Radfar v. Covino: Off-Duty Protective-Order Litigation Is Not “Color of Law,” a Stray Ethnic Slur Alone Won’t Prove Discriminatory Purpose, and Malicious Prosecution Requires an Initiated Criminal Proceeding

1. Introduction

In Radfar v. Covino (1st Cir. Jan. 6, 2026) (unpublished), the First Circuit affirmed (i) dismissal under Rule 12(b)(6) of Sharon Radfar’s § 1983 claims against the City of Revere, its mayor, its former police chief, and other municipal defendants (the “Revere Defendants”), and (ii) summary judgment for Revere Police Sergeant Joseph I. Covino.

The dispute arose from a deteriorated romantic relationship between Radfar (a George Mason University police officer in Virginia) and Covino (a Revere, Massachusetts police sergeant). After Radfar’s repeated contacts and other conduct following their breakup, Covino (a) communicated with Radfar’s employer and Virginia State Police investigators, (b) created an internal Revere “To File” incident report listing Radfar as a suspect for criminal harassment, and (c) obtained an ex parte Massachusetts abuse-prevention order that was later vacated.

On appeal, Radfar pressed four principal theories: (1) Equal Protection violations (national origin discrimination), (2) selective prosecution, (3) municipal deliberate indifference/failure to train, and (4) malicious prosecution. The First Circuit’s opinion is primarily an application of existing doctrine, but it clarifies—on these facts—how pleading standards, “color of law,” discriminatory purpose, and the elements of malicious prosecution constrain civil-rights claims stemming from personal disputes involving police officers.

2. Summary of the Opinion

Equal Protection & Selective Prosecution (Revere Defendants): Affirmed dismissal because the complaint alleged no plausible factual basis for national-origin discrimination and did not allege disparate treatment compared to similarly situated persons.
Failure to Train/Deliberate Indifference (Revere Defendants): Affirmed dismissal because the complaint did not plead facts showing a deliberately indifferent municipal policy/custom, an identified training deficiency, or notice via a pattern of similar constitutional violations.
Equal Protection (§ 1983) (Covino): Affirmed summary judgment. Covino’s off-duty pursuit of an abuse-prevention order was not action “under color of law.” Although the internal incident-report conduct was “a closer question,” Radfar failed to create a triable issue that Covino acted with discriminatory purpose; a single alleged slur, without temporal/contextual tethering to the challenged acts, was insufficient.
Malicious Prosecution: Affirmed rejection. No criminal proceeding was commenced against Radfar. The internal report was not a charging document. The civil abuse-prevention proceeding did not support Massachusetts malicious prosecution because Covino had a reasonable basis to seek it.
Waiver/Forfeiture Principles: Undeveloped appellate arguments were waived, and new theories not raised below (due process and First Amendment retaliation) were not considered.

3. Analysis

A. Precedents Cited

Appellate restraint and deference to strong district-court reasoning

Eaton v. Penn-America Ins. Co., 626 F.3d 113 (1st Cir. 2010): The First Circuit invoked Eaton to justify a succinct affirmance where the district court “correctly takes the measure of a case.” This frames the opinion as an endorsement of the lower court’s reasoning rather than a vehicle for doctrinal innovation.

Standards of review and the pleading/summary-judgment divide

Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23 (1st Cir. 2004): Used to recite facts under the summary-judgment lens (favoring the nonmovant) in a case reviewing both dismissal and summary judgment.
Wadsworth v. Nguyen, 129 F.4th 38 (1st Cir. 2025): Provided modern First Circuit articulation of equal protection theory (similarly situated/selective treatment or direct proof), and later reinforced that dismissal-stage review is confined to the complaint, not later-developed evidence.
Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103 (1st Cir. 2014): Cited for waiver where briefing is perfunctory/undeveloped.
Podiatrist Ass'n, Inc. v. La Cruz Azul de P.R., Inc., 332 F.3d 6 (1st Cir. 2003): Cited for the rule that new claims cannot be introduced for the first time on appeal.

Municipal and supervisory liability under § 1983

City of Canton v. Harris, 489 U.S. 378 (1989): Central authority for (i) the principle that municipalities are liable only when the municipality “itself causes” the constitutional violation, and (ii) the “deliberate indifference” standard for failure-to-train claims.
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1 (1st Cir. 2011): Quoted for the requirement of plausibility and for supervisory liability needing “direct acts or omissions” or “condonation or tacit authorization.”
Rodríguez-García v. Miranda-Marín, 610 F.3d 756 (1st Cir. 2010): Source of the supervisory-liability formulation quoted via Ocasio-Hernández.
Hayden v. Grayson, 134 F.3d 449 (1st Cir. 1998): Used to stress that failure-to-train liability standards are “exceptionally stringent.”
Haley v. City of Boston, 657 F.3d 39 (1st Cir. 2011): Emphasized the need to plead municipal decisionmaker knowledge and deliberate indifference to unconstitutional consequences.
Cosenza v. City of Worcester, 120 F.4th 30 (1st Cir. 2024): Reinforced the typical requirement of a pattern of similar unconstitutional conduct to establish notice and deliberate indifference.

Equal protection pleading and proof of discriminatory animus

Fincher v. Town of Brookline, 26 F.4th 479 (1st Cir. 2022): Cited for the alternative pathway to an equal protection claim—“direct proof” of discriminatory animus.
Toledo v. Sánchez, 454 F.3d 24 (1st Cir. 2006): Supported dismissal where allegations of discrimination are conclusory and unsupported by facts.
Coyne v. City of Somerville, 972 F.2d 440 (1st Cir. 1992): Reinforced that a plaintiff cannot merely assert inequity and append a self-serving conclusion of discriminatory motive.
Willhauck v. Halpin, 953 F.2d 689 (1st Cir. 1991): Anchored the point that selective prosecution claims are evaluated under “ordinary equal protection standards.”
Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997): Provided (i) the “color of law” requirement for § 1983, (ii) the need to show discriminatory purpose, and (iii) the insufficiency of limited discriminatory remarks to sustain an equal protection claim in the absence of stronger linkage.
Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979): Supplied the canonical definition of discriminatory purpose (“because of,” not merely “in spite of,” adverse effects on a protected group).
Bennett v. Saint-Gobain Corp., 507 F.3d 23 (1st Cir. 2007): Used by analogy (employment context) for the “stray remarks” concept—comments untethered to the challenged decision typically do not defeat summary judgment.
Acevedo-Parilla v. Novartis Ex-Lax, Inc., 696 F.3d 128 (1st Cir. 2012): Invoked for evaluating discriminatory remarks by considering temporal proximity and causal connection to the challenged action.

“Under color of law” (state action) for police officers acting privately

Martinez v. Colon, 54 F.3d 980 (1st Cir. 1995): The court’s primary framework for determining whether an officer’s conduct is under color of law—focusing on the nature/circumstances and whether the officer purported to exercise official responsibilities.
Parrilla-Burgos v. Hernández-Rivera, 108 F.3d 445 (1st Cir. 1997): Supported the conclusion that even where an officer has indicia of police status, private conduct outside official duties may not be under color of law.
Wilson v. Price, 624 F.3d 389 (7th Cir. 2010): Cited for the proposition that merely asserting one is a state officer does not necessarily mean one acts under color of law.
Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989): Cited for the principle that “merely complaining to the police” does not convert a private party into a state actor.
Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122 (1st Cir. 1999): Used to explain why certain acts may be under color of law when they are enabled by an officer’s official status.

Malicious prosecution: federal and Massachusetts doctrines

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001): Provided the federal malicious prosecution elements, including commencement/continuation of criminal proceedings and deprivation of a federally protected right.
Hubbard v. Beatty & Hyde, Inc., 178 N.E.2d 485 (Mass. 1961): Cited for Massachusetts malicious prosecution extending to civil proceedings, but requiring only a reasonable belief in validity (not probable cause of guilt).
Kirby v. Illinois, 406 U.S. 682 (1972): Used to define when criminal proceedings are initiated (formal charge, preliminary hearing, indictment, information, or arraignment).

Appellate record rules and discovery complaints

Jones v. Secord, 684 F.3d 1 (1st Cir. 2012): Cited to reject a discovery-related argument where the appellant failed to show materiality to summary judgment and did not file a Rule 56(d) motion.

B. Legal Reasoning

1) Equal protection and selective prosecution against the Revere Defendants: plausibility requires facts

The First Circuit treated Radfar’s equal protection and selective prosecution theories as pleading-stage issues against the Revere Defendants. Relying on Wadsworth v. Nguyen and Fincher v. Town of Brookline, the court reiterated two routes to an equal protection claim: (a) differential treatment of similarly situated comparators suggesting impermissible motive, or (b) direct proof of discriminatory animus. Either way, the complaint must plausibly allege facts supporting discrimination, per Ocasio-Hernández v. Fortuño-Burset.

Radfar’s complaint failed because it did not supply a factual predicate connecting any Revere Defendant to national-origin discrimination; instead, it offered conclusory assertions. Under Toledo v. Sánchez and Coyne v. City of Somerville, such conclusory allegations do not suffice. The same deficiency defeated selective prosecution because, under Willhauck v. Halpin, it is evaluated under ordinary equal protection standards.

2) Municipal failure-to-train: the “exceptionally stringent” deliberate indifference standard

The court emphasized that municipal liability is not respondeat superior. Under City of Canton v. Harris, a municipality is liable only when the municipality itself causes the constitutional violation, and failure-to-train liability arises only where the failure amounts to deliberate indifference. Citing Hayden v. Grayson and Haley v. City of Boston, the First Circuit underscored the demanding nature of this standard and the necessity of alleging (i) what training was missing, (ii) how it would have prevented the harm, and (iii) facts showing notice—often through a pattern of similar unconstitutional conduct, as discussed in Cosenza v. City of Worcester.

Radfar’s allegations that officials “knew of [Covino’s] lengthy history of misconduct” were not supported by well-pleaded facts identifying the training deficiency or prior similar constitutional violations. The complaint thus amounted to a bare legal conclusion of “deliberate indifference,” insufficient under § 1983.

3) Equal protection against Covino: “color of law” and discriminatory purpose

a) Off-duty pursuit of a protective order was treated as private conduct

For a § 1983 claim, Radfar had to show Covino acted under color of law (Soto v. Flores). Applying Martinez v. Colon, the First Circuit focused on whether Covino purported to exercise official responsibilities. In seeking the abuse-prevention order, Covino was off-duty, out of uniform, and litigating a personal dispute; his affidavit did not invoke police authority. Even if the judge likely knew he was an officer, the court—citing Wilson v. Price and analogizing to Parrilla-Burgos v. Hernández-Rivera—held that these circumstances did not transform the proceeding into state action.

b) The internal incident report was “a closer question,” but intent evidence failed

The court acknowledged that Covino’s “To File” Revere incident report bore official trappings: he listed himself as reporting/approving officer and used police resources to store/transfer information. Under Zambrana-Marrero v. Suarez-Cruz, that conduct could be viewed as enabled by his police status, making color-of-law arguably satisfied (unlike “merely complaining” under Collins v. Womancare).

But even assuming color-of-law, Radfar still had to show discriminatory purpose (Soto v. Flores; Pers. Adm'r of Mass. v. Feeney). The First Circuit held she did not: a single alleged ethnic slur during a rancorous breakup, without timing/context and without a causal tether to the creation/transmission of the incident report, could not reasonably support an inference that Covino’s later actions were taken “because of” anti-Iranian animus. The court reinforced this point using “stray remarks” reasoning (cf. Bennett v. Saint-Gobain Corp.) and by highlighting the lack of temporal/causal linkage discussed in Acevedo-Parilla v. Novartis Ex-Lax, Inc.. On this record—where Virginia authorities requested information and Radfar’s conduct included extensive phone calls from numerous numbers—the non-discriminatory explanation (desire to end contact) predominated.

4) Malicious prosecution: no criminal proceeding commenced; civil proceeding had reasonable basis

Federal malicious prosecution under § 1983 required, among other elements, commencement/continuation of criminal proceedings and deprivation of a federally protected right (Nieves v. McSweeney). The First Circuit found the threshold element missing: Radfar was never charged. The internal incident report was not a charging document, and under Kirby v. Illinois, criminal proceedings begin with formal charging steps.

Under Massachusetts law, malicious prosecution can reach unjustified civil proceedings (Hubbard v. Beatty & Hyde, Inc.), but only requires that the initiator lack a reasonable belief in the claim’s validity. The court concluded that the summary-judgment record established a reasonable basis for Covino to seek an abuse-prevention order given the alleged pattern of contact and his asserted fear, so the Massachusetts tort theory failed as well.

5) Procedural enforcement: waiver and record-based limitations

The opinion also reflects disciplined gatekeeping:

Undeveloped claims are waived: The court declined to address perfunctory references (citing Universal Truck & Equip. Co. v. Southworth-Milton, Inc.).
New claims cannot be raised on appeal: Due process and First Amendment retaliation theories were rejected as not raised below (Podiatrist Ass'n, Inc. v. La Cruz Azul de P.R., Inc.).
Discovery disputes must be tied to material facts and preserved: Absent a Rule 56(d) motion and a showing of outcome-changing materiality, the court rejected the discovery complaint (Jones v. Secord).

C. Impact

Clarifies boundaries of “color of law” in personal disputes: The decision underscores that an officer’s off-duty use of ordinary judicial processes to address a personal matter—without invoking official authority—is generally treated as private conduct, even if the officer’s identity is known.
Reinforces rigorous linkage requirements for discriminatory-purpose proof: A slur, standing alone, may evidence bias but will not necessarily create a triable equal protection claim absent context, timing, and connection to the challenged decision.
Signals the difficulty of municipal failure-to-train claims at the pleading stage: Plaintiffs must plead concrete facts about the training deficiency and municipal notice (often through a pattern), not merely cite an officer’s alleged “history of misconduct.”
Constrains malicious-prosecution theories where no charges are filed: Investigations, evidence sharing, or internal incident reports—without formal criminal process—will not satisfy the “commenced proceeding” requirement, and civil protective-order filings will not support the tort where a reasonable basis exists.

4. Complex Concepts Simplified

“Under color of law”: For § 1983, the defendant must use (or purport to use) power possessed by virtue of state law. A police officer can act privately; being an officer does not automatically make every act “state action.”
Equal protection “discriminatory purpose”: It is not enough that conduct harms someone in a protected group; the plaintiff must show the conduct was chosen because of that protected characteristic (per Pers. Adm'r of Mass. v. Feeney).
Selective prosecution: A specialized equal protection claim alleging enforcement decisions were discriminatorily motivated; it still requires factual allegations showing differential treatment or direct discriminatory intent.
Municipal “failure to train” / “deliberate indifference”: A city is not liable simply because an officer acted badly. The plaintiff must link the harm to a municipal policy or a known training deficiency that the city consciously ignored.
Malicious prosecution vs. investigation: Malicious prosecution generally requires a formal criminal proceeding (charges/arraignment/etc.), not merely an investigation or internal reports.

5. Conclusion

Radfar v. Covino is a fact-bound but instructive First Circuit affirmance emphasizing four constraints on civil-rights litigation: (1) conclusory discrimination allegations fail without comparator facts or plausible direct proof; (2) failure-to-train claims require specific, stringent allegations showing deliberate indifference and (typically) notice through a pattern; (3) an officer’s off-duty resort to ordinary civil protective-order processes is not, without more, action under color of law; and (4) malicious prosecution claims fail absent initiation of formal criminal proceedings (and, for Massachusetts civil-proceeding theories, where the filer had a reasonable basis).