Farwell v. Town of Brookline, et al.

2001 DNH 101

• Court: District Court, D. New Hampshire
• Decided: May 29, 2001
• Docket: CV-00-086-M
• Status: Published

Opinion

Farwell v . Town of Brookline, et a l . CV-00-086-M 05/29/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Clarence Farwell, Plaintiff

v. Civil N o . 00-86-M Opinion N o . 2001 DNH 101 Town of Brookline, Town of Hollis Town of Pepperell, Deborah Clark, David Turgeon, Steven Desilets, and Richard Darling, Defendants

O R D E R

Clarence Farwell brings this action seeking damages for

alleged violations of his constitutional rights. See 42 U.S.C.

§ 1983. As to the individual defendants, he says they unlawfully

arrested him and, in so doing, used excessive force. As to the

municipal defendants, he alleges they either implemented or

tolerated customs and policies that proximately lead to the

injuries he claims to have sustained. He also brings state

common law claims for negligence, assault and battery, and

defamation, against various defendants and over which he says the

court may properly exercise supplemental jurisdiction. By prior order, the court dismissed, without prejudice,

Farwell’s unreasonable seizure and respondeat superior claims

against all municipal defendants (counts 1 and 2 of the original

complaint). See Order dated October 2 0 , 2000 (document no. 1 9 ) .

It also dismissed his failure-to-train claim against the towns of

Pepperell and Milford. As to the towns of Hollis and Brookline,

however, the court concluded that the original complaint

adequately alleged the essential elements of a viable municipal

liability claim (i.e., failure to train) under 42 U.S.C. § 1983.

Farwell was then afforded 30 days within which to amend his

complaint and, if possible, cure the deficiencies identified by

the court. He has since availed himself of that opportunity and

filed an amended complaint. In response, the Town of Pepperell

again moves for judgment on the pleadings, saying Farwell’s

amended complaint fails to adequately allege the essential

elements of viable causes of action. See Fed. R. Civ. P. 12(c).

Farwell objects.

2 Discussion

The relevant facts underlying the parties’ dispute are

described in detail in the court’s recent order in a companion

case, in which Marcia Farwell brings substantially similar claims

against the same defendants for injuries arising out of the same

events at issue in this case. See Farwell v . Town of Brookline,

et a l . , No 00-89-M (D.N.H. October 2 0 , 2000). Accordingly, those

facts need not be recounted here.

I. Farwell’s Federal Claims.

The Town of Pepperell says that “Counts I and II must be

dismissed because the plaintiff fails to show that his injuries

were caused by a municipal policy or custom.” Defendant’s

memorandum (document n o . 24) at 3 . The court disagrees. The

amended complaint specifically addresses the deficiencies

previously identified by the court. In i t , as to each municipal

defendant Farwell alleges: (1) a municipal policy-maker adopted a

policy and/or allowed a custom to develop; (2) the challenged

custom and/or policy proximately caused the constitutional

violations of which Farwell complains; and (3) the policy-maker

acted with deliberate indifference or willful blindness to the

3 strong likelihood that the unconstitutional conduct of which

Farwell complains would result from implementation and/or

tolerance of that custom or policy. With specific regard to the

Town of Pepperell, Farwell alleges that two of the Town’s police

officers unreasonably (and unlawfully) tackled him from behind

and restrained him while an officer from Hollis pepper sprayed

him. Amended complaint at paras. 2 4 , 2 9 .

Like a motion to dismiss, a motion for judgment on the

pleadings may be granted only if it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claims that

would entitle him to relief. See Gaskell v . The Harvard

Cooperative Society, 3 F.3d 495, 497-98 (1st Cir. 1993); Santiago

de Castro v . Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991).

Consequently, at this juncture, the court is not called upon to

determine whether Farwell can muster sufficient evidence to prove

each of the essential elements of his municipal liability claim;

the question presented is simply whether he has adequately

alleged each of the essential elements of a viable cause of

action. He has done so and if he is able to prove each of those

4 elements, he is entitled to relief. Accordingly, the Town of

Pepperell’s motion must be denied as to counts 1 and 2 .

II. Farwell’s Assault and Battery Claim.

As to Farwell’s sole state law claim against i t , the Town of

Pepperell says it is entitled to judgment since Farwell failed to

comply with the state law notice requirements set forth in N.H.

Rev. Stat. Ann. (“RSA”) 507-B:7. That statute provides, in

pertinent part:

No actions [sic] shall be maintained against the governmental unit under this chapter unless the same is commenced within 3 years after the time of injury or damage . . . As a condition precedent to commencement of the action, the clerk of the governmental unit shall be notified by registered mail within 60 days after the time of the injury or damage or discovery of the injury or damage . . . as to the date, time and location where the injury or damage occurred . . . .

RSA 507-B:7. The Town of Pepperell says Farwell failed to give

it timely written notice of his alleged injuries and, therefore,

is barred from pursuing his claims against i t . Importantly,

however, that statute also provides that, in cases such as this,

“where lack of written notice, actual knowledge or reasonable

opportunity to obtain knowledge of any injury or damage within

5 the 60-day period is alleged by the governmental unit, the burden

of proof shall be on the governmental unit to show that it was

substantially prejudiced thereby.” Id. (emphasis supplied).

That statutory language suggests that, in addition to written

notice, actual notice or even a reasonable opportunity to acquire

actual notice, may be sufficient. At a minimum, it plainly

provides that when a municipality has not been provided written

notice and lacks actual notice (or a reasonable opportunity to

acquire actual notice), it must then demonstrate substantial

prejudice, before the bar will take effect.

In his amended complaint, Farwell specifically alleges that

the municipal defendants, including the Town of Pepperell, had or

should have had actual knowledge of his injuries within the

statutory 60-day period. He also says that those defendants were

not substantially prejudiced by his failure to give them written

notice of his injuries. Amended complaint, at para. 3 5 .

Consequently, under New Hampshire’s statutory scheme, the burden

of proof shifts to the municipal defendants, which must

demonstrate that they were “substantially prejudiced thereby.”

RSA 507-B:7. The Town of Pepperell has not alleged any prejudice

6 flowing from Farwell’s failure to provide timely written notice

of his claimed injuries. And, whether it can make such a showing

is an issue more properly addressed in the context of a motion

for summary judgment.

Conclusion

For the foregoing reasons, the Town of Pepperell’s motion

for judgment on the pleadings (document no. 24) is denied.

Farwell’s amended complaint adequately alleges the essential

elements of viable municipal liability claims under 42 U.S.C.

§ 1983 and the Town of Pepperell has failed to demonstrate that

Farwell’s state common law claim against it is barred by RSA 507-

B:7.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 2 9 , 2001

cc: Kenneth G. Bouchard, Esq. Donald E . Gardner, Esq. Michael B . O’Shaughnessy, Esq.