Benoit v. Claremont CV-94-268-JD 11/03/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Benoit
v. Civil No. 94-268-JD
City of Claremont, et al.
O R D E R
The plaintiff, James Benoit, brings this action against the
defendants. City of Claremont, City of Claremont Police Depart
ment ("Department")a Claremont Police Commission ("Commission")
and Police Chief Michael L. Prozzo, Jr., pursuant to 42 U.S.C. §§
1981 and 1983, for alleged violations of the plaintiff's right to
free speech under the First Amendment. Before the court is
Prozzo's Motion for Summary Judgment (document no. 13) on the
issue of gualified immunity.
Background1
From March 29, 1979, until February 19, 1988, James Benoit
was a police officer with the Claremont, New Hampshire, Police
1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. Department.2 Complaint at 5 3; Affidavit of Michael L. Prozzo,
Jr. in support of Motion for Summary Judgment ("Prozzo
Affidavit") at 55 4, 6. In the summer of 1989, Benoit again
applied for a position with the Department and was sworn in on
August 11, 1989. Prozzo Affidavit at 55 7, 9. During the
plaintiff's second tenure with the Department, he was under the
command of Prozzo, who was the police chief from November 1988,
through December 1994. Id. at 5 2. On May 10, 1994, Benoit
again resigned from the Department. Complaint at 5 24; Prozzo
Affidavit, Ex. 31.
During his tenure with the Department, Benoit received
commendations for
outstanding police performance in apprehending a burglar (November 21, 1983), for his work in combatting the influx of illegal drugs (May 8, 1980, October 30, 1990, June 1, 1991), for solving serious crimes against persons (December 8, 1989), for averting a tragedy in connection with his efforts to prevent the operator of a burning car from approaching and endangering students in a Claremont school yard (April 13, 1993), for outstanding conduct (November 29, 1983, April 16, 1984), and for disarming a dangerous person with a concealed firearm and protecting his fellow officers (March 21, 1991) .
Complaint at 5 4. In addition, the plaintiff received many
written expressions of support and appreciation from members of
21he plaintiff resigned because he was suffering from depression caused by the termination of a personal relationship. Affidavit of James Benoit ("Benoit Affidavit"), Ex. B.
2 the Claremont community for his performance as a police officer.
Id. at 5 5.
While employed as a police officer, Benoit frequently
alerted his superiors to a variety of concerns related to
personal and public safety and departmental procedure. Complaint
at 5 11. On August 23, 1993, the plaintiff requested that patrol
officers properly be vaccinated given their risk of exposure to
rabid animals. Prozzo Affidavit at 5 19. On September 21, 1993,
Benoit further requested that patrol cars no longer be used to
dispatch wild animals. Id., Ex. 11. Instead, he recommended
that city employees transport the animals or, in the alternative,
that each patrol car be equipped with sealed animal storage
containers. Id. The Department responded to the plaintiff's
concerns by issuing updated animal control procedures effective
November 4, 1993. Id., Ex. 12.
On a separate occasion, the plaintiff prevented the operator
of a burning vehicle from approaching and endangering children in
a schoolyard. Complaint at 5 14. In the course of this rescue,
Benoit was unable to communicate with other officers to warn them
of impending danger. Id. As a result, Benoit nearly collided
with another police car as he attempted to position his vehicle
in front of the burning car and bring it to a halt. Id.
3 Following this event, the plaintiff requested that the Department
review its communication policies. Id.
Shortly after expressing concern about the communication
policies, the plaintiff notified his superiors that the Depart
ment's policies governing police response to bank alarms also
presented various dangers. Complaint at 5 15. Specifically, the
plaintiff observed that the "present rules place the responding
officer in danger of drawing fire from perpetrators without
permitting safe responding fire and place the public in danger of
being taken hostage." Id.
For several months, Prozzo was not aware of the plaintiff's
recommendations regarding "radio communication breakdown" or bank
alarm procedures because Benoit's superiors had failed to relay
these concerns to Prozzo. Prozzo Affidavit at 5 21; Complaint at
55 14-16. However, upon learning of the concerns, Prozzo
evaluated the issues raised and determined that the existing
procedures should not be modified. Prozzo Affidavit at 5 21.
In June 1993, Benoit informed the Department that dangerous
incidents involving the misuse of handguns had occurred in August
1990 in the locker room and elsewhere at police headquarters.
Complaint at 5 18; Prozzo Affidavit at 5 28. The plaintiff
alleged that certain officers had aimed handguns at, or in the
general direction of, the plaintiff and other officers. Prozzo
4 Affidavit, Ex. 20. Upon learning of these incidents, Prozzo
decided that he could not undertake an investigation because the
reported events had occurred nearly three years earlier. Id. at
5 28.
On December 26, 1993, Benoit reported a more recent incident
involving the misuse of a handgun. Prozzo Affidavit at 5 29.
Because this event was reported promptly, an internal investiga
tion was conducted and the offending officer was disciplined by
means of a written warning. Id. In addition, Prozzo authorized
the issuance of a special order reminding officers of the
prohibition against the removal of firearms from holsters without
justification. Id.; Complaint at 5 18.
In early 1993, an officer serving on the night shift left
the Department, thereby reguiring the Department to reassign an
officer to fill the vacancy. Prozzo Affidavit at 5 27. Con
sistent with departmental policy, the Department determined that
the least senior officer on the day shift would be transferred.
Id. The Department determined that Benoit was the least senior
officer on the day shift after having calculated the length of
his employment from 1989, the date of his re-hire. Id. at 55 22,
27. On April 20, 1993, Benoit submitted a grievance letter
contesting Prozzo's failure to include his initial nine years of
employment when determining seniority. Id. at 5 22. On May 28,
5 1993, Prozzo denied the grievance request and provided a copy of
the denial to the police union. Id. at 5 23.
On June 4, 1993, the union sent a grievance letter to the
Commission echoing Benoit's contention that the collective
bargaining agreement requires that seniority be calculated from
the date of initial hire, whether or not employment was contin
uous. Prozzo Affidavit at 5 24 & Ex. 9 at 21. On September 22,
1993, the Commission concluded that the plaintiff's seniority had
been calculated correctly by Prozzo. Id., Ex. 17. Subsequently,
the union requested additional time to consider further appeal
options but no such action followed. Id. at 5 26. On November
10, 1993, Benoit's work schedule was changed from the day shift
to the night shift. Id., Ex. 19.
By early 1994, the plaintiff had become increasingly
troubled by the Department's failure to address his complaints
adequately. See Benoit Affidavit, Ex. B. Prozzo communicated
the plaintiff's concerns to the Commission, which invited the
plaintiff to appear before it to address these issues personally.
Prozzo Affidavit, Ex. 28. On or about April 5, 1994, Benoit
testified before the Commission, following which the Commission
directed Prozzo to order Benoit to undergo a Fitness For Duty
Evaluation ("psychological evaluation"). Id. at 5 31 & Ex. 26.
Prozzo issued the order on April 11, 1994. Id., Ex. 26.
6 Pending the outcome of the psychological evaluation, Benoit
was placed on administrative leave. Prozzo Affidavit at 5 32.
During this period, Prozzo ordered the plaintiff to surrender his
badge and gun, and two officers were sent to Benoit's home to
collect the items. Id. at 5 33; Complaint at 5 21. When the
Department learned that the items were located in Benoit's locker
at the police station, Prozzo ordered the locker "sealed off."
Prozzo Affidavit at 5 33.
The psychological evaluation concluded that Benoit was "fit
for duty," and following receipt of this determination, the
Department instructed Benoit to return to duty on April 30, 1994.
Prozzo Affidavit at 5 34. Although the written "return to duty"
notice of April 28, 1994, did not contain any special conditions
for Benoit's return to active duty, Benoit asserts that an
unnamed lieutenant in the Department informed him that he would
undergo a seguence of weekly or monthly performance evaluations
upon his return. Complaint at 5 23; Prozzo Affidavit, Ex. 30.
Instead of returning to work, the plaintiff resigned, charging
constructive termination. Prozzo Affidavit at 5 36.
The instant lawsuit followed. To date discovery has been
limited to the issue of gualified immunity.
7 Discussion
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993) (guoting
Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st
Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert, denied,
115 S. C t . 56 (1994). The court may only grant a motion for
summary judgment where the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The party seeking
summary judgment bears the initial burden of establishing the
lack of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Quintero de Quintero v.
Aponte-Rogue, 974 F.2d 226, 227-28 (1st Cir. 1992). The court
must view the entire record in the light most favorable to the
plaintiff, "'indulging all reasonable inferences in that party's
favor.'" Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st
Cir. 1991) (guoting Griqqs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990)), cert, denied, 112 S. C t . 2965 (1992). However, once
the defendant has submitted a properly supported motion for
8 summary judgment, the plaintiff "may not rest upon mere allega
tion or denials of [their] pleading, but must set forth specific
facts showing that there is a genuine issue for trial." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R.
Civ. P. 56(e)). Even when a defendant uses gualified immunity as
a basis for summary judgment, the court must remain " [c]onsistent
with the method of Fed. R. Civ. P. 56(c)." Buenrostro v.
Collazo, 973 F.2d 39, 41 (1st Cir. 1992) .
" [G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To be
"clearly established, " the contours of right must be sufficiently
clear so that a reasonable official would understand that his
actions violate that right. Anderson v. Creighton, 483 U.S. 635,
640 (1987) .
Although Harlow sets forth the gualified immunity standard
in objective terms, in a mixed-motive case the court's gualified
immunity analysis also reguires consideration of whether the
defendant did, in fact, intentionally violate the plaintiff's
rights. See Broderick v. Roache, 996 F.2d 1294, 1298-99 (1st
Cir. 1993); Feliciano-Anqulo v. Rivera-Cruz, 858 F.2d 40, 46 (1st Cir. 1988) ("Harlow will not bar inquiry into a defendant's state
of mind when the applicable law makes the defendant's state of
mind (as distinct from defendant's knowledge of the law) an
essential element of plaintiff's constitutional claim"). Thus,
where the plaintiff has adduced evidence from which a jury
reasonably could find that the plaintiff's protected speech
motivated the adverse employment action, the issue of qualified
immunity cannot be resolved until the ultimate question of the
plaintiff's intent is determined by the finder of fact. Id. at
47 (determination of the defendant's subjective motivation for
the adverse employment action "is a predicate to any meaningful
qualified immunity analysis"). Conversely, where the plaintiff
fails to establish a genuine dispute whether the plaintiff's
exercise of a protected right was a substantial or motivating
factor in the defendant's adverse employment decision, the
defendant may invoke qualified immunity. See, e.g., Harris v.
Eichbaum, 642 F. Supp. 1056, 1065-66. (D. Md. 1986).
I. Count One: Retaliation Against Benoit
The plaintiff asserts that Prozzo violated his First
Amendment right to free speech by retaliating against him for
bringing matters of public concern to the Department's attention.
In its motion, the defendant argues that the plaintiff's allega-
10 tions do not constitute a cognizable First Amendment claim
because the plaintiff did not engage in protected speech
regarding matters of public concern. In addition, the defendant
argues that the allegations lack a factual nexus between the
concerns voiced by Benoit and those departmental decisions that
adversely affected Benoit.
It is well established that a state "cannot condition public
employment on a basis that infringes the employee's constitu
tionally protected interest in freedom of expression." Connick
v. Myers, 461 U.S. 138, 142 (1983). Moreover, "First Amendment
protection applies when a public employee arranges to communicate
privately with his employer rather than to express his views
publicly." Connick, 461 U.S. at 146 (citing Givhan v. Western
Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979)). The First
Circuit has endorsed a three-step analysis to determine whether a
public employee has presented an actionable First Amendment
claim. O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993),
cert, denied, 114 S. C t . 634 (1993). The two initial steps
determine whether the plaintiff's speech is constitutionally
protected. The third step addresses the defendant's motivation
for imposing the adverse action about which the plaintiff
complains. The court addresses each step seriatim.
11 Step 1: Matter of Public Concern
The court must make a threshold determination, "on the basis
of 'the content, form, and context of a given statement, as
revealed by the whole record,1 whether the employee was speaking
'as a citizen upon matters of public concern,1 or, alternatively,
'as an employee upon matters only of personal interest.1"
0 1Connor, 994 F.2d 905, 912 (1st Cir. 1993) (guoting Connick, 461
U.S. at 147-48). "If an employee's speech 'cannot be fairly
characterized as constituting speech on a matter of public
concern,1 then its First Amendment value is low and 'a federal
court is not the appropriate forum in which to review the wisdom
of a personnel decision1 arising therefrom." Id. (guoting
Connick, 461 U.S. at 146-47).
The First Circuit has noted that the circumstances of a
particular case may govern the appropriate approach under
Connick. Id. at 913. "Where a public employee speaks out on a
topic which is clearly a legitimate matter of inherent concern to
the electorate, the court may eschew further inguiry into the
12 employee's motives as revealed by the 'form and context1 of the
expression." Id. at 913-14. In contrast,
public-employee speech on a topic which would not necessarily qualify, on the basis of its content alone, as a matter of inherent public concern (e.g., internal working conditions, affecting only the speaker and co workers) , may require a more complete Connick analysis into the form and context of the public-employee expression, 'as revealed by the whole record,1 . . . with a view to whether the community has in fact manifested a legitimate concern in the internal workings of the particular agency or department of government, and, if so, whether the 'form1 of the employee's expression suggests a subjective intent to contribute to any such public discourse.
Id. at 914 (citation and emphases omitted).
The plaintiff's claim requires a complete Connick analysis
because his speech is not necessarily of "inherent concern" to
the electorate. Nonetheless, Benoit's statements concerning the
vaccination of police officers, modification of communication
policies, response to bank alarms, and misuse of handguns do
present issues of public concern. Although not necessarily aware
of inter-departmental police policy and procedure, the public has
an obvious and legitimate interest in the efficiency, effective
ness, and safety of police departments. Similarly, the public is
interested in allegations of police misconduct, such as the
careless brandishing of firearms reported by the plaintiff.
Significantly, the plaintiff's affidavit and his past receipt of
numerous achievement awards indicate that his concern for public
13 welfare, and not just his personal well-being, led him to speak
out.
Benoit's form of expression was consistent with the usual
method of addressing issues of concern within the ranks of the
Claremont Police Department. See generally Police Manual for the
Police Department of the City of Claremont. The plaintiff, upon
identifying a perceived deficiency, notified his commanding
officer. This is a logical means of resolving issues in a law-
enforcement environment. Accordingly, the court finds that the
form in which the plaintiff expressed matters of concern was
appropriate under the circumstances.
The context of the communications, for the most part, is
consistent with the plaintiff's position that he was a public
employee notifying superiors of deficiencies in the Department's
policies and practices. There is no indication from the record
that the plaintiff communicated his concerns for reasons other
than to address these perceived deficiencies. The subject matter
of the plaintiff's concerns, such at those involving the misuse
of firearms, improper response to bank alarms, and inadeguate
communication procedures, arguably involves the safety of other
officers and the general public. The plaintiff's attention to
matters of public concern is well documented and the court finds
14 that he has made the requisite showing that the topic of his
speech was of public concern.
Step 2: Pickering Balancing Test
Having determined that an employee has spoken on a matter of
public concern,
the court must balance the strength of the employee's First Amendment interest, and any parallel public interest in the information which the employee sought to impart, against the strength of the countervailing governmental interest in promoting efficient perfor mance of the public service the government agency or entity must provide through its employees.
0'Connor, 994 F.2d at 912 (citing Pickering v. Board of Educ.,
391 U.S. 563, 568 (1968)). Insofar as self-interest is found to
have motivated public-employee speech, the communication is
accorded less weight than is speech on matters of public concern
intended to serve the public interest. Id. at 915 (construing
Pickering) .
The legitimate interest of the citizenry in the type of
information disseminated by the plaintiff represents a public
benefit entitled to substantial weight in the Pickering balance.
0'Connor, 994 F.2d at 915 (quoting Versarge v. Township of
Clinton, 984 F.2d 1359, 1366 (3d Cir. 1993) ("On plaintiff's side
of the balance, we must also consider the interests of the public
in plaintiff's speech.")). The court has found, supra, that
15 Benoit's expressions involve matters of public safety of
traditional concern to the electorate. The strong public concern
for such disclosures supplants whatever personal interest Benoit
also may have furthered in his communications and, as such, the
Pickering scale weighs heavily in favor of First Amendment
protection.
The Claremont Police Department, on the other hand, has
failed to identify any substantial interest in curtailing the
disclosure of matters affecting public or police officer safety.
Moreover, the plaintiff's speech was circumscribed to the extent
that he voiced concerns through appropriate police channels and
not directly to the general public. The court finds that the
Department's motivations do not outweigh Benoit's First Amendment
interests. Accordingly, the court concludes that the plaintiff's
speech is constitutionally protected, at least to the extent that
it was directed to matters of public concern.
Step 3: Substantial or Motivating Factor
The third part of the analysis reguires the public employee
to "show that the protected expression was a substantial or
motivating factor in the adverse employment decision." 0'Connor,
994 F.2d at 913 (citing M t . Heathy City Sch. Dist. Bd. of Educ.
v. Dovle, 429 U.S. 274, 287 (1977)). As discussed supra, the
16 plaintiff must come forth with more than a mere allegation of
malice.
Benoit has failed to adduce evidence to support his claim
that the defendant retaliated against him for his protests of
departmental policies and procedures. Rather, the undisputed
factual record indicates only that the defendant responded to the
plaintiff's concerns in a timely and serious manner. For
example, within two and one-half months of the plaintiff's
complaint about the handling of rabid animals, Prozzo updated the
Department's procedures by issuing a special order. See Prozzo
Affidavit, Ex. 12. Similarly, the plaintiff's proposed
modification to emergency communication procedures and response
to bank alarms where reviewed by Prozzo and it was determined
that existing procedures should not be modified. The court finds
that Prozzo's response to the plaintiff's grievances does not
support an inference that Prozzo was motivated by retaliation.
Likewise, the plaintiff has failed to demonstrate a genuine
dispute of fact on the guestion of whether Prozzo handled the
allegation of handgun misuse in anything other than a reasonable
manner. In light of the plaintiff's failure to present evidence
to the contrary, the court finds that the Department acted
without malice in declining to investigate stale claims of
17 misconduct, particularly because no other incidents of handgun
misuse were reported during the three-year period that followed.
The plaintiff's subseguent report of handgun misuse on
December 26, 1993, concerned a recent incident and it is
undisputed that Prozzo promptly ordered an investigation into the
unsafe handling of firearms. As a result of the investigation,
the offending officer was reprimanded with a written warning, the
standard form of discipline for an initial violation of
departmental procedure. Moreover, the investigation led to the
January 3, 1994, issuance of a special order prohibiting the
removal of firearms from secured areas without a justified
purpose. Prozzo's handling of these matters reflects sensitivity
to both the plaintiff's concerns and the welfare of the
Department, and thus stands in stark contrast to the plaintiff's
bald assertions that "Chief Prozzo was determined to get rid of
me." Benoit Affidavit at 5 4.
The court further finds that there is no genuine dispute of
material fact that the plaintiff's transfer to the night shift
was in any way motivated by a malicious intent to violate the
plaintiff's exercise of his First Amendment rights. That is, the
plaintiff has failed to adduce evidence to challenge the
defendant's well-documented explanation that the plaintiff was
reassigned for a legitimate reason, i.e., to staff the night
18 shift with the least senior officer from the day shift. The
plaintiff's failure to support his claim of retaliation is
underscored by the fact that Benoit was not reassigned until the
issue of his seniority had been resolved through the formal union
grievance process.
The final bases for the plaintiff's claim of retaliation are
his being ordered to undergo a psychological evaluation and the
seizure of his gun and badge. These actions followed Benoit's
testimony before the Commission. The plaintiff does not dispute
that the police chief possesses the discretionary authority to
reguire any officer to submit to a psychological evaluation.
Given the level of public trust and unigue stress borne by police
officers, the court finds that the plaintiff has failed to offer
any evidence from which a reasonable jury could find that his
protected speech was a substantial or motivating factor in
Prozzo's ordering the psychological exam. This conclusion is
consistent with Prozzo's knowledge of the plaintiff's past
hospitalization for depression, and the fact that the plaintiff
was placed on leave with pay even though the collective
bargaining agreement permits suspension without pay. The mere
fact that the psychologist ultimately concluded that the
plaintiff was fit for duty does not undermine what was otherwise
a non-retaliatory decision to order the evaluation.
19 The court also finds that the plaintiff has failed to
demonstrate a genuine dispute of fact as to whether Prozzo
retaliated when he seized the plaintiff's gun and badge while he
was on administrative leave pending the outcome of the
psychological evaluation. The plaintiff has presented no
evidence which taken in a light most favorable to him, reasonably
could support a contrary finding.
The court concludes that the plaintiff's bare allegations of
retaliation, unsupported by a proper evidentiary basis, do not
present a genuine factual dispute whether the plaintiff's
protected expressions were a substantial or motivating factor in
the adverse employment decisions. Rather, the only conclusion
supported by the evidence is that the defendant had an
objectively reasonable basis for his conduct.
Based on its review of the record before it, the court finds
that the defendant's conduct does not constitute a violation of a
clearly established right of which a reasonable person would have
been aware. Accordingly, the defendant is entitled to gualified
immunity.
II. Count Two: Retaliatory Constructive Discharge
In count two, the plaintiff alleges that the defendant
humiliated him, portrayed his as mentally ill, and singled him
20 out for heightened scrutiny because he engaged in protected
activity.3 The plaintiff further asserts that this conduct
constituted an unlawful constructive discharge from his position
as a police officer. In its motion, the defendant again responds
that he is shielded from liability by the doctrine of gualified
"' [C]onstructive discharge1 has been defined as 'an onerous
transfer, having the purpose and effect of forcing the
transferred employee to guit the employment.1" Pedro-Cos v.
Contreras, 976 F.2d 83 (1st Cir. 1992) (guoting Newspaper Guild
of Boston v. Boston Herald-Traveler Corp.,238 F.2d 471, 472 (1st
Cir. 1956)). The "burden imposed upon the employee must cause,
and be intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign." Id. (guoting
Crystal Princeton Refining Co., 222 N.L.R.B. 1068, 1069 (1976)).
Count two asserts liability for the same conduct alleged in
count one, albeit under a different legal theory. The court has
ruled, supra, that the plaintiff has presented no evidence from
which a reasonable jury could find that the defendant retaliated
3Ihe plaintiff also alleges that an unnamed lieutenant singled him out for weekly or monthly performance reviews. The court need not consider the allegations for purposes of its gualified immunity analysis because the plaintiff has neither named the lieutenant as a defendant nor asserted that Prozzo is individually liable for another officer's conduct.
21 against him for engaging in protected activities. Thus, to the
extent that Prozzo may be sued in his individual capacity for
wrongful discharge, such a claim also is barred by gualified
immunity.4
Conclusion
The defendant's Motion for Summary Judgment (document no.
13) is granted with respect to counts one and two.5
SO ORDERED.
Joseph A. DiClerico, Jr. Chief Judge November 3, 1995 cc: James H. Gambrill, Esguire John J. Yazinski, Esguire Andrew A. Prolman, Esguire David A. Garfunkel, Esguire
4The defendant also argues that Prozzo, as a police department employee, cannot be liable for wrongful constructive discharge because he was not the plaintiff's employer. Memorandum of Law in Support of Defendant's Motion for Summary Judgment at 24 (citing Cloutier v. Great Atl. & Pac. Tea, Co., 121 N.H. 295 (1991)). The court need not address the argument given the application of gualified immunity.
5In count three, the plaintiff claims that the defendant deprived him of his "constitutional rights not to be harmed by a Claremont Police Department policy or custom of failure to train its force of officers to avoid and control situations of clear danger to his safety and well being, and that of the public." Complaint at 55 37-40. In his motion, Prozzo asserts that count three does not name him as a defendant in his individual capacity. The plaintiff has not disputed this contention and, accordingly, the viability of this claim need not be addressed at this time.