Fortin v. Town of Hampton et al.

2013 DNH 141

• Court: District Court, D. New Hampshire
• Decided: October 24, 2013
• Docket: 12-CV-315-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Frederick Fortin

v. Case N o . 12-cv-315-PB Opinion N o . 2013 DNH 141 Town of Hampton, et a l .

O R D E R

Frederick Fortin has filed a complaint against three

Hampton police officers and the Town of Hampton. He asserts

claims against the officers for false arrest in violation of his

Fourth Amendment rights (Count I ) , retaliation in violation of

his First Amendment rights (Count I I ) , state law false arrest

and false imprisonment (Count I I I ) , state law assault and

battery (Count I V ) , and excessive force in violation of his

Fourth Amendment rights (Count V ) . He also contends that the

Town is vicariously liable for the individual defendants’ state

torts (Count V I ) . Finally, he includes separate claims for

enhanced damages (Count VII) and punitive damages (Count VIII).

In general, Fortin’s claims are based either on his arrest,

which he claims was unlawful because it was not supported by

probable cause (“Arrest Claims”), or the excessive force he claims defendants used to effect the arrest (“Excessive Force

Claims”).

Defendants present two arguments in support of their motion

for summary judgment. First, they challenge the Arrest Claims

by arguing that they are barred by Heck v . Humphrey, 512 U.S.

477, 487 (1994) because Fortin pleaded guilty to disorderly

conduct based on the actions that led to his arrest.1 Second,

defendants argue that the Excessive Force Claims fail because

Fortin has failed to identify any of the officers who assaulted

him.

Fortin does not contest defendants’ reliance on Heck with

respect to any of the Arrest Claims except the retaliation

claim. He argues that the retaliation claim is valid even if he

committed the crime that resulted in his arrest because the

evidence supports his contention that the arrest, even if

otherwise lawful, would not have occurred but for the officers’

retaliatory motivation. I am unpersuaded by Fortin’s argument

with respect to the retaliation claim because he has failed to

1 Heck does not apply to state law claims but the state law Arrest Claims are barred by the conviction under the doctrine of collateral estoppel. See, e.g., Aubert v . Aubert, 129 N.H. 4 2 2 , 428 (1987).

2 point to sufficient evidence, even when the evidence is

construed in his favor, to support his claim that an otherwise

lawful arrest would not have occurred but for the officers’

retaliatory motivation. Accordingly, I grant defendants’ motion

for summary judgment with respect to all of the Arrest Claims

(Counts I , I I , and I I I ) .

Fortin responds to defendants’ challenge to the Excessive

Force Claims by arguing that the evidence supports a conclusion

that it was Officers Tousignant and Turcotte who assaulted him.

I agree that the evidence on this point is minimally sufficient

to support Fortin’s claims against Tousignant and Turcotte.

Fortin asserts that he posed no threat to the officers and did

not resist their effort to detain him. His account also

supports his claim that the officers who arrested him used

unnecessary force. Defendants Tousignant and Turcotte admit

that they were the officers who effected the arrest. Given the

standard of review that applies at summary judgment, the above-

described evidence is sufficient to support viable Excessive

Force Claims against Tousignant and Turcotte. No evidence has

been presented, however, to support a claim against defendant

Galvin. Accordingly, the motion is denied with respect to the

3 Excessive Force Claims (Counts IV and V ) against Tousignant and

Turcotte and granted with respect to the same claims against Galvin.2

The motion for summary judgment (Doc. N o . 11) is granted in

part and denied in part. The only claims that remain viable are

Counts IV and V against Tousignant and Turcotte, Count VI

against the Town, and Counts VII and VIII against Tousignant,

Turcotte, and the Town.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

October 2 4 , 2013

cc: Kenneth D. Murphy, Esq. Brian J.S. Cullen, Esq.

2 I do not consider whether any of the remaining defendants are entitled to summary judgment based on qualified immunity because defendants did not adequately brief a qualified immunity claim. Nor do I address Counts V I , V I I , and VIII, because defendants did not challenge these counts.