Gregory Lambert, as Administrator of the Estate of Harrison Lambert v. Town of Merrimack, NH

2019 DNH 171

• Court: District Court, D. New Hampshire
• Decided: September 30, 2019
• Docket: 17-cv-404-AJ
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory Lambert, as Administrator of the Estate of Harrison Lambert

v. Case No. 17-cv-404-AJ Opinion No. 2019 DNH 171 Town of Merrimack, NH

O R D E R

Plaintiff Gregory Lambert, administrator of the estate of

his son, Harrison Lambert, (the “Estate”) filed this action

bringing civil rights claims based on the Fourth Amendment

against Town of Merrimack, New Hampshire, police officers

William Gudzinowicz and Matthew Tarleton; claims under the

Americans with Disabilities Act (“ADA”) and Section 504 of the

Rehabilitation Act against the Town; and state-law claims

against all three defendants. The case was assigned to the

undersigned magistrate judge, to whose jurisdiction the parties

consented. Doc. Nos. 2, 5; see 28 U.S.C. § 636(c).

The court granted summary judgment in favor of Gudzinowicz

and Tarleton on the Estate’s civil rights claims, and the Estate

conceded summary judgment as to the state-law claims against all

three defendants. As to the Estate’s claim under the ADA, 1 the

1 As in its previous order on summary judgment, the court will refer to the ADA and Rehabilitation Act claims together as the Estate’s “ADA” claim. See Doc. No. 22 at 8 n.3; Parker v. court deferred ruling so that the parties could have an

opportunity to brief and present relevant evidence in light of

Gray v. Cummings, 917 F.3d 1 (1st Cir. 2019), in which the First

Circuit considered for the first time the interplay between the

ADA and “ad hoc police encounters with members of the public

during investigations and arrests.” See Doc. No. 22 at 20-21.

The Town has renewed its motion for summary judgment on the

Estate’s ADA claim (Doc. No. 23). The Estate opposes summary

judgment. For the reasons that follow, the Town’s motion for

summary judgment is granted.

Standard of Review

The court adopts the same standard of review in addressing

the Town’s renewed motion for summary judgment as applied in

addressing the Town’s first motion for summary judgment. Doc.

No. 22 at 2-3. In brief, the question before the court is

whether “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).

Universidad de P.R., 225 F.3d 1, 4 n.2 (1st Cir. 2000) (noting that Title II of the ADA “essentially extends the reach of [Section] 504 to state and local governmental entities that do not receive federal financial assistance.”).

2 Background 2

On September 3, 2015, Gudzinowicz and Tarleton, as well as

another Merrimack police officer, Richard McKenzie, responded to

a domestic disturbance incident at the home of Harrison and

Gregory Lambert. Dispatch reported to the officers that the

incident involved a knife, and the officers understood that the

call was related to a disturbance at the home of Harrison

Lambert, with whom the officers had prior encounters.

Because Gudzinowicz and Tarleton responded from a training

session, they carried only their firearms and wore their

training uniforms. They did not have their utility belts, which

contained “less-lethal” Taser weaponry. McKenzie, who was on

patrol duty at the time, had his utility belt and a Taser

alongside his firearm.

When the officers arrived at the home, McKenzie identified

Harrison Lambert and shouted at him to show his hands. Lambert

did not obey that command, and he shouted profanities at

McKenzie. Lambert began walking away, but he turned back. At

this time, McKenzie saw that Lambert was holding a knife, and he

shouted “drop the knife” at Lambert. Doc. No. 12-17 ¶ 9.

Tarleton and Gudzinowicz, who had by then arrived and were

2 The facts of this case are discussed in further detail in the court’s prior order on the defendants’ first motion for summary judgment. Doc. No. 22 at 3-8.

3 exiting their vehicle, also started yelling at Lambert to drop

the knife. Lambert did not comply.

The officers were positioned in a semi-circle near Lambert,

with him approximately 30 yards from Tarleton and 15 to 20 yards

from Gudzinowicz. Lambert paced back and forth, then ran at the

officers in a zig-zagging fashion, holding the knife at his side

and pointed forward. The officers continued to command Lambert

to drop the knife, but he failed to comply and instead ran

toward Tarleton. After Lambert continued to ignore the

officers’ commands to drop the knife, Tarleton and Gudzinowicz

shot Lambert. McKenzie did not use his firearm or Taser because

he believed that the likelihood of collateral damage was too

high. Less than thirty seconds elapsed between the time the

officers exited their vehicles and the time Tarleton and

Gudzinowicz began firing. Lambert died as a result of the

gunshot wounds.

Discussion

In its sole remaining claim, the Estate asserts, through a

theory of respondeat superior, that the Town is liable for its

officers’ deliberate indifference to the risk of a violation of

the ADA, namely, deliberate indifference to the need to provide

certain reasonable accommodations to Lambert during the

officers’ encounter with Lambert on September 3, 2015. The Town

4 argues that it is entitled to summary judgment because the

Estate has failed to show that the officers acted with

deliberate indifference.

In Gray v. Cummings, the First Circuit assumed, without

deciding, that a plaintiff could bring a claim of deliberate

indifference against a municipality premised on the failure of a

police officer to reasonably accommodate a person’s disability

during an ad hoc encounter that occurs in the course of an

investigation or arrest. 917 F.3d at 15-16, 18. Although the

court assumed that a plaintiff could bring such a claim, it

concluded that the facts shown by the plaintiff were

insufficient to meet the hypothetical standard it articulated

for the claim. Id.

Under that standard for deliberate indifference under the

ADA, which the court applies here for the same reasons discussed

in Gray, 3 the plaintiff must show that “the defendant knew that

an ADA-protected right was likely to be abridged, yet neglected

to take available preventative action notwithstanding such

knowledge.” Id. at 18. In the reasonable accommodation

context, this means that the defendant must have known that a

particular reasonable accommodation was necessary under the

circumstances but, nevertheless, failed to provide it. See id.

3 The Estate and the Town also apply this standard in their briefs.

5 To establish this, the defendant must have possessed

particularized knowledge about the plaintiff and his disability,

because, otherwise, the defendant cannot gauge what reasonable

accommodation is necessary under the ADA. Id.

The Town contends that the Estate has failed to show that

the officers had sufficient particularized knowledge about

Lambert’s disability to know that they were required to provide

an accommodation under the ADA. In response, the Estate asserts

that the officers’ previous encounters with Lambert, his

involuntary commitment, and their training on bi-polar disorder

creates a genuine dispute about whether the officers knew enough

about Lambert’s disability to know that they were supposed to

provide him with reasonable accommodations. Specifically, the

Estate argues that the officers knew that, instead of

surrounding Lambert and yelling, they had to approach him

carefully, monitor him from a distance, contact and wait for a

mental healthcare professional, and use nonthreatening language.

The Estate also contends that Gudzinowicz and Tarleton should

not have responded to the call without less-lethal weaponry such

as a Taser.

The court finds that Gudzinowicz, Tarleton, and McKenzie

did not have sufficient particularized knowledge about Lambert’s

disability to act with deliberate indifference to the risk of an

ADA violation. The officers did not have a sufficient basis to

6 know that, under the circumstances, the adjustments to their

tactics identified by the Estate were reasonable and necessary

accommodations under the ADA. In other words, the officers did

not know enough about Lambert’s mental disability to know “what

specific accommodation, if any, might [be] reasonable under the

circumstances.” Id. Therefore, they did not act with

deliberate indifference to the risk of an ADA violation. See

id.

At most, the evidence shows that the officers had a general

awareness that Lambert had a mental disability that caused his

behavior to be unpredictable, possibly violent, and dismissive

of authority. The officers, however, did not have sufficient

knowledge about that disability – or the factors exacerbating it

at the time – to understand how it would manifest in response to

their attempts to resolve the emergency situation. The Estate

points to the officers’ prior encounters with Lambert and their

training on mental health, but those encounters and the training

identified by the Estate provided little information to the

officers on what specific accommodations Lambert would need to

be provided in the circumstances facing them on September 3,

2015.

For example, the Estate points to a training sheet that

provides “hints” to officers for handling encounters with

individuals with mental illness. See Doc. No. 29-2 at 5. These

7 hints, however, are generalized and do not offer particularized

information relevant to all encounters. 4 Similarly, the Estate

makes a generalized argument that the officers knew to use

“nonthreatening” language, but the Estate makes no effort to

show a difference between language that would have been ADA-

compliant under the circumstances and the language that the

officers actually employed. The Estate does not identify what

the officers said to Lambert that was “threatening”, and the

record reveals only that the officers yelled at Lambert, told

him to show his hands, and told him to drop the knife.

And the officers could not leave Lambert, who they

understood to be unpredictable and violent, to his own devices

while they knew that he had a weapon. Notably, during a prior

encounter with Lambert that began after Lambert threatened his

mother with a knife, he had tried to flee from McKenzie with the

knife. Doc. No. 12-17 at 2 n.1. On September 3, 2015, the

officers were again called to Lambert’s home to deal with a

domestic disturbance involving a knife. Given the exigencies,

the Estate’s claim that the officers knew that they had to

4 Indeed, the hints suggest that officers should assess the safety of the situation, including whether the individual has a weapon or access to one and whether there are others present who might be at risk. They also suggest that officers have “adequate assistance and back-up.” Doc. No. 29-2 at 5.

8 accommodate Lambert by keeping their distance 5 and waiting for a

mental health professional fails.

The Estate attempts to evade this conclusion by arguing

that “[a] jury could . . . reject the defendants’ contention

that defendants faced exigent circumstances,” but the evidence

presented on summary judgment reveals no genuine dispute about

the exigent circumstances. 6 Doc. No. 29 at 10. Similarly, while

the Estate argues that a jury could find that the defendants

created the exigent circumstances, there is no evidence in the

record from which a jury could find that the officers or the

Town caused Lambert to threaten his father with a knife, which

was the source of the exigency relevant to the officers’ tactics

in facing Lambert. Nor could the jury, as the Estate argues,

“find that defendants perceived the risk to be greater than it

actually was since Lambert was not holding the knife up at

defendants, but down low by his waist,” because the facts before

the court show, without genuine dispute, that Lambert was

running at Tarleton with the knife blade pointed toward him.

5 The evidence in the record also does not show that the officers, in fact, failed to keep their distance from Lambert, as they estimated they were between 15 and 30 yards from him.

6 As the court informed the Estate in its order on the defendants’ first motion for summary judgment, “[t]he court will not credit ‘conclusory allegations, improbable inferences, or unsupported speculation.’” Doc. No. 22 at 19 (quoting Fanning v. Fed. Trade Comm’n, 821 F.3d 164, 170 (1st Cir. 2016)).

9 Id.

Lastly, the Estate argues that Gudzinowicz and Tarleton

acted with deliberate indifference by responding to the

encounter armed only with firearms. The Estate, however,

ignores other critical facts in the record. At the time they

responded to the dispatch, Tarleton and Gudzinowicz were on

their way to firearms training. Therefore, they did not have

their typical duty uniform, including their Tasers. Critically,

the dispatch call indicated the incident involved a knife and

suggested that it was an emergency. Even the “hints” cited by

the Estate tell officers that backup and assistance is important

when dealing with individuals with a mental disability like bi-

polar disorder. 7 For those reasons, the Estate fails to show

that Gudzinowicz and Tarleton knew that they had to accommodate

Lambert by responding to the dispatch call with less-lethal

weapons, nor was responding to the dispatch without less-lethal

weapons plainly antithetic to the ADA.

At bottom, the Estate has not presented evidence to create

a genuine dispute of fact about whether the officers acted with

deliberate indifference to the risk of an ADA violation.

Because there is no genuine dispute as to whether the officers

7The Estate offers no evidence indicating that it was otherwise unnecessary for Tarleton and Gudzinowicz to respond to the dispatch call.

10 acted with deliberate indifference, the Town is entitled to

summary judgment in its favor as to the Estate’s vicarious

liability claim.

Conclusion

For the foregoing reasons, the court grants the Town’s

motion for summary judgment (Doc. No. 23). The Clerk of Court

is directed to close the case.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

September 30, 2019

cc: Carly Marie Cengher, Esq. Lawrence A. Vogelman, Esq. Charles P. Baurer, Esq. Weston Robert Sager, Esq.