Dionne v. Amatucci et a l . CV-10-230-PB 10/17/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Dionne
v. Civil No. lO-cv-230-PB Opinion No. 2 011 DNH 17 0 Sergeant Matthew Amatucci et a l .
MEMORANDUM AND ORDER
The claims in this case arise out of an incident that began
when Paul Dionne drove to the scene of an auto accident
involving his son and daughter. The incident culminated in the
arrest of Dionne by three Somersworth police officers. Dionne
alleges that the officers used excessive force, causing him
humiliation, reputational harm, pain, and serious injury to his
left shoulder and two of the fingers on his left hand. He
asserts Section 1983 claims against the City of Somersworth,
Police Chief Crombie, and the three officers who subdued him:
Sergeant Matthew Amatucci, Officer Michael Belleau, and Officer
Gary O'Brien. He also presents claims for common law assault
and battery and for negligent supervision, and pleads a new
cause of action under the New Hampshire Constitution. Dionne
and the government have filed cross-motions for summary
judgment. For the reasons set forth below, I grant the
government's motion. I. BACKGROUND
Around noon on May 9, 2009, Dionne's son, Paul Jr., was
driving an Isuzu Rodeo when he collided with another vehicle in
Somersworth, New Hampshire. Dionne's daughter, Lindsey, a
passenger in the vehicle, called her father after the accident
to ask if he could come and get her.
When Dionne arrived, he saw Paul Jr. handcuffed in the back
of Officer Michael Belleau's police cruiser. He first went to
speak with his son, and then walked over to speak with Sergeant
Matthew Amatucci. As he was walking toward Amatucci, Officer
Belleau gave him a "nasty" look. Dionne asked if there was a
problem, and Belleau responded, "Why, do you fucking want one?"
Dionne continued toward Amatucci, who informed him that his son
was being arrested because he had two outstanding warrants.
Dionne protested, explaining that his son had taken care of one
of the warrants. Pi's Dep. at 27, Doc. No. 18-6.
When Dionne and Amatucci began to discuss moving the Isuzu,
Dionne asked if he could tow the vehicle himself to save money.
Amatucci acceded to his request. Dionne asked the Sergeant for
permission to speak with the owners of the land adjacent to the
road, to inquire if he could move the Isuzu further onto private
2 property until he retrieved the tow bar. Amatucci responded,
"No. You're not going to go beaten [sic] on doors to find out
who owns the property." Id. at 30. Dionne informed him that he
already knew the owners, and calmly asked the Sergeant, "What
legal theory are you doing this [sic] to stop me from asking
people if I can leave the vehicle that's on private property on
the property?" Id. at 32. Amatucci did not directly respond to
the question, but reiterated that Dionne should not be going and
knocking on doors. Id. Dionne believed Amatucci's change to a
more confrontational demeanor was not serious, but was the
Sergeant's way of joking around.
Dionne then told Amatucci, "Okay. Well, I'll just push it
a little bit further from the road." Id. at 32-33. He entered
the car and tried, but was unable, to turn the steering wheel.
The key was still in the ignition, and Dionne turned it enough
to activate the power steering so that he could maneuver the
wheel. At that point, Amatucci believed that Dionne was
attempting to drive the vehicle that he had deemed inoperable,
and shouted for Dionne to get out. Instead of exiting, Dionne
attempted to explain what he was doing. The Sergeant reached in
the car and took the key.
3 Dionne then got out of the Isuzu, and the Sergeant told him
he was under arrest and ordered him to put his hands on the roof
of the car. Dionne asked "For what? What did I do wrong?" Id.
at 35. Amatucci responded, "Shut up and put your hands on the
roof." Id. Dionne complied, and as he stood facing the car,
Amatucci ordered him to put his hands behind his back. Dionne
attempted to explain that a pre-existing shoulder injury
rendered him unable to do so. Nonetheless, Amatucci tried to
handcuff Dionne, and in so doing he pushed his hand into the
middle of Dionne's back.
Dionne has a disability where even a light touch on his
back can cause his legs to go numb, id. at 36-37, and when the
Sergeant pressed on his back, Dionne lost sensation in his legs
and began to fall. To avoid falling down, he grabbed the roof
rack and swung himself into the car. Id. at 37-38. His legs
were left dangling outside the vehicle, and one of his arms
ended up going through the steering wheel and resting on the
steering column. Sergeant Amatucci commanded Dionne to exit the
Isuzu, and Dionne responded that he could not because his legs
were numb. For a couple of minutes, id. at 39, Amatucci
continued ordering Dionne out of the car, and Dionne continued
to respond that he could not. Amatucci then called for backup,
4 and Dionne called 9-1-1 and asked the operator to keep the phone
line open to record the event.
Officer O'Brien arrived on the scene and the two policemen
started to pull Dionne from the Isuzu by his wrists.1 Id. at 42.
Because one of his arms was entangled in the steering wheel, the
officers had difficulty pulling Dionne out, and had to use
sufficient force that they bruised his arm and ripped his shirt.
Even after he had been removed from the Isuzu, his arm was still
caught in the steering wheel. Dionne had been pleading with the
officers to let him extricate his arm, and after he was out of
the vehicle, the officers acquiesced. Dionne freed his arm and
then allowed the police to regain their grasp of it.
Once out of the vehicle, Dionne, who had regained some
feeling in his legs, was able to stand. For 20 or 30 seconds,
the officers continued to pull Dionne's arms to his sides,
demanding that he put his hands behind his back. During this
1 O'Brien claims not to have arrived until after Dionne had been subdued. Dep. of O'Brien at 14, Doc No. 18-4. Amatucci corroborates this version, explaining that Belleau, not O'Brien, arrived first on scene and assisted with Dionne's arrest. Dep. of Amatucci at 20, 47-48, Doc. No. 17-4. For the purposes of this opinion I accept Dionne's version as it appears in his deposition and his objection to defendants' motion for summary judgment (Doc. No. 19-2), but insofar as the record illustrates that Dionne has confused Belleau with O'Brien, the outcome remains unaffected. 5 time, Dionne was telling them that his injury prevented him from
moving his arms in that way.
At the end of the 20- to 30-second period. Officer Belleau
approached Dionne and punched him in the chest. Dionne's
glasses fell off and he fell first to his knees and then onto
his stomach. Id. at 52-53. As Dionne was falling to the
ground, Amatucci grabbed Dionne's phone and twisted it out of
his hand. Id. at 62. Dionne later admitted that he was not
surprised that Belleau punched him because Belleau "probably
came up and thought that I was really fighting these guys and I
wasn't. The steering wheel was." Id. at 53.
The officers were holding Dionne as he fell, and prevented
him from hitting the ground too hard. Id. at 65. Dionne lay on
the grass and the officers demanded that he put his hands behind
his back. Amatucci was applying a "reasonable amount of
pressure" in trying to push one of Dionne's arms behind his
back, and refrained from "push[ing] it further than what it was
going." Id. at 61, 66. Officer O'Brien was on the other side,
attempting to push Dionne's other arm behind his back. As
O'Brien tried to force Dionne's arm behind him, he was holding
Dionne's thumb in one hand and two of Dionne's fingers in
another, pulling them apart from each other; he was also
6 pressing his knee into Dionne's side. Officer Belleau was also
pulling at Dionne's arms. Belleau's Dep. at 26, Doc. No. 18-2.
Dionne kept saying that his arm would not go, and Officer
O'Brien (or Belleau) finally commanded, "put your arm behind
your back or I'm going to drop a knee into your back." Pi's
Dep. at 66. The officer began to knee Dionne in the shoulder
and side in an attempt to get leverage to push his arm back.
Id. at 61, 66. At that point, allegedly because the pain was so
severe, Dionne lost consciousness. Id. at 68; Compl. 5 29,
Doc. No. 8.
When Dionne awoke, he was sitting next to the Isuzu with
his hands cuffed in front of him. He does not recall his hands
ever having been cuffed behind his back.- As he regained
consciousness, Dionne felt chest pains and had difficulty
breathing. Amatucci called for an ambulance, which arrived
shortly and took Dionne to the hospital.
As a result of the physical encounter between Dionne and
the defendant officers, Dionne asserts that he has lost range of
- Dionne states in his deposition that his wife and another individual told him that for some period of time he was lying face-down and unconscious with his hands cuffed behind him. Pi's Dep. at 76-79, Doc. No. 18-6. However, Dionne points to no competent evidence in the summary judgment record that his hands were cuffed behind his back at any point.
7 motion in his left shoulder (the previously uninjured shoulder)
that will require an operation. Compl. 5 31. He also asserts
that the new shoulder injury has caused him to lose feeling in
two fingers on his left hand. Id.
Dionne was prosecuted for his conduct on that day, and was
convicted of misdemeanor resisting arrest. He was acquitted of
disorderly conduct and obstruction of government administration
charges.
Dionne has filed suit against the three officers on the
scene, as well as Police Chief Dean Crombie and the City of
Somersworth. The three officers are all employed by the
Somersworth Police Department, and each graduated from the New
Hampshire Police Academy. All three have received training on
the continuum of force twice per year. The continuum involves
five levels: 1) police presence; 2) verbal command; 3) soft
hand, ranging from escorting an individual to striking an
individual; 4) use of tools, such as using a baton or pepper
spray to subdue an individual; and 5) deadly force. Officers
are taught to use one level of force above that used by the
suspect being engaged, but they have discretion depending on the
situation. Amatucci Dep. at 8-10, Doc. No. 17-4; Crombie Dep.
at 14, Doc. No. 17-6.
8 In the altercation at issue, the officers used an open-hand
level of force, which is within the third level (soft-hand) on
the continuum of force. Additionally, in attempting to cuff
Dionne's hands behind him, the officers were following the
standard department policy of handcuffing arrestees with their
hands behind their back. Crombie Dep. at 23. Cuffing a
person's hands in front of him is more dangerous, although
officers have discretion to do so in certain situations. Id.
Pursuant to normal operating procedures, two captains of
the Somersworth Police Department reviewed the actions of the
officers at the scene. Id. at 24-25. The captains and Chief
Crombie determined that there were no problems with the conduct
of the officers, and so did not engage in further conversations
with the officers or institute any further review of that day's
events. Id. at 25-26.
II. STANDARD OF REVIEW
A summary judgment motion should be granted when the record
reveals "that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). A material fact "is one 'that might
affect the outcome of the suit under the governing law.'"
9 United States v. One Parcel of Real Prop., 960 F.2d 200, 204
(1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). In assessing whether a genuine dispute
exists, the evidence submitted in support of the motion must be
considered in the light most favorable to the nonmoving party,
with all reasonable inferences drawn in that party's favor. See
Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
Ill. ANALYSIS
Dionne alleges that the officers at the scene are liable
under Section 1983 (42 U.S.C. § 1983) for using excessive force,
in violation of the Fourth Amendment of the U.S. Constitution.
He further alleges that the City and Chief Crombie are liable
under Section 1983 for maintaining policies or customs that
authorized the use of excessive force. Dionne also asserts
state law causes of action, specifically that the officers are
liable for assault and battery, the City and Chief are
vicariously liable for assault and battery, and the City and
Chief are liable for negligent training and supervision.
Additionally, Dionne asks this Court to recognize a new cause of
action under the New Hampshire Constitution.
10 A. Section 1983 Excessive Force Claims
When law enforcement officers arrest an individual, they
violate his rights under the Fourth Amendment if they use more
force than is objectively reasonable under the circumstances.
Graham v. Connor, 490 U.S. 386, 396-97 (1989). "Whether the
force used to effect a particular seizure is reasonable 'must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.'"
Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (quoting
Graham, 490 U.S. at 396); see also Alexis v. McDonald's Rests,
of Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995) ("[A] viable
excessive force claim must demonstrate that the police
defendant's actions were not objectively reasonable, viewed in
light of the facts and circumstances confronting him and without
regard to his underlying intent or motivation."). Because
police officers often must make split-second decisions in
difficult and uncertain conditions about whether, and how much,
force is appropriate, "[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers,
violates the Fourth Amendment." Graham, 490 U.S. at 396
(internal quotation marks and citation omitted).
11 Determining whether a given use of force was objectively
reasonable "requires careful attention to the facts and
circumstances of [the] particular case." Id. Among the factors
to be considered are "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[.]" Jennings, 499 F.3d at
11 (quoting Graham, 490 U.S. at 396).
Because Dionne does not specify which particular conduct
qualifies as excessive force, I analyze all parts of the
encounter. I find that based on the uncontested facts, a
reasonable officer on the scene would have perceived Dionne's
actions as a pattern of escalating resistance, and that no part
of the officers' conduct constitutes an objectively unreasonable
use of force.
After arriving and contesting the validity of his son's
arrest, Dionne entered the inoperable Isuzu without informing
Sergeant Amatucci of his intentions. When he turned the key in
the ignition, Amatucci reasonably thought that Dionne was
attempting to drive the car, and shouted for Dionne to exit the
vehicle. Instead of promptly complying, Dionne tried to explain
his actions. At that point, Amatucci decided to place Dionne
12 under arrest. Dionne does not challenge the lawfulness of the
arrest.
When Amatucci instructed Dionne to place his hands behind
his back, Dionne attempted to explain why he was physically
unable to do so. In certain cases where a peaceable arrestee
has a disability or injury, an officer's use of a customary
amount of force to handcuff the individual may be excessive.
See, e.g., Dixon v. Donald, 291 Fed. Appx. 759, 762-63 (6th Cir.
2008). Especially where a clearly visible disability or injury
puts an officer on notice, the officer may have the obligation
to make some accommodation, if the situation so permits. See,
e.g., Guite v. Wright, 147 F.3d 747 (8th Cir. 1998); Howard v.
Dickerson, 34 F.3d 978 (10th Cir. 1994); see also Caron v.
Hester, No. CIV. 00-394-M, 2001 WL 1568761, at *5 (D.N.H. Nov.
13, 2001) .
In this case, Dionne had no apparent disability or injury,
and had already demonstrated an unwillingness to promptly comply
with police orders. A reasonable officer would therefore have
been justified in questioning the truthfulness of his assertion.
Under the circumstances, it is not unreasonable for an officer
to attempt to handcuff Dionne in the customary manner. See
Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th Cir. 2002)
13 (noting that "a police officer need not credit everything a
suspect tells him," a maxim that "is especially true when the
officer is in the process of handcuffing a suspect").
Before even attempting to force Dionne's arms together,
however, Amatucci touched Dionne's back with his hand. The
small amount of pressure on Dionne's back triggered pre-existing
nerve damage and caused Dionne's legs to go numb. Grabbing the
roof rack, Dionne swung himself into the front seat of the
Isuzu. At this point, even giving Dionne all favorable
inferences and assuming that his medical condition acts in
exactly the manner he claims, Dionne's action would have
objectively appeared to be an act of resistance. From
Amatucci's perspective, he was in the process of handcuffing a
suspect who suddenly and inexplicably swung himself away and
into a vehicle.
When Dionne did not exit the Isuzu, despite repeated
commands to do so over a period of a couple minutes, it was
reasonable for the officers to assume he was willfully failing
to comply with their orders and to pull him from the vehicle.
Although Dionne claims that he had become unintentionally
entangled in the steering wheel, the officers perceived him to
be struggling against them. In response to a suspect who had
14 mysteriously fallen into a car and appeared to be holding on to
the steering wheel, the police reasonably resorted to forceful
pulling, which resulted in bruises and a torn shirt.
Once the officers extricated Dionne from the Isuzu, they
overpowered him and took him to the ground. Dionne alleges that
he was punched, but concedes that at the time he was punched it
must have appeared that he was fighting the officers because he
was struggling with the steering wheel. As the officers took
Dionne to the ground, they were careful to hold him so that he
did not hit the ground too hard. Once on the ground, Dionne
appeared to be continuing to resist the officers' attempt to put
his hands behind his back, and so the officers used additional
force to subdue him, specifically twisting his fingers apart and
pushing a knee into his body to gain leverage.
Viewing the facts in the light most favorable to Dionne, a
reasonable officer on the scene would not have understood
Dionne's inability to submit to arrest to be a result of hidden
injuries, but would have perceived his actions as willful
resistance. See Graham, 490 U.S. at 396 (third factor). In
particular, Dionne's improbable sudden swing into the vehicle
and his strange inability to free his arm from the steering
wheel would have appeared to any reasonable officer as efforts
15 to resist arrest.J In light of the chain of events, the officers
did not act unreasonably in failing to give credence to Dionne's
exhortations, and in using progressively greater force to subdue
him. See Statchen v. Palmer, No. 08-cv-128-JD, 2009 WL 2997982,
at *8 (D.N.H. Sept. 15, 2009) (officers are entitled to use
physical force sufficient to subdue an individual who refuses to
submit to arrest). On the particular facts of this case, the
arresting officers used force that was objectively reasonable
under the circumstances. I therefore grant defendants' motion
for summary judgment on the Section 1983 claims against the
officers on the scene.
Dionne has also filed Section 1983 claims against Chief
Crombie and the City for maintaining policies or customs that
caused the officers on scene to use excessive force. These
claims fail because there has been no cognizable constitutional
harm. In the absence of a constitutional injury, it is
immaterial whether or not a supervisor's actions or a
departmental policy might have authorized or encouraged the
J In fact, because Dionne was convicted of resisting arrest in state court, he is judicially estopped from contesting that he "knowingly or purposefully physically interfere[d] with" the police officers who arrested him. See N.H. Rev. Stat. Ann. § 642:2. Regardless of the conviction, however, his actions would have appeared to an objective observer to constitute resistance.
16 arresting officers to use excessive force. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Evans
v. Avery, 100 F.3d 1033, 1039-40 (1st Cir. 1996). I therefore
grant defendants' motion for summary judgment on the Section
1983 claims against Chief Crombie and the City.
B. Assault and Battery
Dionne alleges that the officers' conduct in arresting him
constitutes assault and battery. In New Hampshire,
justification is a complete defense to any civil action, and
" [a] law enforcement officer is justified in using non-deadly
force upon another person when and to the extent that he
reasonably believes it necessary to effect an arrest or
detention[.]" N.H. Rev. Stat. Ann. § 627:1; N.H. Rev. Stat.
Ann. § 627:5. Under this statute, reasonableness is determined
by an objective standard. State v. Cunningham, 159 N.H. 103,
107 (2009). As previously discussed, the officers' conduct was
objectively reasonable. I therefore grant defendants' motion
for summary judgment on the claims for assault and battery, and
I grant summary judgment on the vicarious liability claims
premised on the existence of tortious conduct.
17 C . Negligent Training and Supervision
Dionne asserts common law claims for negligent training and
supervision against the City and Chief Crombie. The record is
bare of any competent evidence that would substantiate this
claim. The uncontested evidence shows that the officers
received training twice a year on the broadly utilized continuum
of force, and adhered to the principles of that training when
they arrested Dionne. Dionne has failed to create a genuine
dispute of fact on whether the officers were adequately
supervised and trained, and I therefore grant defendants' motion
for summary judgment on the claim.
D . New Hampshire Constitutional Tort
Dionne urges this court to recognize a new cause of action
under Part I, Article 19 of the New Hampshire Constitution.
According to Dionne, a new cause of action is necessary because
current law insulates law enforcement officers who use force
they believe reasonably necessary to effect an arrest.
Litigants who choose a federal forum, however, cannot expect a
federal court to push the boundaries of state law. DCPB, Inc.
v. City of Lebanon, 957 F.2d 913, 916 (1st Cir. 1992). I
decline to recognize a cause of action the New Hampshire Supreme
18 Court has so far declined to recognize, and I grant defendants'
motion for summary judgment on this claim.
IV. CONCLUSION
For the reasons stated above, I grant defendants' motion
for summary judgment (Doc. No. 18). Plaintiff's motion for
summary judgment is denied. (Doc. No. 17). The clerk shall
enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro_____ Paul Barbadoro United States District Judge
October 17, 2011
cc: Seth J. Hippie, ESq. Stephen T. Martin, Esq. Susan Aileen Lowry, Esq. William G. Scott, Esq.