Brown v . Town of Seabrook et a l . CV-06-194-JL 11/6/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Colby Brown
v. Civil N o . 06-194-JL Opinion N o . 2008 DNH 196 Town of Seabrook et al.
O R D E R
Colby Brown has sued the Town of Seabrook, its former chief
of police, and two of its police officers, claiming excessive
force, false imprisonment, and other violations of his rights
under the federal and state constitutions, as well as state-law
torts, arising out of his arrest five years ago, when he was
fourteen years old. Brown alleges that he was stomped, choked,
and subdued with pepper spray during the arrest, which was
carried out jointly by the defendant officers and members of the
New Hampshire State Police who are not named as defendants here.
The defendants move for summary judgment on a number of
grounds, most notably the lack of competent proof that the
Seabrook officers--as opposed to their state police counterparts-
-participated in any of the violent aspects of the arrest.
Brown, who is represented by counsel, has not responded to the
motion.
This court, which has jurisdiction under 28 U.S.C. § 1332
(federal question), heard oral argument on the motion on November 5 , 2008. For the foregoing reasons, the court grants the
defendants’ motion for summary judgment.
I. APPLICABLE LEGAL STANDARD
Summary judgment is appropriate where the “pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). In making this determination, the “court
must scrutinize the record in the light most flattering to the
party opposing the motion, indulging all reasonable inferences in
that party’s favor.” Mulvihill v . Top-Flite Golf Co., 335 F.3d
1 5 , 19 (1st Cir. 2003).
As just noted, Brown has not filed any response to the
defendants’ motion for summary judgment. This does not affect
the standard of review: the court still “must assure itself that
the moving party’s submission shows that ‘there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.’” NEPSK, Inc. v . Town
of Houlton, 283 F.3d 1 , 7 (1st Cir. 2002) (quoting Fed. R. Civ.
P. 56(c)). But it does mean, under this court’s Local Rules,
that “[a]ll properly supported material facts in the moving
party’s factual statement shall be deemed admitted,” since they
2 were not “properly opposed by the adverse party.” L.R.
7.2(b)(2). Those facts are set forth below.1
II. BACKGROUND
On the evening of November 1 8 , 2003, defendant Chester
Felch, an officer with the Seabrook Police Department, arrived at
Brown’s home in response to a call of a runaway juvenile.
Brown’s father told Felch that Brown, who was fourteen years old
at the time, had left the house without permission after being
grounded following his most recent suspension from school.
Brown’s father described his son as “out of control” due to
escalating behavioral problems, adding that he would occasionally
1 There is one part of the defendants’ factual statement, however, that the court cannot accept: its account of the juvenile delinquency proceedings that were commenced against Brown following his arrest. New Hampshire law treats records of such proceedings as confidential, N.H. Rev. Stat. Ann. § 169- B:35, I , and makes disclosing them illegal except in limited circumstances not applicable here, id. §§ 169-B:36, B:37, I I . So this court will not consider any aspect of the delinquency proceedings in deciding the defendants’ summary judgment motion. To protect the confidentiality of those proceedings, the court will seal, at Level I , the defendants’ memorandum in support of their motion and strike its Exhibit C , which consists of records of the proceedings. See L.R. 83.11(a)(1). The New York Court of Appeals has held that, under that state’s juvenile confidentiality laws, a juvenile “waive[s] the statutory privilege . . . [b]y bringing a civil suit alleging that the police had used excessive force in apprehending him.” Green v . Montgomery, 746 N.E.2d 1036, 1040-42 (N.Y. 2001). But whether a juvenile can “waive” the confidentiality that protects delinquency proceedings has never been decided by a New Hampshire court o r , it would appear, by the courts of any state but New York; this court will not consider the issue here.
3 become angry and “break things.” Brown’s father asked Felch to
find Brown and bring him home. So Felch set out to take Brown
into protective custody as authorized by New Hampshire law. See
N.H. Rev. Stat. Ann. § 169-B:9, II (recognizing police officer’s
authority for “taking into custody any minor . . . whose
circumstances are such as to endanger such minor’s person or
welfare, unless immediate action is taken”).
Traveling in his patrol car, Felch soon spotted Brown as he
was walking along Route 1 , a major road in Seabrook. Felch
called out to Brown, asking him to come over to the car, but
Brown ignored him. Felch then got out of the car, approached
Brown, and ordered him to get in so Felch could take him home.
Brown responded, “I ain’t going anywhere,” and kept walking. So
Felch grabbed Brown by his shirtsleeve in an attempt to pull him
over to the patrol car, marking the start of a protracted
physical struggle between them. Felch grappled with Brown,
vainly trying to force him toward the car; Brown, despite his
youth, was taller and heavier than Felch. Felch did manage to
use his radio to call for backup at some point. Eventually,
Brown slipped out of his shirt, evading Felch’s grasp, and ran
around a nearby corner on to Railroad Avenue.
By that point, however, two state troopers had responded to
Felch’s call for backup. They arrived on the scene, exited their
4 vehicles, and pursued Brown down Railroad Avenue. Felch, who was
exhausted from struggling with Brown, did not join the pursuit.
Another Seabrook police officer, defendant John Wasson, also
arrived on the scene of the initial struggle. After learning
from Felch that Brown had fled with state troopers in pursuit,
Wasson proceeded to drive his police cruiser down Railroad
Avenue. He soon came upon Brown, who had been apprehended by the
troopers but was continuing to struggle with them. Wasson did
not assist the state troopers as they eventually placed Brown in
handcuffs; Wasson did not even touch Brown during his struggle
with the troopers. Felch, for his part, did not reach the scene
until after Brown had already been handcuffed.
Brown, who had been sprayed in the face with pepper spray by
the state troopers, was placed in the back of Wasson’s cruiser.
Wasson drove him to the Seabrook police station, where he
assisted him with washing the pepper spray from his eyes. There,
Brown was booked on a charge of resisting arrest. See N.H. Rev.
Stat. Ann. § 642:2.
Brown later filed separate actions in the Rockingham County
Superior Court against (1) the town of Seabrook, its chief of
police, Felch, and two pseudonymous defendants2 and (2) those
2 The pseudonymous defendants were unidentified officers of the Seabrook Police Department and the New Hampshire State Police. Brown has never amended his complaint to name them or attempted to join them as defendants.
5 same defendants as well as Wasson. Invoking federal question
jurisdiction, the defendants duly removed the cases to this
court, where they were consolidated into this action.
III. ANALYSIS
Brown brings a number of claims against the defendants:
(1) excessive force in violation of his rights under the federal
and state constitutions, (2) false arrest and imprisonment in
violation of his rights under the federal and state
constitutions, (3) violations of his right to substantive due
process under the federal and state constitutions, (4) a common-
law claim for assault and battery, and (5) a common-law claim for
intentional infliction of emotional distress. He further alleges
that the Town of Seabrook and its police chief are liable for
these violations under theories of municipal liability,
supervisory liability, respondeat superior, and negligent
training, supervision, and retention of the officers.
A. Excessive Force
The fatal defect in Brown’s claim for excessive force is the
absence of evidence that the defendants here, i.e., Officers
Felch and Wasson of the Seabrook Police Department, its chief,
6 and the town itself, participated in the application of the
allegedly excessive force during Brown’s arrest. Felch and
Wasson, as just discussed, did not join in their state police
counterparts’ struggle with Brown on Railroad Avenue, during
which he was doused with pepper spray and, he says, kicked,
choked, and otherwise assaulted. So neither Felch nor Wasson is
responsible for this allegedly excessive force. “It is well-
established that only those individuals who participated in the
conduct that deprived the plaintiff of his rights can be held
liable” under § 1983.3 Velez-Rivera v . Agosto-Alicea, 437 F.3d
145, 156 (1st Cir. 2006) (internal quotation marks omitted).
It should be noted that, in interrogatory answers that the
defendants have submitted with their motion, the plaintiff states
that, before his alleged assault on Railroad Avenue, he
was tripped by an officer and fell to the ground. I turned to face up and the first person I saw was a
3 Brown’s amended complaint alleges that “[t]he Defendant officers acted together, in agreement with, and in conspiracy with each other.” Insofar as this could be read to charge a conspiracy among Felch, Wasson, and the state troopers to use excessive force against Brown, it is a charge devoid of evidentiary support. Again, Felch was not present while the state troopers subdued Brown; Wasson barely was; and the only communication between either Felch or Wasson and the state troopers prior to their involvement was Felch’s call for assistance on his radio during his struggle with Brown. A request for an officer’s assistance, plus that officer’s “sudden, unilateral decision . . . to effect the arrest,” does not equal a conspiracy. Crawford v . City of Quincy, 215 F.3d 1311 (table), 2000 WL 231238, at *2 (1st Cir. Feb. 1 7 , 2000) (unpublished decision).
7 State Trooper pointing a can at me and I was sprayed by pepper spray . . . . I assumed Felch had chased me and was the one who had initially tripped and knocked me down and was involved in assaulting m e .
Brown also states that Wasson choked him during the ensuing
assault, but Brown--who, by his own account, had only just been
hit in the face with pepper spray--does not explain how he was
able to identify Wasson as the one who choked him.
The defendants argue that Brown’s version of events, though
markedly different from theirs, does not create a genuine issue
of fact sufficient to defeat summary judgment, since statements
offered for that purpose “must be made on personal knowledge, set
out matters that would be admissible in evidence, and show that
the affiant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(e)(1). Specifically, the defendants argue, Brown
has simply “assumed” that Felch took part in the alleged assault,
and provides only a “conclusory allegation” of Wasson’s role.
“For purposes of summary judgment, an allegation . . . must
be based on personal knowledge and show affirmatively that the
affiant is competent to testify to the matters stated therein.”
Nieves-Luciano v . Hernandez-Torres, 397 F.3d 1 , 5 (1st Cir.
2005). Just a s , in certain circumstances, these foundational
requirements may be fairly inferred from the balance of a
witness’s testimony, see, e.g., Simas v . First Citizens’ Fed.
Credit Union, 170 F.3d 3 7 , 50-51 (1st Cir. 1999), other
8 circumstances may call them into question so as to demand that
the witness expressly state the basis of his personal knowledge
and competence. See, e.g., Nieves-Luciano, 397 F.3d at 5
(refusing to assume, “[w]ithout further foundation,” employee’s
personal knowledge of what transpired in the workplace after he
had been terminated); Perez v . Volvo Car Corp., 247 F.3d 303, 316
(1st Cir. 2001) (ruling that employee’s statements about his
employer’s business relationships were inadmissible under Rule
56(e) where they existed before he commenced employment).
Brown, by saying that he “assumed” what Felch did during the
alleged assault, has essentially conceded a lack of personal
knowledge, making the interrogatory answer inadmissible on that
subject. See Schubert v . Nissan Motor Corp. in U.S.A., 148 F.3d
2 5 , 30 (1st Cir. 1998). Indeed, “rank speculation” cannot defeat
a properly supported motion for summary judgment. Rathbun v .
Autozone, Inc., 361 F.3d 6 2 , 66 (1st Cir. 2004). While Brown
states, rather than assumes, that Wasson choked him, Brown does
not explain how he knows this, and his personal knowledge cannot
be taken for granted, considering that, by his own account, he
had just been sprayed in the face with pepper spray at that time.
Cf. Nieves-Luciano, 397 F.3d at 5 . The personal knowledge
requirement, as set forth in both Rule 56(e)(1) of the Federal
Rules of Civil Procedure and Rule 602 of the Federal Rules of
Evidence, prevents a witness from testifying to what he “could
9 not have actually perceived or observed.” United States v .
Rodriguez, 162 F.3d 135, 144 (1st Cir. 1998). Because Brown, in
his blinded state, could not have actually perceived or observed
the identity of the officer choking him, his statement
implicating Wasson does not demonstrate the requisite personal
knowledge.4 Brown’s statements in his interrogatory answers,
then, cannot serve to create a genuine issue of material fact
precluding summary judgment.
The statements in Brown’s interrogatory answers are
immaterial here for an independent reason: they are at odds with
the defendants’ version of events as set forth in the statement
of facts supporting their summary judgment motion (and, in turn,
in the accompanying affidavits of Felch and Wasson), which has
been deemed admitted under L.R. 7.2(b)(2) by virtue of Brown’s
failure to file any response. See Part I , supra. S o , even if
the statements in Brown’s interrogatory answers were admissible
to prove the defendants’ identity, he has lost the opportunity to
use that proof to contest the defendants’ factual account by not
4 It is not impossible, of course, for Brown personally to know which officer was choking him: for example, Brown might have heard and recognized that officer’s voice, or heard him referred to by name by his colleagues. But Brown’s statement does not set forth any such facts that might establish his personal knowledge in this way, and, as Rule 56(e)(1) specifically provides, it is his burden to do s o . Furthermore, at oral argument, Brown’s counsel did not explain how his client was able to identify Wasson as the officer who choked him.
10 opposing their motion. As the First Circuit has observed in
upholding the application of a similar local rule to the same
effect, “the decision to sit idly by and allow the summary
judgment proponent to configure the summary judgment record is
likely to prove fraught with consequence. This case is no
exception.”5 Kelly v . United States, 924 F.2d 355, 358 (1st
Cir. 1991) (upholding application of similar local rule in the
District of Massachusetts).
By Felch’s own account, he did apply some force to Brown
during their initial encounter, by grabbing his clothing in an
5 Brown suggested at oral argument that, because the defendants filed the interrogatory answers with their moving papers, the court is obligated to consider the answers as “discovery and disclosure materials on file” in deciding whether there is a genuine issue of material fact under Rule 56(c), despite Brown’s failure to dispute the defendants’ factual statement under Local Rule 7.2(b)(2)(b). In essence, Brown argues, Rule 56(c) trumps application of the local rule to deem the movant’s properly supported facts undisputed, so long as the record contains evidence disputing them. The court of appeals has held, however, that “the presence of a valid local rule requiring the opposing party to file a response to guide the court removes any requirement that might otherwise exist that the district court ferret through the record to consider [the plaintiff’s] complaint.” Jaroma v . Massey, 873 F.2d 1 7 , 21 (1st Cir. 1989). Jaroma distinguished Stepanischen v . Merchants Despatch Transp. Corp., 722 F.2d 922 (1st Cir. 1983), where the court held that Rule 56(c) requires the court to peruse the entire summary judgment record, including materials filed with the moving party’s papers and not referred to in the non-moving party’s papers, but only absent a local rule like L.R. 7.2(b)(2)(b). Id. at 931-32. It follows that the Local Rule can be applied to deem the defendants’ properly supported facts admitted, even though the record contains evidence, i.e., the interrogatory answers, that arguably disputes those facts.
11 ultimately futile attempt to force him into the patrol car. This
force was not excessive as a matter of law. “To establish a
Fourth Amendment violation based on excessive force, a plaintiff
must show that the defendant officer employed force that was
unreasonable under the circumstances . . . ‘including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Jennings v . Jones, 499 F.3d 2 , 11 (1st Cir.
2007) (quoting Graham v . Connor, 490 U.S. 386, 396-97 (1989)),
cert. denied, 128 S . C t . 1125 (2008). While these kinds of fact-
bound inquiries into reasonableness often present questions for
the jury, “the facts might point so clearly toward reasonableness
that no reasonable jury could decide for the plaintiff,” making
summary judgment appropriate. Roy v . Inhabitants of City of
Lewiston, 42 F.3d 691, 694 (1st Cir. 1994).
No reasonable jury could find on this record that Felch
applied excessive force to Brown by trying to push him into the
car. Though Felch was attempting to take Brown into protective
custody, not to arrest him for any crime, Felch had been told
that Brown was increasingly prone to angry outbursts, and Brown
refused to go willingly with Felch when asked. Brown also
resisted Felch’s first application of physical force, i.e.,
grabbing Brown by the shirt, by attempting to flee. Felch used
12 reasonable force under these circumstances.6 Because the
defendants, according to the undisputed facts of record, had no
role in the alleged assault upon Brown, and because Felch used
reasonable force during his previous encounter with Brown, the
defendants are entitled to summary judgment on his excessive
force and substantive due process claims.7
B. False Arrest
Brown also claims that his arrest violated his rights under
the Fourth Amendment. As noted supra, New Hampshire law allows a
police officer to “tak[e] into custody any minor . . . whose
6 In an interrogatory answer, Brown states that he was on his way home when Felch approached, and that he communicated that to the officer. Brown further states that, right after grabbing him, Felch knocked Brown to his knees and attempted to force him to the ground. As just explained, however, because this answer is at odds with the defendants’ statement of facts in their summary judgment motion, and Brown has not submitted any opposition to that statement, the interrogatory answer is irrelevant. Regardless, even taking into account Brown’s version of events, and accepting it as true, does not alter the ruling that Felch applied reasonable force as a matter of law. 7 The Court in Graham made clear that “all claims that law enforcement officers have used excessive force . . . in the course of an arrest . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” 490 U.S. at 395. Accordingly, a plaintiff has only a Fourth Amendment claim--and no substantive due process claim--arising out of the use of allegedly excessive force during an arrest. See Horta v . Sullivan, 4 F.3d 2 , 13 n . 12 (1st Cir. 1993).
13 welfare, unless immediate action is taken.” N.H. Rev. Stat. Ann.
§ 169-B:9, I I . The court of appeals has held that the use of
this statute to take “temporary protective detention of a child
when there is reasonable suspicion to believe that he or she is
in immediate danger” comports with the Fourth Amendment.
Tremblay v . McClellan, 350 F.3d 195, 200 (1st Cir. 2003). The
existence of the requisite quantum of suspicion for an arrest
presents a question of law for the court, unless the answer
depends on the resolution of disputed facts. Acosta v . Ames
Dep’t Stores, Inc., 386 F.3d 5 , 9 (1st Cir. 2004).
Here, by virtue of Brown’s failure to contest the
defendants’ factual statement, the facts are undisputed: after
Brown’s father told Felch that Brown, a fourteen-year old who had
been exhibiting behavioral problems, had left home without
permission, Felch encountered Brown walking by himself along a
busy road after dark, and Brown refused to let Felch take him
home when asked. This evidence gave Felch reasonable suspicion
to believe that Brown was in immediate danger so as to justify
protective custody. See Tremblay, 350 F.3d at 200 (ruling that
officer had reasonable suspicion for protective custody of
juvenile “walking along a highway at two in the morning” where
additional circumstances placed him in further danger).
It might be argued that Brown was not, in fact, taken into
protective custody, but was arrested for resisting detention. In
14 any event, the police had probable cause to arrest Brown for that
offense, which occurs “when the person knowingly or purposely
physically interferes with a person recognized to be a law
enforcement official . . . seeking to effect an arrest or
detention,” N.H. Rev. Stat. Ann. § 642:2, including protective
custody, New Hampshire v . Kelley, 153 N.H. 481, 484-85 (2006).
Probable cause to arrest Brown for that crime existed based
solely on Brown’s struggle with Felch--in which Brown, according
to the undisputed facts, acted in precisely the manner prohibited
by the statute--regardless of whatever happened afterwards.8 The
defendants are entitled to summary judgment on Brown’s false
arrest claim.9
C. Other Claims
Brown’s claims of municipal and supervisory liability
against the town and its police chief cannot succeed in the
absence of a constitutional violation by the defendant officers
8 Again, even if Brown’s interrogatory answers--in which he states that he said he was on his way home, but admits “pull[ing] away” and ultimately fleeing from Felch--are taken into account, there was still sufficient cause either to take Brown into protective custody or to arrest him for resisting detention. 9 Though Brown’s amended complaint also refers to “false imprisonment,” its factual allegations do not include anything that happened after he was placed in Wasson’s police cruiser, so the court need not consider the lawfulness of any further detention after that point.
15 which, as just discussed, cannot be proven. See, e.g., Acosta,
386 F.3d at 1 2 . The court grants summary judgment for the
defendants on those claims as well.
Finally, in light of the entry of judgment for the
defendants on all of Brown’s federal constitutional claims, the
court declines to exercise supplemental jurisdiction over his
state-law claims, including violations of the state constitution,
assault and battery, negligence, and intentional infliction of
emotional distress. See 28 U.S.C. § 1367(c)(3). “[I]n the usual
case in which all federal-law claims are eliminated before trial
. . . judicial economy, convenience, fairness, and efficiency
. . . will point toward declining to exercise jurisdiction over
the remaining state-law claims.” Carnegie-Mellon Univ. v .
Cohill, 484 U.S. 343, 350 n.7 (1988). This is the usual case.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants’
motion for summary judgment (document n o . 20) on Brown’s federal
law claims, declines to exercise supplemental jurisdiction over
his state law claims, and remands those state law claims to the
Rockingham County Superior Court. The court also seals, at Level
I , the defendants’ memorandum in support of their motion
(document n o . 20-1) and strikes its Exhibit C (document n o . 20-
16 4). The clerk shall enter judgment accordingly and close the
case. SO ORDERED. _____________ Laplante ted States District Judge
Dated: November 6, 2008
cc: Richard N . Foley, Esq. Andrew B . Livernois, Esq. Lawrence S . Smith, Esq.