suffice          _____          to show that a police officer fulfilled a private actor's request          to  arrest someone,  courts  will impose  liability  where it  is          evident  the  police officer  would  not have  acted  without the          private  actor's order.   Cruz,  727 F.2d  at 81.   A  failure to                                    ____          investigate, though not dispositive, has been deemed sufficiently          demonstrative of  conspiratorial conduct. See Lusby,  749 F.2d at                                                    ___ _____          1432.                    Despite  the majority's  attempts to  do so,  this case          cannot  be squared  with  the  holding  in Carey  v.  Continental                                                     ______________________          Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987).  In that case the          ______________          Tenth Circuit found that there was no substituted  judgment where          a police officer was  called into an airport to arrest a striking          airline pilot.  The police officer in Carey, however, was more of                                                _____          an  independent actor than the facts show Officer Leporati was in          this case.   That officer actually  conducted a separate  inquiry          into the  facts before arresting  the pilot.   823 F.2d  at 1403.          Officer Leporati  failed to investigate  at all, choosing  to act          solely at Domina's behest.  Additionally, it is worth noting that          the  use of  excessive force  and obvious  racial overtones  that          marked  Officer Leporati's actions in this  case were not present          in Carey.               _____                    The  current case  more closely  patterns Wagenmann  v.                                                              _____________          Adams, 829 F.2d 196 (1st Cir. 1987), a case the majority attempts          _____          to distinguish.  In that  case the private actor enjoyed a  close          relationship  with local  police  officers and  enlisted them  in                                          33          carrying out a plan to eject a potential agitator from his  son's          wedding  ceremony.  We held that a section 1983 conspiracy exist-          ed, concluding  that the defendant  in that case  was essentially          using the law  enforcement officials involved to achieve his own,          unconstitutional ends. 829 F.2d at 211.                     A  sound evidentiary basis exists for concluding Domina          and Leporati adhered to a substituted  judgment policy not unlike          the one  deemed constitutionally violative in  Wagenmann.  First,                                                         _________          the record reveals Domina,  not Leporati, as the impetus  for the          decision to eject Yvonne  Alexis.  Second,  Domina  and Leporati,          as individuals who worked  at McDonald's, could be found  to have          had a  shared  understanding  to  deprive Yvonne  Alexis  of  her          rights.   See Adickes v. Kress,  398 U.S. 144, 152  (1970).  Lep-                    ___ _______    _____          orati worked the McDonald's detail on numerous occasions and must          have  had a  working  knowledge of  company  policy and  decision          making  procedures  for  removals.   Finally,  the  conversations          Domina  and Leporati  held  regarding Alexis  were sufficient  in          duration  and  number to  cement  a  conspiracy.   These  factors          convince me  that the independent police  actions which persuaded          the  Tenth Circuit that no private liability existed in Carey are                                                                  _____          not present in this case.                    I am not  dissuaded by the  absence of conclusive  evi-          dence that an express plan to discriminate existed between Domina          and Leporati.  The  Supreme Court has found a section 1983 viola-          tion where there was no formal plan to  discriminate.  In Adickes                                                                    _______          v.  Kress  & Co.,  398 U.S.  144 (1970),  the  Court held  that a          ________________                                          34          policeman's  presence  in a  segregated  lunch  counter might  be          enough to infer a  conspiracy between the police officer  and the          establishment, where the plaintiff  had both been refused service          and  arrested.  In a notable decision the Seventh Circuit found a          conspiracy  where the state  agents with  whom the  private actor          conspired  were  not  actively  involved in  the  deprivation  of          rights.   See Soldal v. County  of Cook, 942 F.2d  1073 (7th Cir.                    ___ _________________________          1991), rev'd  on other  grounds by 113  S.Ct. 538  (1992)(finding                 _____  __ _____  _______ __          that private owner and deputy sheriffs conspired to "get rid of a          pesky tenant"  when sheriffs passively watched  an unlawful evic-          tion).  It was not necessary that there be evidence of an express          plan between Domina and Leporati to implicate section 1983.                      There was sufficient  evidence from which  a factfinder          could conclude that Domina and Officer Leporati conspired togeth-          er to  deprive Yvonne Alexis of  her due process right  not to be          arrested  without probable  cause and  that such  deprivation was          based on the color of Alexis' skin.                    For the  reasons discussed  above, I would  reverse the          judgment of the district court on the section 1983 claims brought          against Donna Domina.                                          35
