
USCA1 Opinion

	




          November 28, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1557                                 WILLIAM J. CORCORAN,                                Plaintiff, Appellant,                                          v.                               TOWN OF SUDBURY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            William J. Corcoran on brief pro se.            ___________________            Paul L.  Kenny,  Town Counsel,  on  brief  for appellees  Town  of            ______________        Sudbury, et al.            David J. Hatem, Warren D. Hutchison,  Andrew J. McBreen and  Burns            ______________  ___________________   _________________      _____        & Levinson on brief for appellee Elisa D. Cunningham.        __________            Wayne H. Scott on brief for appellee Wayne H. Scott.            ______________            Mark  A. McCormack  and Sloane  and  Walsh  on brief  for appellee            __________________      __________________        Cuddy, Lynch & Bixby.            John  E. Sutherland  and Brickley,  Sears  &  Sorett on  brief for            ___________________      ___________________________        appellee Francis H. Clark.                                 ____________________                                 ____________________                 Per Curiam.   Appellant William J.  Corcoran appeals the                 __________            dismissal  by  the  United  States  District  Court  for  the            District   of   Massachusetts  of   his   complaint  alleging            violations  of his civil rights, pursuant to 42 U.S.C.   1983            and 42  U.S.C.    1985, and a  state law  claim for  attorney            negligence.  Both the federal and state claims arise out of a            decision   by  the  Sudbury   Town  Planning   Board  denying            Corcoran's  request for  approval of  a plan  to subdivide  a            parcel of land.  The Supreme Judicial Court of  Massachusetts            eventually  ordered that the plan be approved.  We affirm the            dismissal  of the federal claims but  vacate the dismissal of            the Corcoran's state claim.                 Corcoran  alleges  violations of  his federal  rights to            procedural and  substantive due process, as well as his right            to equal protection.  However, in each case, he has failed to            allege facts sufficient to support his claim.  Therefore, his            civil rights claims were properly dismissed.                  Corcoran's  right  to  procedural due  process  was  not            violated because, even if the  initial denial of his proposed            plan by  the Town Planning  Board was unjustified,  the state            provided  an adequate remedy  through the  appellate process.            See PFZ Properties, Inc.  v. Rodriguez, 928 F.2d 28,  31 (1st            ___ ___________________      _________            Cir. 1991)  (no violation  of  procedural due  process  where            state  provides adequate judicial remedies for administrative            error).  Moreover, this court has held repeatedly, in similar            cases, that, when the state provides adequate postdeprivation            relief,  the  mere   delay  in  obtaining   that  relief   is            insufficient to support a procedural due  process claim.  See                                                                      ___            Licari  v. Ferruzzi, 22 F.3d 344, 349 (1st Cir. 1994) (citing            ______     ________            cases).                 Corcoran's substantive due  process claim fails  because            he has alleged  no facts  which in any  sense constitute  the            sort of "conscience shocking" behavior necessary to support a            substantive  due process  claim in  the context  of  a zoning            dispute.  See id. at 350.                      ___ __                  Corcoran's claim  that he  suffered a violation  of his            right  to equal protection is  precluded by the  fact that he            has  not alleged that  any selective treatment  he might have            received was "based on  impermissible considerations such  as            race, religion,  intent to inhibit or punish  the exercise of            constitutional rights,  or malicious  or bad faith  intent to            injure."   Rubinovitz v. Rogato,  60 F.3d 906,  910 (1st Cir.                       __________    ______            1995) (quoting Yerardi's Moody  St. Restaurant & Lounge, Inc.                           ______________________________________________            v. Board of Selectmen, 878 F.2d 16, 21 (1st Cir. 1989)).               __________________                 "As  a general principle, 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            claim."   Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177                      _________    __________________            (1st Cir. 1995).  The district court has the authority, based            on  its assessment  of  the "totality  of circumstances,"  to            retain jurisdiction over state law claims in such cases.  Id.                                                                      __                                         -3-            (giving  examples  of some  factors to  be considered  by the            district court in this assessment).                   In the instant case, although the district court granted            the motion  to dismiss the claim for  attorney negligence, it            does not  appear to  have undertaken the  requisite calculus.            This  failure might  induce  us to  remand  the case  to  the            district  court for a proper exercise of its discretion.  See                                                                      ___            Wright  v. Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir.            ______     ____________________            1994) (finding dismissal improper in part because of district            court's  failure to  perform  requisite calculus).   However,            having reviewed  the record, we find  nothing which indicates            that this is an  unusual case where supplemental jurisdiction            should be exercised.  See Brennan v. Hendrigan, 888 F.2d 189,                                  ___ _______    _________            196 (1st Cir. 1989).                 For the foregoing  reasons, the dismissal of  Corcoran's            federal claims is affirmed.   The dismissal of his  claim for                              ________            attorney negligence  is vacated and remanded  to the district                                    _______     ________            court  with  instructions   to  dismiss  the   claim  without            prejudice to  Corcoran's refiling  the claim in  state court.            See Gloucester M.R.  Corp. v. Charles Parisi, Inc.,  848 F.2d            ___ ______________________    ____________________            12, 16 (1st Cir. 1988).                                         -4-
