human, Plaintiff v. Anthony F. Colarusso, Jr., Defendant

2015 DNH 012

• Court: District Court, D. New Hampshire
• Decided: January 15, 2015
• Docket: 13-cv-296-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

human, Plaintiff

v. Case No. 13-cv-296-SM Opinion No. 2015 DNH 012 Anthony F. Colarusso, Jr., Defendant

O R D E R

Pro se plaintiff, David Montenegro (a/k/a human), brings

this action against Anthony Colarusso, in his official capacity

as Chief of Police for Dover, New Hampshire. Plaintiff claims he

was the victim of a retaliatory prosecution in violation of the

First Amendment (count one) and a malicious prosecution in

violation of the Fourth Amendment (count two). Pending before

the court is defendant’s motion for summary judgment on both of

plaintiff’s remaining claims. For the reasons discussed, that

motion is granted.

Standard of Review

When ruling on a party’s 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 112, 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 &

Aero. Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-

200 (1st Cir. 1996) (citations omitted).

This case is somewhat atypical in that plaintiff has neither

objected to defendant’s motion (his objection was due on or

before January 12, 2015), nor has he sought additional time to

file an objection. Accordingly, the court will take as admitted

the factual statements recited in defendant’s motion, as

supported by the attached exhibits. See Local Rule 56.1(b) (“All

properly supported material facts set forth in the moving party’s

factual statement may be deemed admitted unless properly opposed

by the adverse party.”). See also Puerto Rico American Ins. Co.

v. Rivera-Vazquez, 603 F.3d 125, 131 (1st Cir. 2010) (discussing

Puerto Rico’s analog to Local Rule 56.1(b), also known as the

“anti-ferret rule,” and holding that, “This type of rule is aimed

at enabling a district court to adjudicate a summary judgment

motion without endless rummaging through a plethoric record.

Given this root purpose, we have held with a regularity bordering

2 on the monotonous that parties ignore the strictures of an ‘anti-

ferret’ rule at their peril.”) (citations omitted).

Of course plaintiff’s failure to object does not

automatically entitle defendant to judgment as a matter of law.

The court must still determine whether the uncontested facts

presented by defendant, when viewed in the light most favorable

to plaintiff, entitle defendant to judgment as a matter of law.

See, e.g., Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97,

102 (1st Cir. 2003).

Background

In response to what he believed was “malfeasance in the

[Dover] police department,” plaintiff began a series of “regular

public protests, on a sidewalk in downtown Dover, condemning

police misconduct.” Complaint at 2. He says he “applied for and

received licenses for all such demonstrations,” and each was

conducted “in full compliance with all applicable state and local

law.” Id. His demonstrations, says plaintiff, prompted the

Dover Police Department to begin a campaign of harassment and

intimidation against him. One of those alleged instances of

harassment gave rise to this action.

3 On November 29, 2008, Sergeant Jeffrey Mutter and Officer

Scott Petrin of the Dover Police Department observed plaintiff in

the process of setting up one of his protests at the intersection

of Central Avenue and First Street. See Incident Report of Sgt.

Jeffrey Mutter (document no. 25-4). Plaintiff had assembled a

small folding table, with cement blocks at the bottom of its legs

to act as anchors. On the table, he rested a large red sign that

read, “Stop Police Corruption.” He also placed a tri-pod, onto

which he affixed a video camera, adjacent to the display.

Plaintiff erected his display on the edge of the sidewalk, where

it slopes downward to meet the road, at the intersection of two

pedestrian cross walks. Photographs of the scene taken by

Sergeant Mutter unmistakably show that plaintiff’s display

obstructed pedestrian traffic at that intersection, forcing

people to walk around his display to access the crosswalks. See

Incident Report at 5-9.

The officers approached plaintiff, who immediately began

video taping their interactions. According to Sergeant Mutter,

the officers’ interaction with plaintiff unfolded as follows:

Montenegro would not accept my greeting without first having his video camera on. I then extended a second greeting and handshake to introduce myself. I initiated an explanation of our presence, however Montenegro interrupted and insisted on showing me his City license prior to listening to what I wanted to explain to him and why. After viewing his license, I

4 attempted to explain that his current display location was in violation of the disorderly conduct law, specifically as the law pertained to obstructing pedestrian traffic on any public street or sidewalk.

I told Montenegro my reasons for explaining this issue was to prevent him from wasting his time and effort with setting up in a place that was clearly an obstruction of the crosswalks and to foot traffic. Montenegro insisted on relying on his licensing, referring that he had permission [to erect his display] on any part of Central Ave. within the specified time limits, and that he chose this location due to the high volume of foot traffic. I again tried to explain that although he was correct about his license, it was his location that was the issue at hand.

Id. at 4.

Sergeant Mutter then gave plaintiff examples of where he

could assemble his display without running afoul of the

disorderly conduct statute and still remain visible to the

public. He also provided plaintiff with a copy of New

Hampshire’s law on disorderly conduct, which plaintiff read in

his presence. Nevertheless, plaintiff remained insistent that he

had the right to maintain his display in its current location.

Sergeant Mutter explained that plaintiff’s interpretation of the

law was incorrect and that he had to move the display. He then

told plaintiff that he was going to take some additional

photographs of the scene and, when he returned, he was going to

give plaintiff another opportunity to relocate his display.

5 Sergeant Mutter explained that if plaintiff continued to refuse

to move his display, he would be arrested for disorderly conduct.

After taking several photographs of the scene from different

angles, Sergeant Mutter returned to plaintiff and asked if he was

willing to change the location of his display. Plaintiff said he

was not. Sergeant Mutter then instructed Officer Petrin to place

plaintiff under arrest. Plaintiff peacefully turned around,

placed his hands behind his back, and was taken into custody

without incident. His display table and personal effects were

secured and placed into Officer Petrin’s cruiser. Sergeant

Mutter explained to plaintiff that they would be taken to the

police station, and returned to him upon his release.

Subsequently, the County Attorney prosecuted plaintiff for

disorderly conduct, in violation of N.H. Rev. Stat. Ann. (“RSA”)

644:2. That statute provides that an individual is guilty of

disorderly conduct if, among other things, he or she:

Obstructs vehicular or pedestrian traffic on any public street or sidewalk or the entrance to any public building; or

* * *

Knowingly refuses to comply with a lawful order of a peace officer to move from or remain away from any public place.

6 RSA 644:2 II(c) and (e). Plaintiff was convicted in the state

district court but, upon appeal and trial de novo, he was

acquitted by a jury. Approximately three years later, he filed

this action.

Discussion

Plaintiff advances his constitutional claims against Police

Chief Anthony Colarusso, in his official capacity, asserting that

the police officers who arrested him were acting under

Colarusso’s “leadership and direction” when they (allegedly

unlawfully) arrested him. Complaint at 3. According to

plaintiff, the disorderly conduct charges against him were

“trumped-up” at the direction of Chief Colarusso, in response to

plaintiff’s lawful (and constitutionally protected) free speech.

See Id.

As noted above, two claims from plaintiff’s original

complaint remain: one for retaliatory prosecution in violation of

the First Amendment, and one for malicious prosecution in

violation of the Fourth Amendment. Those claims against the

police chief in his official capacity are, in effect, claims

against the City of Dover. See Kentucky v. Graham, 473 U.S. 159,

165–66 (1985) (“Official-capacity suits . . . generally represent

only another way of pleading an action against an entity of which

7 an officer is an agent. . . . [A]n official-capacity suit is, in

all respects other than name, to be treated as a suit against the

entity. It is not a suit against the official personally, for

the real party in interest is the entity.”) (citations and

internal quotation marks omitted) (emphasis in original).

Plaintiffs constitutional claims fail for several reasons,

all of which are throughly and capably discussed in defendant’s

supporting memorandum of law (document no. 25-1). Most

obviously, plaintiff’s claims fall short because he cannot

demonstrate that his arrest for disturbing the peace was

unsupported by probable cause - an essential element of both

claims.1

1 It probably bears noting that plaintiff was not immunized from arrest for disturbing the peace merely because he was engaged in constitutionally protected free speech. See, e.g., Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799-800 (1985) (“Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014) (“Although the government may restrict the First Amendment right to use streets for assembly and communication through appropriate regulations, that right remains unfettered unless and until the government passes such regulations. Such a restriction could take the form of a reasonable, contemporaneous order from a police officer, or a preexisting statute, ordinance, regulation, or other published restriction with a legitimate governmental purpose.”) (citation and internal punctuation omitted).

8 To prevail on either his claim for retaliatory prosecution

in violation of the First Amendment, or his claim for malicious

prosecution in violation of the Fourth Amendment, plaintiff must

first demonstrate that his arrest was not supported by probable

cause. See, e.g., Gericke v. Begin, 753 F.3d 1, 6 (1st Cir.

2014) (“In a section 1983 claim of retaliatory prosecution for

First Amendment activity, a plaintiff must prove that her conduct

was constitutionally protected and was a ‘substantial’ or

‘motivating’ factor for the retaliatory decision and that there

was no probable cause for the criminal charge.”) (citations

omitted); Hernandez-Cuevas v. Taylor, 723 F.3d 91, 100-01 (1st

Cir. 2013) (“As to the elements of such a [Fourth Amendment

malicious prosecution] claim, we join those four circuits that

have adopted a purely constitutional approach, holding that a

plaintiff may bring a suit under § 1983 (or Bivens) if he can

establish that: the defendant (1) caused (2) a seizure of the

plaintiff pursuant to legal process unsupported by probable

cause, and (3) criminal proceedings terminated in plaintiff's

favor.”) (footnote, citation, and internal punctuation omitted).

See also Hartman v. Moore, 547 U.S. 250, 266 (2006).2

2 Parenthetically, the court notes that there is some question as to whether (or under what circumstances) a plaintiff may maintain a First Amendment claim for retaliatory arrest despite the presence of probable cause. See generally Reichle v. Howards, 132 S. Ct. 2088 (2012). See also Traudt v. Roberts, 2013 WL 3754862, 2013 DNH 94 (D.N.H. July 15, 2013). But, the court need not address that issue because plaintiff’s claim for

9 In describing the concept (and contours) of “probable

cause,” the court of appeals for this circuit has noted the

following:

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, is committing, or is about to commit an offense. In determining whether the officer had probable cause, we must view the circumstances from the perspective of a reasonable person in the position of the officer. Probable cause requires only a probability that the defendant committed the crime. The test for probable cause does not require the officers’ conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable.

The question of probable cause, like the question of reasonable suspicion, is an objective inquiry. The actual motive or thought process of the officer is not plumbed. The only relevant facts are those known to the officer. When these facts are in reasonable dispute, the fact-finder must resolve the dispute. However, when the underlying facts claimed to support probable cause are not in dispute, whether those “raw facts” constitute probable cause is an issue of law that we must determine de novo.

Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009)

(citations and internal punctuation omitted). Here, the

undisputed material facts of record - including photographs of

the scene - demonstrate beyond reasonable contention that the

retaliatory arrest was dismissed by order dated September 8, 2014. Only plaintiff’s claims relating to his prosecution for disorderly conduct remain.

10 Dover police officers had probable cause to arrest plaintiff for

disturbing the peace. See RSA 644:2 II(c) and (e). Plaintiff’s

display obstructed pedestrian traffic on a public

street/sidewalk. See Incident Report at 5-9 (photographs

plaintiff’s display). Moreover, plaintiff knowingly refused to

comply with Sergeant Mutter’s (repeated) lawful requests to

relocate the display to an alternate location. Finally, while

plaintiff’s initial conviction for disorderly conduct before the

state district court holds no preclusive effect in this

litigation, see generally RSA 599:1, that the state court judge

concluded there was sufficient evidence to convict plaintiff of

that charge is certainly consistent with the conclusion that the

officers had probable cause to arrest him.3

Because plaintiff’s arrest was amply supported by probable

cause, he cannot, as a matter of law, demonstrate that either his

First or Fourth Amendment rights were violated when he was

prosecuted for disturbing the peace. Consequently, plaintiff’s

3 Notwithstanding plaintiff’s claim that he conducted his protest “in full compliance with all applicable state and local law,” complaint at 2, it is doubtful that the permit he obtained from the city was so broad in scope as to permit obstruction of pedestrian traffic at the crosswalk. But, in any event, it is plaintiff’s burden to establish that his arrest was not supported by probable cause and he has made no attempt to do so. Not only has he failed to provide the court with a copy of his permit, but he has also declined to respond to defendant’s motion for summary judgment. On this record, it is plain that the officers had probable cause to arrest plaintiff for disturbing the peace.

11 section 1983 claims against the police chief, in his official

capacity, necessarily fail. See Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (holding that “[i]f a person has suffered no

constitutional injury at the hands of the individual police

officer,” that person has no claim under section 1983 against the

officer’s municipal employer). See also Robinson v. Cook, 706

F.3d 25, 38 (1st Cir. 2013); Kennedy v. Town Of Billerica, 617

F.3d 520, 532 (1st Cir. 2010).

Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s legal memorandum, defendant’s motion for summary

judgment on all of plaintiff’s remaining claims (document no. 25)

is granted. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 15, 2015

cc: human Samantha D. Elliott, Esq.