Cruz-Erazo v. Rivera-Montanez ( 2000 )


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  •               United States Court of Appeals
                           For the First Circuit
                          ____________________
    
    No. 99-1675
    
             MARITZA CRUZ-ERAZO; JUAN R. GASCOT-VAZQUEZ;
                  CONJUGAL PARTNERSHIP GASCOT-CRUZ;
               KORAL GASCOT-CRUZ; JUAN R. GASCOT-CRUZ;
                    KASSANDRA JAANAI GASCOT-CRUZ;
    
                         Plaintiffs, Appellants,
    
                                    v.
    
                CARLOS JAVIER RIVERA-MONTAÑEZ, MEMBER OF THE
              PR POLICE FORCE IN HIS INDIVIDUAL AND OFFICIAL
             CAPACITY; CARI RUIZ-MCANALLEN, MEMBER OF THE PR
        POLICE FORCE IN HER INDIVIDUAL AND OFFICIAL CAPACITY;
            CONJUGAL PARTNERSHIP RIVERA RUIZ, MEMBERS OF THE
            PR POLICE FORCE IN THEIR INDIVIDUAL AND OFFICIAL
               CAPACITIES; HUMBERTO THILLET-GUZMAN, CAPTAIN,
             MEMBER OF THE PR POLICE FORCE IN HIS INDIVIDUAL
          AND OFFICIAL CAPACITY; HECTOR QUIÑONES, LIEUTENANT,
             MEMBER OF THE PR POLICE FORCE IN HIS INDIVIDUAL
          AND OFFICIAL CAPACITY; HECTOR MORALES-SILVA, MEMBER
        OF THE PR POLICE FORCE IN HIS INDIVIDUAL AND OFFICIAL
         CAPACITY; JOHN DOE, 97CV1758; RICHARD ROE, 97CV1758;
    
                         Defendants, Appellees.
    
                          ____________________
    
             APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                     FOR THE DISTRICT OF PUERTO RICO
    
           [Hon. Salvador E. Casellas, U.S. District Judge]
    
                          ____________________
    
                                  Before
    
                         Torruella, Chief Judge,
    
                      Coffin, Senior Circuit Judge,
                         and Lipez, Circuit Judge.
    
                           _____________________
    
         Jane Becker Whitaker, with whom Troncoso & Becker was on brief,
    for appellants.
         Sylvia Roger Stefani, Assistant Solicitor General, Department of
    Justice, with whom Gustavo A. Gelpí, Solicitor General, and Edda
    Serrano-Blasini, Deputy Solicitor General, were on brief, for appellees
    Héctor Quiñones and Héctor Morales.
    
    
                            ____________________
    
                                 May 2, 2000
                            ____________________
    
    
    
    
                                     -2-
                 TORRUELLA, Chief Judge. Appellants Maritza Cruz-Erazo, Juan
    
    R. Gascot-Vázquez, Koral Gascot-Cruz, Juan R. Gascot-Cruz, and
    
    Kassandra Jaanai Gascot-Cruz allege that appellees police officers
    
    Carlos Javier Rivera-Montañez, Cari Ruiz-Mcanallen, Humberto Thillet-
    
    Guzmán, Héctor Quiñones, Héctor Morales-Silva, and John Doe, in their
    
    individual and official capacities, engaged in ongoing harassment and
    
    intimidation of appellants in violation of their rights to due process
    
    of law.   The district court dismissed the complaint on the ground that
    
    appellants had failed to state a claim under 42 U.S.C. § 1983.
    
    Although we find appellees' alleged conduct disgraceful, it does not
    
    sufficiently "shock the conscience" so as to state a claim under §
    
    1983. Because this is the only argument advanced on appeal, we affirm
    
    the decision of the district court.
    
    I.   FACTS
    
                 The following is a summary of the facts alleged in
    
    appellants' complaint, presented in the light most favorable to the
    
    appellants. Our summary largely tracks that of the district court.
    
    See Cruz-Erazo v. Rivera-Montañez, Civ. No. 97-1758, slip op. at 3
    
    (D.P.R. Mar. 31, 1999) (hereinafter "Opinion").
    
                 On September 3, 1995, appellant Cruz-Erazo was approached by
    
    appellees Ruiz-Mcanallen and her husband Rivera-Montañez. Stating that
    
    they were concerned about the oncoming Hurricane Luis, Ruiz-Mcanallen
    
    and Rivera-Montañez asked Cruz-Erazo whether they could store some
    
    
                                       -3-
    personal property at an unoccupied house owned by Cruz-Erazo and her
    
    husband, appellant Gascot-Vázquez. Cruz-Erazo agreed and gave Ruiz-
    
    Mcanallen and Rivera-Montañez a key to the house, which was located on
    
    San Gregorio Street in San Juan, Puerto Rico.
    
              For approximately four months following Hurricane Luis, Cruz-
    
    Erazo tried on several occasions to retrieve the key to the house from
    
    appellees, without success. She eventually learned that Ruiz-Mcanallen
    
    and Rivera-Montañez were not merely storing items at the house but
    
    actually residing there with a third person. When Cruz-Erazo went to
    
    the house to confront appellees, Ruiz-Mcanallen told her that if she
    
    "did not like the situation[,] she could call the police, but Officer
    
    Rivera[-Montañez] told her to remember that he was a member of the
    
    force."
    
              Cruz-Erazo sought the assistance of a local district
    
    attorney, who advised her to file a complaint for damages. However,
    
    when she went to the police station, the officers there refused to
    
    accept the complaint when they learned that it was against fellow
    
    police officers.
    
              Cruz-Erazo next sought the advice of a local judge, who
    
    informed her that nothing prevented her, as the legitimate owner of the
    
    house, from retaking possession and changing the locks, etc. When
    
    Cruz-Erazo then returned to the district attorney's office, she was
    
    told that the office would not involve itself in civil matters and that
    
    
                                     -4-
    she should retain counsel to help her resolve the situation. Cruz-
    
    Erazo then went to another courthouse, where she spoke with a marshal
    
    on duty and with yet another judge, who confirmed that, as rightful
    
    owner of the property, she could lawfully enter the house and change
    
    the locks.
    
              On the morning of January 5, 1996, appellant Cruz-Erazo
    
    called the Bayamón South police precinct and requested that the police
    
    witness her entrance into the house on San Gregorio Street. She was
    
    told that a Sergeant Díaz would meet her at her home.        Instead,
    
    however, appellees Thillet-Guzmán and Quiñones, from the Bayamón North
    
    precinct, appeared at appellants' home. This raised suspicions with
    
    Cruz-Erazo, who asked her husband to accompany her to the house and to
    
    bring a camera.
    
              Once at the San Gregorio Street residence, Officers
    
    Thillet-Guzmán and Quiñones refused to accompany Cruz-Erazo into the
    
    house. Cruz-Erazo tried to phone Sergeant Díaz, but she was unable to
    
    reach him and decided to enter the house anyway. Once inside, she
    
    removed some blinds and other items belonging to her and her husband,
    
    and she changed the locks. When Cruz-Erazo and her husband tried to
    
    drive away from the house, appellee Ruiz-Mcanallen and her son stood in
    
    the road to block their way and began to insult and threaten them.
    
    During this exchange, Officer Thillet-Guzmán approached Cruz-Erazo and
    
    told her "this won't end here."
    
    
                                     -5-
              That same day Cruz-Erazo received a citation for disturbing
    
    the peace from appellee Rivera-Montañez, apparently in response to the
    
    day's events on San Gregorio Street. Cruz-Erazo and her husband also
    
    filed a complaint against Ruiz-Mcanallen's son for disturbing the
    
    peace, but no action was ever taken on it.
    
              Two days later, on January 7, 1996, appellants were informed
    
    that the new locks on the San Gregorio Street house had been broken.
    
    Cruz-Erazo drove to the house and photographed the broken padlocks and
    
    then proceeded to the police station to file a complaint for burglary.
    
    Once there, she was told by a supervising officer that her complaint
    
    could not be accepted "because that house belongs to Officer Carlos J.
    
    Rivera Montañez." Cruz-Erazo was then informed that an assistant
    
    district attorney had apparently ordered that the locks be broken to
    
    return possession of the house to Rivera-Montañez. When Cruz-Erazo
    
    went to the district attorney's office to file a complaint, she was
    
    ordered to leave the office. Cruz-Erazo then went to the Bayamón South
    
    precinct, where she waited for several hours before she was informed
    
    that charges of burglary and disturbing the peace had been filed
    
    against her for entering the San Gregorio Street residence.
    
              On February 1, 1996, Cruz-Erazo was informed by a neighbor
    
    that there was a strange car parked in front of the San Gregorio Street
    
    residence and that the porch door was open. Cruz-Erazo called 911 and
    
    accompanied the responding officers to the house. While the officers
    
    
                                     -6-
    were inspecting the property, appellee Ruiz-Mcanallen and her son
    
    arrived. Ruiz-Mcanallen claimed that she was renting the house, but
    
    when pressed for the name of the person to whom she paid rent, she told
    
    Cruz-Erazo to talk to Officer Quiñones if she wanted to collect rent.
    
               The following day an individual claiming to be an off-duty
    
    police officer arrived at Cruz-Erazo's home and ordered her to appear
    
    in the Bayamón North precinct (without giving more reasons). She
    
    refused.
    
               During the following weeks, appellants allege that they
    
    suffered continuing harassment by appellees. They received a number of
    
    threatening phone calls, many of which threatened physical violence
    
    against Cruz-Erazo. Patrol cars passed the house frequently, at least
    
    once a night, and on one occasion Officer Rivera-Montañez appeared at
    
    the door and threateningly asked Gascot-Vázquez if his daughter was
    
    "the light of his life." At one point, Cruz-Erazo went to the FBI in
    
    search of assistance, and a call from an agent to the local police
    
    succeeded in temporarily halting the harassment.
    
               On February 14, 1996, appellee Morales-Silva served Cruz-
    
    Erazo with a citation to appear in court on February 20, 1996 to face
    
    the burglary charges against her.
    
               On February 19, 1996, appellee Rivera-Montañez was served
    
    with notice of an eviction action initiated against him by Cruz-Erazo
    
    and Gascot-Vázquez. Rivera-Montañez called Cruz-Erazo at home and
    
    
                                     -7-
    threatened that "she would pay for having him served." The next day,
    
    February 20, 1996, Officer Rivera-Montañez appeared at Cruz-Erazo's
    
    home and insulted her and "called into question her honor." Although
    
    Cruz-Erazo ignored his comments and went inside, her pregnant daughter,
    
    Koral Gascot-Cruz objected to Rivera-Montañez's comments and asked him
    
    to leave. The officer insulted her and pushed her out of the way as he
    
    left. Appellants allege that "two days later, Mrs. Gascot Cruz lost
    
    her baby, apparently because the placenta was detached from the womb."
    
    The eviction suit was heard that same day and resolved in favor of
    
    Cruz-Erazo and Gascot-Vázquez.
    
              Also on February 20, 1996, Cruz-Erazo appeared at the Bayamón
    
    courthouse to face the burglary charges against her. She was told that
    
    the judge was at lunch, and she left the courthouse for a short period.
    
    In her absence, the judge heard testimony from Officers Rivera-Montañez
    
    and Ruiz-Mcanallen and received sworn statements from Officers
    
    Thillet-Guzmán and Quiñones.     On the basis of such evidence, and
    
    without hearing from Cruz-Erazo, the judge ordered her arrest and
    
    posted bail at $50,000. When Cruz-Erazo was informed of this, she
    
    initially refused to post bail, but she reconsidered when a friend
    
    overheard appellee Officer Morales-Silva on the telephone saying that
    
    they had finally gotten "the troublemaker" and suggesting that she
    
    would be murdered on her way to the jail. Cruz-Erazo was booked and
    
    fingerprinted, although at least one officer assigned to the task
    
    
                                     -8-
    refused to fingerprint her, saying that he did not want to participate
    
    in such a miscarriage of justice.
    
              A preliminary hearing was held in the burglary action on May
    
    14, 1996. Officer Thillet-Guzmán testified that he had seen Cruz-Erazo
    
    remove property from the San Gregorio Street residence, although he did
    
    not explain why he did not arrest her if he considered it a burglary in
    
    progress. Officer Rivera-Montañez also testified, but he was unable to
    
    provide any evidence whatsoever of a right to occupy the San Gregorio
    
    Street house. When the court asked Rivera-Montañez why he should be
    
    believed, he responded simply that he was a police officer and that the
    
    police always tell the truth.     Cruz-Erazo presented substantial
    
    evidence that she and her husband owned the property, including the
    
    deed and an appraisal, and the judge ordered the burglary charges
    
    dismissed.
    
              After this ordeal, appellants moved for a time to South
    
    Carolina, but they eventually returned to Puerto Rico and filed this
    
    action. Since their return, appellants allege that appellees Rivera-
    
    Montañez and Ruiz-Mcanallen have intentionally driven past their home,
    
    possibly as an attempt to intimidate appellants.
    
    II.   PROCEDURAL HISTORY
    
              Appellants' complaint, brought pursuant to 42 U.S.C. § 1983,
    
    asserted two causes of action. The first claimed that appellees had
    
    violated appellants' "Fourteenth Amendment right to due process when
    
    
                                     -9-
    they deliberately lied in official documents and perjured themselves in
    
    official court proceedings with the intention of causing plaintiffs
    
    harm." The second cause of action stated a claim under the Civil Code
    
    and Constitution of Puerto Rico, essentially for malicious prosecution.
    
              Appellees Morales-Silva, Quiñones, and Thillet-Guzmán moved
    
    for dismissal under Federal Rule of Civil Procedure 12(b)(6), claiming
    
    that appellants had failed to "prove" a claim under § 1983, that they
    
    were entitled to qualified immunity, and that the action was barred by
    
    the Eleventh Amendment. Although the court noted that appellees had
    
    not explicitly argued that the complaint failed to state a cause of
    
    action (as opposed to proving a claim), it nevertheless accepted the
    
    appellees' position and dismissed the complaint as against all
    
    defendants.1
    
              The district court first stated that appellants' complaint
    
    could be construed as presenting a claim under the Fourteenth Amendment
    
    for malicious prosecution. The court rejected such claim, however,
    
    correctly noting that "[t]here is no substantive due process right
    
    under the Fourteenth Amendment to be free from malicious prosecution."
    
    Opinion at 7 (citing Roche v. John Hancock Mut. Life Ins. Co., 
    81 F.3d 1
     Oddly enough, appellees Rivera-Montañez and Ruiz-Mcanallen have filed
    no documents with this Court, nor has any counsel made an appearance on
    their behalf (nor does the Appendix filed on appeal bear any indication
    of their participation before the trial court). However, because we
    affirm the district court's determination that appellants have failed
    to state a claim, the nonparticipation of appellees Rivera-Montañez and
    Ruiz-Mcanallen makes no difference to our consideration of the case.
    
                                     -10-
    249, 256 (1st Cir. 1996)). The court noted that a constitutional
    
    malicious prosecution claim might arise under the Fourth Amendment, but
    
    held that such a Fourth Amendment claim had not been raised by
    
    appellants. See id. (citing Meehan v. Town of Plymouth, 
    167 F.3d 85
    ,
    
    88 (1st Cir. 1999)).
    
               The court then proceeded to a more general § 1983 analysis.
    
    The court found that appellants had not alleged sufficient causation
    
    between appellant Gascot-Cruz's miscarriage and the appellees' alleged
    
    actions.   The court also found that the other allegations of
    
    intimidation and harassment did not rise to the level of a
    
    constitutional deprivation actionable under § 1983, because they did
    
    not "amount to a deprivation of [appellants'] liberty interest" nor
    
    "rise to a level of intrusion that would 'shock the conscience.'" See
    
    id. at 11. The court therefore dismissed appellants' federal claims,
    
    as well as their supplemental state law claims. Appellants timely
    
    appealed, and we now affirm the decision of the district court.
    
    III.   LAW AND APPLICATION
    
               We review the district court's dismissal for failure to state
    
    a claim de novo. See, e.g., Souza v. Pina, 
    53 F.3d 423
    , 424 (1st Cir.
    
    1995). The question before us is whether, when viewing the allegations
    
    in appellants' complaint in the light most favorable to appellants,
    
    their complaint states a claim under 42 U.S.C. § 1983. As is well
    
    established, § 1983 creates no independent substantive rights, but
    
    
                                     -11-
    rather provides a cause of action by which individuals may seek money
    
    damages for governmental violations of rights protected by federal law.
    
    See, e.g., Albright v. Oliver, 
    510 U.S. 266
    , 811 (1994). Hence the
    
    requirement that, to state a claim under § 1983, a plaintiff must
    
    allege (1) the violation of a right protected by the Constitution or
    
    laws of the United States and (2) that the perpetrator of the violation
    
    was acting under color of law. See, e.g., Pittsley v. Warish, 
    927 F.2d 3
    , 6 (1st Cir. 1991) (citing Parratt v. Taylor, 
    451 U.S. 527
    , 535
    
    (1981)).
    
               Appellants' complaint alleges that "Defendants violated
    
    Plaintiffs' Fourteenth Amendment right to due process of law when they
    
    deliberately lied in official documents and perjured themselves in
    
    official court proceedings with the intention of causing Plaintiffs
    
    harm." Counsel clarified at oral argument that appellants' claim is
    
    that their substantive (rather than procedural) due process rights were
    
    violated.2   As we have previously stated:
    
               There are two theories under which a plaintiff
               may bring a substantive due process claim. Under
               the first, a plaintiff must demonstrate a
    
    
    2 Although the district court mentioned the possibility of a Fourth
    Amendment claim on the facts alleged in the complaint, and although
    this possibility was raised by the Court at oral argument, we need not
    venture into this subject because the appellants failed to raise any
    Fourth Amendment theory of recovery before the district court or in
    their brief on appeal, and have therefore waived any such claim. See,
    e.g., Rivera-Gómez, 
    843 F.2d 631
    , 635 (1st Cir. 1988) ("[A] litigant
    has an obligation 'to spell out its arguments squarely and distinctly'
    or else forever hold its peace." (citation omitted)).
    
                                     -12-
              deprivation of an identified liberty or property
              interest protected by the Fourteenth Amendment.
              Under the second, a plaintiff is not required to
              prove the deprivation of a specific liberty or
              property interest, but, rather, he must prove
              that the state's conduct "shocks the conscience."
    
    Brown v. Hot, Sexy & Safer Productions, Inc., 
    68 F.3d 525
    , 531 (1st
    
    Cir. 1995) (citations omitted); see Pittsley, 927 F.3d at 6. Because
    
    appellants have not specified any particular constitutionally protected
    
    interest of which they were deprived by appellees' actions,3 we will
    
    follow the parties' lead and focus our inquiry on the second theory.
    
              We have used various phrases to describe when state action
    
    "shocks the conscience" in the context of substantive due process.
    
              It has been said, for instance, that substantive
              due process protects individuals against state
              actions which are "arbitrary and capricious," or
              those that run counter to "the concept of ordered
              liberty," or those which, in context, appear
              "shocking or violative of universal standards of
              decency."
    
    Amsden v. Moran, 
    904 F.2d 748
    , 753-54 (1st Cir. 1990) (citations
    
    omitted). We have insisted that "before a constitutional infringement
    
    
    
    3 As the Court mentioned at oral argument, the facts alleged in the
    complaint might appear to support an argument that appellants were
    deprived of a property interest, insofar as Ruiz-Mcanallen and Rivera-
    Montañez took possession of the San Gregorio Street residence and
    retained such possession with the aid of other appellees. However,
    here again, appellants have entirely failed to articulate such a claim.
    This "property interest" theory was not raised by the appellants in
    their memoranda before the district court nor in their briefs submitted
    to this Court; we think neither court is obliged to dream up and
    articulate appellants' arguments for them. See Rivera-Gómez, 843 F.2d
    at 635 (cited in footnote 2, supra).
    
                                     -13-
    occurs, state action must in and of itself be egregiously unacceptable,
    
    outrageous, or conscience-shocking," id. at 754, and noted the Supreme
    
    Court's admonition that "the activities complained of must 'do more
    
    than offend some fastidious squeamishness or private sentimentalism,'"
    
    Pittsley, 927 F.2d at 7 (quoting Rochin v. California, 
    342 U.S. 165
    ,
    
    172 (1952)). Although the cases in which we have found governmental
    
    conduct to shock the conscience have often involved state action that
    
    was highly physically intrusive, see Hot, Sexy & Safer Productions, 68
    
    F.3d at 531 (and cases cited therein), we have pointedly left open the
    
    possibility that verbal or other less physical harassment such as that
    
    alleged by appellants might rise to a conscience-shocking level, see
    
    id. at 532; Souza v. Pina, 
    53 F.3d 423
    , 427 (1st Cir. 1995); Pittsley,
    
    927 F.2d at 7 n.3.
    
              The question now before the Court is whether the particular
    
    conduct alleged by appellants in this case was so egregious that it can
    
    properly be said, under these circumstances, to shock the conscience.
    
    We find the question to be a close one,4 as the alleged facts seem to
    
    fall in between the extremes of conduct which have previously been
    
    found to shock or not to shock the judicial conscience. See County of
    
    
    4 We might add that our task is made more difficult by the substandard
    legal memoranda filed before this Court and the district court.
    Appellants' briefs are long on rhetoric but woefully short on legal
    substance. Although appellants allege an ongoing scheme of disgraceful
    conduct by appellees, the Court has been left largely to its own
    devices to try and connect these factual allegations to any viable
    legal theory of recovery.
    
                                     -14-
    Sacramento v. Lewis, 
    523 U.S. 883
    , 848 (1998) ("[T]he constitutional
    
    concept of conscience-shocking . . . points clearly away from
    
    liability, or clearly toward it, only at the ends of the tort law's
    
    spectrum of culpability."). For instance, conscience-shocking state
    
    action has been found where a suspect's stomach was forcibly pumped to
    
    obtain evidence, see Rochin v. California, 
    342 U.S. 165
     (1952), and
    
    where a suspended police officer was required to undergo a penile
    
    plethysmograph as a condition of reinstatement, see Harrington v. Almy,
    
    
    977 F.2d 37
    , 43-44 (1st Cir. 1992). On the other hand, we have found
    
    no constitutional violation where public school students were required
    
    to attend a sexually explicit AIDS awareness assembly, see Hot, Sexy
    
    and Safer Productions, 68 F.3d at 532, or where an inmate was injured
    
    after slipping on a pillow negligently left in a stairwell by a deputy
    
    sheriff, see Daniels v. Williams, 
    474 U.S. 327
     (1986).
    
              Some cases, of course, have addressed the hazier middle
    
    ground, such as Souza v. Pina, 
    53 F.3d 423
     (1st Cir. 1995), in which we
    
    found no due process violation when a murder suspect committed suicide
    
    after prosecutors encouraged the media to link him to a series of
    
    murders. While we lamented the conduct of the prosecutors in that
    
    case, we held that the facts alleged simply did not rise to the level
    
    of conscience-shocking conduct. See id. at 427. In another case,
    
    Grendell v. Gilway, 
    974 F. Supp. 46
     (D. Me. 1997), the district court
    
    found that the behavior of the police "shocked the conscience" when an
    
    
                                     -15-
    officer lied to and threatened an eleven-year-old girl in order to
    
    extract incriminating information about the suspected drug use of her
    
    parents. The court noted our decisions in Souza and Pittsley and
    
    determined that, although we had never found a constitutional violation
    
    under similar circumstances, neither had we foreclosed the possibility
    
    that verbal harassment and intimidation could violate due process. See
    
    id. at 51. Emphasizing that the officer's behavior struck at "the
    
    basic fabric of all parent-child relations: love, trust, and faith,"
    
    the district court determined that the alleged misconduct, if proven,
    
    would violate a right protected by the Due Process Clause. See id. at
    
    52.
    
              Perhaps the case with facts most similar to those alleged by
    
    plaintiffs is Pittsley v. Warish, 
    927 F.2d 3
     (1st Cir. 1991). In that
    
    case, the defendant police officers allegedly threatened to kill Ms.
    
    Pittsley on more than one occasion, told Ms. Pittsley's four- and ten-
    
    year-old children that if the police caught their father the children
    
    would never see him again, and also refused to allow the children to
    
    give the father a goodbye hug when he was arrested. Although the Court
    
    refused to condone such "despicable and wrongful" harassment, it held
    
    that the conduct did not rise to the level of a constitutional
    
    violation.   See id. at 7.
    
              Although each determination of whether state conduct "shocks
    
    the conscience" is necessarily fact-specific and unique to the
    
    
                                     -16-
    particular circumstances in which the conduct occurred, we think that
    
    our precedents steer us toward the conclusion that appellants have
    
    failed to articulate a claim under the Fourteenth Amendment. The
    
    majority of the conduct alleged by appellants was not physically
    
    intrusive or violent, nor did it "strike at the basic fabric" of any
    
    protected relationship, such as the parent-child relationship in
    
    Grendell. In fact, we find appellants' allegations largely comparable
    
    to those presented in Pittsley, and appellants have offered us no basis
    
    whatsoever for finding that precedent distinguishable, nor have they
    
    offered any substantive argument or explanation to justify the unusual
    
    step of finding a violation of substantive due process. As in previous
    
    decisions, we expressly leave open the question of whether verbal
    
    harassment and intimidation of this general type might, under
    
    appropriate circumstances, be found to violate due process. We simply
    
    hold that appellants have failed to state such a claim in this case.
    
              Given our conclusion that the conduct alleged by appellants
    
    does not sufficiently shock the conscience so as to violate substantive
    
    due process, we need not reach the question of whether such conduct was
    
    "under color of law." Nor do we reach the appellees' assertion of
    
    qualified immunity, although we note that the defense seems, at least
    
    at first glance, inappropriate in a case such as this where the conduct
    
    is alleged to be an intentional abuse of official power. We also agree
    
    
    
    
                                     -17-
    with the district court that, absent a federal claim, appellants' state
    
    law claims are properly left for the consideration of the local courts.5
    
    IV.   CONCLUSION
    
               For the reasons set forth above, we affirm the district
    
    court's dismissal of appellants' complaint for failure to state a claim
    
    for which relief could be granted.
    
               Affirmed.
    
    
    
    
    5 We are not deaf to appellants' counsel's plea that the conduct
    alleged in this case warrants some form of judicial reprimand. Today
    we hold only that the alleged conduct does not sufficiently "shock the
    conscience" so as to violate substantive due process. Because this is
    the only argument that appellants have advanced on appeal, we affirm
    the order of the district court. However, counsel offered at argument
    that, in the event of an unsuccessful appeal, appellants "can and will"
    proceed with their case in the local courts. We do not suggest that
    appellants have no viable claims under state law (or perhaps even under
    the Fourth Amendment), and we trust that the local courts will ably
    judge those claims if they are, in fact, brought.
    
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