Gallant v . Gallant, et a l . 11-CV-600-SM 05/31/13 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Darren Gallant, Plaintiff v. Case N o . 11-cv-600-SM Opinion N o . 2013 DNH 082 Jessica Gallant, Sandown Police Department, William Pica, Town of Hampstead, Richard Chambers, Daniel Jackman, Defendants
O R D E R
Plaintiff, Darren Gallant (“Darren”), filed this action in
state court against the Sandown Police Department and his
estranged wife, Jessica Gallant (“Jessica”). Defendants removed
the proceeding to this forum, invoking federal question
jurisdiction. See 28 U.S.C. §§ 1331, 1441. Plaintiff thereafter
filed an amended complaint, adding claims and naming a Sandown
police officer and the Hampstead Police Department and two of its
officers as additional defendants.
The summary judgment motions of Jessica Gallant and the
Sandown Police Department1 and its officer are now before the
court. See doc. nos. 31 and 3 3 . Plaintiff objects.
Standard of Review
1 The Sandown Police Department is an agency of the Town of Sandown, which is the real party in interest. For simplicity’s sake, the court will refer only to the Sandown Police Department. When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party's favor.” Griggs–Ryan v . Smith, 904 F.2d 1 1 2 , 115
(1st Cir.1990). Summary judgment is appropriate when the record
reveals “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). In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties' positions on the issue are supported
by conflicting evidence.” Int'l Ass'n of Machinists & Aerospace
Workers v . Winship Green Nursing Ctr., 103 F.3d 196, 199–200 (1st
Cir.1996) (citations omitted).
Nevertheless, if the non-moving party's “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,
249–50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant's ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party. See generally Fed. R. Civ. P. 56(c). It
naturally follows that while a reviewing court must take into
2 account all properly documented facts, it may ignore a party's
bald assertions, unsupported conclusions, and mere speculation.
See Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir.1997). See
also Scott v . Harris, 550 U.S. 3 7 2 , 380 (2007).
Background
Darren and Jessica Gallant were married in 1997. They lived
together in their home in Sandown, New Hampshire, from 1998 until
2009. In August 2009, Jessica filed for divorce. By agreement,
and then by court order, Jessica resided in the Gallant home and
Darren resided elsewhere during the pendency of the divorce
proceeding.
In a separate state court proceeding, Jessica sought and
obtained a Domestic Violence Protective Order (“DVPO”) against
Darren, which was to remain in effect from August 2009 to August
2010. Sandown police officers formally served Darren with the
DVPO. Under the terms of the protective order, Darren was to
have no contact with Jessica, including by telephone, text, or
email.
In March 2010, the family court judge issued a temporary
order regarding custody of the Gallants’ children. The order
stated, among other things, that Darren and Jessica would “share
decision making of the two children . . . . and that they will be
able to have reasonable contact with each other regarding
3 parenting issues.” Doc. n o . 31-7. The court also stated that
“previously there was a [DVPO] in place, that is not the case any
longer.” Id.
In early April 2010, Darren brought the family court’s
temporary order to Chief Joseph Gordon of the Sandown Police
Department. Darren stated to Chief Gordon that there was no
longer a DVPO in effect and that he could, therefore, contact
Jessica as he wished. Chief Gordon suggested that Darren speak
with the family court clerk to seek clarification. He also
advised Darren that he could be arrested if he went to the
marital home because the DVPO still appeared “in the computer”
system as valid and effective.
Two days later, Darren met with the family court clerk, who,
according to Darren, told him that the DVPO was no longer in
place and advised him to keep the temporary order with him at all
times. Around the same time, Darren’s counsel filed a “Motion
for Explicit Orders” with the family court seeking a
clarification of the temporary order. The motion acknowledged
that, although the temporary order appeared to lift the DVPO,
“[i]n reality, this does not appear to be the case.” Doc. n o .
31-8.
On May 4 , 2010, Jessica met with Corporal John Sable of the
Sandown Police Department and informed him that Darren had
4 contacted her numerous times by phone call and text, including 82
texts on a single day. As recounted in defendants’ statement of
facts (substantially unopposed by plaintiff), the following
events then unfolded:
Corporal Sable spoke with Chief Gordon, who confirmed that the DVPO remained in effect. Sable Aff. § 9. Corporal Sable then prepared an affidavit detailing the facts to support the issuance of an arrest warrant for the Plaintiff for violation of a protective order pursuant to RSA 173-B:9. Id. The affidavit was presented to a Justice of the Peace, who reviewed and issued a warrant thereon. Id. and Exhibit B thereto. With the executed warrant in hand, Corporal Sable contacted the Hampstead Police Department and relayed to Sgt. Richard Chambers that he had an active arrest warrant for the Plaintiff for violation of a protective order and that the Plaintiff would be parked in the West Hampstead Post Office at 5:00 p.m. for an arranged child swap. Id. at ¶ 1 0 .
* * *
The Plaintiff proceeded to Hampstead as expected. The Plaintiff states that, while waiting for Jessica to arrive with the children, he noticed two Hampstead cruisers arrive and position themselves on either side of the bank that is attached to the Post Office. P l . Dep. at 3 5 . Feeling concerned, he decided to leave. Id. at 3 6 . As he began to move his truck, he says that one cruiser advanced and the officer got out and instructed him to stop the car and get out. Id. According to the Plaintiff, the officer had his gun drawn. Id.2 The Plaintiff complied and the officer holstered his gun. Id. He says [he was] then handcuffed by one of the Hampstead officers. Id. at 38.
Moments later, Officer William Pica of the Sandown Police Department arrived at the scene and took custody
2 Plaintiff says that the officer “drew his weapon on the Plaintiff.” 5 of the plaintiff. P l . Dep. at 4 0 ; Affidavit of William Pica (“Pica Aff.”) attached hereto as Exhibit 10 at ¶ 4 . According to the Plaintiff, as they were en route to the Sandown Police Station he stated that the handcuffs hurt. P l . Dep. at 4 1 . The Plaintiff acknowledges that he did not mention any discomfort until he was in Officer Pica’s cruiser and headed to Sandown. Id. at 4 2 , 6 5 . He states that Officer Pica said he’d look at them when he arrived at the station and that, true to his word, Officer Pica removed them on arrival. Id. at 42-43.
The Plaintiff was booked and formally charged at the police station. Pica Aff. at ¶ 7 . He was then transported to the Rockingham County Department of Corrections to await arraignment pursuant to RSA 173-b. Id.
Doc. n o . 31-1, at 7-8.
Subsequent to the arrest, the family court clarified that
the DVPO “had never been dismissed, discharged, or modified” and
that it was to “remain[] in effect” until August 2010. Doc. nos.
31-14, 31-15, 31-16. Prior to the DVPO’s expiration, Jessica
moved to extend its duration for another year. The court granted
the motion.
In August 2011, the DVPO expired.3 Worried that Darren, in
the absence of the DVPO, would come to her home, Jessica
contacted the Sandown police in November, and obtained a Trespass
Notice against Darren. Sergeant Wood of the Sandown Police
Department subsequently notified Darren of the Trespass Notice
3 Jessica sought to extend the DVPO for another year, but apparently the court failed to hold the mandatory hearing in the time allowed by statute.
6 and requested that he sign i t . Darren refused. According to
Darren’s version of the facts, Sergeant Wood told Darren that,
“if he wanted to pick up his personal property” from the marital
home, “he would have to arrange for an officer” to accompany him.
P l . Br., doc. n o . 1 6 , at 6. Darren eventually returned to the
home with Jessica’s consent to retrieve some of his personal
belongings.
Darren filed this action in state court against Jessica and
the Sandown Police Department seeking an injunction against
enforcement of the Trespass Notice and monetary damages. He
alleged state law conversion and violation of his federal due
process rights. Defendants removed the proceeding to this forum,
invoking federal question jurisdiction. See 28 U.S.C. §§ 1331,
1441. Plaintiff thereafter filed an amended complaint, adding
state and federal claims for false arrest, false imprisonment,
excessive force (assault and battery), and malicious prosecution,
relating to his arrest for violation of the DVPO. Plaintiff
named Sandown police officer William Pica and the Hampstead
Police Department and two of its officers (the “Hampstead
Defendants”) as additional defendants.
By order dated April 2 2 , 2013, this court granted the
Hampstead Defendants’ motion for summary judgment on all claims
7 relating to the arrest. Doc. n o . 4 3 . The court held that the
“police officers had effected a valid arrest of plaintiff
pursuant to an outstanding arrest warrant,” and further found
that, “although the handcuffs may have been incorrectly applied
in some manner that caused plaintiff some transitory discomfort
for some ten minutes or so[,] . . . no medical treatment was
sought or required, no permanent injury of any kind is claimed,
and no evidence suggesting intention infliction has been produced
or referenced.” Id. Accordingly, the court concluded that the
“[p]laintiff has not produced or pointed to any evidence from
which a jury could reasonably conclude that the Hampstead
defendants either effectuated an unlawful arrest, or employed
excessive force in arresting or detaining the plaintiff.” Id.
The summary judgment motions of the remaining defendants are
now before the court. Plaintiff’s objection to entry of summary
judgment in Jessica’s favor is limited. In his brief in
opposition, plaintiff indicates that he “does not object to
summary judgment being entered in favor of . . . Jessica on
Plaintiff’s claim of assault and battery or on the Plaintiff’s
claims related to the Trespass Notice.” P l . Partial Objection,
doc. n o . 3 5 , at 1 . What remain for the court’s consideration are
(1) Section 1983 claims for unlawful arrest, false imprisonment,
and malicious prosecution against Jessica, Officer Pica, and the
8 Sandown Police Department;4 (2) a Section 1983 claim for
violation of procedural due process relating to the Trespass
Notice, as against the Sandown Police Department; and (3) state
law claims.5
Discussion
I. Section 1983 Claims for Unlawful Arrest and False Imprisonment
Plaintiff was arrested and detained on the charge of
knowingly violating the DVPO. See N.H. Rev. Stat. Ann. (“RSA”)
173-B:9 (“A person shall be guilty of a class A misdemeanor if
such person knowingly violates a protective order”). Plaintiff
posits that there was no probable cause to arrest and detain him
because the validity of the DVPO was, at the time, uncertain, and
4 Plaintiff does not explain how Jessica qualifies as a “state actor” for purposes of the federal constitutional claims. He argues that she “lured” plaintiff to Hampstead and “contacted the police, . . . which ultimately led to his false arrest.” Doc. n o . 36-1, at 1 2 . He does not, however, support his argument with citation to controlling authority or with analysis. Nevertheless, the court assumes, without deciding, that Jessica was a state actor. 5 It appears from plaintiff’s brief that he is no longer pursuing an excessive force claim against the Sandown defendants for the too-tight handcuffs. To the extent he i s , the court holds, as a matter of law, that Officer Pica did not use excessive force. This court has already held that the Hampstead police – who placed the cuffs on plaintiff -- are not liable for excessive force because the discomfort was brief and did not cause serious or lasting injury. Officer Pica, therefore, is also not liable for using excessive force. In fact, his involvement was actually beneficial to plaintiff, in that he loosened the cuffs at plaintiff’s request.
9 thus, plaintiff could not have knowingly violated i t . The
argument is without merit.
Plaintiff was arrested and detained pursuant to a warrant
issued by an independent and objective justice of the peace. A
facially valid warrant generally precludes an arrestee from
prevailing on a Section 1983 claim for false arrest. Williamson
v . Curran, -- F.3d --, 2013 WL 1338038, at *8 (7th Cir. April 4 ,
2013). Nevertheless, “’[t]here was (and still i s ) , . . . a
recognized exception for situations where officers responsible
for bringing about an unlawful arrest knew that the arrest
warrant had issued without probable cause.’” Id. (quoting Juriss
v . McGowan, 957 F.2d 345, 350-51 (7th Cir. 1992)). See also
Miller v . Kennebec Cnty. Sheriff's Dept., 54 F.3d 7 6 4 , 1995 WL
281644, at *2 (1st Cir. May 1 2 , 1995)(unpublished table decision)
(“The allegation that the warrant was issued by a Justice of the
Peace does not render Miller's legal theory baseless. ‘Judicial
approval of a warrant cannot serve as an absolute bar to the §
1983 liability of the officer who obtained the warrant.’”)
(quoting Briggs v . Malley, 748 F.2d 715, 721 (1st Cir. 1984),
aff'd, 475 U.S. 335 (1986).). Although not entirely clear,
plaintiff seems to argue that there is a question for the jury
regarding this exception, i.e., whether the officers involved in
10 securing the warrant (Corporal Sable) and carrying out the arrest
and detention (Officer Pica) knew that probable did not exist.6
“A police officer has probable cause when, at the time of
the arrest, the ‘facts and circumstances within the officer’s
knowledge . . . are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed . . . an offense.’” Holder
v . Town of Sandown, 585 F.3d 5 0 0 , 504 (1st Cir. 2009) (quoting
Michigan v . DeFillippo, 443 U.S. 3 1 , 37 (1979)). The undisputed
facts here establish that probable cause existed to believe that
plaintiff had knowingly violated the DVPO.
Despite plaintiff’s professed confusion about whether the
DVPO was still in effect at the time of his arrest, the
protective order did not, in actuality, cease to be enforceable
during the relevant time period. That the officers did not share
plaintiff’s belief that the family court’s temporary order
superseded the DVPO, does not change the fact that the DVPO
remained valid at all relevant times. And although Corporal
Sable knew that plaintiff had expressed to Chief Gordon, in
April, his view that the DVPO was no longer in effect (see Sable
Warrant Aff., doc. n o . 31-12), Corporal Sable also knew that
plaintiff had been informed by Chief Gordon during the same April
6 Plaintiff has not named Corporal Sable as a defendant. 11 conversation that the DVPO’s status in the law enforcement data
base had not changed, and that plaintiff would, therefore, be
subject to arrest if he had contact with Jessica. See id.
And yet, plaintiff continued to contact Jessica numerous
times, including in excess of 80 texts to her cell phone in a
single day. Although plaintiff was ultimately acquitted of the
charge of knowingly violating the DVPO, neither Corporal Sable
nor Officer Pica had “a standing obligation to investigate” the
nuances of what plaintiff understood or failed to understand
“before finding probable cause.” Acosta v . Ames Dept. Stores,
Inc., 386 F.3d 5 , 11 (1st Cir. 2004). See also Cox v . Hainey,
391 F.3d 2 5 , 34 (1st Cir. 2004)(because “the practical restraints
on police in the field are greater with respect to ascertaining
intent . . the latitude accorded to officers considering the
probable cause issue in the context of mens rea crimes must be
correspondingly great.”).
The court finds, therefore, as a matter of law, that “a
prudent person, or one of reasonable caution,” would believe, “in
the circumstances shown,” that plaintiff had knowingly violated
the DVPO. Holder, 585 F.3d at 504. Summary judgment in favor of
Officer Pica, the Sandown Police Department, and Jessica Gallant
on plaintiff’s Section 1983 claims for unlawful arrest and false
imprisonment i s , therefore, warranted.
12 II. Malicious Prosecution
Plaintiff’s Section 1983 claim for malicious prosecution is
premised on the allegation that there was no probable cause for
prosecuting him for knowingly violating the DVPO. For the same
reasons the defendants are entitled to summary judgment on the
Section 1983 unlawful arrest and false imprisonment claims, they
are entitled to summary judgment on the Section 1983 claim for
malicious prosecution.
III. Procedural Due Process Claim Against The Town of Sandown
As noted, plaintiff is pursuing his procedural due process
claim only against the Sandown Police Department. He claims that
the Town, in issuing and threatening to enforce the Notice of
Trespass, “depriv[ed] him of his real property without any
opportunity to be heard.” Am Compl., doc. n o . 1 6 , par. 5 1 .
To prevail on a procedural due process claim under Section
1983, the plaintiff must “establish that [he] (1) had a property
interest of constitutional magnitude and (2) was deprived of that
property interest without due process of law.” Clukey v . Town of
Camden, -- F.3d--, 2013 WL 2158654, at *2 (1st Cir. May 2 1 ,
2013). “To resolve” what process is due, courts “use the
familiar test laid out” in Mathews v . Eldridge, 424 U.S. 319
13 (1976). Id. at * 7 . Under the Mathews test, the court must
balances several factors: “the private interest that will be
affected by the official action; the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would
entail.” Id.
In his brief, plaintiff argues only one point relating to
his due process claim: that he has a protectable property
interest in the use of the marital home. He does not discuss the
factual or legal bases for his allegation that he was deprived of
some process due to him, nor has he identified what that process
should have been. Indeed, he makes no attempt to discuss even
the basic elements of a procedural due process claim, let alone
address the more complex balancing test of Matthews.
In short, plaintiff has not carried his burden to identify
disputed facts that would be material to his due process claim,
nor has he supportably argued that he is entitled to judgment as
a matter of law. See generally Rocafort v . IBM Corp., 334 F.3d
115, 122 (1st Cir. 2003)(“[A] party has a duty ‘to incorporate
all relevant arguments in the papers that directly address a
14 pending motion.’ . . . This duty includes . . . presenting
applicable legal authority. . . . It also includes explaining
arguments ‘squarely and distinctly.’”)(citations omitted).
Accordingly, the Sandown Police Department is entitled to summary
judgment in its favor on plaintiff’s due process claim.
IV. State Law Claims
Summary judgment being granted as to all federal claims, the
court declines to exercise supplemental jurisdiction over the
state law claims asserted in the complaint. See 28 U.S.C. §
1367(c). See also Camelio v . Am. Fed’n, 137 F.3d 666, 672 (1st
Cir. 1998).
Conclusion
For these reasons, the summary judgment motions of defendants
Jessica Gallant (doc. n o . 33) and Officer William Pica and the
Sandown Police Department (doc. n o . 3 1 ) , are granted as to all
federal claims. Plaintiff’s discovery motion (doc. n o . 46) is
denied as moot. The case, which is now comprised only of state
law claims, is remanded to the New Hampshire Superior Court
(Rockingham County). See 28 U.S.C. § 1447(c).
The Clerk of the Court shall enter judgment in accordance with
this order.
SO ORDERED.
15 May 3 1 , 2013
c c : Christine Woodman Casa, Esq. Brian J.S. Cullen, Esq. Daniel J. Mullen, Esq. Tony E . Soltani, Esq.