970 F.2d 996 (1st Cir. 1992), 91-2196, Rumford Pharmacy, Inc. v. City of East Providence

Docket Nº:91-2196.
Citation:970 F.2d 996
Party Name:RUMFORD PHARMACY, INC., Plaintiff, Appellant, v. CITY OF EAST PROVIDENCE, et al., Defendants, Appellees.
Case Date:July 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 996

970 F.2d 996 (1st Cir. 1992)

RUMFORD PHARMACY, INC., Plaintiff, Appellant,


CITY OF EAST PROVIDENCE, et al., Defendants, Appellees.

No. 91-2196.

United States Court of Appeals, First Circuit

July 31, 1992

Heard April 7, 1992.

Page 997

Kevin P. Gavin with whom James R. Simmons and Nadeau & Gavin, P.C. were on brief, for plaintiff, appellant.

Marc DeSisto with whom Carroll, Kelly & Murphy was on brief for defendants, appellees City of East Providence and its councilmen.

Caroline C. Cornwell, Sp. Asst. Atty. Gen., with whom James E. O'Neil, Atty. Gen., was on brief for defendant, appellee Edward R. Lynch.

Before BREYER, Chief Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Appellant Rumford Pharmacy, Inc. instituted the present action in the United States District Court for the District of Rhode Island against the City of East Providence, all members of its City Council--in their dual capacities as council members and members of the Board of Licensing Commissioners--City Councilman Gerald Lynch, in his individual capacity, and Councilman Lynch's brother, Edward R. Lynch, in his individual capacity and in his former official capacity as a Member of the Rhode Island House of Representatives. The complaint demanded damages, as well as injunctive and declaratory relief, for alleged violations of appellant's civil and constitutional rights relating to the denial of appellant's application for approval of a transfer of a local liquor license. The federal claims were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted. The pendent state law claims were dismissed without prejudice.



In reviewing a dismissal order under Rule 12(b)(6) we treat all allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). According to the complaint, in September 1989 appellant Rumford Pharmacy, Inc. entered into a contract for the purchase of an existing Class A & E Beverage License previously issued to King Drug Co. [hereinafter "King Drug"]. Appellant promptly filed its application for transfer of the King Drug liquor license with the Board of Licensing Commissioners [hereinafter "Board"], which scheduled the application for consideration at its November 13, 1989 hearing. Later, although appellant met all requirements for a transfer of the license, the Board indefinitely postponed action on appellant's application pending a ruling from the Rhode Island Ethics Commission as to whether Commissioner Lynch's participation in the Board's

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decision would constitute a conflict of interest. 1

Several months later, the Ethics Commission ruled that Commissioner Lynch's participation in the pending Board proceedings would constitute a conflict of interest. The Board appealed the ruling and postponed further proceedings on appellant's application, pending appeal. Meanwhile, Commissioner Lynch succeeded in getting his brother, appellee Edward R. Lynch, a Member of the Rhode Island House of Representatives, to introduce a bill whose specific purpose was to prevent appellant from obtaining approval of its application. The bill was enacted into law on July 6, 1990. 2 On July 18, after appellant had agreed to withdraw its defamation action against Commissioner Lynch, the Board scheduled a hearing on appellant's application. The application was denied on August 22, pursuant to the Lynch-inspired legislation enacted on July 6. Appellant took an appeal to the Liquor Control Administrator which was rendered moot as a consequence of King Drug's transfer of the license to another entity. 3



The complaint alleges that the defendants conspired to deprive appellant of its property without due process of law in violation of 42 U.S.C. §§ 1983 and 1985(3) and that the Lynch-inspired legislation violates both the United States Constitution and the Rhode Island Constitution. 4 We review Rule 12(b)(6) dismissals de novo, under the identical criteria applicable at the trial court level. Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). Drawing every reasonable inference favorable to the nonmoving party, we will "affirm a dismissal for failure to state a claim only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). The pleading requirements, though "minimal," are not "non-existent." Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). "Modern notions of 'notice pleading' notwithstanding, a plaintiff ... is nonetheless required to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Id. at 515 (emphasis added).

  1. Due Process Claims

    An actionable section 1983 claim must allege facts sufficient to support a determination "(i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States." Chongris v. Board of Appeals, 811 F.2d 36, 40 (1st...

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