Drew v. NH Drug Task Force

2015 DNH 146

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Willard Drew

v. Civil No. 14-cv-462-JD Opinion No. 2015 DNH 146 New Hampshire Drug Task Force, et al.

O R D E R

Willard Drew brings federal and state claims against the

New Hampshire Drug Task Force (“NHDTF”); the former commander of

the NHDTF, James Norris; Concord Police Officer Adam Fanjoy; the

Town of Gilford; and several town officials. The claims arose

from an investigation of a restaurant and dance club, then

called Mardi Gras North, from June through October of 2011,

which culminated in a search of the restaurant for violations of

the New Hampshire Controlled Drug Act, arrests of restaurant

employees, and notices to Drew of violations of the state liquor

laws and town codes. The NHDTF and Norris move for summary

judgment. Drew objects and asks for additional time under

Federal Rule of Civil Procedure 56(d) to conduct discovery. Standard of Review

Summary judgment is appropriate when “the movant shows 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); Santangelo v. New York Life Ins. Co., 785 F.3d

65, 68 (1st Cir. 2015). “A genuine issue is one that can be

resolved in favor of either party, and a material fact is one

which has the potential of affecting the outcome of the case.”

Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st

Cir. 2013) (internal quotation marks omitted). In deciding a

motion for summary judgment, the court draws all reasonable

factual inferences in favor of the nonmovant. Kenney v. Floyd,

700 F.3d 604, 608 (1st Cir. 2012).

Discussion

Drew brings a claim against Norris in Count I, alleging a

violation of his Fourth Amendment rights actionable under 42

U.S.C. § 1983. The only claim that Drew brings against the

NHDTF directly is Count VII, which is titled “Respondeat

Superior-New Hampshire Drug Task Force.” Although not alleged

in Count I, Drew apparently intended to bring Count I against

Norris in both his official and individual capacities.

2 An official capacity claim is a claim against the NHDTF.

See Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005).

Therefore, Count I is construed to include the § 1983 claim

against Norris in his individual capacity and the § 1983 claim

against the NHDTF.

In the motion for summary judgment, the NHDTF asserts

Eleventh Amendment immunity to bar an unspecified § 1983 claim

against it and to bar the § 1983 claim brought against Norris in

his official capacity. The NHDTF does not address the

respondeat superior claim in Count VII. Therefore, the only

claim against NHDTF that is at issue for purposes of the present

motion for summary judgment is the § 1983 official capacity

claim in Count I. Norris seeks summary judgment on the § 1983

claim in Count I brought against him in his individual capacity.

A. Eleventh Amendment Immunity - NHDTF

NHDTF asserts that it is an arm of the state and protected

by sovereign immunity. Sovereign immunity under the Eleventh

Amendment precludes suits for damages against states and state

agencies. Town of Barnstable v. O’Connor, 786 F.3d 130, 138-39

(1st Cir. 2015). Exceptions to the rule of sovereign immunity

exist when a state waives its immunity or Congress has abrogated

sovereign immunity. Metcalf & Eddy, Inc. v. P.R. Aqueduct &

Sewer Auth., 991 F.3d 935, 938 (1st Cir. 1993). Congress did

3 not abrogate sovereign immunity for purposes of § 1983 claims,

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 68-70 (1989),

and New Hampshire has not waived its immunity.

To decide whether an entity is protected by sovereign

immunity, the court must decide whether the state has shown an

intent to have the entity share sovereign immunity either

expressly by statute or implicitly by the structure of the

entity. Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 12 (1st

Cir. 2011). If the state’s intent is not clear, the court must

“consider whether the state’s treasury would be at risk in the

event of an adverse judgment.” Id.

1. Discovery

In opposing summary judgment, Drew argues generally that he

should have the opportunity to conduct discovery before the

motion is decided.1 NHDTF did not respond to his objection.

To support his request under Rule 56(d), Drew provides his own

affidavit and the affidavit of his counsel. Each affidavit is

one page and states only that more time is necessary to conduct

1 To the extent he also argues that the motion for summary judgment is premature, he is mistaken. See Fed. R. Civ. P. 56(b).

4 discovery.2 The affidavits provide no specifics about Drew’s

diligence, the reasons that facts are not available, what Drew

hopes to discover, or how those facts would influence the

outcome of the motion. As such, Drew’s request under Rule 56(d)

is not properly supported.

In his objection, Drew provides more information about the

discovery he would seek. He states that under the discovery

plan in this case, discovery will not close until February 1,

2016. He apparently has not yet begun to request discovery.

Drew states that he “wishes to pursue Interrogatories with

respect to defendant New Hampshire Drug Task Force, James Norris

and other defendants.” He also states that he “wishes to depose

defendant Norris together with other material witnesses

regarding the details of the raid on October 18, 2011 which is

the subject of this Complaint,” and lists four topics for

2 Drew’s affidavit also states: “I, Willard Drew have read the Objection to Motion for Summary Judgment dated July 1, 2015 and the facts contained there are true to the best of my knowledge and belief.” There are few facts stated in the objection, and Drew has not shown that he has personal knowledge to support his affidavit statement as to the few facts stated. See Fed. R. Civ. P. 56(c)(4). An affidavit or verified filing based on hearsay or belief, rather than personal knowledge, does not satisfy the requirements of Rule 56(c). Kenney, 700 F.3d at 609; Sheinkopf v. Stone, 927 F.2d 1259, 1271 (1st Cir. 1991); Fin. Res. Network, Inc. v. Brown & Brown, Inc., 867 F. Supp. 2d 153, 171 (D. Mass. 2012).

5 depositions all of which pertain to the search of the

restaurant.

Drew does not explain why he has not begun discovery in

this case, particularly when the summary judgment motion was

filed on May 15, 2015. He does not explain what information he

hopes to glean from interrogatories or how any information would

impact the motion for summary judgment to the extent it is based

on the NHDTF’s assertion of sovereign immunity. Further, the

topics he lists to be addressed in depositions have no apparent

relevance to the issue of sovereign immunity.

In particular, Drew has not shown what discovery he seeks

or that any discovery would affect the summary judgment motion

invoking sovereign immunity. Therefore, Drew has not provided

grounds to delay consideration of the motion for summary

judgment on the issue of sovereign immunity.

2. Merits

The NHDTF contends that it is entitled to the protection of

sovereign immunity based on the structure of the NHDTF and,

alternatively, because a judgment against the NHDTF would be

paid from the state treasury. Drew states that the NHDTF is a

“multi-jurisdictional entity” and that several of the NHDTF

officers who participated in the investigation and search of the

restaurant were officers from county or local law enforcement

6 agencies. Drew also notes that the officers were paid by the

communities where they were employed.

As the court noted in the previous order, the NHDTF is

known as the New Hampshire Attorney General’s Drug Task Force.

Under RSA 21-M:3-b, the Attorney General is authorized to vest

municipal and state law enforcement officers with “statewide law

enforcement authority” when they are assigned to work under the

attorney general in the “attorney general’s drug task force.”

An officer vested with statewide enforcement authority “shall be

a state official for the purposes of being entitled to defense

and indemnification under RSA 99-D:2, in accordance with the

terms of any written agreement between the attorney general and

the employing authority and subject to any limitations set forth

in such written agreement.” RSA 21-M:3-b.

As presented, the structure of the NHDTF shows that New

Hampshire intends it to be an arm of the state, operating under

the authority and control of the New Hampshire Attorney General.

Although municipal officers who are working with the NHDTF are

officers in municipal law enforcement departments and are paid

by their respective municipalities, they are deemed to be state

law enforcement officers when serving with the NHDTF. The New

Hampshire Attorney General, through his agents and designees,

controls the NHDTF and the officers working in the NHDTF. Drew

7 has not shown what significance the multi-jurisdictional aspect

of the NHDTF would have in the context of sovereign immunity.

Less information is presented on the question of whether a

judgment against the NHDTF, as opposed to its individual

officers, would be paid from the New Hampshire state treasury.

While RSA 21-M:3-b addresses the state’s financial

responsibility for NHDTF officers, the NHDTF has not cited any

provision for paying judgments against the NHDTF itself. The

NHDTF shows, however, that it is funded by the state and that

officers serving in the NHDTF are covered by RSA 99-D:2, which

pertains to the state’s obligation to provide a defense and

indemnification to state officers. The lack of authorization

for paying a judgment against the NHDTF itself is consonant with

its status as an arm of the state. Because the structure of the

NHDTF supports the conclusion that it is an arm of the state

entitled to the protection of sovereign immunity, it is not

necessary to resolve the issue of whether a judgment against the

NHDTF would be paid out of the New Hampshire treasury.

For purposes of the present motion, the NHDTF has shown

that it is an arm of the state and protected by sovereign

immunity. Therefore, the NHDTF is entitled summary judgment on

Drew’s § 1983 claim brought against Norris in his official

8 capacity in Count I. The NHDTF did not move for summary

judgment on Count VII.

B. Norris - Individual Capacity Claim in Count I

Norris moves for summary judgment on the individual

capacity claim brought against him under § 1983 in Count I. In

support, Norris contends that Drew’s claim is based on a theory

of vicarious liability for administrative searches of the

restaurant conducted by the Liquor Commission and the Town of

Gilford and that the complaint lacks allegations to show that

Norris’s own actions violated Drew’s Fourth Amendment rights.

Because vicarious liability is not actionable under § 1983,

Norris contends that he is entitled to summary judgment on the

individual capacity claim in Count I.3

Drew does not contest the principle that vicarious

liability is not a valid theory for a § 1983 claim. Instead, he

contends that he alleged actions by Norris himself to support

the § 1983 claim.4 Drew also argues that Norris is not entitled

See City of Canton v. Harris, 489 U.S. 378, 385 (1989); 3

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Drew also cites allegations of conduct by other members of 4

the NHDTF without explaining how those actions could be attributable to Norris.

9 to sovereign immunity or qualified immunity.5 He further asserts

that he is entitled to conduct discovery under Rule 56(d).

Summary judgment focuses on the evidence that supports or

contradicts the plaintiff’s claims. Fed. R. Civ. P. 56(a) &

(c). As such, it is not an appropriate vehicle to test the

sufficiency of allegations in the complaint. Cf. Fed. R. Civ.

P. 12(b)(6). Despite that procedural difference, Norris invokes

summary judgment but argues that the allegations fail to state a

claim against him.

Viewing Norris’s motion under the Rule 12(b)(6) standard,

it fails.6 Drew alleges that Norris gathered at the Gilford

Police Department with members of the Liquor Commission to

execute the search warrant at the restaurant, that Norris and

others executed the search warrant at the restaurant, that

Norris allowed members of the Liquor Commission and “members of

the Town of Gilford” into the restaurant for purposes unrelated

to the search warrant, and that those actions violated Drew’s

5 Norris has not asserted the protection of sovereign immunity as to the claim against him in his individual capacity and has not raised the defense of qualified immunity.

6 Under Rule 12(b)(6), the court takes the plaintiff’s factual allegations as true, resolves reasonable inferences in the plaintiff’s favor, and determines whether the complaint states a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007); Lydon v. Local 103, Int’l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014).

10 Fourth Amendment rights. Taking a broad view of those

allegations, Drew alleges that Norris, himself, allowed members

of the Liquor Commission and the Town of Gilford to search the

restaurant, which was beyond the scope of the search warrant,

and in doing so violated his Fourth Amendment rights. See

Wilson v. Layne, 526 U.S. 603, 614 (1999).

In the context of Rule 56(a), Norris has not shown with

competent evidence that he did not allow members of the Liquor

Commission or the Town of Gilford to participate in the search

of the restaurant and does not assert that Drew will be unable

to prove that he did allow that participation. As such, he has

not properly invoked Rule 56(a) or supported his motion in a

manner that would allow the court to resolve the individual

capacity claim on summary judgment. See Sensing v. Outback

Steakhouse of Fl., LLC, 575 F.3d 145, 152 (1st Cir. 2009) (“The

moving party bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of the record which it believes demonstrate the

absence of a genuine issue of material fact.” (internal

quotation marks omitted)).

Norris also did not object to the relief Drew seeks under

Rule 56(d). Although Drew did not properly support his request

for relief, he does suggest discovery related to the search of

11 the restaurant, which is pertinent to his individual capacity

claim against Norris. Because the summary judgment motion must

be denied as to the individual capacity claim in Count I, Drew

now will have time to conduct discovery on that claim.

Conclusion

For the foregoing reasons, the state defendants’ motion for

summary judgment (document no. 33) is granted as to the official

capacity claim in Count I and is otherwise denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 27, 2015

cc: Charles P. Bauer, Esq. David H. Bownes, Esq. Francis Charles Fredericks, Esq. Richard W. Head, Esq. Andrew B. Livernois, Esq.