Foley, et al. v. Town of Lee, et al.

2012 DNH 081

Opinion

Foley, et al. v. Town of Lee, et al. CV-10-335-JL 5/9/12

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robin Foley et al.

v. Civil No. lO-cv-335-JL Opinion No. 2012 DNH 081 Town of Lee et a l .

MEMORANDUM ORDER

This case, arising from a dispute over a vacation camping

trailer at a campground, presents a guestion over the due process

guaranteed by the Constitution before state officials can deprive

a citizen of the property in his possession. The plaintiffs,

Robin Foley, Gregory Vankooiman, and Foley's two minor children,

claim that the Town of Lee, its police department, its chief of

police, and three of its police officers (the "municipal

defendants"), as well as the owner of the camper, Brenda

Tenaglia,1 violated the plaintiffs' constitutional rights to

procedural and substantive due process by forcing them, under

threat of arrest, to leave the camper and the campground. The

plaintiffs also claim that the defendants committed the state-law

torts of trespass to chattels and intentional infliction of

1While Brenda Tenaglia was known as "Brenda Griffin" at the time of the events at issue, the court will refer to her as "Tenaglia" throughout this order for the sake of clarity. emotional distress.2 This court has subject-matter jurisdiction

under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental

jurisdiction).

The municipal defendants have moved for summary judgment on

all of the plaintiffs' claims against them. See Fed. R. Civ. P.

56. They argue that:

(1) the plaintiffs lacked the protected property interest in the camper necessary to support their procedural and substantive due process claims,

(2) the municipal defendants' actions fail to "shock the conscience" so as to give rise to a substantive due process claim,

(3) even if the plaintiffs could show a federal constitutional violation, none of the municipal defendants can be held liable for it under 42 U.S.C. § 1983, because (a) the police chief and officers are entitled to qualified immunity for their actions, and (b) there is no evidence that those actions were carried out under a Town or department custom, policy, or practice, and

(4) the chief and officers are entitled to official immunity, and the Town and department are entitled to municipal immunity, against the plaintiffs' state-law tort claims.

Tenaglia has likewise moved for summary judgment, arguing, like

the municipal defendants, that the plaintiffs' federal

2The plaintiffs also claimed that Tenaglia breached her contract with them for the purchase and sale of the camper, but have since agreed to voluntarily dismiss that claim. Furthermore, at oral argument, the plaintiffs conceded to the entry of summary judgment against them on their claims that the defendants had violated the New Hampshire constitution.

2 constitutional claims fail for lack of a protected property

interest and further arguing that, as a matter of law, she

neither committed trespass to chattels nor intentional infliction

of emotional distress.

Following oral argument, the court grants the summary

judgment motions in part and denies them in part. Even if, as

the defendants argue, the plaintiffs had no right to occupy the

camper under their agreement with Tenaglia, they did have a

possessory interest in the camper that entitled them to due

process before being deprived of it through the intervention of

public officials. When certain of the defendant officers

threatened the plaintiffs with arrest if they did not leave the

camper, then, that amounted to a violation of the plaintiffs'

procedural due process rights. Those rights, moreover, are

clearly established, and it would have been clear to a reasonable

officer in the defendants' position that they were violating

them. So, as fully explained infra, the defendant officers who

threatened the plaintiffs with arrest unless they left the camper

are not entitled to summary judgment, on the basis of gualified

immunity or otherwise, on their procedural due process claim.

But neither the chief nor one of the other defendant

officers made such threats, or did anything else to interfere

with the plaintiffs' possessory interest in the camper, so those

3 defendants are entitled to summary judgment on the procedural due

process claim. Furthermore, all of the municipal defendants are

entitled to summary judgment on the substantive due process claim

because the police conduct was not conscience-shocking, even

insofar as it was a procedural due process violation. There is

also no evidence that it was the product of any municipal custom,

policy, or practice, so neither the Town nor the department can

be held liable for it. And the municipal defendants are entitled

to official immunity against the plaintiffs' trespass to chattels

and intentional infliction of emotional distress claims, because

no rational trier of fact could find that their conduct allegedly

comprising those torts was wanton or reckless.

Tenaglia, for her part, is not a state actor, nor do the

plaintiffs assert any other basis for holding her liable for any

violations of their constitutional rights, so she is entitled to

summary judgment on the due process claims against her. She is

also entitled to summary judgment on the intentional infliction

of emotional distress claim, because no rational factfinder could

conclude that her actions rose to that level. A rational

factfinder could conclude, however, that Tenaglia committed

trespass to chattels, so she is not entitled to summary judgment

on that claim.

4 I. Applicable legal standard

Summary judgment is appropriate if the moving party "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). A party opposing summary judgment "must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) .

Material facts are "facts that might affect the outcome of the

suit under the governing law." Id. at 248. Where, however, "the

party moving for summary judgment bears the burden of proof on an

issue, he cannot prevail unless the evidence that he provides on

that issue is conclusive." EEOC v. Union Independiente de la

Autoridad de Acueductos v Alcantarillados de P.R., 279 F.3d 49,

55 (1st Cir. 2002) (guotation marks omitted). As discussed

infra, this standard applies to the municipal defendants'

arguments for summary judgment on the basis of gualified immunity

from the federal constitutional claims, and municipal and

official immunity from the state-law claims, because they bear

the burden of proof on each of those defenses.

The court considers the undisputed material facts and all

reasonable inferences from those facts in the light most

favorable to the nonmoving party. See, e.g., Avery v. Hughes,

5 661 F.3d 690, 693 (1st Cir. 2011). The following facts are set

forth accordingly.

II. Background

On July 7, 2007, Tenaglia entered into a handwritten

agreement with Foley and Vankooiman to sell them her 1990 Scamper

camping trailer and its attached porch (the "camper"), which were

located on a site at the Wellington Camping Park in Lee, New

Hampshire. The plaintiffs agreed to pay Tenaglia $3,500 for the

camper in two installments: $1,600 upon the signing of the

agreement and the remaining $1,900 by August 1, 2007. The

agreement provided that if the entire purchase price was not paid

by that date, the sale would be void and the money paid would be

forfeited. As part of the deal, the plaintiffs agreed to pay, to

Wellington, the $1,050 fee to use the camper's site for the

season, from May 15, 2007, to October 15, 2007. The plaintiffs

made the initial payment of $1,600 to Tenaglia on July 7 and a

further payment of $200 on July 15, 2007.

Although use of the camper pending payment in full is not

expressly addressed in the purchase and sale agreement, Tenaglia

allowed the plaintiffs to use the camper after they made the

initial payment.3 Tenaglia also gave the plaintiffs the paper

3In response to a leading guestion at her deposition, Tenaglia characterized this arrangement as a revocable license to

6 title to the camper, but she did not sign it over to them, and

she states that she gave them the document only so they could

begin the process of insuring the camper. The plaintiffs also

entered into a written agreement with the camping park "to rent

space, on which is to be placed" the camper they were buying from

Foley (parenthetical omitted). The plaintiffs paid the rental

fee due under this agreement, which was $1,050 for the season

running from April 15, 2007 to September 15, 2007.

As of August 1, 2007, however, the plaintiffs had not made

the final payment on the camper. At some point that day,

Tenaglia put a lock on the camper's porch door and left a note

asking the plaintiffs to contact her. Tenaglia also notified the

Lee Police Department that she had locked the camper because the

buyers had not made the final payment on the day that it was due.

Defendant Raymond Pardy, then a Lee police officer, entered the

call into the department's records, but there is no evidence of

any further involvement on his part.

When Vankooiman subseguently returned to the camper on

August 1, he climbed onto the porch and removed the lock. On

use the camper. But this characterization was disputed by Foley, who testified to her understanding that the initial payment for the camper gave her an ownership interest--and it is also inconsistent with the parties' agreement that the plaintiffs pay the fee for keeping the camper at the park. As discussed infra, the nature of the plaintiffs' rights in the camper is ultimately immaterial to the outcome of the summary judgment motions.

7 August 3, Tenaglia discovered that the plaintiffs were using the

camper again, and called the Lee Police Department. Defendant

Brian Huppe, a sergeant, went to the campground in response to

the call that same day. There, Sergeant Huppe met separately

with both Tenaglia and Foley, and ultimately convinced Tenaglia

to accept payment for the amount due on the camper in the form of

a check for the outstanding amount, even though, under the

parties' written agreement, the payment was to have been made by

August 1, in cash. So the plaintiffs gave Tenaglia a check for

$1,700 written on Vankooiman's account at TD Banknorth. While

Tenaglia accepted the check, she explained that she was reluctant

to do so and would be presenting the check to the bank the next

day, on August 4, 2007. When she did so, however, a teller

informed Tenaglia that the account lacked funds to cover the

check and that the bank would not cash it.4

Tenaglia then called Sergeant Huppe and told him that,

because the check had not cleared, the plaintiffs could no longer

stay in the camper. Huppe went to the campground and relayed

4Although the plaintiffs complain that Tenaglia lacks documents showing that the check was rejected for insufficient funds, they provide no evidence to contradict Tenaglia's testimony that, when she tendered the check to the teller, she was informed that the account had insufficient funds and the check could not be cashed. For the reasons explained infra, whether there were in fact sufficient funds to cover the check is ultimately immaterial, at least for present purposes.

8 this message to the plaintiffs, telling them they would have to

leave by 4 p.m. Huppe also warned them that any damage to the

camper could lead to their arrest.

Later in the day, defendant Scott Flanagan, another officer

with the Lee Police Department, relieved Sergeant Huppe when his

shift ended, and went to the campground to check on the camper.

There, Officer Flanagan found the plaintiffs packing their

belongings into their vehicles, although Vankooiman pointed out a

few items, including a fish tank (with a pet fish) and a day bed,

that he said they did not have room for in the vehicles. Officer

Flanagan told the plaintiffs that they were "close to being

arrested" for criminal trespass but gave them until 6 p.m. to

leave. When Officer Flanagan returned to the campground around

that time, he again saw the plaintiffs, who at that point

appeared to be leaving. Flanagan then inspected the camper and

found that everything was in order. In fact, the plaintiffs had

left the fish tank (with the fish) , the day bed, and a few other

items of personal property in the camper. Tenaglia subseguently

destroyed or otherwise disposed of these items.

Rather than leaving the camping park, the plaintiffs stayed

and visited with friends at another campsite. Upon learning of

this, the campground's owner told Officer Flanagan that the

plaintiffs had to leave the premises. Officer Flanagan proceeded

9 to relay this message to the plaintiffs, who left the campground

in response. Two days later, the Lee police chief, defendant

Chester Murch, came upon the plaintiffs as they were leaving the

campground after picking up Foley's daughter from there. There

is a dispute about what was said during this encounter (Chief

Murch recalls that the plaintiffs told him that they were going

to bring a lawsuit, while Foley maintains that it was Chief Murch

who, on his own initiative, advised the plaintiffs to get a

lawyer), but there is no evidence that Chief Murch said or did

anything to encourage the plaintiffs to leave the campground.

The plaintiffs later brought a small claims action against the

campground's owner in the Durham District Court, which eventually

issued judgment for the owner.

The plaintiffs then brought this action. The remaining

counts of their amended complaint, see note 2, supra, are:

• violation of the plaintiff's federal Constitutional rights, specifically, their "due process and procedural rights," against all defendants (count 1);

• intentional infliction of emotional distress, against all defendants (count 2);

• "trespass of chattels," against all defendants (count 4); and

• violations of 42 U.S.C. §§ 1983 and 1985, against the municipal defendants (count 6).

10 Ill. Analysis

The municipal defendants and Tenaglia have separately moved

for summary judgment on all of the plaintiffs' claims. As

summarized at the outset, and as explained fully below, the

motions are granted except as to the plaintiffs' (1) procedural

due process claim against Huppe and Flanagan and (2) trespass to

chattels claim against Tenaglia.

A. Evidentiary objections

Before addressing the substance of the motions, the court

pauses to address the defendants' objections to various materials

the plaintiffs have submitted with their summary judgment

opposition. See Fed. R. Civ. P. 56(c)(2) ("A party may object

that the material cited to support or dispute a fact cannot be

presented in a form that would be admissible in evidence.").

Specifically, the defendants argue that the following submissions

are inadmissible: (1) a report by the plaintiffs' designated

expert witness, Lawrence Vogelman; (2) an agreement between the

plaintiffs and a third party extending them a loan, secured by a

motor vehicle, on August 16, 2007, (3) Foley's testimony, at her

deposition in this case, as to statements by the judge presiding

over what Foley described as an action between the plaintiffs and

Tenaglia in the Hampton District Court; (4) an order by the

Vermont Superior Court awarding attorneys' fees to a plaintiff in

11 a case where a jury found the defendants liable for conversion

and an "illegal eviction," but which is completely unrelated to

any of the parties or events in this case, Brennan v. Glick, No.

366-8-4 (Vt. Super. C t . July 29, 2009), and (5) an on-line news

article reporting on the jury's verdict in that case.

As the municipal defendants point out, items (4) and (5) are

plainly irrelevant to any issue presented by the summary judgment

motions, and item (2) appears to be irrelevant as well. See Fed.

R. Evid. 401, 402. The plaintiffs rely on the loan to show that

they "had the resources to pay the alleged debt" to Tenaglia, but

they do not explain the relevance of that fact to any of their

remaining claims, and none is apparent to the court.

The remaining items, (1) and (3), are inadmissible hearsay.

See Fed. R. Evid. 801, 802. "It is black-letter law that hearsay

evidence cannot be considered on summary judgment for the truth

of the matter asserted." Hannon v. Beard, 645 F.3d 45, 49 (1st

Cir. 2011) (guotation marks omitted). At her deposition, Foley

testified to statements by the judge, during what Foley described

as an action between the plaintiffs and Tenaglia in Hampton

District Court, to the effect that the plaintiffs owned the

camper. By Foley's own account, however, those statements were

not part of a decision resulting in any final judgment on the

merits, so they are not entitled to any collateral estoppel

12 effect, see, e.g.. In re Michael E ., 162 N.H. 520, 523 (2011),

and the plaintiffs make no such argument anyway. It follows

that, at best, the judge's statements are judicial findings in

another matter, which are themselves inadmissible hearsay. See

Learner v. Marvin Windows, 2008 DNH 212, 6-7 n.3 (citing cases).

Foley's account of the judge's statements, moreover, adds another

layer of hearsay. See Fed. R. Evid. 805.

Finally, the expert report also meets the literal definition

of hearsay, e.g., an out-of-court statement offered for its

truth. See Fed. R. Evid. 801(a). Even if that deficiency were

overlooked, though, the report's conclusions that the defendants

"had no legal authority to arrest, or threaten the arrest, of the

plaintiffs, without a warrant" and the like are not admissible

opinion testimony. "It is black-letter law that it is not for

witnesses to instruct the jury as to applicable principles of

law." Nieves-Villaneuva v. Soto-Rivera, 133 F.3d 92, 99 (1st

Cir. 1997) (quotation marks and bracketing omitted).

The plaintiffs provide no argument that any of these

materials are admissible, only a conclusory--and inadequate--

statement that they "believe the information is relevant and

admissible and should be heard by the trier of fact to determine

the weight of the evidence and apply them to the elements of each

of the offenses." Accordingly, none of the challenged materials

13 can be considered on summary judgment, because they have not been

"presented in a form that would be admissible in evidence." Fed.

R. Civ. P. 56(c). Even if the court took the materials into

account, they would not change the outcome of the summary

judgment motions (indeed, as just discussed, the majority of the

material is irrelevant to the motions anyway).

B. Merits of the claims

1. Claims against the municipal defendants

a. Violation of plaintiffs' federal due process rights

The plaintiffs claim that the municipal defendants violated

the federal Constitution, specifically, the plaintiffs' "due

process and procedural rights" under the Fourteenth Amendment, by

threatening them with arrest if they did not vacate the camper

and the campground. The plaintiffs claim violations of both

their procedural and substantive due process rights, and seek to

recover damages under 42 U.S.C. § 1983 .5 For the reasons

5As noted supra, the plaintiffs' amended complaint also cites 42 U.S.C. § 1985, but a claim under that statute reguires, inter alia, a conspiracy with the purpose of depriving a plaintiff of egual protection, which in turn "reguires some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (guotation marks omitted). The plaintiffs do not allege, let alone provide any evidence, of such a conspiracy, nor do they even address the § 1985 claim in their summary judgment papers. The § 1985 claim therefore had no merit in the first place, but is waived in any event. Similarly, while the plaintiffs also invoke the due process clause of the Fifth

14 explained fully infra, the municipal defendants are entitled to

summary judgment on all of the plaintiffs' § 1983 claims except

for their procedural due process claims against Sergeant Huppe

and Officer Flanagan.

i. Procedural due process

The due process clause of the Fourteenth Amendment provides

that no state shall "deprive any person of life, liberty, or

property, without due process of law." To prevail on a

procedural due process claim, then, a plaintiff must show that

she has a protected interest in life, liberty, or property and

that the defendants deprived her of her protected interest

without constitutionally adeguate process. See, e.g., Garcia-

Rubiera v. Fortuno, 665 F.3d 261, 270 (1st Cir. 2011); Air

Sunshine, Inc. v. Carl, 663 F.3d 27, 34 (1st Cir. 2011) . In

moving for summary judgment on this claim, the defendants argue

that the plaintiffs lacked any protected property interest in the

camper, so the officers' threats did not violate the plaintiffs'

procedural due process rights.

Amendment, that "applies only to actions of the federal government--not to those of state or local governments." Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (internal guotation marks omitted). So any Fifth Amendment claim is without merit as well.

15 "The Fourteenth Amendment's protection of 'property,'

however, has never been interpreted to safeguard only the rights

of undisputed ownership." Fuentes v. Shevin, 407 U.S. 67, 86

(1972). The appellants in Fuentes challenged state laws that

"provid[ed] for the issuance of writs ordering state agents to

seize a person's possessions, simply upon the ex parte

application of any other person who claims a right to them,"

i.e., without any prior notice or hearing. Id. at 69-70. Local

sheriffs seized certain items of personal property in the

appellants' possession under such writs, which had been secured

by the creditors who sold those items to the appellants. Id. at

72. The Court held that these seizures "work[ed] a deprivation

of property without due process of law insofar as they den[led]

the right to a prior opportunity to be heard before chattels are

taken from their possessor." Id. at 96.

Importantly, the appellants in Fuentes, like the plaintiffs

here, "lacked full legal title" to the property at issue, which

they had purchased "under conditional sales contracts that

entitled them to possession and use of the chattels before

transfer of title" and, "by the time the goods were summarily

repossessed, had made substantial installment payments." Id.

The Supreme Court ruled that this gave the appellants a

"possessory interest in the goods . . . sufficient to invoke the

16 protection of the due process clause." Id. at 86-87. They had

this protection, moreover, "even assuming that [they] had fallen

behind in their installment payments, and that they had no other

valid defenses" to enforcement of the contracts. Id. at 87.

Under Fuentes, then, the plaintiffs had a property interest

in the camper protected by the due process clause, even if, as

the defendants argue, the plaintiffs no longer had the right to

possess it under their agreement with Tenaglia because they

failed to make the final payment or otherwise.6 "It is enough to

invoke the procedural safeguards of the Fourteenth Amendment that

a significant property interest is at stake, whatever the

ultimate outcome of a hearing on the contractual right to

continued possession and use of the goods." Fuentes, 407 U.S. at

87 (footnote omitted); see also, e.g., Dixon v. Lowery, 302 F.3d

857, 864 (8th Cir. 2002) ("Even if a claim to continued

possession is in dispute, that possessory interest is still

constitutionally protected."). So the municipal defendants are

not entitled to summary judgment on the theory that the

plaintiffs lacked any protected property interest in the camper.

6The plaintiffs had a similar interest in remaining on the campground as a result of their agreement with the campground's owner--even if, as the defendants suggest, that agreement gave the plaintiffs no right to remain there after they lost their right to occupy the camper.

17 In their summary judgment filings, the municipal defendants

do not guestion that the actions of Sergeant Huppe and Officer

Flanagan, who threatened the plaintiffs with arrest if they did

not leave the camper, deprived the plaintiffs of this interest in

the camper without constitutionally adeguate process.7 In any

event, a rational factfinder could come to that conclusion. See

Abbott, 164 F.3d at 147 (ruling that a reasonable jury could find

a procedural due process violation where the defendant officer

threatened plaintiff with arrest for driving away a vehicle when

his ownership of it was in dispute).

Chief Murch and Officer Pardy, however, did not make any

such threats nor, so far as the record reveals, do anything to

cause the plaintiffs to relinguish their possession of the

camper, their occupancy of the campground, or any other claimed

property interest. As discussed supra, Pardy's role in the

7At oral argument, the municipal defendants argued that they afforded the plaintiffs due process before depriving them of the camper by way of the officers' investigation into the circumstances of the plaintiffs' possession of it, which showed (albeit based only on a report from Tenaglia) that there were insufficient funds to cover the check they had given her for the final payment. The court normally ignores theories that are raised for the first time at oral argument, see Doe v . Friendfinder, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H. 2008), and, in any event, this theory is plainly without merit in light of Fuentes. "At the heart of Fuentes is the principle that it is not for law enforcement officers to decide who is entitled to possession of property. Rather, it is the domain of the courts." Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir. 1998).

18 complained-of events was limited to entering a report of

Tenaglia's initial call into police department records, while

Murch simply spoke to the plaintiffs as they were leaving the

campground (and, so far as the record indicates, said nothing to

hasten their departure or to discourage them from returning).

"It is well-settled that only those individuals who participated

in the conduct that deprived the plaintiff of his rights can be

held liable" under § 1983. Velez-Rivera v. Agosto-Alicea, 437

F.3d 145, 146 (1st Cir. 2006) (guotation marks omitted). Pardy

and Murch are therefore entitled to summary judgment on the

plaintiffs' procedural due process claim.

The municipal defendants also seek summary judgment on the

procedural due process claim on the basis of gualified immunity.

"The defendants are entitled to gualified immunity unless (1) the

facts alleged or shown by the plaintiff make out a violation of a

constitutional right and (2) such right was clearly established

at the time of the defendants' alleged violations." Feliciano-

Hernandez v. Pereira-Castillo, 663 F.3d 527, 532 (1st Cir. 2011).

As just discussed, the plaintiffs have succeeded in showing that

Huppe and Flanagan violated the plaintiffs' right to procedural

due process, so the inguiry proceeds to the second step, i.e.,

whether the right was clearly established at the time of the

violation. "A right is clearly established only if it would be

19 clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Id. The municipal defendants have

the burden of showing otherwise, since qualified immunity is

affirmative defense. See DiMarco-Zappa v. Cabanillas, 238 F.3d

25, 35 (1st Cir. 2001).

The municipal defendants have not carried that burden here.

While the unconstitutional nature of a defendant's conduct "must

be apparent in light of pre-existing case law" to amount to the

violation of a clearly established right, Lopera v. Town of

Coventry, 640 F.3d 388, 397 (1st Cir. 2011), this requires

"merely that the prior case law [] give the officer reasonable

notice that the specific conduct [he] is alleged to have

committed in the litigation is unlawful," Riverdale Mills Corp.

v. Pimpare, 392 F.3d 55, 66 (1st Cir. 2004). Here, as just

discussed, the Supreme Court's 1972 decision in Fuentes served as

reasonable notice to Huppe and Flanagan that, by threatening the

plaintiffs with arrest if they did not surrender the camper, the

officers were denying the plaintiffs their constitutional right

to due process by depriving them of their possessory interest in

the camper without prior notice or hearing.

As also just discussed, Fuentes additionally makes clear

that the plaintiffs enjoyed this right regardless of the strength

of their claimed right to continued possession of the camper. So

20 the municipal defendants' argument that, in the interactions

between the responding officers and the plaintiffs, the

plaintiffs "admitted that they had not completed the terms of the

purchase and sale agreement, they failed to produce any lease and

provided nothing beyond their protests they should be allowed to

come up with the money" (even if factually accurate) does not

support their gualified immunity defense. "The right to be heard

does not depend upon an advance showing that one will prevail at

the hearing." Fuentes, 407 U.S. at 87. The municipal

defendants, however, do not discuss--or even acknowledge--Fuentes

in making their gualified immunity argument.

Several federal courts of appeals have ruled, prior to the

events at issue here, that " [r]easonable police officers should

know from the established precedent of Fuentes that their role is

not to be participants in property deprivations without notice

and a hearing" and have accordingly denied gualified immunity to

officers who have done so. Abbott, 164 F.3d at 149; see also,

e.g., Marcus v. McCollum, 394 F.3d 813, 823-24 (10th Cir. 2004);

Thomas v. Cohen, 304 F.3d 563, 580-81 (6th Cir. 2002); Dixon, 302

F.3d at 865-66.

In arguing for gualified immunity nonetheless, the municipal

defendants rely exclusively on the per curiam decision by our

Court of Appeals in Higgins v. Penobscot County Sheriff's

21 Department, 446 F.3d 11 (1st Cir. 2006).8 There, as here, the

defendant law enforcement officer told the plaintiff that he

would be arrested if he remained on the property where he had

been staying, even though the he had raised "an ongoing

disagreement over ownership of the property and his right to

reside there." Id. at 12-13. There, as here, the plaintiff

claimed that this violated his constitutional right to due

process. Id. at 13. While the Court of Appeals recognized that

"in certain circumstances, a police officer's participation in an

unlawful eviction can implicate a tenant's . . . Fourteenth

Amendment rights and give rise to liability," it ruled that the

defendant was entitled to gualified immunity against the

plaintiff's procedural due process claim. Id. at 14.

The court explained that the defendant officer:

encountered a volatile and potentially dangerous situation--described by [the plaintiff] himself as a 'screaming contest'--when [the officer] arrived. The subject of the dispute was a man who . . . claimed a

8At oral argument, the municipal defendants also relied on the fact that, while New Hampshire law prevents the use of self- help to effectuate an eviction, see N.H. Rev. Stat. § 540-A:3, II, it contains no similar prohibition on the use of self-help to repossess personal property, or limitation on police authority to assist in such repossessions. Even assuming this is true, however, federal law, i.e., the due process clause of the Fourteenth Amendment, prohibits law enforcement officers from assisting in such repossessions unless (with exceptions not applicable here) they are preceded by notice and a hearing. The claimed absence of a similar state-law prohibition, then, provides no support for the gualified immunity defense.

22 right to occupy a building with which [the officer] was familiar and which [he] reasonably thought, based on his prior knowledge of the building and the circumstantial evidence at the scene, to have been long unoccupied. The man provided no written lease or other documentation to support his claimed occupancy right, but only made a conclusory verbal claim of entitlement. Opposing this man were several members of his own family, all of whom disputed his claimed entitlement and told [the officer] that [the man] previously had been told to stay away, and one of whom--the man's own father--produced a deed which substantiated the father's claim of ownership to the property.

Id. The court ruled that, "[i]n these circumstances, [the

officer's] decision to disbelieve [the plaintiff] and to defuse

the situation by asking him to leave under threat of citation for

trespass was neither plainly incompetent nor involved a

deliberate violation of the law," entitling the officer to

gualified immunity. Id. at 14-15.

In likening themselves to the defendant in Higgins, the

municipal defendants seize on the court's observation that the

plaintiff there, "like this case, provided no written lease or

other documentation to support his claimed occupancy right." But

the result in Higgins did not turn on the plaintiff's failure to

prove his right of occupancy to the officer because, again,

Fuentes holds that "[t]he right to be heard does not depend upon

an advance showing that one will prevail at the hearing." 407

U.S. at 87. Instead, the result in Higgins proceeds from the

fact that, as the court noted more than once, the officer faced a

23 "volatile" situation that he reasonably believed he had the

authority to "defuse" by ordering the plaintiff to leave under

threat of arrest. Indeed, the municipal defendants themselves

describe the problem confronting the officer in Higgins as having

to resolve a disputed right to occupancy amidst "a perceived

breach of the peace."

But the municipal defendants do not even claim to have faced

a breach of the peace, "screaming contest," or any other

"volatile [or] potentially dangerous situation" in the dealings

between the plaintiffs and Tengalia, and the record contains no

evidence to that effect.9 So, unlike their counterpart in

Higgins, the municipal defendants could not have reasonably

believed that they had the right to deprive the plaintiffs of

their possession of the camper without the prior notice and

hearing guaranteed by the Fourteenth Amendment. Indeed, "the

overarching lesson of the case law is that officers may act to

diffuse [sic] a volatile situation, but may not aid the

9At oral argument, the municipal defendants suggested that, by failing to respond to Tenaglia's repeated attempts to contact them about the final payment prior to August 1, the plaintiffs had created an atmosphere of "silence" which itself carried the potential for volatility. Even if this strained argument is taken at face value, however, it is undisputed that, by the time the plaintiffs were first threatened with arrest for remaining with the camper, that "silence" had been broken by the events of August 3, during which the plaintiffs gave Tenaglia the check for the last payment (and, again, those events transpired without any hint of volatility, at least so far as the record shows).

24 repossessor in such a way that the repossession would not have

occurred but for their assistance." Marcus, 394 F.3d at 819. In

the absence of anything approaching a volatile situation, then,

it would have been clear to Sergeant Huppe and Officer Flanagan

that they were violating the plaintiffs' constitutional right to

due process by threatening them with arrest for failing to leave

the camper. The gualified immunity defense does not entitle

Huppe or Flanagan to summary judgment on the plaintiffs'

procedural due process claim.

ii. Substantive due process

A substantive due process claim reguires proof both that

the defendants deprived the plaintiffs of a protected interest in

life, liberty, or property, see U.S. Const. Am. XIV, cl. 1, and

that the defendants' actions in doing so "shock the conscience."

See, e.g., Harron v. Town of Franklin, 660 F.3d 531, 536 (1st

Cir. 2011); Est. of Bennett v. Wainwright, 548 F.3d 155, 162 (1st

Cir. 2008). To be conscience-shocking, a defendant's actions

"must be truly outrageous, uncivilized, and intolerable . . . and

the reguisite arbitrariness and caprice must be stunning,

evidencing more than humdrum legal error." Harron, 660 F.3d at

536 (guotation marks and citations omitted).

Taken in the light most favorable to the plaintiffs, the

record would not allow a rational factfinder to conclude that the

25 municipal defendants engaged in conscience-shocking conduct. An

action that "shocks the conscience" typically manifests "an

extreme lack of proportionality, as the test is primarily

concerned with violations of personal rights so severe, so

disproportionate to the need presented, and so inspired by malice

or sadism rather than a merely careless or unwise excess of zeal

that it amounted to a brutal and inhumane abuse of official

power." Id. (guotation marks omitted). While, as just

discussed, a jury could find that Sergeant Huppe and Officer

Flanagan denied the plaintiffs procedural due process by

threatening them with arrest unless they left the camper, no jury

could find that those actions--or, for that matter, those of any

of the other municipal defendants--were "brutal and inhumane."

The municipal defendants are entitled to summary judgment on the

substantive due process claim.

iii. Municipal liability

For purposes of a § 1983 claim against a town, "[1]lability

only attaches where the municipality causes the deprivation

through an official policy or custom." Rodriguez v. Municip. of

San Juan, 659 F.3d 168, 181 (1st Cir. 2011). The plaintiffs do

not argue that, in depriving them of their possession of the

camper without due process. Sergeant Huppe and Officer Flanagan

were acting pursuant to any official policy of the Town of Lee or

26 its police department.10 Instead, the plaintiffs argue that the

defendant officers "did not receive training regarding on how

[sic] to handle civil matters and the limits of their authority"

and that this failure to train amounted to a municipal custom

that ultimately caused Huppe and Flanagan to violate the

plaintiff's due process rights.

While a municipality's failure to train its employees can

give rise to § 1983 liability, the "criteria for 'failure to

train' claims are exceptionally stringent," reguiring, among

other things, that "the failure to train 'amount[] to deliberate

indifference to the rights of persons with whom the police come

into contact.'" Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir.

1998) (guoting and adding emphasis to City of Canton v. Harris,

489 U.S. 378, 390 (1989)). This, in turn, ordinarily reguires

"[a] pattern of similar constitutional violations by untrained

10The plaintiffs state that "[t]he conduct of four separate police officers on a police force of currently six officers[] establishes the policy and custom of the Town." But the plaintiffs provide no authority or developed argument for the notion that the participation of a majority of a town's police officers in a single constitutional violation can suffice to establish such violations as the town's official custom or policy, and, indeed, the law is to the contrary. "Proof of a single incident of unconstitutional activity is not [itself] sufficient to impose liability" on a municipality under § 1983. City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985). Furthermore, as already discussed. Chief Murch and Officer Pardy did not participate in any conduct which deprived the plaintiffs of due process, so the majority of Lee's officers were not involved in the constitutional violation at issue here.

27 employees" so as to put the municipality on "notice that a course

of training is deficient in a particular respect." Connick v.

Thompson, 131 S. C t . 1350, 1360 ( 2 0 1 1 ) Here, there is no

evidence of even a single prior incident--let alone the reguisite

pattern of them--where a member of the Lee Police Department

deprived a citizen of his or her possession of property without

due process, whether through the threat of arrest or otherwise.

Without that evidence, no rational factfinder could conclude that

either the Town or the police department was deliberately

indifferent in failing to train its officers about the

constitutional limits of their authority over such matters so as

to give rise to municipal liability under § 1983. The Town and

the police department are therefore entitled to summary judgment

on the plaintiffs' federal constitutional claims.

b. State law claims

In addition to their federal constitutional claims, the

plaintiffs assert claims against the municipal defendants for the

state-law torts of intentional infliction of emotional distress

and trespass to chattels. The municipal defendants move for

11A pattern of similar violations is not necessary to show deliberate indifference "in a narrow range of circumstances" where "the unconstitutional conseguences of failing to train [are] patently obvious." Connick, 131 S. C t . at 1361 (guotation marks omitted). But this case does not fall within this narrow exception, and the plaintiffs do not argue to the contrary.

28 summary judgment on these claims. Specifically, the Town and the

police department invoke their municipal immunity under N.H. Rev.

Stat. Ann. § 507-B:5, while the individual officers (including

Chief Murch) invoke the common-law doctrine of official immunity.

The court agrees with the municipal defendants that, as a matter

of law, these immunities shield them from liability for the

plaintiffs' state-law claims.

i. Municipal immunity

N.H. Rev. Stat. Ann. § 507-B:5 provides that "[n]o

governmental unit shall be held liable in any action to recover

for bodily injury, personal injury or property damage except as

provided by this chapter or as is provided or may be provided by

other statute." The statute's definition of "governmental unit"

includes both a "town" and "departments or agencies thereof."

Id. § 507-B:l, I. The statute's definition of "personal injury"

includes both "[a]ny injury to the feelings or reputation of a

natural person" and " [w]rongful eviction," id. § 507:B-1, III (a),

while "'property damage' means a loss through injury to, or

destruction of, tangible property," id. § 507-B:l, IV.

The immunity conferred by § 507-B:4, then, encompasses the

plaintiffs' claims for both intentional infliction of emotional

distress and trespass to chattels. The plaintiffs do not offer

any argument to the contrary, nor do they try to fit their state-

29 law claims within any of the exceptions to the immunity

recognized by the statute. Instead, the plaintiffs argue that

the statutory immunity does not extend to their federal

constitutional claims--which is true, but beside the point,

since, as just discussed, the plaintiffs have failed to show a

triable issue as to the Town's or the department's liability

under § 1983. The Town and the police department are entitled to

summary judgment on the plaintiffs' state-law claims.

ii. Official immunity

Under the state-law doctrine of official immunity,

"municipal police officers are immune from personal liability for

decisions, acts or omissions that are: (1) made within the scope

of their official duties while in the course of their employment;

(2) discretionary, rather than ministerial; and (3) not made in a

wanton or reckless manner." Everitt v. Gen. Elec. Co., 156 N.H.

202, 219 (2007). The defendant bears the burden of proving that

official immunity shields the acts in guestion. See Belcher v.

Paine, 136 N.H. 137, 145 (1992). The individual officers argue

that their acts allegedly constituting intentional infliction of

emotional distress and trespass to chattels satisfy all three of

the criteria for official immunity. The court agrees.

There is no guestion that all of the individual officers'

complained-of acts were undertaken as part of their official

30 duties while in the course of their employment, and that those

acts were discretionary, i.e., "involve[d] the exercise of

personal deliberation and individual professional judgment that

necessarily reflects the facts of the situation and the

professional goal."12 Id. It is likewise clear that none of the

individual officers' acts allegedly constituting intentional

infliction of emotional distress or trespass to chattels was

"wanton or reckless."

First, like a substantive due process claim, a claim for

intentional infliction of emotional distress reguires conduct "so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

utterly intolerable in a civilized community." Mikell v. Sch.

Admin. Unit No. 33, 158 N.H. 723, 728-29 (2009) (guotation marks

omitted). The officers' conduct--which at its worst consisted of

threats to arrest the plaintiffs if they remained with the camper

beyond an appointed deadline--does not approach this standard,

let alone amount to a "wanton or reckless" violation of it.

"Liability for intentional infliction of emotional distress

12One potential exception is Pardy's recording Tenaglia's initial call into the department records, which seems to have been a mere "ministerial" act, but that distinction is unimportant since, by doing so, he neither inflicted emotional distress on the plaintiffs nor trespassed to their chattels and thus is not liable for either of those torts.

31 clearly does not extend to mere threats." Tessier v.

Rockefeller, 162 N.H. 324, 341 (2011) (quotation marks omitted).

The officers are entitled to summary judgment on the plaintiffs'

intentional infliction of emotional distress claim.

That leaves the plaintiffs' trespass to chattels claim

against the individual officers. Under New Hampshire law,

[o]ne who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.

Glidden v. Szybiak, 95 N.H. 318, 320 (1949) (quoting Restatement

of Torts § 218 (1939)). The plaintiffs do not clearly

articulate, in either their amended complaint or any of their

summary judgment briefing, how any of the officers named as

defendants here "used or otherwise intentionally intermeddled"

with any chattels in the plaintiffs' possession so as to give

rise to liability in trespass. While the amended complaint

alleges that the police "seized personal property by way of

threat of arrest," there is no record evidence that any of the

defendant officers "seized" or otherwise took possession, even

temporarily, of any of the plaintiffs' personal property.

Although Officer Flanagan entered the camper while inspecting it

32 after the plaintiffs' departure, that entry--even assuming it

amounted to "use" or "intermeddling" with a chattel "in

possession" of the plaintiffs--did not itself impair the value of

the camper or deprive the plaintiffs of their use of it for a

substantial time, as would be necessary to give rise to liability

for trespass to chattels. See id.

At oral argument, the plaintiffs maintained that Officer

Flanagan committed trespass to chattels by threatening the

plaintiffs with arrest if they did not leave the camper by the

appointed deadline--on the theory that the deadline left the

plaintiffs without enough time to remove all of the items of

their personal property, viz., the day bed and the fish tank.

But this theory is not intelligibly set forth in the amended

complaint, so it cannot be raised for the first time in

opposition to a summary judgment motion, see, e.g., Calvi v. Knox

County, 470 F.3d 422, 430-31 (1st Cir. 2006), let alone at oral

argument on that motion, see note 7, supra.

That shortcoming aside, the plaintiffs still have not

explained how Officer Flanagan's ultimatum amounted to his use or

intermeddling with their property so as to give rise to liability

for trespass to chattels under New Hampshire law. Although the

Restatement (Second) of Torts recognizes that trespass to

chattels will lie for a defendant's "barring a possessor's access

33 to a chattel," id. § 221(c), the New Hampshire Supreme Court does

not seem to have considered whether that represents the law of

this state and, even if it does (a point that this court need not

decide here), it is at best questionable whether Officer Flanagan

"barred" the plaintiffs from accessing the property they left

with the camper.

To the contrary, it is undisputed that Officer Flanagan

allowed the plaintiffs additional time, beyond that granted by

Sergeant Huppe, to finish packing their belongings. There is

also no evidence that, after Vankooiman told Officer Flanagan

that the plaintiffs did not have room in their vehicles for the

day bed and fish tank. Officer Flanagan said or did anything to

coerce the plaintiffs into leaving those items behind. So far as

the record reveals, in fact, the plaintiffs did not ask Officer

Flanagan for the chance to return to the camper and retrieve

those items, or attempt to make any other arrangements to

preserve them--such as, most obviously, transporting them to the

campsite, occupied by their friends, where the plaintiffs went

directly after leaving the camper.

Regardless, even if a rational jury could nevertheless find

that Officer Flanagan's threat to arrest the plaintiffs before

they had the fullest opportunity to pack up their belongings

effectively barred their access to them, no rational jury could

34 find that this conduct amounted to a wanton or reckless trespass

to the plaintiffs' chattels so as to negate the official immunity

defense. The plaintiffs do not argue otherwise; indeed, their

summary judgment objection does not even address the defendants'

official immunity argument. The officers are entitled to summary

judgment on the plaintiffs' trespass to chattels claim.

2. Claims against Tenaglia

a. Federal claims

As noted at the outset, the plaintiffs have agreed to

dismiss their breach of contract claim against Tenaglia. See

note 2, supra. They also agree, in their objection to Tenaglia's

summary judgment motion, that their § 1983 claim "is not

applicable to" Tenaglia. This concession is sensible, because a

plaintiff bringing a § 1983 claim against a private party, like

Tenaglia, must show that the defendant's conduct was "'fairly

attributable to the state,'" Santiago v. Puerto Rico, 655 F.3d

61, 67-68 (1st Cir. 2011) (guoting Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937 (1982)), and the record contains no evidence to

support such a theory here.

The plaintiffs appear to believe that they can nevertheless

maintain their claim against Tenaglia for violating their due

process rights under the Fourteenth Amendment. Indeed, the

plaintiffs' opposition to her summary judgment motion argues that

35 claim at length, despite their concession that their § 1983 claim

cannot lie against Tenaglia.13 They are mistaken. The

Fourteenth Amendment "affords no shield" against private conduct,

"no matter how unfair that conduct may be." NCAA v. Tarkanian,

488 U.S. 179, 191 (1988). Tenaglia is entitled to summary

judgment on the plaintiffs' federal claims.

b. State claims

Tenaglia also moves for summary judgment on the plaintiffs'

state-law claims, i.e., for intentional infliction of emotional

distress and trespass to chattels. As to the former, Tenaglia

argues that no rational jury could find her conduct toward the

plaintiffs was "so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as utterly intolerable in a civilized community."

Mikell, 158 N.H. at 728-29. The court agrees. Tenaglia's

actions in having the plaintiffs removed from the camper and

disposing of their possessions did not rise to this level as a

matter of law, even if, as the plaintiffs suggest, they were

otherwise "tortious," "intended to inflict emotional distress,"

13This is perhaps understandable in light of the fact that, rather than arguing that constitutional guarantees of due process do not bind her as a private citizen, Tenaglia, like the municipal defendants, moved for summary judgment on the ground that she owed the plaintiffs no due process because they had no protected property interest.

36 or "characterized by malice."14 Id. Tenaglia is entitled to

summary judgment on the plaintiffs' claim for intentional

infliction of emotional distress.

Tenaglia is not entitled to summary judgment, though, on the

plaintiffs' claim for trespass to chattels. There is evidence

that, after the plaintiffs left the camper, Tenaglia destroyed or

otherwise disposed of the items of personal property they had

left behind. Based on this evidence, a rational jury could find

that Tenaglia intermeddled with the plaintiffs' chattels so as to

impair their condition, guality, or value, creating liability for

trespass to chattels under New Hampshire law. See Glidden, 95

N.H. at 320; see also Restatement (Second) of Torts § 221(d)

(1965) (noting that "destroying a chattel" amounts to trespass).

In moving for summary judgment on this claim, Tenaglia

argues that the plaintiffs abandoned the personal property by

leaving it in the camper. It is true that a trespass claim does

not lie against a defendant for intermeddling with the

plaintiff's chattel only after he has abandoned it. See

14While the plaintiffs argue that Tenaglia also intentionally inflicted emotional distress when she "burned a number of [their] personal belongings in the camp fire in view of [their] minor child," the evidence they rely on for this argument consists of inadmissible hearsay which, as already discussed, cannot be considered on summary judgment. See Part II.A, supra. The court need not consider, then, whether such conduct could give rise to liability for infliction of emotional distress.

37 Restatement (Second) of Torts § 216 cmt c. (1965). Under New

Hampshire law, however, abandonment requires "both the intent to

abandon the [chattel] and an overt act of abandonment." New

Hampshire v. Elementis Chem., Inc., 152 N.H. 794, 802-03 (2005).

Viewed in the light most favorable to the plaintiffs, the record

admits of a genuine issue of fact as to whether the plaintiffs

intended to abandon the items they left in the camper. Tengalia

is not entitled to summary judgment on the plaintiffs' trespass

to chattels claim.

IV. Conclusion

As explained fully above, the municipal defendants' motion

for summary judgment15 is GRANTED except as to the procedural due

process claim against Huppe and Flanagan, as to which it is

DENIED. Tenaglia's motion for summary judgment16 is GRANTED

except as to the trespass to chattels claim, as to which it is

DENIED, and the breach of contract claim, as to which it is MOOT

in light of the plaintiffs' voluntary dismissal of that claim.

As a result, defendants the Town of Lee, the Lee Police

Department, Chester Murch, and Raymond Pardy are TERMINATED from

the case.

15Document no. 33.

16Document no. 36.

38 SO ORDERED.

Joeeph N. Laplante Uriited States District Judge

Dated: May 9, 2012

cc: Kimberly A. Zizza, Esq. Jacqueline C. Fitzgerald-Boyd, Esq. R. Matthew Cairns, Esq. Edmund J. Waters, Jr., Esq.