Green v. Concord Police

2000 DNH 236

• Court: District Court, D. New Hampshire
• Decided: November 1, 2000
• Docket: CV-00-344-M
• Status: Published

Opinion

Green v. Concord Police CV-00-344-M 11/01/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Debra J. Green, Plaintiff

v. Civil No. 00-344-M Opinion No. 2000 DNH 236 Concord Police Department and Merrimack County House of Corrections, Defendants

O R D E R

Pro se plaintiff, Debra Green, brings this action against

the Concord Police Department ("CPD") and the Merrimack County

House of Corrections ("House of Corrections") , seeking damages

for alleged violations of her constitutionally protected rights.

See 42 U.S.C. § 1983. Although it is difficult to say with any

precision exactly what plaintiff claims, it appears she alleges

that various employees of Merrimack County and the Concord Police

Department violated her constitutionally protected rights under

the Fourth, Fifth, and Fourteenth Amendments. Plaintiff has not,

however, named any individual defendants; her complaint

identifies only the municipal entities as defendants. The CPD moves to dismiss plaintiff's complaint, saying that

it is not a separate entity from the City of Concord and,

therefore, "does not have the capacity to be sued." CPD motion

to dismiss (document no. 3), at 2. Plaintiff has not objected to

CPD's motion.

Background

In July of 2000, plaintiff served the House of Corrections

and the CPD with a state court writ of summons (analogous to a

federal complaint), alleging that defendants violated many of her

constitutionally protected rights. The CPD (with the assent of

the House of Corrections) removed the state court action to this

forum.

Plaintiff's lengthy, handwritten complaint details a series

of events surrounding her arrest by Officers of the Concord

Police Department and her brief subseguent detention at the House

of Corrections. In it, plaintiff identifies 19 claims against

defendants, including "violation of disability rights," "unjust

cruelty," "sexual discrimination (degraded)," "unneeded excessive

2 force," "child endangerment," "personal endangerment," and

"denial of medical treatment." See generally Complaint (document

no. 2). In August of 2000, the House of Corrections moved the

court to order plaintiff to file a more definite statement,

describing with greater specificity the nature of her claims and

the underlying factual allegations supporting those claims. See

Fed. R. Civ. P. 12(e). By order dated September 15, 2000, the

court (Muirhead, M.J.) granted the House of Corrections' motion

and, pursuant to Rule 1 2 (e) , plaintiff was afforded 10 days

within which to submit a more definite statement. More than six

weeks have passed since that order was entered and, to date,

plaintiff has neither filed a more definite statement nor has she

moved to amend her complaint.

Discussion

If the allegations set forth in plaintiff's complaint are

credited as true (as they must be at this stage) , the conduct of

various employees of the defendants might easily be described as

callous and unprofessional. However, plaintiff's complaint

suffers from several legal deficiencies that must be addressed

3 before she may pursue her claims in this forum. Because

plaintiff has no formal legal training, it is not surprising that

her complaint fails to state any viable claims against the named

defendants. Nevertheless, while her pro se status entitles her

to some measure of deference, she must, as an initial matter,

file (and serve upon the appropriate defendants) a complaint that

sets forth viable, cognizable legal claims.

As to the CPD, plaintiff's claims are actually against the

City of Concord. Accordingly, if plaintiff should elect to

pursue those claims, the City must be named as a defendant and

served with a copy of an amended complaint. And, because

municipal entities cannot be liable under § 1983 on a theory of

respondeat superior, if plaintiff intends to pursue claims

against only the City and Merrimack County (rather than

individual employees of those entities), her complaint must, at a

minimum, allege that her constitutional deprivations were the

product of a municipal custom or 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.

4 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:

[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

5 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).

Conclusion

Plaintiff's complaint fails to state viable claims against

either of the named defendants. Accordingly, the CPD's motion to

dismiss (document no. 3) is granted. And, as to the House of

Corrections, plaintiff's complaint is dismissed for having failed

to comply with the court's order to file a more definite

statement. Given plaintiff's pro se status, however, the

dismissal of her complaint is without preiudice. If she can do

so consistently with the reguirements of Fed. R. Civ. P. 11,

plaintiff may file a proper complaint - one that pleads necessary

elements and supporting facts - and she may seek leave to do so

by reopening this matter. However, her motion for leave to

6 reopen and file a proper complaint (the proposed complaint must

be attached to the motion) must be filed on or before

November 30, 2000. In the meantime, this case is closed.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 1, 2000

cc: Debra J. Green R. Matthew Cairns, Esq. John A. Curran, Esq.