USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1623

JESSICA L. HAYDEN, NICOLE C. MERRILL AND

COLLEEN M. RHOADS,

Plaintiffs, Appellants,

v.

RICHARD GRAYSON, CHIEF OF POLICE

OF THE TOWN OF LISBON, ET AL.

Defendants, Appellees.

___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

___________________

Before

Boudin, Circuit Judge,

_____________

Godbold* and Cyr, Senior Circuit Judges.

_____________________

__________________

Edward M. Van Dorn, Jr., with

_________________________

whom Brad W. Wilder

_______________

and Van D
______

Cullenberg were on brief for appellants.

__________
John T. Alexander, with whom
_________________
P.C. were on brief for appellees.
____

Michael Lenehan and Ransmeier & Spe

_______________
_______________

__________________

January 22, 1998

__________________

____________________

*Of the Eleventh Circuit, sitting by designation.

CYR,
CYR,

Senior Circuit Judge.

Senior Circuit Judge.
____________________

Plaintiffs appeal

from a

district court judgment dismissing

their equal protection claims

against

Hampshire, and

the Town

of Lisbon,

police, Richard Grayson,

that their

New

its chief

for failing to investigate

father abused them

sexually while they

of

allegations

were minors.

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

Although

allegations

misrepresent

prosecute.

in

the

1983,

that

the

Seven years

three

Grayson

sisters

took no

district

first

action

attorney

had

later, after attaining

lodged

other

these

than

declined

to

to

their majority,

plaintiffs discovered Grayson's

allegations to

misrepresentation and took their

the district attorney.

serving a lengthy

Their father presently is

prison sentence, following his

conviction for

aggravated sexual assault.

Plaintiffs filed

and

the instant

action against

the Town

Grayson, in his individual and official capacities, claiming

inter
_____

alia
____

that

Grayson

allegations either

victims of

enforcement

violated

abuse, and

their

investigating

their

female, children, or

that such selective

individual rights

under

See U.S. Const. amend XIV; 42 U.S.C.

___

course, the equal

____________________

from

because plaintiffs were

domestic sexual

Protection Clause.

In due

refrained

protection count against the

law

the Equal

1983.1

Town was

1It

is undisputed

color of state law.

that Grayson

See 42 U.S.C.
___

at all

times acted

under

1983.

dismissed for

12(b)(6).

summary

failure to

Following

judgment

plaintiffs

intended to

had

on

failed

state a claim.

discovery, defendant

the

See
___

Fed. R.

Civ. P.

Grayson was

awarded

individual-capacity

to adduce

discriminate due to

sufficient

claim

because

evidence

that he

their membership in any

of the

three classes alleged

in their

thereafter

plaintiffs'

denied

reconsideration.

complaint.

The district

postjudgment

court

motion

for

See Fed. R. Civ. P. 59.

___

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Equal Protection Claim Against Grayson2

The Equal Protection Claim Against Grayson
__________________________________________

The

Fourteenth Amendment mandates

that no State "deny

to any person within its jurisdiction the equal protection of the

laws."

U.S. Const.

constitutional right

law enforcement

amend

XIV.

to police

officials

may

protective services to certain

Thus,

although there

is no

protection, State executive

not

"selectively

deny

disfavored minorities."

and

DeShaney

________

v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197 n.3
_______________________________________

(1989).

Plaintiffs

rely on City of Cleburne v. Cleburne Living

________________
_______________

Ctr., 473 U.S. 432 (1985), for their contention that the district
____

court should not have applied the equal protection test governing

____________________

2After

examining all competent

evidence in the

light most

favorable to the party opposing summary judgment, we are required

to make a de novo determination as to whether a trialworthy issue

__ ____

remained or the moving party was entitled to judgment as a matter

of

law.

See Dominique v.
___ _________

Weld, 73
____

1996).

F.3d 1156, 1158

(1st Cir.

race

and

gender

plaintiffs show

Instead,

classifications,

that Grayson

which

acted with

necessitated

discriminatory intent.

plaintiffs argue, in cases involving less invidious but

nonetheless arbitrary classifications,

such as child victims

domestic sexual abuse, Cleburne simply envisions

________

prove

that

that the defendant's

decision lacked a

of

that plaintiffs

"rational basis,"

without regard to any discriminatory intent.3

Plaintiffs misconstrue

the Cleburne
________

decision.

There

the

Supreme

district

Court

court

expressly

that

noted

the

the municipality's

finding

made

principal

by the

reason

for

denying the requested zoning permit had been "that

the residents

of

are

the

[plaintiff] home

retarded," id.
___

appeal.

Thus, it

motive had been

whether the city

state

at 437, a

interest

would

be

persons

who

finding which was never

was only

because

the city's

established ab initio
__ ______

challenged on

discriminatory

that the Court

need demonstrate a "compelling"

criteria theretofore

reserved

mentally

addressed

or "important"

for race

and

gender discrimination

or need simply

articulate a "rational

basis" for its

Id. at 440-41.
___

Accordingly, Cleburne
________

decision.

did not hold that no threshold proof of intent to discriminate is

____________________

3The

Equal Protection Clause

safeguards not merely against

such

invidious classifications as race, gender and religion, but

any

arbitrary

classification

governmental treatment.
598, 608

(1985) (noting,

cases, that "the

based

of

Cf. Wayte
___ _____

persons

unfavorable

v. United States, 470

______________

in relation

to selective

decision to prosecute may not

upon an unjustifiable standard

for

prosecution

be 'deliberately

such as race, religion, or

other arbitrary classification'") (emphasis added; citations

_____ _________ ______________
internal quotation marks omitted).

U.S.

and

required

in

cases

involving

less

invidious

arbitrary

classifications.4

The motivation

always so apparent

challenged

as in Cleburne, of course,
________

decision does not

class of persons

instances,

underlying a municipal decision

however,

understandably

may

members

consider

especially if the

expressly single out

for disadvantageous

of

it

the

no

treatment.

plaintiff

mere

is not

a particular

Even in

such

class

quite

coincidence

that

facially neutral decision causes a disproportionately unfavorable

impact on their particular class.

is

Nevertheless, even evidence of

widely disproportionate impact on the plaintiff class normally

not enough, standing alone,

violation.

to establish an equal protection

See, e.g., Personnel Adm'r of Mass. v.

___ ____ _________________________

Feeney, 442
______

U.S.

256, 274-75 (1979) (upholding veteran's preference in civil

service hiring,

male).

although vast

Rather,

"purposeful

plaintiffs must

discrimination."

243-44 (1976);

majority of

adduce

veterans hired

competent evidence

were

of

Washington v. Davis, 426 U.S. 229,

__________
_____

Soto v. Flores,
____
______

103 F.3d 1056, 1067

(1st Cir.),

cert. denied, 118 S. Ct. 71 (1997).

_____ ______

The

burden

purpose' . . .

is

an

onerous

one:

"'Discriminatory

implies that the decisionmaker . .

. selected or

____________________

4The other case relied upon

to the same
(9th Cir.

effect.

See Navarro
___ _______

1996) (vacating summary

by plaintiffs in this regard is

v. Block, 72 F.3d
_____

judgment for County

protection claim because there existed a

whether County policy

on equal

trialworthy issue as to

according different treatment

and nondomestic violence

712, 715-16

had a "rational basis," but

to domestic

only after
_____

the

County had

policy

conceded, arguendo
________

of affording

victims of

on

appeal, "that

domestic

it had

violence less

police

protection").

reaffirmed a

merely 'in

group."

course of action at least in part 'because of,' not

_______ __

spite of,' its

Feeney,
______

442

adverse effects upon

U.S. at

omitted); Soto, 103 F.3d at

____

279

1067.

(emphasis

an identifiable

added;

citation

Thus, unless these plaintiffs

established the

protection

requisite

claim

decision not

cannot

to

discriminatory

succeed

even

investigate lacked

Village of Arlington Heights

_____________________________

429 U.S. 252, 265

intent,

assuming

their

the

equal

Grayson

"rational basis."

See
___

v. Metropolitan Hous. Dev. Corp.,

______________________________

(1977); Semple v. City of Moundsville, 963 F.

______
____________________

Supp. 1416, 1433 (N.D. W. Va. 1997).

Plaintiffs claim

competent evidence

that the

that Grayson

harbored "archaic

regarding female-child sexual abuse in

its victims for

investigate.

district court

record does

not

stereotypes"

the home and singled

unfavorable treatment in determining

The

disregarded

support

out

whether to

their contention,

however.5

At no time did Grayson indicate to anyone that he would

not

investigate allegations

of child sexual

abuse in

the home

____________________

5Plaintiffs adduced no evidence that Grayson's reluctance to

pursue criminal investigations was based on their gender.
contrary, plaintiffs
investigate a

proffered evidence

1990 allegation

that a

sexually molested by his grandfather.

statistical
comprise

or

other

a majority

evidence

that Grayson

failed to

12-year-old boy had

been

Nor did plaintiffs adduce

relating

of (1) sexual

On the

to

whether

abuse victims;

females

(2) domestic

sexual abuse victims; (3)

sexually abused minors; or (4)

minors

sexually

home.

Boutin

abused

in

the

Furthermore,

attested that though Grayson often did

crimes

not pursue allegations of

committed against children if a nonoffending adult family

member urged him

whether the
Given

Officer

not to do so,

victims were

this "policy" did not

male or

its serious deficiencies,

female.

See
___

depend on

infra note
_____

8.

the gender classification claim

quite properly was rejected by the district court.

because he

thought the

enforcement

officer

protection.

that he

had

allegations at their

confirmed that it

family

victims were

Instead,

refrained

undeserving of

he

explained

to

from investigating

mother's request.6

Another

was Grayson's policy not to

equal law-

fellow

plaintiffs'

police officer

intervene where a

member (e.g., nonabusive parent or spouse) requested that

____

there be no investigation.

Plaintiffs essentially

evidence

supported,

claim, nonetheless,

respectively,

rational

that their

inferences

that

Grayson intended

to treat

nondomestic crime, all

crimes

all domestic

crime differently

from

crimes against children differently

from

against adults, and

from nonsexual

crimes.7

all sexual abuse

Once

crimes differently

again the evidence does

not bear

out their claim.

Plaintiffs' proffer disclosed

policy

attributed to

Grayson may

have

that the nonintervention

been much

broader than

plaintiffs allow, in that it applied not merely to domestic child

sexual abuse, but to other crimes in circumstances where

concerns

for family integrity

general

and family privacy predominated.8

____________________

6Specifically, the
want the girls

mother told

Grayson that

involved in a prosecution."

"she did

not

Plaintiffs have not

contested this evidence.

7The
evidence

district

court

relating

to

reserved
Grayson's

the
own

question
statements

whether

the

would

be

admissible.

See Fed.
___

R. Evid.

801(d)(2) (admission

by party-

opponent).

8In

the

portion of

below, the inquiry

Officer Boutin's

deposition proffered

is ambiguously phrased by plaintiffs in terms

of how Grayson acted "in these kinds of cases" compared to "other

[] more

conventional kinds

of crimes,"

without particularizing

Thus, their

Grayson

proffer may be

seen to belie their

sought to discriminate

contention that

against them because

_______

of, rather
__

than in
__

spite of, their status as

_____ __

in

home.

the

demonstrating

home,

See
___

Feeney,
______

victims of child sexual abuse

422

U.S.

general condonation of

therefore,

the

proffer

at

279.

Far

child sexual abuse

simply

supported

from

in the

reasonable

inference that Grayson would investigate virtually any allegation

___ __________

of crime absent an appropriate request from a nonoffending spouse

__ _____ ______

to refrain

from intervention in circumstances

where legitimate,

competing

family

to

Accordingly,

that

interests

although

were

thought

the evidence

may well

the Grayson nonintervention

adverse impact

in cases

policy had

involving allegations

predominate.

have demonstrated

a disproportionate

relating to

the

various victim classes in which plaintiffs claimed membership, it

did not demonstrate that Grayson harbored a discriminatory animus

toward those

victim classes.

Id. at
___

274 (upholding

veteran's

____________________

any

characteristic
______________

unconventional
crimes
the

of

these

in their view

against children or

then,

police "took

Officer

rights

family's
______

wishes were

didn't."

were, I

policy.

Although

Perhaps

ambiguously

emotions

it didn't

Boutin

get

allowed

was

abuse, or

which triggered
for

this

responded

what the mother

______

mean,

that

which

(e.g., domestic, sexual

____

Boutin

into [account]

victim's
______

crimes

female victims), or

Grayson nonintervention

reason,

alleged

that the

had to say

were,"

and

very

or the
__
"if

prosecuted, then
that

the

the

it

Grayson

nonintervention policy would apply to crimes against children, at

no time
These

did he state that it applied exclusively to such crimes.

unaddressed

inference

that

predicated

on a

the

challenged

invited

nonintervention
for

even though

rational

policy

family integrity

be activated, for example, at

nonoffending spouse

related

plainly

generalized concern

privacy, which would

of a

ambiguities

was

and

the instance

the allegations may

have

to nonsexual criminal activity directed against an adult

family member.

preference in civil service hiring,

even though vast majority of

veteran hirees were male).

Similarly, plaintiffs presented

on

two other

occasions, failed

child sexual abuse in

no

evidence that

the home.

Grayson

was

to

evidence that Grayson,

investigate allegations

Once again, however,

motivated

by

of

there was

discriminatory

animus, as distinguished

Moreover,

Grayson proffered

investigated

cases, as

at

well as

Cf. Willhauck
___ _________

analogous

from a neutral

least

undisputed

two other

evidence

domestic

eight nondomestic

v. Halpin, 953
______

nonintervention policy.

that

he

had

child

sexual abuse

child sexual

abuse cases.

F.2d 689, 712 (1st

Cir. 1991) (in

context of equal protection claim founded on selective

prosecution, "[i]t must

have not been

be shown that others

similarly situated

prosecuted and that the decision

to prosecute has

been motivated by an impermissible reason").

Finally, in

an ironic twist, the

discriminatory focus

essential to plaintiffs' equal protection claims was irredeemably

blurred

by their proffer that the Grayson nonintervention policy

extended well beyond domestic child

sexual abuse cases (e.g., to

____

DWI

and vandalism),

and may

even

dishonesty, chronic lassitude,

have been

due to

alcohol abuse, or desire

personal

vendettas against

groups.

See
___

New Burnham Prairie Homes, Inc.

__________________________________

Burnham,
_______

910

F.2d

1474,

particular

1481

will

not

suffice"

(7th Cir.

to

to wage

individuals rather

"[d]iscrimination based merely on individual,

reasons

Grayson's

establish

1990)

than

v. Village of
___________

(noting

that

rather than group,

equal

protection

violation).

That is to

say, although their scattershot approach

might enable a rational inference

chief,

it

cannot

sustain a

failed to investigate

children who

nonspeculative

inference

that he

these allegations because plaintiffs

_______

were

had been sexually abused, or because plaintiffs had

_______

been sexually abused

("Whether this

that Grayson was a poor police

in the home.

deplorable scenario

See Soto,
___ ____

is

103 F.3d at

actionable under

1072

Puerto

Rican law we leave, as we must, to others.").9

B.
B.

The Equal Protection Claim Against the Municipality

The Equal Protection Claim Against the Municipality
___________________________________________________

The district court dismissed the equal protection count

against the Town for failure to state a claim.

See Fed. R.
___

Civ.

P.

12(b)(6).

Eighteen

months

later,

plaintiffs

moved

reinstate and amend the claim, see Fed. R. Civ. P. 15,

___

that the

the

Town should be

municipal official

held liable either because

who

instituted

the

to

to allege

Grayson was

official

"policy"

____________________

9The district court

denied plaintiffs' postjudgment

for reconsideration, see Fed. R.

___
evidence of discriminatory
judgment.

Plaintiffs

judgment failed to
their allegations of

motion

Civ. P. 59, because their "new"

intent had been available

at summary

respond that Grayson's motion

for summary

put them on adequate notice

that he disputed

discriminatory intent.

review the Rule

59 decision only for manifest abuse

We

of discretion. See Vasapolli

___ _________

v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).

_______
The

Grayson motion

could

not

have

been

more

explicit:

"Defendant

Grayson denies any intent to discriminate against the

plaintiffs

on any

produced

basis."

Further,

"[t]he

plaintiffs

have

no evidence suggesting that defendant Grayson wanted to

harm them because

they were women, or because

or because they were alleged

plaintiffs' default may

they were minors,

victims of sexual assaults."

flow from their misreading

True,

of Cleburne.

________
See supra pp.
___ _____

3-4.

Nevertheless, "[Rule 59] does

vehicle for a party to

certainly does

the district

undo its own procedural failures, and

not allow

advance arguments that

not provide a

a party to

introduce new

could and should

court prior

evidence or

have been presented

to the judgment."

Aybar
_____

it

to

v. Crispin________

Reyes, 118 F.3d 10, 16 (1st Cir. 1997).

_____

10

against providing

sexual

abuse in

law-enforcement protection to child victims of

the home,

see Monell
___ ______

v. Department of Social
_____________________

Servs. of New York, 436 U.S. 658,

___________________

Town

failed to train

child

sexual abuse,

694-95 (1978), or because the

Grayson adequately

which constituted

to deal

with domestic

"much" or "most"

of the

denied the motion to amend,

on the

crime in the community.

The district court

ground that

its earlier

Rule 12(b)(6)

dismissal amounted

to a

decision "on the merits" and, accordingly, the law of the case.10

Even assuming the

rationale for the instant decision

found infirm, see

___

Griggs v. Hinds Junior College,

______
____________________

were to be

563 F.2d 179,

180 (5th Cir. 1977) (noting that Rule 15 amendment is "especially

appropriate

complaint for

[] .

. .

when the

failure to

trial court

state a claim");

Gulf Coast Inv. Corp., 660 F.2d 594,

has dismissed

see also
___ ____

the

Dussouy v.
_______

598 n.2 (5th Cir. 1981), we

_____________________

would affirm on the ground that the proposed amendment would have

been futile.

See
___

Levy v.
____

FDIC, 7
____

F.3d 1054,

1056 (1st

Cir.

1993).

Rule 15 permits

an

amended

complaint

the trial court to deny

which

would

be

subject

leave to file

to

immediate

dismissal under Rule 12(b)(6) for failure to state a viable claim

for relief.

See Foman v. Davis, 371 U.S. 178, 182

___ _____
_____

v. State of Me.,
_____________

118 F.3d

37, 55

(1962); Mills
_____

(1st Cir. 1997).

The

Town

cannot be held vicariously liable in an action under section 1983

____________________

10We review

the Rule 15

decision for abuse

RTC v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).

___
____

of discretion.

11

unless

its official

policy

behind

the

violation of

Monell,
______

cannot be

victim's

alleged

436 U.S. at 694.11

held

or custom

the "moving

constitutional

force"

rights.

See
___

Normally, therefore, a municipality

liable unless

constitutional rights.

Heller, 475 U.S. 796,

______

was

its agent

actually violated

See City of Los Angeles

___ _____________________

799 (1986) ("If

a person has suffered

the

v.

no

constitutional injury

officer,

at the

the fact that

authorized

hands of

[any] individual

the departmental regulations

[unconstitutional

action]

is

quite

police

might have

beside

the

point.").

Plaintiffs

section

simply allege that the Town is liable under

1983 because Grayson established an official Town policy

or custom of selective law

injury.12

Since their

however, see supra

___ _____

enforcement which in turn caused them

predicate claim

Section II.A, so

against Grayson

fails,

must their contention

that

any such discriminatory Town policy or custom existed.

Alternatively, of course, the Town could be held liable

under

section

plaintiffs was

1983

were

caused by

it

to

appear

the Town's

that

failure to
_______ __

the

injury

to

train Grayson.
_____

The

liability

criteria

for

"failure

exceptionally stringent, however.

to

train"

claims

are

See City of Canton v. Harris,

___ ______________
______

489 U.S. 378, 388-89, 391 (1989).

____________________

11Municipal
practices of state
settled
law."

customs,

for

1983

purposes,

officials ... [as are] so

as to constitute

a 'custom or usage'

are

"such

permanent and well

with the force of

Id. at 691.
___

12We assume

arguendo that Grayson,

________

as police chief,

Town policymaker with respect to law enforcement.

12

was a

Only if

the failure

indifference to the
____________

to train

"amounts to

rights of persons with whom

deliberate
__________

the police come

into contact," and is "closely related" to, or "the moving force"

behind,

the constitutional

municipality

"deliberate

prevail.

or

injury, can

Id.
___

conscious

the

(emphasis

choice"

to

claim against

added).

have

been

For

the

this

established,

plaintiffs needed to present evidence that (1) the Town knew when

it

hired

Grayson

that

violations arising and

cases

was "so

the risk

of

future

equal

recurring in domestic child

obvious" that

its failure

to train

protection

sexual abuse

him therein

likely

would result in continued violations;

the initial risk

"so

or (2) even though

__

of recurring constitutional violations

obvious,"

the

Town

subsequently

learned

of

was not

serious

recurrence, yet took no action to provide the necessary training.

Id. at 390 & n.10; see also

___
___ ____

id. at 396 (O'Connor, J., concurring

___

in part).13
____________________

13We
13

have considerable

claim survived either

Grayson,

doubt whether

the failure-to-train

the dismissal of the

1983 claim against

individually, see
___

supra Section
_____

II.A,

or the

Monell
______

policy-based claims against the Town and Grayson, in his official

capacity,

supra.
_____

constitutional
see

how

If

Grayson

violated

rights in the first instance,

failure

to

"constitutional injury" to
100 F.3d

never

1033, 1040

train

him

plaintiffs.

(1st Cir. 1997)

1983 substantive-due-process

could

plaintiffs'

it is difficult to
have

Compare Evans
_______ _____

caused
______

any

v. Avery,
_____

(affirming dismissal

of

claim against City where its agents

were

found

not

to

have

violated

plaintiff's

constitutional

rights) (citing Heller, 475 U.S. at 799), with Simmons v. City of

______
Philadelphia, 947
____________
city

F.2d 1042, 1063

policymakers,

detainees, were

____ _______

who

owed an

(3d Cir. 1991)

independent

individually liable

suicide, even though

under

duty

(holding that

to pretrial

1983 for

factfinder determined that the

not violated prisoner's constitutional

_______

prisoner

turnkey had

rights); de Feliciano
____________

v.

de Jesus, 873 F.2d 447, 450 (1st Cir. 1989) ("There may well be a
________
basis for

an agency's

liability other than

the conduct

of the

13

To begin with, plaintiffs merely allege that "Lisbon is

__

a high crime

most

area in northern Grafton County [and]

of the crime committed

that much or

in northern Grafton County involves

________

domestic violence and sexual abuse."

(Emphasis added.)

There is

no allegation that these circumstances obtained in 1975, however,

when Grayson became the police

assuming similar

chief.

No less importantly, even

circumstances prevailed

in 1975,

the need

to

train Grayson was not "so obvious, [nor] the [alleged] inadequacy

[of

the

training] so

likely

to

result

constitutional rights, that the [Town]

have been deliberately

in the

violation

of

can reasonably be said to

indifferent to the need

[for training]."

City of Canton, 489 U.S. at 390.

______________

It bears

reminding that

the gravamen

of the

amended

complaint

is not

that Grayson

did

not adequately

investigate

these allegations, but that he purposely chose not to investigate

them

at all.

It

is reasonable

to

whatever relevant training the Town

________

not

have

entailed

skills, but

officers

simply

specialized

observe, therefore,

that

failed to give Grayson would

law-enforcement

the commonplace

investigatory

understanding

that

police

may not deny law-enforcement protection based simply on

____________________

individual defendants that the jury exonerated.").

See generally
___ _________

Barbara Kritchevsky, Making Sense of State of Mind: Determining

____________________________________________

Liability in Section 1983 Municipal Liability Litigation, 60 Geo.

________________________________________________________
Wash.
law).

L. Rev. 417,
Nevertheless,

445-73 (1992) (summarizing

assuming arguendo
________

individual-capacity claim
dismissal of

dismissal of

against Grayson would

the failure-to-train

proffered amendment would

that

conflicting case

claim against

still be futile

the

not necessitate
the Town,

due to the

the

stringent

definition of

"deliberate

indifference" prescribed

in City of
________

Canton.
______

14

their

arbitrary

classifications

of

various

groups

of

crime

victims.

Thus,

basis

for

the

amended

concluding that

have anticipated that a

complaint

asserted no

Town policymakers

sufficient

reasonably should

new police chief would need

specialized

instruction in so

nor

that

the

rudimentary a law-enforcement

Town had

protection violations

been

put

on notice

responsibility,

that

were routine occurrences in domestic child

sexual abuse cases, either locally or elsewhere.

many other

390 &

law-enforcement responsibilities,

n.10 (noting

armed police

use

of deadly

that it might

officers assigned

need instruction

such equal-

Rather,

unlike

cf., e.g.,
___ ____

id. at
___

be considered

to arrest

"obvious" that

fleeing felons

regarding constitutional limitations

force), the

arbitrary law enforcement

Equal Protection Clause

is neither obscure nor

would

on proper

bar against

problematic of

application.14
____________________

14City of Canton
14______________
but that the alleged

requires not only

deliberate indifference

failure to train be shown to

have been the

"closely

related" cause

390-91.

As Grayson was

in law

constitutional injury.

plaintiffs were

acted with "purposeful

__________

no

showing that

Grayson could have

Whereas

required to

discrimination."

whatever

training

thwarted any such

law enforcement training

the proper methods

Id. at
___

a policymaking official, with discretion

enforcement matters,

that he
been

of the

was

Yet

prove

there has

not provided

to

purposeful discrimination.

might inform an

to be used in mediating

officer about

and diffusing crimes

of domestic violence, for example, it does not necessarily follow

that an
class

officer intent
______
of

on discriminating

crime victims

would

be

"enlightenment" training, especially

implicit

in

plaintiffs'

other

against a

deterred

particular

from doing

so

by

given the contraindications

evidence

that

the

challenged

decisionmaking by Grayson resulted from alcohol abuse, lassitude,

or personal animosity
Fairfield, 793
_________

toward individuals.

F.2d 737, 739

See Angel
___ _____

(5th Cir. 1986) ("Here,

failed to allege how the failure

v. City of
_______

Angel has

to train resulted in the denial

15

Finally,

ever placed

1975,

on notice

in

selective and

Swain v. Spinney,
_____
_______

prior

claim).

that Grayson, after

_____

he was

appointed in

routinely violated the equal protection rights of citizens

by engaging

of

plaintiffs have not alleged that the Town was

arbitrary law

enforcement.

See
___

117 F.3d 1, 11 (1st Cir. 1997) (lack of notice

constitutional

violations

defeats

failure-to-train

Accordingly, we conclude that the proposed amendment to

the complaint would have been futile.15

Needless

to

say,

our

conclusion

represents

no

endorsement of the

conduct with which Grayson is

charged in the

complaint.

It would be dereliction of duty for a police chief to

turn

to private

over

offense should

the decision

be pursued and it

justify telling a

complaint.

a serious

what might

prosecutor would

Nevertheless, not every form

a constitutional violation

their remedy under state law

whether

is hard to imagine

complainant falsely that the

have no interest in the

of misconduct is

parties

most

wrongs find

and our present holding is simply

that the allegations made in the complaint do not properly assert

a violation of the Equal Protection Clause.

Affirmed.
Affirmed.
________

____________________

of his right to equal protection of the laws.").

15As no "federal question" claims remain, we also affirm the

district

court's

discretionary

supplemental jurisdiction over

negligence

and

intentional

against the Town and Grayson.

decision

exercise

its

plaintiffs' state-law claims

for

infliction

not to

of

See 28 U.S.C.
___

16

emotional

distress

1367(c)(3).