Farwell v. Town of Brookline CV-00-089-M 10/20/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marcia Farwell, Plaintiff
v. Civil No. 00-89-M Opinion No. 2000 DNH 223 Town of Brookline, Town of Milford, Town of Hollis, Town of Pepperell, Deborah Clark, David Turqeon, Steven Desilets, and Richard Darling, Defendants
O R D E R
Marcia Farwell brings this action pursuant to 42 U.S.C. §
1983, seeking damages for alleged violations of her
constitutional rights. Specifically, she claims that defendants
unlawfully arrested (and subseguently prosecuted) her for
disorderly conduct. She also brings several common law and state
constitutional claims, over which she says the court may properly
exercise supplemental jurisdiction. Named as defendants are the
Town of Brookline, New Hampshire, the Town of Milford, New
Hampshire, the Town of Hollis, New Hampshire, and the Town of
Pepperell, Massachusetts (collectively, the "Municipal
Defendants"). Also named as defendants, and sued in their individual capacities, are Brookline Police Officer Deborah
Clark, Hollis Police Officer David Turgeon, Sergeant Steven
Desilets of the Hollis Police Department, and Hollis Police Chief
Richard Darling. No individual employees of the towns of Milford
or Pepperell are identified in the complaint.
Pursuant to Federal Rule of Civil Procedure 12 (c), the
Municipal Defendants move for judgment on the pleadings as to all
claims against them. In response, plaintiff has not moved to
amend her complaint. Instead, she simply objects to the relief
reguested by the Municipal Defendants.
Standard of Review
Federal Rule of Civil Procedure 12 (c) provides that,
"[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the
pleadings." In reviewing such a motion, the court must credit
all material allegations in the complaint as true and draw all
reasonable inferences in the non-moving party's favor. See
Feliciano v. State of Rhode Island, 160 F.3d 780, 788 (1st Cir.
2 1998). 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 her claims that
would entitle her 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) .
Background
Viewed in the light most favorable to plaintiff, the
material facts appear as follows. On the evening of July 3,
1997, plaintiff was socializing at the home of friends in
Brookline, New Hampshire. Shortly after midnight, as is
apparently the tradition in Brookline, the church bell of the
Brookline Church of Christ began to ring. Plaintiff soon learned
that police officers had arrived on the scene and arrested
someone for ringing the bell. Plaintiff walked the short
distance from her friend's home to the scene of the disturbance.
When she reached the church, plaintiff observed police
cruisers from the towns of Brookline, Hollis, Milford, and
3 Pepperell. A small group of on-lookers had also begun to gather.
Plaintiff says that officers from neighboring towns had arrived
in response to a "mutual aid" call placed by officers of
Brookline. She claims, however, that "the Brookline police
department had not adhered to the reguired protocol to reguest
'mutual aid' from surrounding towns and the officers from the
surrounding towns were therefore acting without authority."
Complaint, at para. 17. The complaint fails to identify how the
mutual aid reguest was deficient, nor does it discuss how an
allegedly improper reguest for mutual aid would render the
responding officers "without authority."
According to plaintiff. Defendant Officer Clark ordered the
crowd to disperse. Apparently dissatisfied with the conduct of
the police officers, plaintiff told them that they were "acting
like a bunch of assholes." Complaint, para. 18. She was then
arrested for disturbing the peace, handcuffed, and placed in the
back of a police cruiser. She claims to have complained that the
handcuffs were too tight and says the only response she received
was that they were not designed for comfort.
4 Plaintiff was subsequently tried for disorderly conduct,
under N.H. Rev. Stat. Ann. ("RSA") 644:2. She was acquitted in a
bench trial.
Discussion
I. Count 1 - Unreasonable Seizure: 42 U.S.C. § 1983.
The Municipal Defendants assert that count 1 of plaintiff's
complaint fails, as a matter of law, to state a viable claim
insofar as it does not alleqe that plaintiff's claimed injuries
were the product of a municipal custom or policy. In response,
plaintiff arques that to impose such a pleadinq requirement would
run afoul of the Federal Rules' "liberal pleadinq" standards and
the Supreme Court's opinion in Leatherman v. Tarrant City
Narcotics Unit, 507 U.S. 163 (1993). Accordinqly, she says:
That the plaintiff supposedly failed to alleqe a municipal custom or practice as the cause of the harm, and that the plaintiff failed to alleqe facts that showed deliberate indifference on the part of the defendant[s] is not an accepted basis for dismissal of a claim brouqht pursuant to 42 U.S.C. § 1983. Only if the plaintiff fails to prove these elements must the cause of action fail. To hold otherwise is to apply a heiqhtened pleadinq standard.
5 Plaintiff's memorandum (document no. 13) at 7. The court
disagrees.
To state a viable § 1983 claim against a municipality, a
plaintiff must, at a minimum, allege that his or her injuries
were the product of a municipal custom of policy. See, e.g.,
Dwares v. City of New York, 985 F.2d 94, 100-01 (2d Cir. 1993).
See also Follkie v. City of Chicago, 1997 WL 527304 at *2 (N.D.
111. August 9, 1997) ("[T]he actions of municipal employees do
not automatically create municipal liability; only where a city
employee's deprivation of an individual's constitutional rights
is caused by a municipal custom or policy can a municipality be
held liable."); Clark v. City of Portland, 1998 WL 539522 at *1
(9th Cir. August 24, 1998) ("To state a claim against a municipal
entity under section 1983, a plaintiff must allege that the
constitutional violations are the result of an official policy or
practice."). See generally Monell v.
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Farwell v. Town of Brookline CV-00-089-M 10/20/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marcia Farwell, Plaintiff
v. Civil No. 00-89-M Opinion No. 2000 DNH 223 Town of Brookline, Town of Milford, Town of Hollis, Town of Pepperell, Deborah Clark, David Turqeon, Steven Desilets, and Richard Darling, Defendants
O R D E R
Marcia Farwell brings this action pursuant to 42 U.S.C. §
1983, seeking damages for alleged violations of her
constitutional rights. Specifically, she claims that defendants
unlawfully arrested (and subseguently prosecuted) her for
disorderly conduct. She also brings several common law and state
constitutional claims, over which she says the court may properly
exercise supplemental jurisdiction. Named as defendants are the
Town of Brookline, New Hampshire, the Town of Milford, New
Hampshire, the Town of Hollis, New Hampshire, and the Town of
Pepperell, Massachusetts (collectively, the "Municipal
Defendants"). Also named as defendants, and sued in their individual capacities, are Brookline Police Officer Deborah
Clark, Hollis Police Officer David Turgeon, Sergeant Steven
Desilets of the Hollis Police Department, and Hollis Police Chief
Richard Darling. No individual employees of the towns of Milford
or Pepperell are identified in the complaint.
Pursuant to Federal Rule of Civil Procedure 12 (c), the
Municipal Defendants move for judgment on the pleadings as to all
claims against them. In response, plaintiff has not moved to
amend her complaint. Instead, she simply objects to the relief
reguested by the Municipal Defendants.
Standard of Review
Federal Rule of Civil Procedure 12 (c) provides that,
"[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the
pleadings." In reviewing such a motion, the court must credit
all material allegations in the complaint as true and draw all
reasonable inferences in the non-moving party's favor. See
Feliciano v. State of Rhode Island, 160 F.3d 780, 788 (1st Cir.
2 1998). 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 her claims that
would entitle her 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) .
Background
Viewed in the light most favorable to plaintiff, the
material facts appear as follows. On the evening of July 3,
1997, plaintiff was socializing at the home of friends in
Brookline, New Hampshire. Shortly after midnight, as is
apparently the tradition in Brookline, the church bell of the
Brookline Church of Christ began to ring. Plaintiff soon learned
that police officers had arrived on the scene and arrested
someone for ringing the bell. Plaintiff walked the short
distance from her friend's home to the scene of the disturbance.
When she reached the church, plaintiff observed police
cruisers from the towns of Brookline, Hollis, Milford, and
3 Pepperell. A small group of on-lookers had also begun to gather.
Plaintiff says that officers from neighboring towns had arrived
in response to a "mutual aid" call placed by officers of
Brookline. She claims, however, that "the Brookline police
department had not adhered to the reguired protocol to reguest
'mutual aid' from surrounding towns and the officers from the
surrounding towns were therefore acting without authority."
Complaint, at para. 17. The complaint fails to identify how the
mutual aid reguest was deficient, nor does it discuss how an
allegedly improper reguest for mutual aid would render the
responding officers "without authority."
According to plaintiff. Defendant Officer Clark ordered the
crowd to disperse. Apparently dissatisfied with the conduct of
the police officers, plaintiff told them that they were "acting
like a bunch of assholes." Complaint, para. 18. She was then
arrested for disturbing the peace, handcuffed, and placed in the
back of a police cruiser. She claims to have complained that the
handcuffs were too tight and says the only response she received
was that they were not designed for comfort.
4 Plaintiff was subsequently tried for disorderly conduct,
under N.H. Rev. Stat. Ann. ("RSA") 644:2. She was acquitted in a
bench trial.
Discussion
I. Count 1 - Unreasonable Seizure: 42 U.S.C. § 1983.
The Municipal Defendants assert that count 1 of plaintiff's
complaint fails, as a matter of law, to state a viable claim
insofar as it does not alleqe that plaintiff's claimed injuries
were the product of a municipal custom or policy. In response,
plaintiff arques that to impose such a pleadinq requirement would
run afoul of the Federal Rules' "liberal pleadinq" standards and
the Supreme Court's opinion in Leatherman v. Tarrant City
Narcotics Unit, 507 U.S. 163 (1993). Accordinqly, she says:
That the plaintiff supposedly failed to alleqe a municipal custom or practice as the cause of the harm, and that the plaintiff failed to alleqe facts that showed deliberate indifference on the part of the defendant[s] is not an accepted basis for dismissal of a claim brouqht pursuant to 42 U.S.C. § 1983. Only if the plaintiff fails to prove these elements must the cause of action fail. To hold otherwise is to apply a heiqhtened pleadinq standard.
5 Plaintiff's memorandum (document no. 13) at 7. The court
disagrees.
To state a viable § 1983 claim against a municipality, a
plaintiff must, at a minimum, allege that his or her injuries
were the product of a municipal custom of policy. See, e.g.,
Dwares v. City of New York, 985 F.2d 94, 100-01 (2d Cir. 1993).
See also Follkie v. City of Chicago, 1997 WL 527304 at *2 (N.D.
111. August 9, 1997) ("[T]he actions of municipal employees do
not automatically create municipal liability; only where a city
employee's deprivation of an individual's constitutional rights
is caused by a municipal custom or policy can a municipality be
held liable."); Clark v. City of Portland, 1998 WL 539522 at *1
(9th Cir. August 24, 1998) ("To state a claim against a municipal
entity under section 1983, a plaintiff must allege that the
constitutional violations are the result of an official policy or
practice."). See generally Monell v. Dept, of Social Serv., 436
U.S. 658 (1978). Accordingly, this court (Barbadoro, C.J.) has
held:
6 [I]n order to state a § 1983 claim against a municipality or a municipal subdivision, a plaintiff must allege that: (1) a municipal policy maker intentionally adopted a policy, implemented a training protocol, or allowed a custom to develop; (2) the challenged policy, training protocol or custom caused a violation of the plaintiff's constitutional rights; and (3) the policy maker acted either with deliberate indifference or willful blindness to the strong likelihood that unconstitutional conduct will result from the implementation of the policy, training protocol or custom. Canton v. Harris, 489 U.S. 378, 385 (1989); Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576, 582 (1st Cir.1994); Manarite v. Springfield, 957 F.2d 953, 958 (1st Cir.1992). The deliberate indifference component of this test can be satisfied through allegations that the policy maker either knew or should have known of the serious risk that the challenged policy, custom or training protocol would result in unconstitutional conduct. Canton, 489 U.S. at 3 8 9-90; Maldonado-Denis, 23 F.3rd at 582; Farmer v. Brennan, 114 S.Ct. 1970, 1981 (1994) (comparing subjective deliberate indifference test under Eighth Amendment with the objective test of deliberate indifference governing municipal liability claims).
Millard v. Town of Wolfeboro, No. 94-38-B, 1994 WL 461700 at *3
(D.N.H. Aug. 18, 1994).
Because count 1 of plaintiff's complaint fails to allege an
essential element of a viable cause of action against the
Municipal Defendants - that her claimed constitutional injuries
were the product of a municipal custom or policy - it fails to
7 state a cognizable claim. It is, therefore, dismissed without
prej udice.
II. Count 2 - Respondeat Superior.
Municipal entities cannot be held liable under § 1983 for
the unlawful conduct of their employees on a theory of respondeat
superior. See Monell v. New York City Dept, of Social Services,
436 U.S. 658, 694 (1978); Gaudreault v. Municipality of Salem,
Mass., 923 F.2d 203, 209 (1st Cir. 1990). Consequently, to the
extent count 2 of plaintiff's complaint seeks to impose such
liability on the Municipal Defendants under § 1983, it fails to
state a viable claim. Plaintiff acknowledges as much. She
argues, however, that count 2 of her complaint should survive
defendants' motion insofar as it seeks to hold defendants liable
for the assault and battery she allegedly suffered at the hands
of the Municipal Defendants' employees, as described in count 4.
See Plaintiff's memorandum (document no. 13) at 9.
Plaintiff's argument suffers from at least two flaws.
First, to the extent she seeks to impose liability on the Municipal Defendants for an alleged assault and battery, that
claim is set forth with clarity in count 4 of the complaint, and
each of the Municipal Defendants is specifically identified in
that claim. Consequently, to the extent that count 2 seeks to
hold the Municipal Defendants liable for the alleged assault and
battery committed by their employees, it is duplicative of the
claim set forth in count 4.
Moreover, defendants assert that, as to her common law
claim(s) in count 2 (and, presumably, as to all other common law
claims against the Municipal Defendants), plaintiff has failed to
comply with the notice provisions set forth in RSA 507-B:7. That
statute provides, in pertinent part, that:
As a condition precedent to commencement of the action [against a municipality for bodily injury, personal injury, or property damage], 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. Defendants point out that plaintiff's complaint fails to allege
that she complied with the requirements of this statute.1
Consequently, they assert that dismissal of that count is
warranted.
In Simoneau v. Enfield, 112 N.H. 242 (1972), the New
Hampshire Supreme Court concluded that the trial court properly
dismissed a complaint for plaintiff's failure to provide the
statutorily required notice of claim to the town. Here,
plaintiff has failed to allege that she complied with that
statutory requirement by filing a timely notice of claim (and
defendants say that she cannot make such an allegation).
Consequently, count 2 of plaintiffs complaint is necessarily
dismissed under applicable state law, without prejudice.
III. Count 3 - Failure to Adequately Train: 42 U.S.C. § 1983.
In support of their motion for judgment on the pleadings as
to count 3, defendants assert that plaintiff has failed to allege
1 Defendants also point out that what notice plaintiff actually provided was untimely, as it was submitted approximately one year after plaintiff's arrest.
10 that they acted with "deliberate indifference" to her
constitutionally protected rights. As to the Towns of Pepperell
and Milford, the court agrees that count 3 fails to allege the
elements of a viable claim. Critically, the complaint fails to
allege that plaintiff suffered any injuries as a result of the
conduct of any employees of either Pepperell or Milford. Nor
does the complaint provide any indication of how an alleged
"failure to train" on the part of those towns actually caused her
any injury. Instead, all of the injuries identified by plaintiff
are alleged to have occurred as a result of the wrongful conduct
of employees of the towns of Brookline and Hollis. Conseguently,
as to the towns of Pepperell and Milford, count 3 of the
complaint does fail to state a viable claim and, as to those
defendants, it is dismissed without prejudice.
As to the towns of Hollis and Brookline, however, the
complaint (when read with the reguired deference) adeguately
alleges the essential elements of a failure to train cause of
action. Whether, at trial, plaintiff can demonstrate that those
defendants acted with the reguisite indifference to her rights.
11 is of course a different matter. At this juncture, however, the
court concludes that count 3 of the complaint is at least
sufficient to survive a motion for judgment on the pleadings.
IV. Plaintiff's State Constitutional Claims.
Finally, defendants urge the court to grant them judgment on
the pleadings as to plaintiff's claims arising from various
provisions of New Hampshire's Constitution. Plaintiff has not
pointed to any authority suggesting that the New Hampshire
Supreme Court has recognized a private right of action based upon
alleged violations of the constitutional provisions identified in
the complaint. In the absence of such authority, the court is
not inclined to recognize a novel state cause of action. A
federal court called upon to apply state law must "take state law
as it finds it: 'not as it might conceivably be, some day; nor
even as it should be.'" Kassel v. Gannett Co., Inc., 875 F.2d
935, 950 (1st Cir. 1989) (quoting Plummer v. Abbott Laboratories,
568 F.Supp. 920, 927 (D.R.I. 1983)). When state law has been
authoritatively interpreted by the state's highest court, this
court should apply that law according to its tenor. See Kassel,
12 875 F.2d at 950. When the signposts are blurred, the federal
court may assume that the state court would adopt an
interpretation of state law that is consistent with logic and
supported by reasoned authority. See Moores v. Greenberg, 834
F.2d 1105, 1107 n.3 (1st Cir. 1987). However, this court is and
should be hesitant to blaze new, previously uncharted state-law
trails. Expansive reading of New Hampshire's constitutional
provisions is a realm best occupied by the New Hampshire Supreme
Court. Accordingly, plaintiff's claims based upon alleged
violations of the New Hampshire Constitution, p t . 1, art. 15, 19,
and 22 (as alleged in counts 1 and 3) are dismissed without
Conclusion
For the foregoing reasons, defendants' motions for judgment
as a matter of law (documents no. 10 and 12) are granted in part
and denied in part. As to all Municipal Defendants, counts 1 and
2 are dismissed without prejudice. Count 3 is dismissed, without
prejudice, as to the towns of Pepperell and Milford. Finally, as
to all defendants, plaintiff's claims based upon alleged
13 violations of the New Hampshire Constitution are dismissed
without prejudice.
Plaintiff is, however, granted leave to file an amended
complaint. To the extent she is able, consistent with the
requirements of Fed. R. Civ. P. 11, she may amend her complaint
to cure the deficiencies identified in this order. Should
plaintiff elect to file an amended complaint, she shall do so on
or before November 20, 2000.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 20, 2000
cc: Kenneth G. Bouchard, Esq. Donald E. Gardner, Esq. John A. Curran, Esq. Michael B. O'Shaughnessy, Esq.