Kelley v. City of Manchester CV-94-358-M 09/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Manchester Police Patrolman's Association and Edward J. Kelley Plaintiffs
V. Civil No. 94-358-M
City of Manchester, Fernand Gelinas, Rav Seidel, Dorothy Wageman, Peter Favreau, Donald Vandal, Paul Brodeur, Thomas King and Louis Craig Defendants
O R D E R
The Manchester Police Patrolmen's Association (the "Union")
and its president Edward J. Kelley ("Kelley") are suing the City
of Manchester, various current and former members of the
Manchester Police Department (the "MPD"), and certain members of
the Manchester Police Commission pursuant to 42 U.S.C. §1983 and
various New Hampshire statutes. Plaintiffs allege that
defendants used the MPD's disciplinary system unlawfully to
retaliate against Kelley and the Union for exercising their First
Amendment rights. Kelley and the Union argue that in doing so
defendants violated their rights to Due Process under the
Fourteenth Amendment. Defendants move for summary judgment arguing, inter alia, that as a matter of law they did not violate
plaintiffs' constitutional rights. In the alternative,
defendants claim that summary judgment should be granted because
they are entitled to gualified or absolute immunity and because
plaintiffs' claims are barred by the doctrines of res judicata
and collateral estoppel.
Plaintiffs' amended complaint (the "Complaint") is a
rambling 75 page document, containing 350 separate paragraphs
which chronicle plaintiffs' account of an alleged history of
corruption in the Manchester police department as well as
wholesale claimed deprivations of state and federal rights. The
complaint's length promises specificity and clarity but delivers
ambiguity and confusion. It has been only marginally useful as a
description of the precise nature of plaintiffs' causes of action
and the specific defendants against whom those claims are made.
Compounding that problem, in response to defendants' motion for
summary judgment, plaintiffs submitted a memorandum of law in
excess of 150 pages, containing more than 500 footnotes and
referencing exhibits which contain literally thousands of pages
of largely irrelevant documents obtained through pretrial
discovery.
2 Unfortunately, that document too is dominated by vague
anecdotes offered to support plaintiffs' allegations of
misconduct in the MPD, but provides little specific factual and
legal support for their claims.
Background
Reducing the complaint and other pleadings to readable form,
the facts pertinent to this matter appear to be as follows. In
1990, Kelley was elected president of the Union. In that
capacity, Kelley had a great deal of contact with supervisory
personnel of the MPD. The Complaint recites numerous incidents
which plaintiffs claim demonstrate the acrimony between Kelley
and former police chief Louis Craig, current chief Peter Favreau,
and other MPD supervisory personnel. The gravamen of the
plaintiffs' Complaint, however, rests primarily on two events
which eventually led to Kelley's being disciplined for violations
of the MPD's Rules and Regulations.
A. The Boisvert/Colbath Incident
In the early morning hours of August 3, 1993, a prominent
New Hampshire liguor broker, Robert Colbath, was arrested for
driving while under the influence of alcohol. After being taken
3 to a Manchester police station, Colbath called Roger Boisvert,
then a Manchester Police Commissioner and New Hampshire Liquor
Commissioner. Colbath was charged with speeding and was released
to the custody of Boisvert. The next day, after news media asked
about the episode, the MPD began an internal affairs
investigation into the matter.
While that investigation was ongoing Kelley openly
criticized Chief Craig and other supervisory personnel. For
example, in the August 5, 1993, edition of the Manchester Union
Leader newspaper Kelley is quoted as having said in reference to
the Colbath matter: "When you're in trouble, it's who you know.
When you know the right people you walk." Kelley also discussed
the internal affairs investigation for the Union Leader. In the
August 6th edition he is quoted as stating that the officer who
arrested Colbath, James Flanagan, was under "extreme pressure"
from superiors to drop the driving while intoxicating charge
against Colbath. On August 7, the newspaper reported that Kelley
stated, "What took place is good ol' boys politics. . . .It's
gone on for years, contrary to what Craig says."
4 On August 9, 1993, Craig, through then-Deputy Chief Favreau,
notified Kelley that he was being charged with five violations of
the MPD Rules and Regulations. The notice alleged that Kelley
made improper public statements, improperly released information
concerning the business of the MPD, removed records from the MPD
and provided them to the press, feigned illness, and gave false
information regarding extra detail work he had performed earlier
that summer. The August 9, 1993, charges also contained the
following special instruction:
You are hereby ordered to refrain from divulging to any unauthorized person, in or out of the Department, any information concerning the business of the Department unless authorized by the chief of police.1
1 The charges relating to improper public statements and releasing information related to the business of the MPD, as well as the instruction not to divulge information concerning department business, were brought pursuant to the following regulations:
22. Dissemination of Information - A member or employee of the Department shall not divulge to any unauthorized person, in or out the Department, (i.e. one who does not have an official "need to know") any information concerning the business of the Department and shall not talk for publication, be interviewed, make public speeches on business or impart information relating to the official business of the Department unless authorized by the Chief.
23. Public Statements - Public derogatory or disrespectful statements which tend to undermine the efficiency or the morale of the Department, or statements which may subvert
5 The next day, August 10, 1993, the MPD charged Kelley with
"discourtesy to a superior officer." That charge also specially
instructed Kelley to remain silent regarding MPD business,
including the charges against him. This "gag order" was
eventually lifted three days later, after Kelley and the Union
sought and obtained the intervention of the Manchester City
Solicitor.
On October 13 and 14, 1993, more disciplinary charges were
brought against Kelley relating to "disrespect to a superior
officer" and record keeping violations stemming from traffic
stops Kelley made during September of 1993. On January, 24, 25
and 28, 1994, an MPD disciplinary hearing board, chaired by
defendant Vandal, met to consider the accumulating charges
against Kelley. Kelley pled guilty to two charges of failure to
public confidence in the Department are prohibited.
Manchester Police Department Rules & Regulations at R-l-17. The form by which Kelley was notified of the charges made against him contained the preprinted admonition not to divulge information concerning MPD business without prior authorization. That admonition is consistent with Rule 23 of the MPD Rules and Regulations by which the Union and its members specifically agreed to be bound when they executed the collective bargaining agreement. See Exh. B to defendants' motion for summary Judgment, Article 25.
6 file timely reports and agreed to accept four days' unpaid
suspension from duty as punishment. The Board recommended to
Chief Craig that Kelley, who was represented by counsel, be found
guilty of two counts of discourteous behavior to a superior
officer and recommended dismissal of the remaining charges. The
Board also recommended that Kelley be suspended for a period
ranging from two to eight weeks. On Sunday, January 30, 1994,
the day before Chief Craig's previously announced retirement
date, Kelley was summoned to MPD headguarters to receive Craig's
disciplinary decision.
Chief Craig accepted the Board's recommendation as to guilt
but, in light of Kelley's past disciplinary record,2 determined
the appropriate sanction to be a 34 day suspension without pay
and termination. Craig suspended the termination, subject to
the following conditions: that Kelley seek and obtain counseling;
that the counselor find Kelley fit for duty; and that Kelley
commit no other infractions of the MPD Rules and Regulations
within one year.
2 Kelley has a history of disciplinary problems, ranging from fairly minor incidents like filing illegible reports to more substantial transgressions like neglect of duty, insubordination, and use of unnecessary force. See Plaintiffs' Exhibits 32 and 38 .
7 Kelley, again represented by counsel, appealed the Board's
decision to the Manchester Police Commission, as was his right
under applicable MPD disciplinary procedures.3 On April 14, 15,
and 22 the Commission, comprised of defendants Gelinas, Wageman,
and Seidel, heard Kelley's appeal. Ultimately, the Commission
upheld the Disciplinary Board's and Chief Craig's rulings as to
guilt, but reduced the punishment to a two-week suspension
without pay.
3 The MPD Rules and Regulations provide:
Appeal Options - Every member upon receipt of formal charge and pacifications [sic], presented to him by the Administrative Division or the Chief's designee will be advised of the following options:
1. Chief of Police summary punishment 2. Disciplinary Board 3. Police Commission Review 4. Superior Court •k -k -k
Superior Court
If a member is dissatisfied with the findings and punishment of the Chief of Police, the Disciplinary Board and the Police Commission, the member has the right to appeal to the Superior Court.
Defendants' Exhibit A, at A-19-14 & 16. Again, Kelley exercised his rights under the MPD
disciplinary procedures and appealed the Commission's decision to
the New Hampshire Superior Court. The Superior Court exercised
certiorari jurisdiction and on January 10, 1995, held a hearing
on the merits of Kelley's petition. As in this case, Kelley
argued that he was the "victim of retaliatory disciplinary
charges 'as a result of the actions he took pursuant to his
position as the President of the Manchester Patrolman's
Association and in furtherance of his obligation to assure that
the rights of his members are protected.'" Kelley v. City of
Manchester, No. 94-E-170, slip op. at 1 (Hillsborough Cty. Sup.
C t ., January 20, 1995) ("Kelley I"). Kelley also claimed that he
had been denied due process, in violation of the state and
federal constitutions. The court concluded, however, that Kelley
had failed to establish that the MPD disciplinary process was
tainted by conflicts of interest or a lack of procedural due
process :
The petitioner raises a number of issues in connection with his reguests for eguitable relief. Those issues fall into two categories: He first claims that disciplinary board members and the Commission appeal board members had conflicts of interest and were biased against him; he next claims that the disciplinary process deprived him of his rights to procedural due process. The Court has carefully reviewed all of the materials submitted by the parties, including the entire transcript of the disciplinary board hearing. Based upon this review, and after consideration of the parties' arguments, I find that the disciplinary process was not tainted by either conflict of interest, or lack of procedural due process. Petitioner has failed to demonstrate that any of the members of the disciplinary hearing board or the Commission appeal board had any direct personal or pecuniary interest in the proceedings, had any other disgualifying conflict of interest, or was biased or []partial. Petitioner received a full and fair hearing by both the disciplinary board and the Commission appeal board. He received adeguate notice of the charges, he was provided meaningful opportunity to be heard, he was given fair and adeguate opportunity to present evidence and cross-examine the witnesses against him, he was given ample opportunity to argue his position, and the disciplinary decisions were supported by the evidence.
Kelley v. City of Manchester, at 3-4. Additionally, the court
found that, contrary to Kelley's claim, his employment as a
police officer was not effectively terminated as a result of the
disciplinary action taken against him. I_d. at 10 (granting
Respondents' reguest for findings of fact no. 38). The court
then concluded that:
the respondents have not acted illegally concerning their jurisdiction, authority or observance of the law, and that they have not abused their discretion or acted arbitrarily or capriciously.
10 Id. at 10. Although Kelley attempted to appeal the Superior
Court's decision to the New Hampshire Supreme Court, that appeal
was dismissed because it was not filed in a timely fashion.
B. Union Demonstration
The second principal episode underlying this dispute
involves a gathering by Union members which took place on March
27, 1994. The Union, concerned about proposed changes in
Manchester City ordinances which would have allowed private
"flag" companies to work roadside details, gathered between 30
and 80 of its off-duty members outside the homes of the Mayor of
Manchester and certain city Aldermen to voice their opposition to
the proposed changes.
At some point during the demonstration, Kelley received
notice that he was to contact the Officer in Charge (the "OIC")
immediately. He claims that, after attempting to have another
Union member contact the OIC and trying unsuccessfully to contact
the OIC himself, he eventually spoke with the OIC. On April 22,
1994, Chief Favreau brought a charge of "insubordination" against
Kelley for failing to return the QIC's phone call during the
11 demonstration.4 On September 6 , 1994, the MPD disciplinary Board
held a hearing on the insubordination charge and an unrelated
"discourtesy" charge. On October 5, 1994, the disciplinary Board
recommended that Kelley receive a 10 day, unpaid suspension on
the insubordination charge and a written reprimand on the
"discourtesy" charge.
Chief Favreau did not accept the Board's recommendation and
instead suspended Kelley for 30 days and held another 120 days of
suspension in abeyance. Unlike the prior disciplinary
suspension, Kelley was ordered to begin this suspension
immediately. Although he initially appealed Favreau's decision
to the Superior Court, Kelley ultimately non-suited that action
("Kelley II") .
4 The facts underlying the Union demonstration and forming the basis of the insubordination charge are discussed more fully in the decision issued by the New Hampshire Public Employee Labor Relations Board on November 3, 1994. Manchester Police Patrolmen's Association v. City of Manchester, No. P-0706:26 (the "PELRB Order"). In response to disciplinary charges being filed against Kelley following the Union's demonstration, the Union filed a complaint with the PELRB, alleging that the city had committed unfair labor practices. After conducting a hearing and considering all evidence presented by the parties, the PELRB concluded, however, that the city had not committed unfair labor practices and dismissed the complaint. Specifically, the PELRB held that "the union was unable to prove that the purpose of the attempted inguiry of Kelley was to disrupt organized union activities." PELRB Order at 4. See Defendants' Exhibit I.
12 Standard of Review
Summary Judgment is appropriate when the record reveals "no
genuine issue of material fact and ... the moving party is
entitled to a judgement as a matter of law." Fed.R.Civ.P. 56(c) .
In ruling on the 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. Griqqs-Rvan v. Smith, 904 F.2d
112, 115 (1st Cir. 1990).
The moving party has the burden of demonstrating the absence
of a genuine issue of material fact for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) . If the moving
party carries its burden, the party opposing the motion must set
forth specific facts showing that there remains a genuine issue
for trial, demonstrating "some factual disagreement sufficient to
deflect brevis disposition." Mesnick v. General Electric Co.,
950 F.2d 816, 822 (1st Cir. 1991), cert, denied, 504 U.S. 985,
(1992). See also Fed.R.Civ.P. 56(e). This burden is discharged
only if the cited disagreement relates to a genuine issue of
material fact. Wynne v. Tufts University School of Medicine, 976
F.2d 791, 794 (1st Cir. 1992), cert, denied, ___ U.S. , 113
13 S.Ct. 1845 (1993). "In this context, 'genuine' means that the
evidence about the fact is such that a reasonable jury could
resolve the point in favor of the nonmoving party [and]
'material' means that the fact is one that might affect the
outcome of the suit under the governing law." United States v.
One Parcel of Real Property with Bldqs., 960 F.2d 200, 204 (1st
Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) ) .
For the reasons set forth below, plaintiffs' counts fail on
one or more grounds. With regard to some, they simply fail to
state a cognizable cause of action. With regard to others,
defendants are entitled to summary judgment. And, finally, many
defendants are entitled to the protections afforded by gualified
immunity. Accordingly, defendants' motion for summary judgment
is granted.
Discussion
I. Preliminary Matters.
Plaintiffs' memorandum of law in opposition to defendants'
motion for summary judgment states that, "[b]y agreement of
counsel. Defendants Machos, King and Brodeur have been non-suited
14 without prejudice." I_d. at 2 n.l. To date, however, plaintiffs
have only filed the appropriate papers to non-suit (more
accurately "voluntarily dismiss") defendant Machos.
Nevertheless, based upon plaintiffs' representations that these
defendants have been (or will be) "non-suited," the court will
not address the counts pending against defendants King and
Brodeur, which are hereby dismissed without prejudice. See
Fed. R. Civ. P. 41.
With regard to Counts 7 and 16, Kelley and the Union allege
that they were denied their rights to free expression, in
violation of N.H. RSA 98-E:l and 2. Those chapters provide, in
pertinent part:
98-E:l Freedom of Expression. Notwithstanding any other rule or order to the contrary, a person employed by the state in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning the state and its policies. . .
98-E:2 Interference Prohibited. No person shall interfere in any way with the right of freedom of speech, full criticism or disclosure by any state employee.
(emphasis added). Plaintiffs do not allege that Kelley or any
Union members are state employees. Nor have they provided any
15 pertinent authority to support their claim that, despite the
plain and unambiguous language of this statute, it applies not
only to state employees, but to municipal employees as well.
Plaintiffs' reliance upon Appeal of Exeter, 126 N.H. 685 (1985),
for the proposition that, "the freedom of expression guarantee of
RSA 98-E applies to employees of the state, including . . .
municipalities," Memorandum in Opposition to Summary Judgment at
145, is, at best, unsupported. In the absence of any legitimate
precedents supporting plaintiffs' position, the court will not
enlarge upon the New Hampshire Legislature's precise language to
infer an intention to also provide municipal employees the type
of statutory protections afforded to state employees. A federal
court called upon to apply state law must "take state law as it
finds it: 'not as it might conceivably be, some day; nor even as
it should be.'" Kassel v. Gannett Co., 875 F.2d 935, 950 (1st
Cir. 1989) (guoting Plummer v. Abbott Laboratories, 568 F.Supp.
920, 927 (D.R.I. 1983)). When state law has been authoritatively
interpreted by the state's highest court, this court should apply
that law according to its tenor. Kassel, 875 F.2d at 950. Where
the signposts are blurred, the federal court may assume that the
state court would adopt an interpretation of state law that is
consistent with logic and supported by reasoned authority.
16 Moores v. Greenberg, 834 F.2d 1105, 1107 n.3 (1st Cir. 1987).
However, this court is and should be hesitant to blaze new,
previously uncharted state-law trails. Expansive reading of New
Hampshire statutes and recognition of novel causes of action
under those statutes is a practice best left to the New Hampshire
Supreme Court. Counts 7 and 16 are dismissed for failure to
state a claim upon which relief might be granted.
Finally, at page 112 of plaintiffs' memorandum, they
acknowledge that Counts 8 and 17 of the Complaint fail to state a
claim upon which relief might be granted. Accordingly, Counts 8
and 17 are dismissed.
II. Res Judicata and Collateral Estoppel.
The federal full faith and credit statute, 28 U.S.C. §1738,
commands federal courts to employ state rules of res judicata
when determining the preclusive effect, if any, to be given to a
state court determination. In Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373 (1985), the Supreme Court
held:
The preclusive effect of a state court judgment in a subseguent federal lawsuit generally is determined by
17 the full faith and credit statute, which provides that state judicial proceedings "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. §1738. This statute directs a federal court to refer to the preclusion law of the state in which judgment was rendered. "It has long been established that §1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken."
Id. at 380 (citations omitted). Accordingly, the court will
apply the principles of res judicata and collateral estoppel as
developed by the New Hampshire Supreme Court.
"The doctrine of res judicata precludes the litigation in a
later case of matters actually litigated, and matters that could
have been litigated, in an earlier action between the same
parties for the same cause of action." In re Alfred P ., 126 N.H.
628, 629 (1985) (citations omitted). "In order for res judicata
to apply to a finding or ruling, there must be 'a final judgment
by a court of competent jurisdiction [that] is conclusive upon
the parties in a subseguent litigation involving the same cause
of action.1" In re Donovan, 137 N.H. 78, 81 (1993) (guoting
Marston v. U.S. Fidelity & Guaranty Co., 135 N.H. 706, 710
18 (1992)). "The term 'cause of action1 means the right to recover,
regardless of the theory of recovery." Eastern Marine Constr.
Corp. v. First S. Leasing, 129 N.H. 270, 274 (1987) (citations
omitted).
Collateral estoppel is a related doctrine which "precludes
the relitigation by a party in a later action of any matter
actually litigated in a prior action in which he or someone in
privity with him was a party." In re Alfred P ., 126 N.H. 628,
629 (1985). "While collateral estoppel does not reguire an
identity of the earlier and later causes of action, it precludes
the relitigation only of issues actually raised and determined in
the earlier litigation." Morqenroth & Associates v. State, 126
N.H. 266, 270 (1985).
Three conditions must be met before collateral estoppel can
arise: "The issue subject to estoppel must be identical in each
action, the first action must have resolved the issue finally on
the merits, and the party to be estopped must have appeared as a
party in the first action, or have been in privity with someone
who did so. These conditions must be understood, in turn, as
particular elements of the more general reguirement, that a party
19 against whom estoppel is pleaded must have had a full and fair
prior opportunity to litigate the issue or fact in guestion."
Daigle v. City of Portsmouth, 129 N.H. 561, 570 (1987).
"Normally, decisions of administrative agencies are entitled
to res iudicata effect when the agency acted in a judicial
capacity." Aunvx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 7 (1st
Cir. 1992) (citing University of Tennessee v. Elliott, 478 U.S.
788, 797-98 (1986)), cert, denied, ___ U.S. ___, 113 S. C t . 1416
(1993). See also Morin v. J.H. Valliere Co., 113 N.H. 431, 434
(1973) ("Res judicata has been applied to a decision of an
administrative agency, . . . which is rendered in a judicial
capacity and resolves disputed issues properly before it which
the parties have had an adeguate opportunity to litigate.") .
To the extent that res judicata and/or collateral estoppel
preclude litigation of some of Kelley's causes of action in this
forum, the Union is likewise barred from litigating its claims
which arise directly out of those of Kelley. Stated differently,
the Union, as representative of its members, including Kelley,
cannot maintain an action if the underlying conduct upon which it
depends (1) relates exclusively to claims made by Kelley or
20 conduct directed solely against Kelley; and (2) those claims of
Kelley are barred by res judicata or collateral estoppel. Here,
after carefully reviewing plaintiffs' pleadings and factual
allegations in support of their claims, the court is unable to
identify any claims filed by the Union which do not arise
directly from alleged deprivations of Kelley's state or federal
rights.5 Accordingly, the Union's claims are barred by the
doctrines of res judicata and/or collateral estoppel to the same
extent as are those of Kelley.
Although certain named defendants were not parties to the
state court proceedings, they are entitled to contend that
collateral estoppel precludes relitigation of legal and factual
matters already resolved. See, e.g., Rathgeb v. Carlinville Bd.
5 The only factual allegation contained in the Complaint which arguably relates to Union members other than Kelley is set forth in paragraph 193, in which plaintiffs allege that:
All Union Member [sic] interviewed, except Kelley, were advised that they were not the "target" of the internal affairs investigation [following the Union demonstration] and the wearing of uniforms at the demonstration was not the concern of the internal affairs investigation. Based on this assurance by the investigator. Union Members were forbidden Union representation.
However, plaintiffs have failed to link this allegation of impropriety to any of their specific causes of action.
21 of Police Comm'rs, No. 90-3180, 1993 U.S. Dist. LEXIS 18034 (C.D.
111. May 28, 1993), aff'd without op. 14 F.3d 604 (7th Cir.
1993). Factual and legal issues that were fully and finally
decided at the administrative or state level will not be
relitigated in this forum. Here, the interests of the Manchester
Police Commission and Manchester Police Department (defendants in
Kelley I and Kelley II) cannot be disassociated from the
interests of the individual members of those entities, who are
named defendants in this action. While "privity is an elusive
concept," Griffin v. Burns, 570 F.2d 1065, 1071 (1st Cir. 1978),
the court is persuaded that the relationship between the Police
Commission and Police Department and the individually named
defendants is sufficiently close in the context of this case to
permit the defendants to rely upon factual and legal
determinations made in the context of the disciplinary hearings.
See N.L.R.B. v. Donna-Lee Sportswear Co., 836 F.2d 31, 34-35 (1st
Cir. 1987) (discussing the concept of "privity" as applied in the
context of issue preclusion.).
Counts 3 and 12. It is unclear from plaintiffs' pleadings
whether they claim to have been deprived of procedural or
substantive due process (or both). Count 12 (Kelley's claim to
22 have been deprived of due process) is, to the extent that it
asserts deprivations of procedural due process and rests upon
incidents relating to his discipline following the Colbath
incident and the Union demonstration, precluded by the doctrines
of res judicata and collateral estoppel. It would however,
survive preclusion to the extent that it stated a cause of action
not related to those events. However, the court is unable to
identify any alleged events unrelated to the Colbath incident and
Union demonstration, which would support plaintiffs' claims in
Count 12.
Likewise, Count 3 (the Union's claimed deprivation of due
process) is necessarily dismissed as barred by the doctrines of
res judicata and collateral estoppel. In Kelley I, the state
court conclusively determined that Kelley (and, by extension, the
Union, to the extent its claims are based on Kelley's) was not
deprived of due process at any stage of the disciplinary process
following the Colbath incident. And, because Kelley elected not
to pursue his appellate rights in Kelley II, the findings of the
appellate Board became final and not subject to the type of
collateral attack presented here.
23 To the extent that plaintiffs claim to have been deprived of
substantive due process, defendants are entitled to judgment as a
matter of law. As the court of appeals for this circuit has
noted:
[A] substantive due process claim implicates the essence of state action rather than its modalities; such a claim rests not on perceived procedural deficiencies but on the idea that the government's conduct, regardless of procedural swaddling, was in itself impermissible. Stating the proposition does not cabin it very well. It has been said, for instance, that substantive due process protects individuals against state actions which are "arbitrary and capricious," or those which run counter to "the concept of ordered liberty," or those which, in context, appear "shocking or violative of universal standards of decency."
. . . Word play aside, we agree with Judge Friendly that, in the circumscribed precincts patrolled by substantive due process, it is only when some basic and fundamental principle has been transgressed that "the constitutional line has been crossed."
Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (citations
omitted) cert, denied, 498 U.S. 1041 (1991). Here, plaintiffs
have not demonstrated that the "constitutional line" has been
crossed or even approached, nor have they shown that there are
any genuine issues of material fact which would preclude the
granting of defendants' reguest for summary judgment.
24 Counts 9 and 18 - Public Corruption. Similarly, Counts 9
and 18 (alleging that Kelley and the Union were deprived of egual
protection and due process as a result of defendants' alleged
corruption) are barred by res judicata and collateral estoppel.
These counts rest upon plaintiffs' allegation that, "Defendants,
through their agents and employees, . . . have authorized,
supervised, instigated, condoned or participated in improper,
unethical and illegal activities . . . [in] a pattern of
corruption." Complaint, 55296 and 323. However, the court in
Kelley I specifically ruled that, "respondents have not acted
illegally concerning their jurisdiction, authority or observance
of the law, and that they have not abused their discretion or
acted arbitrarily or capriciously." Kelley I, Order at 10. It
also found that Kelley failed to sustain his claim that he was
the victim of retaliatory disciplinary charges. Accordingly,
Kelley and the Union are estopped from alleging that Kelley was
denied due process or selectively disciplined in an effort to
punish him for exercising rights protected by the First
Amendment.
For the reasons set forth above, defendants are entitled to
judgment as a matter of law with regard to plaintiffs' claims of
25 denial of due process. With regard to plaintiffs' allegations
that they were denied egual protection, the Court of Appeals for
the First Circuit has held that liability for such a deprivation
will attach only upon:
proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.
Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of
Selectmen, 878 F.2d 16, 21 (1st Cir. 1989) (citations omitted).
Plaintiffs have failed to establish that these conditions could
be shown. They simply declare that defendants engaged in
"actions which were designed to benefit the Defendants and
provide favored treatment of one segment of society versus
another segment of society." Complaint at 5293. They do not
identify which "segments of society" are being benefitted at the
expense of others, nor do they specifically state who might
comprise these amorphous "segments of society," nor have they
provided affidavits or other evidence which would suggest that
any form of discrimination or selective treatment "based on
impermissible considerations" has taken place. Yerardi's , 878
26 F.2d at 21; see Covne v. Somerville, 972 F.2d 440, 444-45 (1st
Cir. 1992).
Finally, plaintiffs have failed to substantiate their vague
assertion that this alleged discrimination is the product of some
practice, custom, or unwritten policy of the city or the MPD.
Without more, plaintiffs' conclusory allegations are insufficient
to state a claim against the city or its individual officers sued
in their official capacities. Monell v. Department of Social
Servs., 436 U.S. 658 (1978). See also Jones v. Rhode Island, 724
F.Supp. 25, 32 (D.R.I. 1989); Zralka v. Tures, 708 F.Supp. 94 8,
950 (N.D. 111. 1989).
III. State Constitutional Torts.
Counts 4-6 and 13-15. Plaintiffs' argue that, despite the
New Hampshire Supreme Court's opinion in Rockhouse Mountain
Property Owners Ass'n v. Conway, 127 N.H. 593 (1986), these
counts state recognized and viable Bivens-type causes of action
for alleged violations of their state constitutional rights. The
court disagrees. In fact, less than one year ago this court
(Devine, J.) held that in the absence of clear guidance from the
New Hampshire Supreme Court, it will not recognize a cause of
27 action for alleged violations of rights guaranteed by the New
Hampshire Constitution:
[Plaintiffs] claim a right to damages in Count I based on a violation of the New Hampshire Constitution's egual protection clause. . . . The law in this circuit is that a plaintiff who chooses the federal forum cannot expect a federal court to break new ground in recognizing rights under state law that have not yet been identified by the state's own courts. Since the New Hampshire Supreme Court has so far declined to recognize an implied right to damages for violations of the P t . 1, Article 14 of the state's constitution, I grant defendants' motion to dismiss this claim.
Penney v. Town of Middleton, 888 F.Supp. 332, 242 (D.N.H. 1994)
(citations omitted). Accordingly, for the reasons set forth in
Penney, plaintiffs' counts which claim a right to recover damages
for alleged violations of New Hampshire constitutional guarantees
of free speech, freedom of association, and due process (Counts
4, 5, 6, 13, 14, and 15) are dismissed.
IV. Violations of Free Speech and Freedom of Assembly.
Counts 1, 2, 10 and 11. For the purpose of addressing
defendants' claims of immunity, the court will assume (without
deciding) that plaintiffs' speech concerning the Colbath incident
and the Union demonstration addressed matters of public concern
and was, therefore, protected speech. See Rankin v. McPherson,
28 483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983);
Pickering v. Board of Educ., 391 U.S. 563 (1968); O'Connor v.
Steeves, 994 F.2d 905 (1st Cir.) cert, denied sub nom., Town of
Nahant v. O'Connor, ___ U.S. ___ , 114 S.Ct. 634 (1993) .
The doctrine of qualified immunity provides that,
"government officials performing discretionary functions,
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) . This
doctrine recognizes that "officials can act without fear of
harassing litigation only if they reasonably can anticipate when
their conduct may give rise to liability for damages." Davis v.
Scherer, 468 U.S. 183, 195 (1984). "[WJhether an official
protected by qualified immunity may be held personally liable for
an allegedly unlawful official action generally turns on the
'objective legal reasonableness1 of the action, . . . assessed in
light of the legal rules that were 'clearly established1 at the
time it was taken." Anderson v. Creighton, 483 U.S. 635, 639
(1987). As the Court of Appeals for the First Circuit has
cautioned, however:
29 [I]n assessing a claim of qualified immunity, it is not sufficient for a court to ascertain in a general sense that the alleged right existed, otherwise "plaintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply be alleging violation of extremely abstract rights."
Borucki v. Ryan, 827 F.2d 836, (1st Cir. 1987) (quoting Anderson,
483 U.S. at 639). "To be 'clearly established,1 the 'contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.1"
Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 228 (1st Cir.
1992) (quoting Anderson v. Creighton, supra, at 640)). "The
determination whether or not a party is entitled to qualified
immunity is a legal decision and it is reserved for the court."
Whiting v. Kirk, 960 F.2d 248, 250 (1st Cir. 1992) .
Plaintiffs do not allege that defendants failed to adhere to
any of the procedural rules set forth in the MPD's Rules and
Regulations with regard to the disciplining of Kelley.6 Instead,
6 Importantly, plaintiffs specifically agreed to abide by these Rules and Regulations when they ratified the collective bargaining agreement with the City of Manchester. That agreement provides:
Rules and Regulations The Rules and Regulations of the Manchester, New Hampshire Police Department which are now in
30 they allege that defendants enforced these procedures
selectively, in an effort to chill plaintiffs' exercise of their
constitutional rights. Again, however, plaintiffs are bound by
the court's rulings in Kelley I (and by Kelley's dispositive
withdrawal of the appeal in Kelley II) that defendants' conduct
in disciplining Kelley was not illegal, ultra vires, arbitrary,
or capricious, and that Kelley was not the subject of retaliatory
discipline.7
In light of the court's findings in Kelley I and those in
the PELRB Order, the court finds that reasonable officials in
defendants' position would not have believed that by disciplining
effect or as may be amended by the Police Commission shall be the prime governing factor in the conduct and actions of all police officers and every police officer shall be thoroughly conversant with them.
Exh. B to defendants' motion for summary judgment, at 525.1
7 Additionally, as noted above, in Manchester Police Patrolmen's Ass'n v. City of Manchester, No. P-0706:26 (November 3, 1994), the New Hampshire Public Employee Labor Relations Board heard the Union's charges that the City had engaged in unfair labor practices during and following the Union demonstration. Specifically, the union charged that the inguiry into Kelley's conduct during the demonstration and the attempts to contact him were made in an effort to disrupt organized union activities. The Board specifically found that the Union and Kelley failed to sustain those allegations, concluding that "we find no restraint or coercion resulting from the several supervisory attempts to reach and speak with Kelley by telephone." I_d. at 5.
31 Kelley for conduct prohibited by the MPD rules and regulations
they would be violating his clearly established constitutional
rights. Simply because Kelley alleges that he has been
disciplined for making public comments about the MPD does not
compel the conclusion that defendants should have known that
their conduct violated Kelley's clearly established rights. See,
e.g., O'Connor v. Steeves, 994 F.2d at 912 (a government employee
may be discharged for public speech if such speech unduly impedes
the government's interest in the efficient performance of the
public service it delivers through its employees); Miller v.
Hull, 878 F.2d 523, 532 n. 13 (1st Cir.) ("discharging a
government employee because of his speech on matters of personal
interest, or because of speech that disrupts his agency's work
does not necessarily violate the First Amendment.") (citing
Connick v. Myers, 461 U.S. 138 (1983)), cert, denied, 493 U.S.
976 (1989). Moreover, when they ratified the collective
bargaining agreement with the City, Kelley and the other Union
members specifically agreed:
not to divulge to any unauthorized person, in or out of the Department, (i.e., one who does not have an official "need to know") any information concerning the business of the Department and shall not talk for publication, be interviewed, make public speeches on police business or impart information relating to the
32 official business of the Department unless authorized by the Chief.
MPD Rules and Regulations, para. 22. So, even if defendants
believed that Kelley was being disciplined exclusively for having
revealed internal information to the media, there was no reason
for them to believe that such discipline would violate any of
Kelley's clearly established rights. See, e.g., Leonard v.
Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (through provisions in
agreement between Union and its members and the city, union may
voluntarily relinguish First Amendment rights).
Defendants Gelinas, Wageman, and Seidel (members of the
police commission and the disciplinary board of appeals), former
Chief Craig, and Chief Favreau are entitled to the protections
afforded by gualified immunity. They were, in the context of
this suit and the factual allegations underlying plaintiffs'
claims, governmental officials performing discretionary (i.e.,
disciplinary and internal appellate review) functions.
Plaintiffs have failed to point to any genuine issues of material
fact which would preclude the court from finding that these
defendants did not violate plaintiffs' clearly established
constitutional rights. Simply asserting that Kelley was
33 disciplined following his exercise of free speech is insufficient
to state a cause of action or establish that the rights allegedly
violated by defendants were "clearly established." Here,
defendants could not reasonably have known that their
participation in the disciplinary process, by which the Union and
its members agreed to be bound (and which the state court found
was neither unlawful nor retaliatory) was likely to violate
Kelley's clearly established rights.
As to the City of Manchester, plaintiffs have failed to
provide the court with any tangible support for their claim that
the alleged retaliation taken against Kelley was the product of
some practice, custom, or unwritten policy of the city or the
MPD. See Monell v. Department of Social Servs., 436 U.S. 658
(1978). In the absence of some indication of municipal direction
via a policy, practice or custom, and given that a respondeat
superior cause of action is not cognizable under §1983, Horta v.
Sullivan, 4 F.3d 2, 13 (1st Cir. 1993), the city is entitled to
summary judgment.
V. State Defamation Claims.
34 Having granted defendants' motion for summary judgment with
regard to Counts 1 through 18, the court declines to exercise
supplemental jurisdiction over plaintiffs' state defamation
claims (Counts 19 and 20). The court, of course, makes no ruling
on the viability of those state claims, which are dismissed
without prejudice to plaintiffs' right to pursue them in state
court. 28 U.S.C. §1367(c)(3); United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966) .
Conclusion
For the foregoing reasons, the court holds that defendants
are entitled to judgment as a matter of law with regard to
(and/or dismissal of) Counts 1 through 18. With regard to Counts
19 and 20, the court will decline to exercise supplemental
jurisdiction over these state law claims and shall dismiss them
without prejudice. To summarize:
The individually named defendants are entitled to gualified immunity from liability on plaintiffs' claims as set forth in Counts 1, 2, 10, and 11, and the City of Manchester is entitled to judgment as a matter of law on those counts;
Counts 3 and 12 are dismissed as barred by the doctrines of collateral estoppel and/or res judicata.
Counts 4 through 9 and Counts 13 through 18 are dismissed because they fail to state a cause of action
35 and/or because defendants are entitled to summary judgment.
Counts 19 and 20 are dismissed, without prejudice to plaintiffs' right to pursue those claims in state court.
The court is not unmindful of the potential complexity of
the issues which plaintiffs may be trying to raise in this case.
After attempting to decipher plaintiffs' vague, repetitive, and
ponderous pleadings, the court has endeavored to rule on the
claims and issues which plaintiffs seem to be raising.
Certainly, to the extent plaintiffs are claiming that Kelley has
been selectively disciplined to punish him for having spoken out
about perceived corruption in the MPD, he might have a basis for
asserting a cognizable federal claim. However, Kelley has, on
several occasions, litigated that very issue and, on each such
occasion, it appears to have been resolved against him.
Accordingly, he and the Union are likely estopped in this forum
from reasserting those factual claims.
Ordinarily, the court would simply enter judgment in
accordance with this order. However, the pleadings in this case
are so convoluted, vague, and on occasion, indecipherable,that,
to ensure that plaintiffs are not prejudiced by the fogginess of
36 the pleadings filed on their behalf, the court will delay entry
of judgment in accordance with this order for thirty (30) days.
During that period, plaintiffs may, if they choose, clearly and
concisely show that: (1) the court has not accurately interpreted
the substance of their complaint; (2) has incorrectly applied the
law to the facts and allegations apparently set forth in the
complaint; or (3) why they should be permitted to file a concise,
clearly articulated, and well founded amended complaint.
Plaintiffs' counsel is cautioned, however, that the court will
not look favorably on any new pleadings drafted in the tradition
of earlier pleadings in this case. Should the plaintiffs decline
the opportunity afforded them, judgment will be entered as
directed herein. Should plaintiffs take advantage of the
opportunity, defendants may respond within 30 days of the date
plaintiffs' pleadings are filed.
37 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 29, 1995
cc: Kenneth J. Gould, Esq. Joseph H. Groff III, Esq. Michael B. 0'Shaughnessy, Esq. Cindy Robertson, Esq.