Blackden v. NH State Police, et al.

• Court: District Court, D. New Hampshire
• Decided: July 8, 2011
• Docket: 10-CV-450-SM
• Status: Published

Opinion

Blackden v. NH State Police, et al. 10-CV-450-SM 7/8/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brian K. Blackden, and Belsito Communications, Inc. d/b/a 1st Responder Newspaper, Plaintiffs

v. Case No. 10-cv-450-SM Opinion No. 2 011 DNH 109 New Hampshire State Police, State of New Hampshire, The Colonel of the New Hampshire State Police, in his official capacity, and James Decker, Defendants

O R D E R

Plaintiffs, Brian Blackden and Belsito Communications (doing

business as 1st Responder Newspaper), bring suit under 42 U.S.C.

§ 1983 alleging violations of their First, Fourth, and Fourteenth

Amendment rights. Defendants are Robert Quinn, Director of the

Division of State Police, New Hampshire Department of Safety, and

New Hampshire State Trooper James Decker. The defendants'

motions to dismiss, doc. nos. 17 and 18, are pending before the

court.

As alleged in the first amended complaint, doc. no. 16,

Blackden is a freelance reporter and photographer for various

news agencies, including plaintiff Belsito Communications. On

August 25, 2010, Blackden heard a radio transmission calling the Penacook Rescue Squad to the scene of a serious traffic accident.

Blackden went to the scene and donned a protective coat and a

helmet marked "Photographer." After taking photographs of the

accident and rescue efforts, Blackden was approached by state

trooper James Decker, who asked Blackden to identify himself and

to produce some form of identification. Blackden complied with

Decker's request. Shortly after questioning him. Decker seized

Blackden's camera, which contained a digital photo card

containing the photographic files Blackden had taken at the

scene.

Public records, which this court has judicially noticed,

disclose the events that followed seizure of Blackden's camera.

On August 26, 2010, warrants were issued authorizing a search of

Blackden's camera and digital card, and seizure of image files on

the card. On November 19, 2010, a warrant was issued for

Blackden's arrest. Blackden was charged with obstructing

government administration, impersonating medical/rescue

personnel, and unauthorized use of red lights, all in violation

of state law. The camera was returned to Blackden, but the

digital card was retained pending resolution of Blackden's state

court trial. On May 12, 2011, Blackden was convicted in the

state district court of impersonating medical/rescue personnel

and unauthorized use of red lights.

2 Before his conviction, Blackden and Belsito filed this

§ 1983 suit against Colonel Quinn, in his official capacity, and

Trooper Decker, individually. Plaintiffs allege that Decker's

seizure of the camera and digital photo card was without probable

cause, in violation of Blackden's Fourth Amendment right to be

free from unreasonable search and seizure. Plaintiffs also

allege that retention of the card deprived them of their First

Amendment rights to publish the images contained on the digital

card. They seek monetary relief against Decker and prospective

injunctive relief against Decker and Quinn.

Quinn and Decker move, pursuant to Rule 12(b)(6), to dismiss

the amended complaint. See Fed. R. Civ. P. 12(b)(6). Although

defendants rely upon a number of distinct grounds, disposition

turns on two fairly straightforward issues: Is the injunctive

relief requested available? And, does the pendency of the state

criminal proceeding against Blackden warrant staying this case?1

1 Although the discussion is limited to these questions, it is perhaps worth noting that defendants' first argument provides no grounds for dismissal. Defendants contend that by its references to the First and Fourth Amendments, the amended complaint fails to allege the deprivation of a federally-secured right. They note, unremarkably, that those amendments only bind federal officials, not state or municipal actors. Doc. no. 17-1, pgs. 5- 6, citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971). But the amended complaint also references the Fourteenth Amendment. See Am. Cmpt. 5 5, doc. no. 16, pg. 2. The Due Process Clause of the Fourteenth Amendment protects citizens from First and Fourth Amendment violations by the states. See Gitlow v. New York, 268 U.S. 652, 630 (1927) (Fourteenth Amendment Due

3 1. Injunctive Relief

To survive a motion to dismiss under Rule 12(b)(6), "a

complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face."

Ashcroft v. Iqbal, 129 S. C t . 1937, 1949 (2009) (citation and

internal punctuation omitted). In determining plausibility, the

court should first identify and disregard conclusory allegations.

Ocasio-Hernandez v. Fortuno-Burset, No. 09-2207, 2011 WL 1228768,

at *9 (1st Cir. April 1, 2011) (quoting Iqbal, 129 S. C t . at

1949). The remaining " [ n ] o n - c o n c l u s o r y factual allegations . . .

must then be treated as true" and assessed to determine whether

they " 'allow[...] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.'" .Id. at

**9, 11 (quoting Iqbal, 129 S. C t . at 1949). If they do, the

"claim has facial plausibility." Id.

Moreover, although the court, in resolving a motion to

dismiss, is "generally limited to considering" the facts as

alleged, it "may also consider . . . matters of public record."

Process Clause incorporates First Amendment right to free speech); Wolf v. Colorado, 338 U.S. 25, 27 (1949) (Fourteenth Amendment Due Process Clause incorporates Fourth Amendment right to be free from unreasonable search and seizure). The amended complaint, therefore, generally meets § 1983's requirement that the claims be based on the deprivation of a federally protected right. See 42 U.S.C § 1983.

4 Giraqosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) (holding

"'documents from prior state court adjudications'" properly

considered in resolving 12(b)(6) motion to dismiss) (quoting

Boatenq v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir.

2000 ).

Because plaintiffs sue Quinn only in his official capacity,

they correctly seek only prospective injunctive relief against

him, and not monetary damages. See P.R. Aquaduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (absent waiver,

neither a state nor its agencies may be subject to suit in

federal court). See also Will v. Michigan Dept, of State Police,

491 U.S. 58, 71, n. 10 (1989)("[A] state official in his or her

official capacity, when sued for injunctive relief, would be a

person under § 1983 because official-capacity actions for

prospective relief are not treated as actions against the

State.") (citing Ex Parte Young, 209 U.S. 123, 159-160 (1908)

(quotation omitted). See also Pratt v. New Hampshire Dept, of

Corrections, Case No. 05-cv-367-SM, 2006 WL 995121, at *16

(D.N.H. March 31, 2006). The injunctive relief plaintiffs seek

against Quinn is the same they seek against Decker: "an order

directing the defendants to return the subject digital photo card

to Blackden." Am. Cmpt., doc. no. 16, pg. 8.

5 But the requested relief is not available against either

defendant. They do not have legal control over the digital photo

card. Although the amended complaint alleges "that the card is

being retained by Decker and/or the New Hampshire Department of

Safety," it is apparent from noticed public records that the

state court has legal control over the property, pursuant to New

Hampshire's seizure and disposition statute, N.H. Rev. Stat. Ann.

595-A:6. The digital photo card is being held, pursuant to a

judicial warrant, as evidence in Blackden's state criminal

proceedings.

Under New Hampshire's seizure and disposition statute, law

enforcement officials hold the property for safe keeping, but at

the direction of the state court, which is authorized and

obligated to direct the disposition of seized articles. See N.H.

Rev. Stat. Ann. 595-A:6 (As to seized "property or articles," the

"officer . . . shall . . . safely keep them under the direction

of the court or justice so long as necessary to permit them to be

produced or used as evidence in any trial," and the court shall

thereafter "order them returned," or "disposed of" ...) . See also

State v. Pessetto, 160 N.H. 813, 816 (2010) (Under the seizure

and disposition statute, " [tlhe trial court must determine if the

seized property is contraband . . . . If the item is determined

to be contraband, then the trial court has discretion to order

6 forfeiture and dispose of the property as the public interest

requires . . . . If the item is not contraband, the trial court

must return the property unless the State provides good cause to

withhold its return.") (emphasis added).

Accordingly, because the digital photo card is under the

state court's legal control, the requested injunctive relief is

not available against either defendant. See Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997) (Plaintiff

"had a viable claim at the outset of the litigation," but later

"left her job . . . to take up employment in the private sector

. . . . At that point, it became plain that she lacked a still

vital claim for prospective relief."). Because, as to Quinn,

plaintiffs seeks (and can only seek) injunctive relief, the

absence of a plausible basis for such relief requires that all

claims against him be dismissed.2

The unavailability of injunctive relief does not warrant

dismissal of the claims against Decker, however, because

plaintiffs assert a claim for monetary relief against him.

2 The post-seizure relinquishment of the digital photo card to the state court's control also implicates Article Ill's "case and controversy" requirement as to the claims against Quinn. See Arizonans for Official English, 520 U.S. at 67 ("To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.") (quotation omitted).

7 2. Stay of the Claims Against Decker Pending Resolution of Blackden's State Criminal Proceedings

Plaintiffs' claims against Decker turn upon the alleged

absence of probable cause for the seizure of Blackden's camera

and digital photo card. See Am. Cmpt., doc. no. 16, pgs. 6-7

("seizure and retention of [Blackden's] property without probable

cause" violates the Fourth Amendment, and, further, has

"prevented [plaintiffs] from publishing and or broadcasting" the

photographs in violation of their "First Amendment rights to

freedom of speech and the press."). Accordingly, the alleged

illegality of Decker's seizure of the camera and digital card is

a principal issue in this case.

But the pending state criminal proceeding against Blackden

poses a problem, though not for the reasons defendants argue,

relying on Decker v. Hillsborough County Attorney's Office, 845

F.2d 17 (1st Cir. 1988) .3 A plaintiff's § 1983 damages claim

must be dismissed if "judgment in favor of the plaintiff would

necessarily imply the invalidity of [a criminal] conviction or

sentence" and if plaintiff cannot "demonstrate that the

3 Defendants rely on Decker, 845 F.2d 17, for the proposition that plaintiffs "improperly seek [...] federal intervention into a criminal action pending in a New Hampshire [s]tate [c]ourt." Doc. no. 17-1, pg. 7. But that case is distinguishable. Unlike the plaintiff in Decker, plaintiffs here are not challenging the state court proceedings, nor orders of the state court, regarding the disposition of Blackden's property. conviction or sentence has already been invalidated." Heck v.

Humphrey, 512 U.S. All, 487 (1994); see also Thore v. Howe, 466

F.3d 173, 179 (1st Cir. 2006). The "Heck bar" advances the

interests of "finality and consistency" by limiting

"opportunities for collateral attack" on criminal convictions.

512 U.S. at 485.

The status of Blackden's conviction is somewhat unclear. He

was convicted in the state's district court, but, under New

Hampshire law, that conviction may become a nullity. Blackden

may appeal (or may have already appealed) his Class A misdemeanor

conviction "'to obtain a de novo jury trial in the superior

court'", in which case, the district court conviction is deemed

vacated. Favazza v. Bralev, 160 N.H. 349, 353 (2010) (quoting

N.H. Rev. Stat. Ann. 599:1 (Supp. 2009)). And, should he be

convicted in the superior court, he may seek an appeal to the New

Hampshire Supreme Court. See Albin v. Concord Dist. Court, Case

No. 00-12-JD, 2000 WL 1513719, at *2 (D.N.H. Sept. 29,

2000)(describing New Hampshire's "discretionary appellate

system"). It is not possible, on this record and at this time,

to determine whether Heck applies to bar plaintiffs' claims

against Decker. Under similar circumstances, the Supreme Court

has endorsed the procedural solution of staying the civil action:

9 If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended, [citations omitted] . . . If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.

Wallace v. Kato, 549 U.S. 384, 393-394 (2007). See also Crooker

v. Burns, 544 F.Supp. 2d 59, 65 (D. Mass. 2008) (under Wallace,

staying civil cases alleging unreasonable searches "until the

pending criminal indictment is resolved."). Even before the

Supreme Court's decisions in Heck and Wallace, the Court of

Appeals for this circuit generally endorsed staying "§ 1983

damages actions . . . pending the conclusion of . . . state

criminal proceedings." Kvricopoulos v. Town of Orleans, 967 F.2d

14, 16, n.l (1st Cir. 1992) (emphasis in original). See also

Murphy v. City of Manchester, 70 F. Supp. 2d 62, 71-72 (D.N.H.

1999) (Barbadoro, J.) (staying Section 1983 money damages action

for wrongful termination).

Belsito's First Amendment claims, as pled, necessarily

depend upon its assertion that the seizure of Blackden's digital

card was unlawful. Accordingly, both Blackden's and Belsito's

claims must be stayed until that issue is resolved.

10 Conclusion

For the reasons given, defendant Quinn's motion to dismiss,

doc. no. 11_, is granted. Defendant Decker's motion to dismiss,

doc. no. JL_8, is denied, without prejudice. This case is stayed

pending final resolution of Blackden's state court criminal

proceedings. The clerk shall administratively close the case,

subject to motions by either party to bring it forward upon

conclusion of the referenced criminal proceedings.

SO ORDERED.

SJ?even J./McAuliffe Chief Judge

July 8, 2011

cc: Kevin D. Bloom, Esq. Penny S. Dean, Esq. Robert N. Isseks, Esq. Kevin H. O'Neill, Esq. John C. Vinson, Esq.