USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit









No. 98-1248



                          REBECCA JUDGE,



                      Plaintiff, Appellant,



                                v.



                     CITY OF LOWELL, ET AL.,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Joseph L. Tauro, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Stahl, Circuit Judge.

                                





     David J. Fine, with whom Dangel, Donlan and Fine was on brief

for appellant.

     Thomas E. Sweeney, City Solicitor, for appellee City of

Lowell.

     Neil Sheering, with whom Michelle A. Kaczynski, Assistant

Attorney General and Scott Harshbarger, Attorney General, were on

brief for appellee Gerald Feigin, M.D.

     Joseph G. Donnellan for appellees Daniel R. Brady, Barry

Chevalier and Lewis Hunter.

     Austin M. Joyce, with whom Michael J. Akerson and Reardon &

Reardon were on brief for appellees William M. Taylor and William

F. Busby.

     











November 18, 1998







                                

                                



  CAMPBELL, Senior Circuit Judge.  Rebecca Judge brought

this action pursuant to 42 U.S.C.  1983 against the City of

Lowell, Officers John J. Sheehan, Daniel R. Brady, William M.

Taylor, William F. Busby, Lewis Hunter, Barry Chevalier, David

Tousignant, and Garrett Sheehan of the Lowell Police Department (in

their individual capacities), and Medical Examiner Gerald Feigin,

M.D. (in his individual capacity), for alleged violations of the

Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution.  Judge also brought claims under state law

against Dr. Feigin and Officer Chevalier for intentional infliction

of emotional distress.  Defendants moved to dismiss the section

1983 claims in Judge's Third Amended Complaint pursuant to Fed. R.

Civ. P. 12(b)(6) for failure to set forth a claim for relief.  The

court granted defendants' motions to dismiss the section 1983

claims and declined to exercise supplemental jurisdiction over the

remaining state law claims.  Judge appeals from the order granting

defendants' motions to dismiss.  We affirm. 

                         I.  BACKGROUND 

  We summarize the facts and allegations set forth in the

Third Amended Complaint.  Judge, who is black, is the sister of

Gary Weems, who died on November 6, 1993.  Weems was also black. 

On the date of Weems's death, both Judge and Weems resided at 7

Walter Terrace in Somerville, Massachusetts.  Weems married Denise

Richardson Weems in 1980, but they had been separated for several

years at the time of Weems's death. 

     The Lowell Police Department discovered Weems's body on

or about November 6, 1993.  At that time, Weems had on his person

various forms of identification that indicated that he lived at 7

Walter Terrace.  He also had a bank passbook indicating that he and

Judge jointly held a savings account.  Notwithstanding the

discovery of these items, the Lowell Police Department did not

contact Judge or any other member of Weems's family to inform them

of Weems's death.  As a result, Judge did not learn of her

brother's death until approximately six weeks after it occurred. 

In the interim, Weems was buried in Lowell as an "unknown person."

     After the Lowell Police Department discovered Weems's

body, it conducted a homicide investigation.  Police officers took

witness statements from three individuals.  Those statements

indicated that Weems may have died as a result of an injection of

narcotics administered by another person.  In their statements, the

witnesses contradicted one another as to the identity of the person

or persons who administered the injection.  The witnesses also

indicated that (1) Weems had received over $90 in cash around 4:00

p.m. on November 5, 1993, but had no cash on his person when his

body was discovered the next day, and (2) at some point during the

night of November 5, 1993, Weems's pockets were turned inside out. 

Notwithstanding this evidence, the officers did not investigate

Weems's death further.  The officers did not interview additional

persons who may have been present at the time of Weems's death. 

They did not seek out and interview any of Weems's family members. 

     Judge learned of Weems's death sometime in December,

1993.  Shortly after learning that Weems had died, Judge, along

with Denise Weems and Jestina Richardson, Denise Weems's mother

(both of whom are also black), went to the office of Gerald Feigin,

the Medical Examiner who had performed an autopsy on Weems's body. 

Initially, Dr. Feigin resisted meeting with the women.  After Dr.

Feigin agreed to meet with them, Judge asked Feigin to show the

women something to demonstrate that the body that had been buried

approximately six weeks earlier was that of Gary Weems.  Dr. Feigin

"reacted angrily and shoved a photograph of the dead man so far

into Ms. Judge's face that she could not see it."  (Third Amended

Complaint,  22.)  When Judge requested further information

concerning the circumstances of Weems's death, Dr. Feigin "started

yelling at the three women that he had showed [sic] them the

photograph, that the photograph should be good enough for them and

that he did not have time 'for this.'"  See id.  

     Judge alleges on information and belief that at the time

Dr. Feigin prepared his autopsy report concerning Weems, he was

aware of the "suspicious circumstances" discovered by the police,

yet failed to include this information in his report.  Dr. Feigin

did not make any recommendation to the district attorney's office

that Weems's death be further investigated.   

     Judge, Denise Weems and Ms. Richardson also visited the

Lowell Police Department.  The women spoke to an officer, believed

to be Officer Chavalier, who, during their conversation, used the

street names of certain drugs.  When Judge indicated that she did

not understand what the officer was referring to, "the officer

responded in a manner which insinuated that because she was Black,

she must know what he was referring to, and her claim that she did

not know was disingenuous."  When Judge asked the officer whether

the police had found any forms of identification on Weems's person,

the officer replied that they had not.  When Judge asked for the

return of Weems's personal belongings, the officer stated that the

only item found on Weems's person was a knife.  In response to

questions concerning the circumstances of Weems's death, the

officer "provided misleading and incomplete information."   

     In her Third Amended Complaint, Judge asserted four

claims for relief.  In Count I, brought pursuant to 42 U.S.C. 

 1983, she alleged that the officer defendants and Dr. Feigin

violated the Equal Protection Clause of the Fourteenth Amendment. 

Judge alleged that Dr. Feigin and the officer defendants "violated

their constitutional duty by discriminating against Rebecca Judge

on the basis of her race and the race of her deceased brother Gary

Weems and his wife Denise Weems," in that they failed to: (1)

notify Weems's wife and next of kin of Weems's death; (2) deliver

in a timely fashion to Weems's wife and next of kin Weems's

personal belongings; (3) carefully inquire into the cause and

circumstances of Gary Weems's death; (4) respect the right of Gary

Weems's wife and next of kin to dispose of his body as they wished;

(5) respond truthfully to requests for information regarding Gary

Weems's death made by members of Gary Weems's family;

(6)investigate the circumstances of Gary Weems's death with due

regard to the possibility that the death may have resulted from

criminal acts; (7) pursue carefully evidence of suspicious

circumstances regarding Gary Weems's death; and (8) notify the

district attorney's office of evidence warranting the attention of

that office.  

     Judge alleged "on information and belief" that the above

conduct "would not have been characterized by the gross

deficiencies with which it was characterized had [she], her

deceased brother Gary Weems and his wife Denise Weems been White,

instead of Black."  Judge further alleged that these circumstances 

          were part and parcel of a pattern and

          practice, pursuant to which one level

          of care is used by defendants in the

          investigation of the deaths of White

          persons, and another, inferior level of

          care is used by defendants in the

          investigation of the death of Black

          persons, particularly if the Black

          persons in question are ostensibly of a

          low economic class and the cause of

          death is ostensibly a drug overdose. 



Id.,  33.  As support for this "pattern and practice" allegation,

Judge cited the case of Kasha Blount, a black woman from Dorcester,

Massachusetts, who died in February 1990 under allegedly suspicious

circumstances.  According to newspaper articles appended to the

Third Amended Complaint, a man was tried in the Blount case on

homicide charges, but was acquitted by a jury.  The articles

indicate that Dr. Feigin was the medical examiner in the Blount

case.  Relying upon statements made by Blount's mother to the

press, Judge alleges that Dr. Feigin failed to properly investigate

Ms. Blount's death because she was black.

     In Count II, Judge alleged that the City of Lowell had

exhibited "deliberate indifference" by failing to "establish a

custom and policy that prohibited discrimination on the basis of

race in the discharge of the legal obligations at issue," and by

failing to recruit and train its police officers "in such a way as

to ensure that they would not discriminate on the basis of race in

the discharge of the legal obligations at issue."  In Counts III

and IV, Judge alleged state law claims for intentional infliction

of emotional distress against Dr. Feigin and Officer Chevalier.

     After Judge filed her initial complaint, she amended it

three times.  The defendants filed motions to dismiss the Second

Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure

to state a claim for relief under section 1983.  At a scheduling

conference held after those motions were filed, the court expressed

skepticism that the Second Amended Complaint set forth sufficient

factual support for Judge's allegation of racial animus. 

Nevertheless, the court denied the motions to dismiss without

prejudice to their being renewed at a later date.  Judge filed a

Third Amended Complaint, in which she elaborated on the specific

alleged omissions of the defendant officers and Dr. Feigin, and

cited the Blount case.  The defendants renewed their motions to

dismiss for failure to state a claim, and the court granted the 

motions.  The court denied Judge's motion to reconsider and her

motion for leave to file a Fourth Amended Complaint.  Having

dismissed the federal claims set forth in Counts I and II, the

court declined to exercise supplemental jurisdiction over the two

remaining state law causes of action (Counts III and IV) and

dismissed them as well.  

                        II.  DISCUSSION   

     Judge argues on appeal that the district court erred in

dismissing her Third Amended Complaint.  We conclude that the

district court properly dismissed Counts I and II of Judge's Third

Amended Complaint and, having done so, properly dismissed the

remaining state law claims.  Judge also challenges the denial of

her motion for leave to file a Fourth Amended Complaint.  We

conclude that the court did not abuse its discretion in denying

that motion.  

A.  Dismissal of the Third Amended Complaint

     We review the disposition of a motion to dismiss de novo. 

See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st

Cir. 1998).  Rule 8(a) provides that the complaint must contain "a

short and plain statement of the claim showing that the pleader is

entitled to relief."  Fed. R. Civ. P. 8(a).  In an oft-quoted 

gloss, the Supreme Court stated over forty years ago that a

complaint should not be dismissed for failure to state a claim

"unless it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief."  Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

     Notwithstanding Conley, this circuit and others have held

that in civil rights cases such as the present, a bare conclusory

allegation of the critical element of illegal intent, including of

an intent to discriminate, is insufficient.  We have required the

plaintiff "to allege particulars sufficient to sanction a

factfinder in drawing a reasonable inference of intentional

disparate treatment based on race."  The Dartmouth Review v.

Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989).  Put another

way, the element of illegal motive must be pleaded by alleging 

specific non-conclusory facts from which such a motive may

reasonably be inferred, not merely by generalized asseveration

alone.  See Correa-Martinez v. Arillaga-Belendez, 903 F.2d 49, 51

(1st Cir. 1990) (requiring that alleged facts in complaint

"specifically identify the particular instance(s) of discriminatory

treatment and, as a logical exercise, adequately support the thesis

that the discrimination was unlawful").

     The above-mentioned cases in this circuit predate the

Supreme Court's decision in Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 507 U.S. 163 (1993), as well as

the Court's very recent decision in Crawford-El v. Britton, 118 S.

Ct. 1584 (1998).  As the district court relied upon the earlier

First Circuit caselaw in determining that the Third Amended

Complaint was legally inadequate, we must decide whether the

requirement stated in those cases survives Leatherman and Crawford-

El.  Based particularly on the Court's dicta in Crawford-El, infra, 

we believe that it does, at least in a case like the present

alleging a constitutional violation calling for proof of an illegal

motive.  We also believe, contrary to Judge's contentions, that the

district court did not err in its manner of applying our precedents

to the Third Amended Complaint.

     Were Leatherman the Supreme Court's last and only word,

we would be less certain of the correctness of our refusal, in

circumstances like the present, to accept purely conclusory

pleading on the element of discriminatory intent.  In Leatherman,

the Court rejected a heightened pleading standard imposed by the

Fifth Circuit in cases alleging municipal liability under section

1983.  The case arose out of complaints filed against two

municipalities for their officers' forcible entry into residences

the officers suspected were fronts for drug-manufacturing

operations.  The district court and the Fifth Circuit, both

applying the latter's heightened pleading standard in civil rights

cases, held that the complaints should be dismissed.  The Supreme

Court reversed.

     The Court found it "impossible to square the 'heightened

pleading standard' applied by the Fifth Circuit . . . with the

liberal system of 'notice pleading' set up by the Federal Rules." 

Leatherman, 507 U.S. at 168.  The defendants in Leatherman argued

that a heightened pleading requirement was necessary because "a

more relaxed pleading requirement would subject municipalities to

expensive and time consuming discovery in every  1983 case,

eviscerating their immunity from suit and disrupting municipal

functions."  Id.  The Supreme Court observed, however, that "unlike

various government officials, municipalities do not enjoy immunity

from suit   either absolute or qualified," id., suggesting the

result might be different in individual capacity actions against

government officials.  The Court specifically reserved judgment on

the question whether its "qualified immunity jurisprudence would

require a heightened pleading in cases involving individual

government officials."  Id. 

      Judge argues that in Crawford-El, the Court answered

that question in the negative.  We are not so sure, but, in any

case, immunity was not (as the Supreme Court pointed out) the key

issue there, any more than it was here.  In Crawford-El, the

Supreme Court rejected the D.C. Circuit's requirement that a

plaintiff bringing a claim under section 1983 against a government

official in his or her individual capacity, regarding which the

official's improper motive is a necessary element, adduce "clear

and convincing evidence" of such motive in order to defeat a motion

for summary judgment.  118 S. Ct. at 1595.  The Court of Appeals

had adopted this heightened evidentiary requirement to protect

government officials, in a doubtful case, from the burdens of

discovery and trial.  The Supreme Court held that the D.C. Circuit

went too far in increasing the plaintiff's evidentiary burden.  

The Court continued, however, with strong dicta dealing squarely

with the issue now before us.  Indicating awareness and some

sympathy with "the potential problem that troubled the court," the

Supreme Court said that it was "therefore appropriate to add a few

words on some of the existing procedures available to federal trial

judges in handling claims that involve examination of an official's

state of mind."   Id. at 1596.  The Court stated that

     [w]hen a plaintiff files a complaint against a

     public official alleging a claim that requires

     proof of wrongful motive, the trial court must

     exercise its discretion in a way that protects

     the substance of the qualified immunity

     defense.  It must exercise its  discretion so

     that officials are not subjected to

     unnecessary and burdensome discovery or trial

     proceedings. 



Id.  

     One way of accomplishing this, the Court went on, was for 

trial courts, prior to permitting any discovery, to use existing

procedures, such as ordering a plaintiff to reply to a defendant's

answer or granting defendant's motion for a more definite

statement, to require that plaintiffs allege specific facts

supporting an allegation of wrongful motive.  Id. at 1596.  The

Supreme Court then stated, in unequivocal language directly

relevant to the issue under consideration, that "the [trial] court

may insist that the plaintiff 'put forward specific, nonconclusory

factual allegations' that establish improper motive causing

cognizable injury in order to survive a prediscovery motion for

dismissal or summary judgment."  Id. (quoting in part Siegert v.

Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in

judgment)).  "This option exists," the Court went on to state,

"even if the official chooses not to plead the affirmative defense

of qualified immunity."  Id. at 1597.    

     Judge's Count I section 1983 claim rests upon 

allegations of unconstitutional motive (i.e., intent to

discriminate because of race) on the part of several defendants

sued in their individual capacities.  See infra.  In Crawford-El,

the Supreme Court recognized that claims against individual public

officials have the potential to subject them to burdensome

discovery and trials and stated that district judges may dispose of

such claims prior to permitting any discovery where a plaintiff,

having been provided the opportunity to do so, fails to allege

"specific, nonconclusory factual allegations that establish 

improper motive."  118 S. Ct at 1596 (emphasis provided).  We

conclude, therefore, that the five Justices writing for the Court

in Crawford-El permitted an approach similar to ours in Dartmouth

Review and Correa-Martinez, calling for the pleading of specific

facts from which to infer illegal motive   although the Court

limited its carefully-phrased endorsement of that approach to

constitutional claims in which "improper motive" was an essential

element for plaintiff to prove.  See Crawford-El, 118 S. Ct. at

1596.  As Count I here precisely involves an action under section

1983 against state officials in their individual capacities

requiring plaintiff to prove improper motive, see infra, we regard

the majority's carefully-fashioned dicta in Crawford-El as allowing

the continued use here of the standard reflected in this circuit's

previous caselaw and applied below. 

     We therefore examine Count I of Judge's Third Amended

Complaint to determine whether it meets the standard permitted in

Crawford-El ("specific, nonconclusory factual allegations that

establish that defendant acted based upon an improper motive"), a

standard, as we say, similar to that articulated by this circuit in

Dartmouth Review and progeny.  In so applying that standard, we

bear in mind that, in Count I, Judge alleged that the federal right

she was denied was the right to equal protection of the laws under

the Fourteenth Amendment.  One who asserts that governmental action

violates the Equal Protection Clause must show that he or she is

"the victim of intentional discrimination."  Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also 

Washington v. Davis, 426 U.S. 229, 239 (1976) ("The central purpose

of the Equal Protection Clause of the Fourteenth Amendment is the

prevention of official conduct discriminating on the basis of

race.").  In order to state a claim under the Equal Protection

Clause, a plaintiff must allege not only that the defendants were

aware of her race at the time of their actions, but also that

defendants acted because of her race.  See Personnel Administratorv. Feeney, 442 U.S. 256, 279 (1979).  "Improper motive" is,

therefore, a key element of proof in the instant case, entitling

the district court to demand, as already said, that such motive be

pleaded not just conclusorily but by specific, nonconclusoryfactual allegations giving rise to a reasonable inference of

racially discriminatory intent.  See Dartmouth Review, 889 F.2d at

16.    

     Judge alleges in Count I that the defendants failed to

carry out various duties in connection with the discovery of

Weems's body and the investigation of Weems's death.  First, Judge

alleges that the defendants failed to notify her of Weems's death

in a timely manner, which caused her brother to be buried as an

"unknown person."While the defendants each moved to dismiss the complaint

for lack of standing based upon the absence of any right under

state law for Judge to possess Weems's body, counsel for Judge

made clear during oral argument on the motions to dismiss that

Judge's claims were not grounded upon any such interest:

     

          Court:  But the whole theory of your case is that

          the plaintiff was not, or members of the family,

          were not told of the deceased passing, and he was

          buried.  Isn't that the gravamen of the case?



          Mr. Fine (Counsel for Judge):  No. 



  Second, Judge alleges that the government

officials   the officer defendants and Dr. Feigin   failed,

respectively, to conduct an adequate homicide investigation and

prepare a proper  autopsy report, despite the existence of

"suspicious circumstances."  Third, Judge alleges that defendants

were rude to her when she sought information concerning Weems's

death.  Judge alleges that all of these omissions occurred because

she is black.  In sum, Judge alleges a double standard whereby

deaths of black persons that occur under suspicious circumstances

are treated differently (i.e., less seriously) than deaths of white

persons under similar circumstances, and that the families of the

black decedents are injured by this disparate treatment.  

     Associated with the above, Judge made several other more

specific assertions:  First, that when Judge confronted Dr. Feigin

and Officer Chevalier approximately six weeks after Weems's death,

they failed to provide her basic and accurate information

concerning the circumstances of Weems's death and engaged in rude,

insulting and unprofessional behavior.  Second, Judge alleges that

Officer Chevalier "insinuated" that she knew the street names for

certain drugs.  Third, Judge alleges that her allegation of

disparate treatment based on race is supported by the facts of the

Kasha Blount case, a state court proceeding reported in the

newspaper which involved a black teenager who died in Dorchester

under suspicious circumstances and an allegedly mishandled autopsy

performed by Dr. Feigin.  Neither separately nor taken with the

others, however, do these alleged facts give rise, by themselves,

to a reasonable inference that defendants were motivated by racial

considerations.             

     State actors will, of course, violate the Equal

Protection Clause if they deliberately and selectively deny

protective services to the members of a disfavored minority.  SeeDeShaney v. Winnebago County, 489 U.S. 189, 197 n.3 (1989).  But,

as we said in Dartmouth Review, "merely juxtaposing the fact of

one's race with an instance of discrimination is insufficient to

state a claim."  Id. at 19.  In Dartmouth Review, white student

editors of an off-campus newspaper who were suspended following a

confrontation with a black professor brought a civil rights action

against the college and various college officials, alleging that

their suspension was racially motivated.  The district court

dismissed their complaint for failure to state a claim.  We

affirmed, holding that "[a]bsent some meaningful, fact-specific

allegation of a causal link between defendant's conduct and

plaintiff's race, the complaint's first count cannot stand."  Id. 

Thus, to survive a motion to dismiss Count I, Judge must set forth

specific factual allegations supporting a causal link between

defendants' conduct and her race.

     Count I fails to assemble "specific facts adequate to

show or raise a plausible inference that [Judge] was subjected to

race-based discrimination."  Dartmouth Review, 889 F.2d at 17. 

Judge alleges that the officer defendants failed to notify her of

Weems's death because she is black.  But the mere conclusory

assertion that the failure to notify was racially motivated is not

enough.  She further alleges that Dr. Feigin and the officer

defendants failed to conduct, respectively, a proper autopsy and an

adequate homicide investigation because she is black.  But such

errors, like the failure to notify, do not by themselves

necessarily imply racial animus, and the mere conclusory allegation

of such will not suffice.  

     The only factual allegations in the complaint that,

liberally read, might be arguably construed as implying any racial

animus toward Judge are that Dr. Feigin was rude to Judge and that

Officer Chevalier was insensitive and "insinuated" that Judge

should know the street names of certain drugs.  But we think these

fall short of indicating that race was a causal factor.  The

rudeness and insensitivity might have resulted from any of a host

of factors, including irritability, defensiveness in the face of

criticism, dislike for suspected drug users, their friends and

families, or simple arrogance.   

     We have said that the facts alleged must "specifically

identify the particular instance(s) of discriminatory treatment

and, as a logical exercise, adequately support the thesis that the

discrimination was unlawful."  Correa-Martinez, 903 F.2d at 53. 

The allegations concerning the behavior of Dr. Feigin and Officer

Chevalier during their conversations with Judge, if true,

undoubtedly evince rude and unprofessional conduct.  But rude and

unprofessional conduct are, unfortunately, all too prevalent in the

world.  Persons from any racial background may sometimes encounter

it.  That behavior without more   reprehensible as it is    falls

short of creating a reasonable inference that Judge's race   as

opposed to other factors   was a motivating factor in defendants'

alleged responses subsequent to Weems's death.  Were we to hold

otherwise, any unsatisfactory dealings between a public official

and a minority, female or other citizen falling into a protected

category would give rise, prima facie, to a potential equal

protection claim. 

     We recognize that it will be the rare case in which a

plaintiff can point to specific racist statements made by

government officials.  Intent to discriminate may be demonstrated

by circumstantial evidence.  See Washington v. Davis, 426 U.S. 229,

253 (1976) (Stevens, J., concurring).  But the facts alleged still

must, "as a logical exercise," Correa-Martinez, 903 F.2d at 53,

adequately support the thesis that defendants' omissions were

motivated, at least in part, by racial animus.  Here, where after-

the-fact rude behavior and a single "insinuation" are not tied to

other allegations of fact that support the thesis that black deaths

and white deaths are treated differently by the police and medical

examiner in Lowell, that support is lacking.  

     The rule that we accept plaintiff's well-pleaded factual

averments and indulge every reasonable inference hospitable to her

case "does not entitle a plaintiff to rest on 'subjective

characterizations' or conclusory descriptions of a 'general

scenario which could be dominated by unpleaded facts.'"  Id. at 53

(quoting Dewey v. Univ. of New Hampshire, 694 F.2d 1, 3 (1st Cir.

1982), cert. denied, 461 U.S. 944 (1983)).  Judge's reliance on the

case of Kasha Blount, who died in Dorchester, Massachusetts in 1990

under allegedly suspicious circumstances and whose autopsy report

was apparently prepared by Dr. Feigin, does not cure the lack of

specificity with regard to improper motive in her complaint.  We

repeat what we said in Dartmouth Review: 

          It is apodictic that evidence of past

          treatment toward others similarly

          situated can be used to demonstrate

          intent in a race discrimination suit. 

          To put flesh upon the bare bones of

          this theory, appellants' obligation was

          to identify and relate specific

          instances where persons situated

          similarly 'in all relevant respects'

          were treated differently . . . 



889 F.2d at 19 (citations omitted).  Blount's death was

investigated by the Dorchester Police Department.  There is no

allegation that the Lowell Police Department was involved.  Thus, 

with respect to the officer defendants, the circumstances of the

Blount case are not similar "in all relevant respects."  As to Dr.

Feigin, even assuming he mishandled the Blount case, there is only

the opinion of Blount's mother, as stated in the press, to suggest

any racial motivation behind Dr. Feigin's alleged failings in the

Blount case. 

     Judge asks us to view defendants' behavior in the total 

context of the various alleged omissions on the part of defendants,

including their failure to notify Weems's family members and the

allegedly improper investigation and autopsy.  But we do not find

the totality of circumstances sufficient to make out her

constitutional claim.  Her allegations boil down to inept, sloppy

police and coroner performance at the time of Weems's death

followed by rude, defensive behavior by the same officials some

weeks later when Weems's family complained.  That combination of

interrelated, offensive events falls short of raising a reasonable

inference of racial motivation for the acts or omissions alleged. 

     Judge, in short, has merely "juxtapos[ed] the fact of

one's race," Dartmouth Review, 889 F.2d at 19, with conduct which,

on its face, may as likely stem from negligence and incompetence as

from racial animus.  This is insufficient to state a claim of race-

based discrimination.  See Correa-Martinez, 903 F.2d at 53

(plaintiff "may not prevail simply by asserting an inequity and

tacking on the self-serving conclusion that the defendant was

motivated by discriminatory animus").  As we stated in Dartmouth

Review: 

          Gauzy generalities, unsupported

          conclusions, subjective

          characterizations, and problematic

          suppositions can sprout as easily as

          crabgrass in an imaginative litigant's

          (or lawyer's) word processor. 

          Therefore, to avoid tarring defendants'

          reputations unfairly and to prevent

          potential abuses, we have consistently

          required plaintiffs to outline facts

          sufficient to convey specific instances

          of unlawful discrimination. 



889 F.2d at 16.  See also Correa-Martinez, 903 F.2d at 51 

(deferential reading of complaint does not require that we credit

"bald assertions, periphrastic circumlocutions, unsubstantiated

conclusions, or outright vituperation").  

     As Judge's complaint contains no specific factual

allegation which, alone or in combination with other well-pled

facts, gives rise to a reasonable inference that defendants were

motivated by anti-black racial animus rather than by other equally

plausible factors at the time of the alleged omissions, we affirm

the district court's dismissal of Count I of the Third Amended

Complaint. 

     The failure of Count I to state a claim is fatal to 

Count II.  In Count II, Judge alleges that the City of Lowell

violated her right to equal protection because it (1) failed to

establish a custom and policy that prohibited discrimination on the

basis of race in the discharge of the duties at issue, and (2)

failed to recruit and train police officers in such a way as to

ensure that they would not discriminate on the basis of race in the

discharge of their duties.      

     We have held that Judge failed sufficiently to allege any

constitutional injury in Count I of the complaint.  Thus, even if

the City of Lowell failed to take adequate steps to prohibit

discrimination and failed to recruit and train its police officers

so as to ensure that they would not discriminate, there is no

allegation in the complaint sufficient to show that such a policy

caused harm to the plaintiff Judge who, for reasons already

discussed, suffered no constitutional injury.  A section 1983

claimant cannot recover unless the claimant also proves that the

custom caused the resulting injury or deprivation of rights.  SeeMonell v. New York City Dep't of Social Serv., 436 U.S. 658, 694

(1977).  Thus, the dismissal of Count II was proper. 

     This is not to say that Judge may be left without a

remedy.  Defendants' failure to act upon the information they

discovered when they found Weems's body, along with their allegedly

rude and insensitive behavior, could conceivably give rise to

claims under Massachusetts law.  Weems's wife, and perhaps other

family members, may have viable state law claims against defendants

arising from the handling of Weems's body, although we offer no

opinion concerning that possibility.  See Soto v. Flores, 103 F.3d

1056, 1072 (1st Cir.) ("Whether this deplorable scenario is

actionable under Puerto Rican law we leave, as we must, to

others."), cert. denied, 118 S. Ct. 71 (1997).  Our present holding

is simply that the allegations set forth in the complaint do not

properly assert violations of the Equal Protection Clause of the

Fourteenth Amendment.

B.  Denial of Judge's Motion to Amend the Complaint

     The district court denied Judge's motion for leave to

file a Fourth Amended Complaint.  Judge challenges the denial on

appeal.  We review the district court's denial of leave to amend

the complaint "for an abuse of discretion, and defer to the

district court if any adequate reason for the denial is apparent on

the record."  Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st

Cir. 1995).

     Under Federal Rule of Civil Procedure 15(a), a litigant

may amend a pleading once as a matter of right before a responsive

pleading is filed and subsequently by the parties' consent or "by

leave of court."  Fed. R. Civ. P. 15(a).  While "leave [to amend]

shall be freely given when justice so requires," id., "the liberal

amendment policy prescribed by Rule 15(a) does not mean that leave

will be granted in all cases," 6 Charles Alan Wright et al.,

Federal Practice and Procedure  1487, at 611 (2d ed. 1990).  Where

an amendment would be futile or would serve no legitimate purpose,

the district court "should not needlessly prolong matters." 

Correa-Martinez, 903 F.2d at 59; see also Foman v. Davis, 371 U.S.

178, 182 (1962) (citing "repeated failure to cure deficiencies by

amendments previously allowed" and "futility of amendment" as

proper grounds for denial of leave to amend).

     Judge amended her complaint three times prior to

dismissal.  After she filed her Second Amended Complaint, the court

advised the parties of its doubt that Judge had set forth

sufficient factual allegations to plead an inference of racial

animus.  Nevertheless, the court allowed Judge to file a Third

Amended Complaint prior to ruling on defendants' then-pending

motions to dismiss.  In her Third Amended Complaint, Judge added

two defendants.  Judge also added several new paragraphs to the

complaint that expanded on her allegation that the defendants had

violated various duties owed to her and that these breaches

constituted a "pattern or practice" of discrimination.  As to the

latter, Judge appended to the complaint newspaper articles

concerning the Kasha Blount case.  None of these amendments,

however, added any non-conclusory factual allegations to support

the conclusion that defendants' alleged omissions were motivated by

racial animus.  The district court dismissed the Third Amended

Complaint, and we have concluded that it properly did so.

     Judge sought leave to file a Fourth Amended Complaint. 

The district court denied Judge's motion without comment.  The only

difference between the Third Amended Complaint and the proposed

Fourth Amended Complaint was the addition of a new paragraph that

identified two reported cases from the  Massachusetts Court of

Appeals in which the victims, allegedly white, died under

circumstances alleged to be similar to those of Weems.  Judge

alleged that these victims' cases resulted in a full investigation

and prosecution because the victims, unlike Weems, were white.

     These new allegations failed to cure the fundamental

defect in Judge's complaint.  The two reported decisions identified

by Judge do not indicate which, if any, of the officer defendants

were involved in the investigations.  Nor do the opinions identify

Dr. Feigin as the medical examiner in either case.  Even assuming

that the "suspicious circumstances" in the two reported cases were

nearly identical to those in the present case, there is nothing in

the reported opinions that remotely suggests that the performances

of the government officials in those cases were motivated by the

victims' race.  The allegations involving these decisions do not

supply the missing causal link between defendants' alleged

omissions in this case and Judge's race.  Even accepting the

proposed amendments, Judge has alleged only that in one case (the

Blount case in Dorchester) the officials acted improperly, while in

two other cases the officials acted properly.  Without more, she

then attributes the officials' acts and omissions to the race of

the victim-decedents.  This inference is no more than a "general

scenario which could be dominated by unpleaded facts."  Dewey v.

Univ. of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982), cert.denied, 461 U.S. 944 (1983).  Moreover, it is a scenario that

encompasses only one case of allegedly improper conduct compared

with two cases of allegedly proper conduct.  "[T]he mere existence

of disparate treatment   even widely disparate treatment   does not

furnish adequate basis for an inference that the discrimination was

racially motivated."  Dartmouth Review, 889 F.2d at 20.      

     The amendment proffered by Judge failed to cure the

deficiency identified by the court in its examination of the Third

Amended Complaint.  Granting the proposed amendment would have been

futile.  Under these circumstances, we conclude that the court did

not abuse its discretion in denying Judge leave to file the Fourth

Amended Complaint.

     Affirmed.  Each party to bear its own costs.