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Adickes v. S.H. Kress & Co., 90 S.Ct. @ 1609
Dennis v. Sparks, 449 U.S.24, 101 S.Ct. 183
Griffin v. Breckenridge 403 U.S. at 102, 91 S.Ct. @ 1798, 29 L.Ed2d
@ 348
McClellan v. Mississippi Power & Light Co. 545 F.2d 919 (5thcir
1977)
Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md. 1978) (claims based on
@ 3 of the Equal Pay Act);
Broadcast Employees v. International Bhd. of Teamsters, 419 F.Supp.
263 (E.D. Pa. 1976) (conspiracy to violate Labor Management
Reporting and Disclosure Act), aff'd in part and reversed in part
on other grounds, 614 F.2d 846 (3d Cir. 1980);
Milner v. National School of Health Technology, 409 F.Supp. 1389
(E.D.Pa.1976).
Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 370 N.6,
99 S.Ct. 2345, 2348 n.6, 60 L.Ed.2d 957, 962 n.6 (1979), however,
the Supreme Court specifically declined to decide "whether @1985(3)
creates a remedy for statutory rights other than those fundamental
rights  derived from the Constitution." Justice Powell suggested in
his concurring opinion that the  statute's  "reach is limited to
conspiracies to violate those  fundamental rights derived from the
Constitution." Id.  at 378, 99 S.Ct. at 2352, 60 L.Ed.2d at 967.
Justice Stevens went further and said, "I do not believe that [ @
1985(3)] was intended to provide a remedy for the violation of
statutory rights -- let alone rights created by statutes that had
not yet been enacted." Id. at 385, 99 S.Ct. at 2355, 60 L.Ed.2d at
971 (concurring opinion).  Justices White, Brennan, and Marshall
expressed the opposite view in their dissenting opinion: "[Section]
1985(3) encompasses all rights guaranteed in federal statutes as
well as rights guaranteed directly by the Constitution." Id.  at
384 n.5, 99 S.Ct. at 2357 n.5, 60 L.Ed.2d at 971 n.5; cf.  Note,
Private Conspiracies to Violate Civil Rights:
    The Scope of Section 1985(3) After
Great American Federal Savings & Loan Association v. Novotny, 61
B.U.L.Rev. 1007, 1028-33 (1981) (arguing that @ 1985(3) should be
applied "only to statutes whose primary purpose is to guarantee
equal treatment").
    We, therefore, agree with the Fourth Circuit's refusal to
recognize a @ 1985(3) cause of action for private interference with
the "associational right" of belonging to the Ku Klux Klan.
Bellamy v. Mason's Stores, Inc., 508 F.2d 504 (4th Cir. 1974). This
holding is correct, in part, because the right of association
derives from the first amendment -- itself framed as a prohibition
against the federal government and not against private persons.  A
number of other courts have declined to extend @ 1985(3) protection
to infringements of all constitutional rights.
First amendment:
Murphy v. Mount Carmel High School, 543 F.2d 1189 (7th Cir. 1976).
Sex discrimination:
Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976)
(employment);
Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir. 1975)
(employment), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d
187 (1976). Procedural due process:Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976);
Collins v. Bensinger, 374 F.Supp. 273 (N.D. Ill.) (recognizing that
@ 1985(3) refers only to equal protection and not due process),
aff'd mem., 506 F.2d 1405 (7th Cir. 1974), cert. denied, 422 U.S.
1058, 95 S.Ct. 2683, 45 L.Ed.2d 710 (1975). Other courts, however,
have held that @ 1985(3) reaches every private conspiracy that
Congress has power to forbid.  E.g.,
Means v. Wilson, 422 F.2d 833 (8th Cir. 1975) (interference with
right to vote in tribal elections), cert. denied, 424 U.S. 958, 96
S.Ct. 1436, 47 L.Ed.2d 364 (1976);
Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) (employment
discrimination);
Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (free speech;
distribution of campaign material);
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (free
exercise of religion);
Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (freedom of
expression).
Gibbs v       383 U.S. @ 727, 86 S.Ct. @ 1139 40,
Sullivan v. Boettchcer & Co. 714 F.Supp 1132, 1133-3
Singer v Wadman 595 F.Supp 188, (D. Utah 1982), Aff'd 745 F.2d 606
(10th Cir 1984), cert. denied, 470 U.S. 1028 (1985).(conspiracy 631
(D. Cal. 1984) (allegations of Consiracy must be supported by
material ...
   With respect to allegations that an official act of a defendant
judge was the product of a corrupt conspiracy involving the bribery
of the judge, private parties who corruptly conspire with a judge
in connection with such conduct are acting under color of law, for
purposes of 42 USCS @ 1983; it is of no consequence in this respect
that the judge himself is immune from damages liability, for (1)
immunity does not change the character of the judge's action or
that of the judge's alleged coconspirators, and (2) the judge's
immunity is dependent upon the challenged conduct being an official
judicial act within the judge's statutory jurisdiction, broadly
construed.
National Collegiate Athletic Asso. v Tarkanian (1988, US) 102 L Ed
2d 469, 109 S Ct 454.
   Judicial immunity from suits for money damages can be overcome
in only two sets of circumstances, one of which is that judge is
not immune for nonjudicial actions, that is, for actions not taken
in judge's judicial capacity; judge will not be deprived of immun-ity because action that judge took was in error or in excess of au-thority; accordingly, relevant inquiry is into nature and function
of act, not act itself--that is, relevant inquiry is to look to
particular act's relation to general function normally performed by
judge; it is nature of act performed, not identity of actor who
performed it, that informs court's analysis of judicial immunity.
Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S Ct 286.





  PAGE    8     55 L. Ed. 2d 850, *4
   With respect to allegations that an official act of a defendant
judge was the product of a corrupt conspiracy involving the bribery
of the judge, private parties who corruptly conspire with a judge
in connection with such conduct are acting under color of law, for
purposes of 42 USCS @ 1983; it is of no consequence in this respect
that the judge himself is immune from damages liability, for (1)
immunity does not change the character of the judge's action or
that of the judge's alleged coconspirators, and (2) the judge's
immunity is dependent upon the challenged conduct being an official
judicial act within the judge's statutory jurisdiction, broadly
construed.
National Collegiate Athletic Asso. v Tarkanian (1988, US) 102 L Ed
2d 469, 109 S Ct 454.
***************************************************************

Stephen RINDLEY, D.D.S., Plaintiff-Appellant, v. Thomas
GALLAGHER, et al., Defendants-Appellees, Marshall Brothers,
D.D.S., et al., Defendants No. 89-6186
929 F.2d 1552; (11th Cic. 1991)
    Rindley sought declaratory and injunctive relief, as well as
damages, pursuant to 42 U.S.C. @ 1983 for the alleged violation of
his rights guaranteed under the first, fifth, and fourteenth amend-ments to the Constitution. Specifically, Rindley sought injunctive
relief to prevent selective enforcement of laws against advertising
[**3]   dentists (Count I), damages for selective enforcement of
laws (Count II), damages for conspiracy to selectively enforce the
laws   [*1554]   (Count III), injunctive relief to prevent the
further use of letters of guidance pursuant to Florida Statutes @
455.225(3) (1983) (Count IV), damages for the improper use of
letters of guidance (Count V), and declaratory and injunctive
relief against the appellees' interpretation of Florida Statutes @
455.225(9) (1983) (Count VI). n1

   n1 The 1989 amendment to section 455.225 renumbered former
subsections (3) through (11) as subsections (4) through (12).
Fla.Stat.Ann. @ 455.225 historical note (West Supp.1990).

    All appellees filed motions to dismiss the complaint. The
district court granted the motions to dismiss Rindley's complaint
based on the Pullman and the Burford abstention doctrines. Railroad
Comm'n v. Pullman Co.,  312 U.S. 496,  61 S. Ct. 643, 85 L. Ed. 971
(1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L.
Ed. 1424 (1943).   [**4]   The court also stated that a prima facie
case for abstention under Younger v. Harris, 401 U.S. 37, 91 S. Ct.
746, 27 L. Ed. 2d 669 (1971), had been made, but that it did not
rely upon this ground for dismissal. The district court made no
other determination of the merits of the case or of any other
ground for dismissal.




   CONTENTIONS
    Rindley contends that neither the Pullman, Burford, nor
Younger abstention doctrines apply to Counts I through V of his
complaint. n2
   n2 Rindley concedes that Count VI of his amended complaint is
properly subject to Pullman abstention.
   The DPR (other appellees present similar contentions) contends
that the district court correctly applied Pullman and Burford
abstention, and that Rindley's action is also barred by the Younger
abstention doctrine.
   The society members contend that Rindley's section 1983 claim
against them should be dismissed because they did not act under
color of state law.
   The board members contend that the  [**5]   section 1983 claim
for monetary damages against them is barred by eleventh amendment
and quasi-judicial immunity.

ISSUES
   The issues are: (1) whether the district court correctly
determined that the Pullman doctrine applies to this action; (2)
whether the district court correctly determined that the Burford
doctrine applies to this action; and (3) whether Rindley's action
is barred by the Younger abstention doctrine.

   DISCUSSION
   In the  Eleventh Circuit,  a district court's decision to
abstain will only be reversed upon a showing of abuse of
discretion. Casines v. Murchek, 766 F.2d 1494, 1502 ( 11th Cir.
1985) (district court's decision to refrain from Pullman abstention
is subject to abuse of discretion standard of review); Southern Ry.
Co. v. State Bd. of Equalization, 715 F.2d 522 ( 11th Cir. 1983)
(district court's decision to abstain under the Burford doctrine is
subject to abuse of discretion standard of review), cert. denied,
465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); High Ol'
Times, Inc. v. Busbee, 621 F.2d 135, 138 (5th Cir.1980) (Pullman
abstention  [**6]   by district court is subject to abuse of
discretion standard of review). n3
 - - -Footnotes- - - - - - - - - - - - - - - - - -
   n3 Decisions of the former Fifth Circuit Court of Appeals filed
before October 1, 1981, constitute binding precedent in the
Eleventh Circuit.  Bonner v. City of Prichard, 661 F.2d 1206, 1209
( 11th Cir. 1981).

   I. Pullman Abstention
Under the Pullman abstention doctrine, "a federal district court is
vested with discretion to decline to exercise or to postpone the
exercise of its jurisdiction in deference to state court resolution
of underlying issues of state law." Harman v. Forssenius, 380 U.S.
528, 534, 85 S. Ct. 1177, 1181, 14 L. Ed. 2d 50 (1965) (citing
Railroad Comm'n v. Pullman Co.,  312 U.S. 496,  61 S. Ct. 643, 85
L. Ed. 971 (1941)). Two criteria have been established for
application of the Pullman doctrine: (1) the case presents an
unsettled question of state law, and (2) the question of state law
is dispositive of the case  [**7]   or would avoid, orsubstantially modify, the constitutional question presented. Duke
v. James, 713 F.2d 1506, 1510 ( 11th Cir. 1983).

If a case presents such an issue, it is incumbent on the court to
exercise discretion in deciding whether to abstain. Duke, 713 F.2d
at 1510. Because it is "severely circumscribed to constitutional
challenges posing 'special circumstances,' . . . [Pullman
abstention] is therefore the exception rather than the rule." High
Ol' Times, 621 F.2d at 139 (quoting Zwickler v. Koota, 389 U.S.
241, 248, 88 S. Ct. 391, 395, 19 L. Ed. 2d 444 (1967)).

   Section 455.225(4) provides in pertinent part:

   If the probable cause panel finds that probable cause exists, it
shall direct the [DPR] to send the licensee a letter of guidance or
to file a formal complaint against the licensee. . . . If directed
to do so, the [DPR] shall file a formal complaint against the
[subject] and prosecute that complaint pursuant to the provisions
of chapter 120.

   Fla.Stat.Ann. (West Supp.1990). Rindley argues that the state's
current use of this section violates his due process rights.

   A question  [**8]   of state law is "unsettled" if it is "fairly
subject to an avoiding construction." Duke, 713 F.2d at 1510. The
district court found that Rindley's claims directly presented
unsettled issues of state law. In reaching this conclusion, the
district court addressed its entire discussion of Pullman
abstention to the lack of judicial interpretation of section
455.225(4) and other sections relating to issuance of letters of
guidance, possible "avoiding constructions," and available state
court means to obtain a judicial interpretation of the section.

   In Counts I, II, and III of the amended complaint, the issuance
of letters of guidance are but two of ten categories of conduct
with regard to which Rindley alleges he and other advertising
dentists are treated differently than their non-advertising
colleagues. Moreover, in these counts, Rindley does not question
the constitutionality of Florida's statutes, but rather their
selective enforcement. Thus, the constitutional questions presented
in Counts I, II, and III would remain unanswered regardless of any
interpretation placed on the statutes by the Florida Supreme Court.

   In regard to Counts IV and V which seek declaratory  [**9]   and
injunctive relief concerning the state's alleged improper use of
letters of guidance, the district court determined that federal
constitutional questions concerning section 455.225(4) could be
avoided depending on state court construction of that section in
relation with (1) section 455.208, Florida Statutes (1988), and (2)
the Administrative Procedure Act, Florida Statutes, chapter 120
(1988).


  Section 455.208 allows the DPR and the board to advise licensees,
through the publication of a newsletter, of information of interest
to the industry. Fla.Stat.Ann. (West Supp.1990). Although section
455.225(4) states that letters of guidance shall be sent to the
licensee, the DPR and the board published letters of guidance to
Rindley in such a newsletter. The district court posited that the
dissemination of letters of guidance through the newsletter is not
authorized by section 455.208, and that such a conclusion could
moot the federal constitutional questions because Rindley's due
process might not be violated if the letters of guidance were not
so publicized.
   The district court's proposed interpretation of section 455.208
does not substantially avoid Rindley's due process claims. In
[**10]   Buxton v. City of Plant City, Florida, 871 F.2d 1037 (
11th Cir. 1989), we held that placing stigmatizing information into
the public record by including it in a public employee's personnel
file or in an internal affairs report constitutes sufficient
publication to implicate liberty interests requiring procedural due
process protection. Regardless, therefore, of whether publication
of the letters of guidance in a state newsletter is authorized by
section 455.208, because the probable cause finding makes the
letter part of the public record, the publication alleged in
Rindley's complaint raises a federal constitutional question to
which the   [*1556]   interpretation of section 455.208 is
immaterial. n4

 - -Footnotes- - - - - - - - - - - - - - - - - -
   n4 The issuance of a letter of guidance becomes part of the
public record pursuant to section 455.225(9), which has at all
times material to this action provided that:

   The complaint and all information obtained pursuant to the
department's investigation shall be exempt from [public disclosure
under] s.119.07 until ten days after probable cause has been found
to exist by the probable cause panel or by the department, or until
the regulated professional or subject of the investigation waives
his privilege of confidentiality, whichever occurs first.

   No overriding state interests or special competence or threat to
administrative integrity is implicated by Rindley's requested
invalidation or modification of section 445.225(4) that warrants
denying him access to federal court.

   III. Younger Abstention
Because the district court stated that the appellees had shown a
prima facie basis for the application of Younger abstention to this
case, we will briefly address the issue. In Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court
held that federal courts should abstain from enjoining ongoing
criminal proceedings absent a showing of bad faith prosecution,
harassment, or extraordinary instances of irreparable harm. The
Younger doctrine, based upon the principle of comity, has sub-sequently been extended to civil proceedings, but "has been limited
to those civil actions in aid of criminal jurisdiction or involvingenforcement-type proceedings in which vital interests of the state
qua state are involved." Cate v. Oldham, 707 F.2d 1176, 1183 ( 11th
Cir. 1983). See, e.g., Pennzoil Co. v. Texaco, 481 U.S. 1, 107 S.
Ct. 1519, 95 L. Ed. 2d 1 (1987)   [**17]   (state interest in
execution of state judgments); Middlesex County Ethics Comm'n v.
Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d
116 (1982) (important state interest in maintaining and assuring
the professional conduct of attorneys it licenses).

   In Middlesex County, the Supreme Court approved abstention when,
instead of responding to the formal complaint brought against him
by a state disciplinary committee, a lawyer sought an injunction in
federal court against prosecution of those charges. The Court
considered whether the plaintiff had an adequate opportunity in the
state proceedings to raise his constitutional challenges. 457 U.S.
at 432, 102 S.Ct. at 2521. The Court concluded that the attorney
had "abundant opportunity to present his constitutional challenges
in   [*1558] state disciplinary proceedings." 457 U.S. at 436, 102
S.Ct. at 2523.

   The appellees strongly contend that the disciplinary system
challenged by Rindley in this case warrants Younger abstention like
the disciplinary proceedings in Middlesex County. Rindley argues
that  [**18]   he does not have an adequate opportunity to present
his constitutional claims to the state administrative or judicial
systems. According to Rindley, the DPR has repeatedly investigated
him, sent him letters of guidance, charged him, and sometimes
litigated complaints, but has not offered him an administrative
hearing from which judicial review and the presentation of
constitutional claims is possible. Because the district court did
not rely on Younger abstention, it did not make findings, did not
reach conclusions, or otherwise treat this issue in such a manner
as to render it fit for appellate review. On remand, Younger
abstention may be further explored.

   CONCLUSION

   Because we determine that the district court should not have
dismissed Rindley's claims based upon the theories of abstention
relied upon, we reverse and remand for proceedings consistent with
this opinion. n6
- - - - - --Footnotes- - - - - - - - - - - - - - - - - -
   n6 In light of our conclusion that the district court should not
have relied upon Pullman and Burford abstention doctrines as a
basis for dismissing Rindley's action, and the fact that the
district court did not address any other ground for dismissal, we
do not decide whether Rindley's claims against the society or his
claims for monetary damages against the board should be dismissed.
Reverse and Remand




WILFRED CLOUTIER, ET AL., Plaintiffs, Appellants, v. THE TOWN OF
EPPING, ET AL., Defendants, Appellees; WILFRED CLOUTIER, ET AL.,
Plaintiffs, Appellees, v. THE TOWN OF EPPING, Defendant, Appellee;
ROBERT J. CHAMBERLAIN, ROGER E. GAUTHIER, BRENDAN SPLAINE and
ROBERT K. DODGE, Defendants, Appellants; WILFRED CLOUTIER, ET AL.,
Plaintiffs, Appellees, v. THE TOWN OF EPPING, Defendant, Appellant;
WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF
EPPING, Defendant, Appellee; PATRICK JACKSON, Defendant,
Appellant; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE
TOWN OF EPPING, ET AL., Defendants, Appellees, ROGER VOGLER,
DOROTHY HALL, RICHARD SANBORN, WILLIAM CALLAWAY and HAROLD
LaPIERRE, Defendants, Appellants.
                No. 82-1800; 83-1094; 83-1095; 83-1101; 83-1138
              UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
714 F.2d 1184 (1st Cic. 1983)
    Plaintiffs further contend that defendants engaged in a number
of malicious delaying tactics which impeded plaintiffs' ability to
proceed with their development plans.  While plaintiffs ultimately
achieved many of their goals, they say that defendants deprived
them of their property without due process by adding years of delay
and extra costs. n2

   n2 In their complaint plaintiffs also alleged that defendants
engaged in a conspiracy to infringe upon their civil rights in
violation of 42 U.S.C.  @ 1985. The district court dismissed that
claim on the basis that plaintiffs failed to allege discrimination
on the basis of membership in a suspect class. On appeal plaintiffs
have not argued that the district court erred in reaching this
conclusion.  We hold that plaintiffs have waived their section 1985
claim. See Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.
1980). For similar reasons, plaintiffs have waived their excess
taxation claim, and their claims based upon 42 U.S.C.  @ 1981, the
privileges and immunities clause, and state law.

   This is not the first time we have considered claims of this
type.In Creative Environments, Inc. v. Estabrook, 680 F.2d 682 (1st
Cir.), cert. denied, 51 U.S.L.W. 3363 (Nov. 8, 1982), we refused to
entertain under section 1983 a claim that local officials had
misapplied zoning laws in order to thwart a development project.
We assumed that defendants might have engaged in "adversary and
even arbitrary tactics," in order to stop plaintiffs' development
plans.  Id. at 829. We said, however, that ""[t]he violation of a
state statute does not automatically give rise to a violation of
rights secured by the Constitution."" Id. at 833, quoting Crocker
v. Hakes, 616 F.2d 237, 239 (5th Cir. 1980) (per curiam), and that

   V.  FIRST AMENDMENT CLAIMS

   Plaintiffs also advance, belatedly, a first amendment ground for
recovery. They tell us they were denied a sewer connection permit,
and were subjected to other forms of harassment, in retaliation for
the Cloutiers' vociferous and pointed political opposition to
defendants and their anti-development positions.
   Plaintiffs never explicitly pressed this claim below as a
separate ground for relief.  Even if their quiescence did not
amount to a waiver, see Johnston v. Holiday Inns, Inc., 595 F.2d
890 (1st Cir. 1979), we think it raises no genuine issue.  In order
to surmount a supported motion for summary judgment, plaintiffs
were required to set forth specific facts showing a triable issue.
See Packish v. McMurtrie, 697 F.2d 23, 26-27 (1st Cir. 1983);
Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174 (1st Cir.
1982). Plaintiffs have not done so.

   Although they engaged in years of discovery and compiled a vast
record, plaintiffs point only to Wilfred Cloutier's own affidavit
in support of their first amendment claim.  The only statements in
the affidavit relevant to such a claim are those attesting that
Cloutier had engaged in political opposition to defendants and, as
a member of the Epping Betterment Committee, had participated in
circulating cartoons which portrayed defendants in an unflattering
light. From this, plaintiffs wish us to infer that defendants
fought the Cloutiers' development plans in retaliation for Wilfred
Cloutier's political activity. However, the Cloutiers' development
plans were the subject of a political controversy in which all
parties were engaged.  It is difficult to infer that defendants
were motivated by dislike of plaintiffs' exercise of free speech
rather than simply by disapproval of the proposed development.  The
former inference is less obvious than that of racial discrimination
in Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174 (1st
Cir. 1982), in which we affirmed the district court's grant of
summary judgment. n8

   n8 Below plaintiffs argued that defendants violated section 1983
by speaking out against plaintiffs' development plans.  The first
amendment protects the defendants as well as the plaintiffs: all of
the parties were entitled to engage in the rough and tumble of
political debate and action, based on their personal views.  Cf.
FTC v. Cement Institute, 333 U.S. 683 (1948) (commission may rule
on issue despite the fact that commissioners previously expressed
their opinion on the subject); K. Davis, Administrative Law
Treatise @ 19.2 (1980).

   We have searched the record with some care and have found
nothing which suggests that this case concerns valid first
amendment issues.  We therefore hold that   [*1193]   summary
judgment is appropriate.  See Packish v. McMurtrie, 697 F.2d at 23;
Mangeo v. Cape Cod Five Cents Savings Bank, 692 F.2d at 174.