UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Becky Hewes, Plaintiff
v. Case No. 17-cv-394-SM Opinion No. 2018 DNH 034 Belknap County and E. Justin Blanchette, Defendants
O R D E R
Becky Hewes filed suit against Belknap County and E. Justin
Blanchette, asserting both federal and state claims. Belknap
County has moved to dismiss the complaint.
STANDARD OF REVIEW
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences
in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441
(1st Cir. 2010). Although the complaint need only contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege
each of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” Ashcroft v.
1 Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).
In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged
in the complaint must, if credited as true, be sufficient to
“nudge[] [plaintiff=s] claims across the line from conceivable to
plausible.” Id. at 570. If, however, the “factual allegations
in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.” Tambone, 597 F.3d at 442.
BACKGROUND
Hewes is currently an inmate at the New Hampshire State
Prison for Women. Between September, 2014, through July, 2015,
and again from May 29, 2015, through July 2, 2015, Hewes was
housed at the Belknap County Jail in Laconia, New Hampshire. At
all times relevant to the complaint, Justin Blanchette worked as
a sergeant in the Belknap County Sheriff’s Department.
Taking the facts as pled in the complaint at face value,
the background can be described as follows. On September 18,
2 2014, Blanchette was charged with transporting Hewes from the
Belknap County Jail to a dentist appointment. Hewes and
Blanchette were alone in the department van, and, on the way to
the dental office, Blanchette let Hewes use his cell phone to
make personal calls. Blanchette also stopped the van and gave
Hewes a cigarette to smoke. On the return trip after the
appointment, Blanchette allowed Hewes to sit in the front seat
without handcuffs, and again let her use his cell phone. As
they drove back to the jail, Blanchette flirted with Hewes,
discussing personal relationships and sex.
At some point during the drive, Blanchette drove down a
dirt road. He told Hewes that, before they arrived back at the
jail, he needed to handcuff her and move her to the back of van.
Blanchette stopped the van, took off his belt, unzipped his
pants, and had Hewes perform oral sex on him. Blanchette then
instructed Hewes to take off her pants, and he had sexual
intercourse with her in the back of the Sheriff’s transport van.
On July 2, 2015, Hewes was sentenced in the Belknap County
Superior Court. Following sentencing, Hewes was to be
transported to the New Hampshire State Prison for Women in
Goffstown. Blanchette was tasked with driving Hewes from the
Belknap Superior Court to Goffstown in the Sheriff’s SUV.
During the ride to the Goffstown prison, Blanchette allowed
3 Hewes to use his cell phone while she rode in the back of the
car, and told Hewes that he had two cigarettes for her.
Blanchette stopped the car on a dirt road not far from the
Belknap County courthouse, and allowed Hewes to smoke a
cigarette. While Hewes smoked, Blanchette began talking to her
about sex and relationships, and, after Hewes finished her
cigarette, and Blanchette began driving again, he again allowed
Hewes to use his cell phone.
Hewes then suggested that Blanchette drive to her friend’s
abandoned house in Goffstown, so that she could smoke the second
cigarette. As they neared the Goffstown prison, Blanchette
asked Hewes for directions to her friend’s house. He drove to
the house, took off Hewes’s handcuffs and gave her the second
cigarette. Hewes and Blanchette entered the house, and
Blanchette took off his belt and unzipped his pants. Blanchette
and Hewes engaged in sexual intercourse.
In her complaint, Hewes asserts that Blanchette abused his
authority and coerced her into sexual activity, violating her
fourth, fifth and eighteenth amendment rights. As a result of
Blanchette’s actions, Hewes alleges that she has suffered
“serious and permanent physical and emotional damages.” Compl.
¶¶ 21, 33.
4 With respect to Belknap County, Hewes alleges that the
County had in effect “de facto policies, practices, customs and
usages that resulted in a failure to adequately hire, screen,
train, supervise and discipline its employees and agents,”
including Blanchette. Compl. ¶ 35. Those polices, practices
and conduct, Hewes says, were a direct and proximate cause of
Blanchette’s misconduct and the damages she suffered. Compl. ¶
39. Blanchette had a history of engaging in inappropriate and
illegal sexual conduct while transporting prisoners, Hewes
alleges. And, in support of that allegation, Hewes states that
Blanchette engaged in inappropriate sexual conduct with five
other female inmates on at least four other occasions.
Therefore, she says, Belknap County knew, or should have known,
of Blanchette’s misconduct, was deliberately indifferent to the
safety of those inmates with whom Blanchette came into contact
while employed by the County, and failed to take appropriate
action to protect those inmates.
Belknap County has moved to dismiss all of Hewes’s claims
against it. Hewes objects.
DISCUSSION
I. Section 1983 Claim
Belknap County argues that the complaint does not state a
cognizable claim under the provisions of 42 U.S.C. § 1983,
5 because it fails to identify or sufficiently plead that Hewes’s
injury arose from a County policy, custom or practice. Instead,
the County says, the complaint merely alleges that the County
“knew or should have known” of Blanchette’s inappropriate
activities with inmates, and fails to allege facts to support
the allegation. The County also notes that merely alleging that
the County “should have known” is insufficient to support
Section 1983 liability.
In Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 691 (1978), the Supreme Court held that “a municipality
cannot be held liable solely because it employs a tortfeasor –
or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory.” Instead, the government
“as an entity is responsible under § 1983,” “when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.” Id. at 694. The Court
of Appeals for this circuit has added that, “[h]olding the city
liable only if the injury results from an officially sanctioned
policy or custom, exempts the municipality from responsibility
for the aberrant and unpredictable behavior of its employees
while making it liable for acts and conduct rightly attributable
6 to the city.” Bordanaro v. McLeod, 871 F.2d 1151, 1155 (1st
Cir. 1989) (citations omitted).
The complaint here generally alleges that the County should
be held liable for its practice of failing to adequately hire,
train and supervise employees like Blanchette. To succeed on
such a claim, Hewes must show: “1) that the municipal [practice]
actually ... caused the plaintiff's injury, and 2) that the
municipality possessed the requisite level of fault, which is
generally labeled in these sorts of cases as ‘deliberate
indifference.’” Young v. City of Providence, 404 F.3d 4, 26
(1st Cir. 2005) (citing Board of the County v. Brown, 520 U.S.
397, 404 (1997) and Bordanaro v. McLeod, 871 F.2d 1151, 1161–63
(1st Cir. 1989)).
The court has previously noted that, “[t]he most common
means by which a plaintiff may demonstrate a municipality's
‘deliberate indifference’ is by: (1) identifying a pattern of
constitutional violations that has put the municipality on
notice that its training is deficient; and (2) showing that,
notwithstanding such notice, the municipality continued to
adhere to the same training regimen.” Pliakos v. City of
Manchester, No. 01-461-M, 2003 WL 21687543, at *16 (D.N.H. July
15, 2003) (citing Board of the County Com'rs v. Brown, 520 U.S.
at 407 (“If a program does not prevent constitutional
7 violations, municipal decisionmakers may eventually be put on
notice that a new program is called for. Their continued
adherence to an approach that they know or should know has
failed to prevent tortious conduct by employees may establish
the conscious disregard for the consequences of their action —
the ‘deliberate indifference’ — necessary to trigger municipal
liability.”)).
The complaint alleges multiple incidents of sexual
misconduct committed by Blanchette while on duty. As the County
points out, however, it does not allege facts to support the
allegation that the County had actual notice of any of those
incidents. The complaint does not allege, for example, that any
of Blanchette’s purported victims notified the County, nor does
it disclose how or when the County eventually learned of
Blanchette’s alleged misconduct, or what action, if any, the
County took upon learning of it. Instead, the complaint merely
suggests that, because Blanchette allegedly engaged in
misconduct on multiple occasions with different inmates, the
County should have known of his misconduct. The complaint also
fails to adequately support its conclusory allegation that the
County “should have known” of Blanchette’s misconduct.
With respect to the claim that the County failed to
properly train its officers, the complaint provides no details
8 regarding the County’s training program, or how that program
might be even arguably deficient. The complaint alleges no
facts from which a court might infer that the County disregarded
a known risk, or facts that could support a finding that the
County’s inadequate training of Blanchette caused plaintiff’s
injury. See, e.g., Whitfield v. Melendez-Rivera, 431 F.3d 1, 10
(1st Cir. 2005) (“[D]eliberate indifference will be found where
the municipality fails to provide adequate training
notwithstanding an obvious likelihood that inadequate training
will result in the violation of constitutional rights. The
plaintiff must also prove that ‘the deficiency in training
actually caused the police officers' indifference’ to the
public's constitutional rights. A generalized showing of a
deficient training program is not sufficient. The plaintiff
must establish that the particular officers who committed the
violation had been deprived of adequate training, and that this
specific failure in training was at least a partial cause of the
ultimate injury.”) (quoting City of Canton v. Harris, 489 U.S.
378, 391 (1989)) (citations omitted); Marrero-Rodriguez v.
Municipality of San Juan, 677 F.3d 497, 503 (1st Cir. 2012) (“to
state a claim for municipal liability, a plaintiff must plead
more than mere insufficiency of a municipality's training
program. ‘[A] training program must be quite deficient in order
for the deliberate indifference standard to be met: the fact
9 that training is imperfect or not in the precise form a
plaintiff would prefer is insufficient to make such a
showing.’”) (quoting Young, 404 F.3d at 27).
Hewes fails to assert facts supporting her general
contention that the County was “deliberately indifferent” in its
hiring practices. “Only where adequate scrutiny of an
applicant's background would lead a reasonable policymaker to
conclude that the plainly obvious consequence of the decision to
hire the applicant would be the deprivation of a third party's
federally protected right can the official's failure to
adequately scrutinize the applicant's background constitute
‘deliberate indifference.’” Board of the County Com'rs v.
Brown, 520 U.S. at 411. Facts that might support a finding that
something in Blanchette’s background would have alerted the
County that hiring him would likely result in a deprivation of
her or anyone else’s constitutional rights are not pled in the
complaint. Indeed, her complaint lacks any discussion
whatsoever of the County’s decision to hire Blanchette, or of
the County’s hiring process.
Finally, Hewes alleges that the County was “deliberately
indifferent” with respect to supervising Blanchette. Absent
direct participation in the challenged conduct, supervisory
liability under Section 1983 attaches only where: “(1) the
10 behavior of . . . subordinates results in a constitutional
violation and (2) the [supervisor's] action or inaction was
affirmatively linked to the behavior in the sense that it could
be characterized as supervisory encouragement, condonation or
acquiescence or gross negligence ... amounting to deliberate
indifference.” Whitfield, 431 F.3d at 14 (quoting Hegarty v.
Somerset County, 53 F.3d 1367, 1379–80 (1st Cir. 1995)
(additional quotations omitted). Hewes fails to assert facts
sufficient to support her allegation that the County knew - or
even should have known - about Blanchette’s misconduct, much
less was “deliberately indifferent” to it. And, Hewes’s
complaint lacks factual allegations that would support an
affirmative link between any action (or inaction) taken by
Blanchette’s supervisors and Blanchette’s misconduct.
As our court of appeals has instructed,
[i]n order to survive dismissal, a complaint need not set forth “detailed factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but it must “contain sufficient factual matter ... to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). If the facts articulated in the complaint are “too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture,” the complaint is vulnerable to a motion to dismiss. SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).
Privitera v. Curran (In re Curran), 855 F.3d 19, 25 (1st Cir.
2017). In support of her Section 1983 claim against the County,
11 Hewes’s allegations are largely conclusory, and, as described,
lack factual support. Accordingly, the County’s motion to
dismiss Hewes’s Section 1983 claim is granted, albeit without
prejudice. To the extent Hewes can plausibly assert factual
allegations that would support her Section 1983 claim, she may
timely file a motion to amend her complaint.
II. State Law Claims
Hewes asserts several state law claims against the County,
including: assault; battery; sex discrimination; and intentional
and negligent infliction of emotional distress. She further
asserts a claim for “violation of the rights otherwise
guaranteed to [her] under the laws and constitutions of the
State of New Hampshire, and the United States.” Compl. ¶ 43.
In support of those claims, Hewes alleges that Blanchette’s
conduct occurred during the “course and scope of his duties and
functions as an employee and agent” of the County. Accordingly,
she seeks to hold the County liable for Blanchette’s conduct
under the doctrine of respondeat superior. Compl. ¶ 41.
The County makes three arguments with respect to Hewes’s
state law claims. First, the County argues that, because it is
immune from liability under state law (N.H. Rev. Stat. Ann. Ch.
(“RSA”) 507-B), Hewes’s state claims against it necessarily
fail. The County further contends that Hewes has not
12 sufficiently alleged facts to support her state law claims.
Finally, the County argues that, because Blanchette’s alleged
conduct was not within the scope of his employment, the County
cannot be held liable under a theory of respondeat superior.
The County’s first argument is persuasive and dispositive.
RSA 507-B:5 provides that “No governmental unit shall be
held liable in any action to recover for bodily injury, personal
injury or property damage except as provided by this chapter or
as is provided or may be provided by other statute.” RSA 507-
B:5. Hewes says that another statute allows her claims. RSA
507-B:2 provides that ”A governmental unit may be held liable
for damages in an action to recover for bodily injury, personal
injury or property damage caused by its fault or by fault
attributable to it, arising out of ownership, occupation,
maintenance or operation of all motor vehicles, and all
premises.” Hewes says that RSA 507-B:2 applies here, because
her claims “arise out of the operation of a motor vehicle” as
“the use of the County’s vehicle was necessary for defendant
Blanchette to do what he did.” Obj. to Mot. to Dismiss at 2.
New Hampshire’s Supreme Court has authoritatively construed
the motor vehicle exception to sovereign immunity described in
RSA 507-B:2. That exception extends to personal injury claims
“only when there is a nexus between the claim and the
13 governmental unit’s ownership, occupation, maintenance, or
operation of a motor vehicle or premises.” Tompson v.
Rockingham County Sheriff’s Office, Case No. 2015-0182, 2015 WL
11084275, at *1 (N.H. Sept. 18, 2015) (quoting Dichiara v.
Sanborn Reg’l Sch. Dist., 165 N.H. 694, 696-97 (2013)). That is
to say, “‘the injury must originate from, grow out of, or flow
from’ the operation or use of the vehicle,” or, “a causal
connection must exist between the resulting harm and the
[operation or] use of the vehicle.” Chatman v. Strafford
County, 163 N.H. 320, 323 (2012) (quoting Concord Gen. Mut. Ins.
Co. v. Doe, 161 N.H. 73, 76 (2010)). “[A]lthough proximate
causation is not required, ‘a tenuous connection with an
automobile is not sufficient.’” Concord Gen. Mut. Ins. Co., 161
N.H. at 76. Finally, in the comparable insurance coverage
context, “when a vehicle acts as merely the situs of an injury,
the causal connection between the injury and the use of the
vehicle is too tenuous to support coverage.” Id. (citing
Akerley v. Hartford Ins. Group, 136 N.H. 433, 440 (1992)).
Accordingly, for the exception to apply, the injuries
complained of must be causally connected to the operation of the
vehicle; that causal connection must be more than a tenuous one;
and, when the vehicle acts as merely the site where an injury
14 took place, the causal connection is too tenuous to trigger the
sovereign immunity exception. Chatman, 163 N.H. at 322-24.
Hewes alleges that she was injured when Blanchette, abusing
his custodial authority over her, coerced her into sexual
activity. Those injuries did not arise out of “an act that is
part of using a motor vehicle,” Chatman, 163 N.H. at 324, but,
rather, were occasioned by Blanchette’s intentional misconduct.
The county vehicle was used for transportation to a house - a
site of improper conduct - and the vehicle was itself a “site”
in which improper conduct occurred. And, it might be said that,
but for Blanchette’s use of the vehicle to transport Hewes, the
conduct complained of would not have occurred.
Even so, Blanchette’s operation of the vehicle plainly bore
only a tenuous connection to the alleged injuries, and no
apparent “causal” connection. At most, the vehicle indirectly
facilitated Blanchette’s alleged misconduct or facilitated his
opportunity to engage in intentional misconduct. But it cannot
be said that “operation” of the vehicle was causally linked to
the injuries Hewes describes. At most, the vehicle served as
the site where the alleged misconduct took place, which is
insufficient to trigger the exception. Otherwise it merely
facilitated the misconduct, in a tenuous and indirect manner.
15 That tenuous connection is also insufficient to trigger the
motor vehicle exception to sovereign immunity.
Accordingly, the County is entitled to immunity from
liability with respect to plaintiff’s state law claims.
CONCLUSION
For the foregoing reasons, and for those given in
defendant’s memorandum in support of its motion, defendant’s
motion to dismiss (document no. 4) is GRANTED, albeit without
prejudice to plaintiff’s filing an amended complaint within
thirty (30) days of the date of this order, asserting claims
under 42 U.S.C. § 1983, if she can do so in good faith based
upon adequate factual support.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
February 15, 2018
cc: Lawrence A. Vogelman, Esq. Corey M. Belobrow, Esq.