Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Calvin O . Davis, Jr., Plaintiff
v. Case N o . 12-cv-171-SM Opinion N o . 2013 DNH 119 Chief Shawn Bernier, New Durham Police Department, and Town of New Durham, N H , Defendants
O R D E R
Defendants' Motion for Summary Judgment (document n o . 12) is
granted with respect to the federal claims, and the court
declines to exercise supplemental jurisdiction over plaintiff’s
state law claims.
Plaintiff brought this suit against the New Durham Police
Department, the Town of New Durham, and Police Chief Shawn
Bernier, in both his official and individual capacities. He
alleges that New Durham police officers assaulted him, searched
his house without probable cause, stole money from his house
during the search, and regularly stopped his vehicle without
probable cause. Plaintiff has not asserted claims against any of
the offending police officers as individuals. Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 2 of 7
Municipal Liability under Section 1983
Municipalities cannot be held liable for constitutional
injuries caused by their employees on a theory of respondeat
superior. See Monell v . New York City Dept. of Soc. Svs., 436
U.S. 6 5 8 , 690-95 (1978). Instead, “a municipality can be found
liable under [42 U.S.C.] Section 1983 only where the municipality
itself causes the constitutional violation at issue.” City of
Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989) (emphasis in
original). Here, plaintiff generally asserts that the municipal
defendants are liable under 42 U.S.C. Sec. 1983 because they had
a “policy or custom” of condoning the unconstitutional conduct of
their police officers, or because they failed to properly
supervise and train them. To succeed on that theory, plaintiff
must show an “affirmative link” between the acts of the
“municipality or its supervisory personnel” and the “acts . . .
of the offending employee,” such that the municipality’s conduct
amounts to “deliberate indifference” to the plaintiff’s rights.
Gaudreault v . Salem, 923 F.2d 203, 209 (1st Cir. 1990) (citations
omitted).
In opposing the defendants’ summary judgment motion,
plaintiff has not shown the existence of any material factual
dispute with regard to the liability of the municipal defendants.
For one thing, some of the acts by individual police officers
2 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 3 of 7
about which plaintiff complains do not appear to have been
unlawful, so cannot give rise to municipal liability. See
Jarrett v . Town of Yarmouth, 331 F.3d 1 4 0 , 151 (1st Cir. 2003)
("Our determination that [plaintiff] suffered no constitutional
injury is dispositive of his municipal liability claim against
the Town of Yarmouth."). The search of plaintiff’s house, for
example, was conducted pursuant to a warrant issued by a neutral
and detached magistrate. A facially valid warrant generally
precludes a plaintiff from prevailing on a Section 1983 claim
related to the authorized search, and plaintiff, here, has not
argued, or shown, that any exception to this general rule applies
in this case. See generally Williamson v . Curran, 714 F.3d 4 3 2 ,
443-44 (7th Cir. 2013). Moreover, plaintiff’s affidavit
generally does not give rise to disputed material facts regarding
the officers’ conduct, because much of it is based on plaintiff’s
conclusory statements of belief and conjecture. Under Fed. R.
Civ. P., an affidavit at the summary judgment stage must be based
on personal knowledge, and cannot be based on the affiant’s
belief or on “‘conclusions, assumptions, or surmise.’” Holder v .
Town of Newton, 2010 WL 5185137, at *1 (D.N.H. Dec. 1 5 , 2010)
(DiClerico, J.) (quoting Livick v . The Gillette Co., 524 F.3d 2 4 ,
28 (1st Cir. 2008)).
3 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 4 of 7
But even accepting, for argument’s sake, that the actions
complained about were unconstitutional, the proffered evidence
does not support an inference that the municipal defendants had a
policy or custom of condoning such conduct, or that they failed
to properly supervise and train their police officers. As
defendants point out, the evidence on summary judgment does not
show any “affirmative link” between the acts of individual police
officers and the municipal defendants, such that those defendants
can be said to have condoned the police officer’s actions or to
have been deliberately indifferent to the plaintiff’s rights. A
supportable inference of deliberate indifference does not, as
plaintiff implies, arise from “the fact that nobody investigated
the incident [involving the allegedly stolen money] after notice
to the State Police and Attorney General’s Office.” P l . Br.,
doc. n o . 13-1, at 2 . In addition, plaintiff’s general assertion
in his brief that “[t]he Chief at all times knew and encouraged
the [vehicle] stops,” id., is merely conclusory and not supported
by any record evidence. Plaintiff has simply not produced or
pointed to evidence regarding what the Chief did, knew, or said
that, reasonably, might constitute encouragement, condonation, or
approval of the alleged illegal conduct by individual police
officers.
4 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 5 of 7
Individual Liability of Chief Bernier Under Section 1983
“Public officials have ‘qualified immunity from personal
liability for actions taken while performing discretionary
functions.’” Barton v . Clancy, 632 F.3d 9, 21 (1st Cir. 2011)
(quoting Lynch v . City of Boston, 180 F.3d 1 , 13 (1st Cir.
1999)). In determining whether an individual defendant is
entitled to qualified immunity, a court must decide “‘whether the
facts alleged or shown by the plaintiff make out a violation of a
constitutional right . . . and . . . if s o , whether the right was
clearly established at the time of the defendant’s alleged
violation.’” Id. (quoting Maldonado v . Fontanes, 568 F.3d 263,
269 (1st Cir. 2009) (internal quotation marks omitted)).
Chief Bernier, in his individual capacity, is entitled to
qualified immunity. Notably, plaintiff has presented little
developed argument on the issue, contending only that the Chief’s
alleged statement to him — i.e., that he would “not stop going
after [plaintiff] until he moved out of town” — did not
constitute discretionary action. Plaintiff does not offer any
explanation for why, or on what authority, the Chief’s conduct
should be considered nondiscretionary. That i s , plaintiff has
not argued, nor realistically could h e , that the Chief’s conduct
in making the statement was purely “ministerial.” Harlow v .
5 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 6 of 7
Fitzgerald, 457 U.S. 8 0 0 , 816 (1982) (distinguishing
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Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Calvin O . Davis, Jr., Plaintiff
v. Case N o . 12-cv-171-SM Opinion N o . 2013 DNH 119 Chief Shawn Bernier, New Durham Police Department, and Town of New Durham, N H , Defendants
O R D E R
Defendants' Motion for Summary Judgment (document n o . 12) is
granted with respect to the federal claims, and the court
declines to exercise supplemental jurisdiction over plaintiff’s
state law claims.
Plaintiff brought this suit against the New Durham Police
Department, the Town of New Durham, and Police Chief Shawn
Bernier, in both his official and individual capacities. He
alleges that New Durham police officers assaulted him, searched
his house without probable cause, stole money from his house
during the search, and regularly stopped his vehicle without
probable cause. Plaintiff has not asserted claims against any of
the offending police officers as individuals. Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 2 of 7
Municipal Liability under Section 1983
Municipalities cannot be held liable for constitutional
injuries caused by their employees on a theory of respondeat
superior. See Monell v . New York City Dept. of Soc. Svs., 436
U.S. 6 5 8 , 690-95 (1978). Instead, “a municipality can be found
liable under [42 U.S.C.] Section 1983 only where the municipality
itself causes the constitutional violation at issue.” City of
Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989) (emphasis in
original). Here, plaintiff generally asserts that the municipal
defendants are liable under 42 U.S.C. Sec. 1983 because they had
a “policy or custom” of condoning the unconstitutional conduct of
their police officers, or because they failed to properly
supervise and train them. To succeed on that theory, plaintiff
must show an “affirmative link” between the acts of the
“municipality or its supervisory personnel” and the “acts . . .
of the offending employee,” such that the municipality’s conduct
amounts to “deliberate indifference” to the plaintiff’s rights.
Gaudreault v . Salem, 923 F.2d 203, 209 (1st Cir. 1990) (citations
omitted).
In opposing the defendants’ summary judgment motion,
plaintiff has not shown the existence of any material factual
dispute with regard to the liability of the municipal defendants.
For one thing, some of the acts by individual police officers
2 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 3 of 7
about which plaintiff complains do not appear to have been
unlawful, so cannot give rise to municipal liability. See
Jarrett v . Town of Yarmouth, 331 F.3d 1 4 0 , 151 (1st Cir. 2003)
("Our determination that [plaintiff] suffered no constitutional
injury is dispositive of his municipal liability claim against
the Town of Yarmouth."). The search of plaintiff’s house, for
example, was conducted pursuant to a warrant issued by a neutral
and detached magistrate. A facially valid warrant generally
precludes a plaintiff from prevailing on a Section 1983 claim
related to the authorized search, and plaintiff, here, has not
argued, or shown, that any exception to this general rule applies
in this case. See generally Williamson v . Curran, 714 F.3d 4 3 2 ,
443-44 (7th Cir. 2013). Moreover, plaintiff’s affidavit
generally does not give rise to disputed material facts regarding
the officers’ conduct, because much of it is based on plaintiff’s
conclusory statements of belief and conjecture. Under Fed. R.
Civ. P., an affidavit at the summary judgment stage must be based
on personal knowledge, and cannot be based on the affiant’s
belief or on “‘conclusions, assumptions, or surmise.’” Holder v .
Town of Newton, 2010 WL 5185137, at *1 (D.N.H. Dec. 1 5 , 2010)
(DiClerico, J.) (quoting Livick v . The Gillette Co., 524 F.3d 2 4 ,
28 (1st Cir. 2008)).
3 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 4 of 7
But even accepting, for argument’s sake, that the actions
complained about were unconstitutional, the proffered evidence
does not support an inference that the municipal defendants had a
policy or custom of condoning such conduct, or that they failed
to properly supervise and train their police officers. As
defendants point out, the evidence on summary judgment does not
show any “affirmative link” between the acts of individual police
officers and the municipal defendants, such that those defendants
can be said to have condoned the police officer’s actions or to
have been deliberately indifferent to the plaintiff’s rights. A
supportable inference of deliberate indifference does not, as
plaintiff implies, arise from “the fact that nobody investigated
the incident [involving the allegedly stolen money] after notice
to the State Police and Attorney General’s Office.” P l . Br.,
doc. n o . 13-1, at 2 . In addition, plaintiff’s general assertion
in his brief that “[t]he Chief at all times knew and encouraged
the [vehicle] stops,” id., is merely conclusory and not supported
by any record evidence. Plaintiff has simply not produced or
pointed to evidence regarding what the Chief did, knew, or said
that, reasonably, might constitute encouragement, condonation, or
approval of the alleged illegal conduct by individual police
officers.
4 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 5 of 7
Individual Liability of Chief Bernier Under Section 1983
“Public officials have ‘qualified immunity from personal
liability for actions taken while performing discretionary
functions.’” Barton v . Clancy, 632 F.3d 9, 21 (1st Cir. 2011)
(quoting Lynch v . City of Boston, 180 F.3d 1 , 13 (1st Cir.
1999)). In determining whether an individual defendant is
entitled to qualified immunity, a court must decide “‘whether the
facts alleged or shown by the plaintiff make out a violation of a
constitutional right . . . and . . . if s o , whether the right was
clearly established at the time of the defendant’s alleged
violation.’” Id. (quoting Maldonado v . Fontanes, 568 F.3d 263,
269 (1st Cir. 2009) (internal quotation marks omitted)).
Chief Bernier, in his individual capacity, is entitled to
qualified immunity. Notably, plaintiff has presented little
developed argument on the issue, contending only that the Chief’s
alleged statement to him — i.e., that he would “not stop going
after [plaintiff] until he moved out of town” — did not
constitute discretionary action. Plaintiff does not offer any
explanation for why, or on what authority, the Chief’s conduct
should be considered nondiscretionary. That i s , plaintiff has
not argued, nor realistically could h e , that the Chief’s conduct
in making the statement was purely “ministerial.” Harlow v .
5 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 6 of 7
Fitzgerald, 457 U.S. 8 0 0 , 816 (1982) (distinguishing
“discretionary functions” from “‘ministerial’ tasks”).
And plaintiff faces a further problem. He has not shown
that the alleged comment violated plaintiff’s constitutional
rights. Even assuming, again, for argument’s sake, that the
Chief would prefer that plaintiff moved out of town, that
perspective cannot immunize plaintiff from legitimate policing
practices, and plaintiff has offered nothing to suggest that
Chief Bernier, or any of the defendants actually sued, engaged in
any unlawful or tortious activity for which they may be held
liable under Section 1983.
For these reasons, Chief Bernier, in his individual
capacity, is entitled to qualified immunity.
State Law Claims
The court declines to exercise supplemental jurisdiction
over the remaining state law claims. See 28 U.S.C. § 1367(c).
Accordingly, plaintiff’s state law claims are dismissed without
prejudice.
6 Case 1:12-cv-00171-SM Document 21 Filed 09/10/13 Page 7 of 7
Conclusion
Chief Bernier is entitled to qualified immunity with respect
to the federal claims brought against him in his individual
capacity. All defendants are entitled to judgment as a matter of
law with respect to the federal claims brought against them. The
state law claims are dismissed without prejudice.
SO ORDERED.
Steven J./McAuliffe United States District Judge
September 10, 2013
cc: Brian R. Barrington, Esq. Daniel J. Mullen, Esq.