Kelley v. City of Manchester CV-94-358-M 09/23/96 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, Peter Favreau, Donald Vandal, and Louis B. Craig, Defendants
O R D E R
The Manchester Police Patrolman's Association (the "Union")
and its president, Edward J. Kelley, bring this action against
the City of Manchester and three current or former high ranking
members of the Manchester Police Department ("MPD") pursuant to
42 U.S.C. § 1983 and New Hampshire common law. Plaintiffs allege
that defendants used the MPD disciplinary system in an unlawful
and selective manner to retaliate against them for exercising
their First Amendment rights. Additionally, plaintiffs claim
that in so doing, defendants also violated their substantive due
process rights under the Fourteenth Amendment.
As originally filed, plaintiffs' complaint was a rambling
and vague collection of some 20 separate counts describing a series of seemingly unconnected instances of alleged wrongdoing
in the MPD. The court granted defendants summary judgment on all
counts alleging violations of federally secured rights and
declined to exercise supplemental jurisdiction over plaintiffs'
state law claims. However, the court noted that:
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 the pleadings filed on their behalf, the court will delay entry of judgment in accordance with this order for thirty (30) days.
Order on Defendants' Motion for Summary Judgment (September 29,
1995), at 36-37. The court then afforded plaintiffs the
opportunity to amend their complaint to clearly and concisely
articulate the basis for their claims.
In response, plaintiffs filed an amended complaint which
sets forth six counts against four defendants. Counts one
through five allege deprivations of constitutionally guaranteed
rights and are brought pursuant to 42 U.S.C. § 1983. The final
count alleges that defendants defamed Kelley under New Hampshire
common law. Defendants again move for summary judgment.
2 The pertinent facts underlying plaintiffs' claims and the
applicable standard of review are discussed in detail in the
court's September 29, 1995 order (the "Order") and need not be
recited again. It is sufficient to note that only two events
which led to Kelley's discipline are relevant to this proceeding:
the so-called Boisvert/Colbath incident and the Union's
demonstration at the homes of the mayor and various city
aldermen. Both events, the discipline imposed upon Kelley as a
result of his conduct with regard to those events, and the state
court litigation that ensued are fully described in the court's
earlier order. Order at 3-14.
Discussion
As a preliminary matter, the court notes that each of the
claims articulated by the Union (counts 1 through 5) is entirely
derivative of the corresponding claim asserted by Kelley. That
is to say, each of the harms which the Union says it suffered
came as a result of defendants' alleged wrongful conduct towards
Kelley (generally in the form of allegedly improper use of the
MPD disciplinary system). Because Kelley is the Union's
president, plaintiffs assert that defendants' alleged efforts to
chill his First Amendment rights were also intended to intimidate
3 the Union. Plaintiffs do not, however, allege any unlawful
conduct on the part of defendants which was directed exclusively
at the Union.
Reduced to its essence, then, plaintiffs' amended complaint
alleges that Kelley was subjected to selective, unwarranted, and
illegal disciplinary measures because of defendants' animosity
towards him, both individually and as president of the Union.
Plaintiffs also claim that Kelley was singled out for discipline
because defendants wished to intimidate him and the Union,
forcing them to adopt a less public, less adversarial, and more
compliant role in the operation of the Manchester Police
Department.
Defendants object to plaintiffs' characterization of their
conduct. They claim that each time Kelley was disciplined,
discipline was both justified and consistent with the MP D 's Rules
and Regulations, to which plaintiffs agreed when the Union
members ratified the collective bargaining agreement.1 More
1 Plaintiffs specifically agreed to abide by the MPD 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
4 fundamentally, defendants assert that their actions were not
motivated by an intent to interfere with the constitutional
rights of either Kelley or the Union.
A. Count 1 - Chilling of Right to Free Speech.
Having carefully reviewed the pleadings and other papers
filed in this proceeding, as well as binding circuit precedent,
the court is constrained to conclude that there exist genuine
issues of material fact which preclude granting defendants'
motion for summary judgment with regard to count 1.
Typically, in order to show that a deprivation of a First
Amendment right has occurred, a plaintiff must, at a minimum,
demonstrate that the defendant intended to inhibit speech
protected by the First Amendment, Tatro v. Kervin, 41 F.3d 9, 18
(1st Cir. 1994), and that the defendant's conduct had a chilling
effect on the protected speech that was more than merely
Manchester, New Hampshire Police Department which are now in effect or as may be amended by the Police Commission shall be the prime governing factor in the conduct of all actions of all police officers and every police officer shall be thoroughly conversant with them.
Exhibit B to Defendants' First Motion for Summary Judgment, at para. 25.1.
5 "speculative, indirect, or too remote." Sullivan v. Carrick, 888
F.2d 1, 4 (1st Cir. 1989). Here, plaintiffs have merely alleged
that "Kelley has suffered harm for which [defendants] are liable"
and that defendants have "unlawfully impeded the Union's capacity
to communicate, to have access to the courts and administrative
agencies and to otherwise exercise its rights under the First and
Fourteenth Amendments." Complaint, para. 36. Plaintiffs' "mere
allegation that [they were] harmed does not amount to satisfying
the causation requirement of a Section 1983 action." Sullivan,
888 F.2d at 4. See also Therrien v. Hamilton, 849 F .Supp. 110
(D.Mass. 1994) (A case involving substantially similar legal and
factual issues, in which plaintiff, a police officer and head of
the local police officer's union, failed to show either a
potential or actual deprivation of First Amendment rights,
leading the court to grant defendant's motion for summary
judgment.) .
Plaintiffs have failed to point to any genuine issue of
material fact regarding an "actual chilling" of their protected
speech. In fact, the record (largely in the form of exhibits
filed by plaintiffs) demonstrates that plaintiffs were anything
but intimidated by defendants' conduct. They continued to
6 vigorously represent the interests of union members and continued
to bring their concerns to the attention of the news media.
Absent an allegation of actual chilling of their rights to free
speech, plaintiffs cannot satisfy the requirements of Sullivan v.
Carrick.
In the public employment context, however, a disciplinary
action against a public employee violates his or her First
Amendment rights if (1) the conduct for which the employee was
punished can be "fairly characterized as constituting speech on a
matter of public concern," Connick v. Myers, 461 U.S. 138, 146
(1983), and (2) the interest of the employee in commenting on the
matter of public concern outweighs the public employer's interest
in promoting its efficiency by prohibiting the conduct.
Pickering v. Board of Education. 391 U.S. 563, 568 (1968).
Additionally, in order to prevail in a § 1983 action against an
employer, the employee must, at a minimum, demonstrate that his
or her protected conduct was a "substantial" or "motivating"
factor in the defendant's decision to impose discipline. Mount
Healthy City Board of Education v. Doyle, 429 U.S. 274, 287
(1977). The burden of persuasion then shifts to the employer to
7 show that it would have disciplined the employee even in the
absence of the protected conduct. Id.
1. The Objective Reasonableness of Defendants' Conduct is not Relevant.
Defendants claim that they are entitled to qualified
immunity because their decisions to discipline Kelley on the
occasions at issue in this case were objectively reasonable and
entirely consistent with the MPD Rules and Regulations. The
Court of Appeals for the First Circuit has, however,
unequivocally rejected that argument, holding that when intent is
an integral element of a party's claim under the First Amendment,
the objective reasonableness of the defendant's conduct is
irrelevant. Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir.
1993). Instead, the court must focus its inquiry on the
defendant's state of mind and determine whether the plaintiff has
alleged facts which would permit a reasonable jury to conclude
that the defendant's "intent to retaliate against him for
engaging in protected conduct was a 'substantial' or 'motivating'
factor" in the decision to discipline plaintiff. .Id. at 1299,
citing Mount Healthy. Because the defendant's subjective state
of mind is a material fact, courts will be able to grant
defendants summary judgment and/or hold that they are entitled to
8 qualified immunity in very few, if any, such cases. See
Broderick v. Roache, 996 F.2d at 1299 n.9 ("In so ruling, we are
mindful that 'in cases where . . . the state of mind of one of
the parties is crucial to the outcome of the case, resort to
summary judgment is vested with more than the usual
difficulty.'") (citation omitted). See also. Carter v. State of
Rhode Island, 68 F.3d 9, 12 (1st Cir. 1995) ("Determining the
presence or absence of discriminatory "intent" based on
evidentiary proffers at summary judgment entails a quintessential
factual assessment.") (emphasis in original); Penney v. Town of
Middleton. 888 F .Supp. 332, 343 (D.N.H. 1994) ("The essence of
[defendant's] argument is that clearly established law did not
prohibit him from engaging in the conduct described in the
complaint and his motives for undertaking the conduct cannot be
considered in determining whether he is entitled to qualified
immunity. . . . [However,] if, as [plaintiff] alleges,
[defendant] purposely retaliated against him because he had
[engaged in protected speech, defendant] may not claim qualified
immunity for his acts simply because the acts might have been
lawful if his motives had been pure.").2
2 In light of the holding in Broderick v. Roache, supra, the facts which support defendants' claim that their conduct was "objectively reasonable" are, at this juncture, irrelevant.
9 2. Defendants' Subjective Intent in Disciplining Kelley is a Genuine Issue of Material Fact.
While there is some evidence of general animosity between
Kelley and defendants, it is, at best, a tenuous basis from which
a reasonable trier of fact could conclude that defendants'
actions were motivated by a desire to retaliate against Kelley
for his protected speech. As noted in Rakovich v. Wade, 850 F.2d
1180 (7th Cir.), cert, denied, 488 U.S. 968 (1988):
Importantly, those prior disagreements [between the parties] are not independently significant . . . They are significant only as they may relate to the officers' state of mind. As to state of mind, the probative value of these disagreements is, however, weakened when the nature of the cause of action is reiterated: retaliation for the exercise of first amendment rights, and not simply retaliation because the officers had a generic dislike of [plaintiff].
Accordingly, it would seem to be of little moment that: (1) Kelley and the Union agreed to be bound by the Rules and Regulations of the MPD, including the restrictions on speaking to the public on matters relating to certain MPD affairs (i.e., seemingly voluntarily waiving certain First Amendment rights); (2) the New Hampshire Superior Court and the PELRB concluded that defendants did not act illegally, ultra vires, or in a discriminatory manner toward Kelley when they disciplined him; (3) a reasonable person might well have concluded that Kelley was not speaking on matters of public concern when he violated the MPD rules against dissemination of certain information to the public; and (4) a reasonable person might well have concluded that Kelley's interest in speaking on those matters was outweighed by the MPD's interest in maintaining order, discipline, and efficiency.
10 Id. at 1193 (emphasis added).
Nevertheless, viewing the record liberally in plaintiffs'
favor, and applying binding circuit precedent, the court is
constrained to hold that the evidence of defendants' general
animosity toward Kelley, coupled with the fact that they
disciplined him for having engaged in protected speech (despite
the fact that such discipline appears to have been objectively
reasonable and consistent with the MPD Rules and Regulations),
are sufficient to permit a reasonable jury to conclude that
defendants' conduct was motivated by a desire to retaliate
against Kelley. See, e.g., Broderick. 996 F.2d at 1299 (holding
that defendant's harsh and allegedly disparate treatment of the
plaintiff created a genuine issue of material fact as to whether
defendant was motivated by a desire to retaliate against
plaintiff for exercising his First amendment rights.).
Accordingly, the court holds that plaintiffs have met their
burden under Mount Healthy, supra. Defendants' motion for
summary judgment with regard to count 1 of the complaint is
denied. For essentially the same reasons, defendants are not
entitled to judgment as a matter of law with regard to count 2.
11 Count 3 - Substantive Due Process.
The core of count 3 is plaintiffs' assertion that the
"selective and calculated use of the police disciplinary system
against Kelley and the Union to thwart the plaintiffs'
constitutional rights of expression is a violation of plaintiffs'
due process rights." Complaint, para. 44. 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." . . . [A]Ithough the yardstick against which substantive due process violations are measured has been characterized in various ways, we are satisfied that, before a constitutional infringement occurs, state action must in and of itself be egregiously unacceptable, outrageous, or conscious-shocking.
12 Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (citations
omitted) (emphasis in original), cert, denied, 498 U.S. 1041
(1991) .
Plaintiffs have failed to allege any facts which, if
credited as true, are sufficiently egregious, outrageous, or
conscious-shocking to describe a deprivation of substantive due
process. Moreover, the factual allegations upon which plaintiffs
do rely in support of their substantive due process claim have
been reviewed by several judicial or quasi-judicial bodies in the
past. On each occasion that a decision on the merits was
reached, the reviewing authority concluded that defendants had
not acted unlawfully, arbitrarily, or capriciously. See Order at
9-12, 31-32.
For the foregoing reasons, and for the reasons articulated
in the court's prior order, defendants are entitled to judgment
as a matter of law with regard to count 3.
C. Count 4 - Corruption/Equal Protection.
In count 4 of their complaint, plaintiffs allege that
defendants "initiate[d] actions or refrain[ed] from taking
13 actions which were designed to benefit defendants and provide
favored treatment of one segment of society versus another
segment of society." Complaint, para. 47. While such
allegations certainly sound ominous, they lack the functional
specificity necessary to describe a cognizable claim. Later in
their amended complaint, however, plaintiffs add a measure of
precision, alleging that:
plaintiffs were denied equal protection of the law under the United States Constitution and the Fourteenth Amendment of the U.S. Constitution in that Kelley, as Union President and a patrolman with the Manchester Police Department, was selectively treated and singled out by the defendants in the discriminatory enforcement of the MPD disciplinary procedures for the sole purpose of punishing and further chilling plaintiffs from exercising their constitutionally protected rights of speech and assembly.
Amended Complaint, para. 50.
As noted in the court's prior order, 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. Instead, they focus exclusively upon
the claim that, although applied in a procedurally correct
fashion, the MPD Rules and Regulations have been selectively
14 enforced against him, in violation of his constitutionally
guaranteed right to equal protection of the laws.
The Court of Appeals for the First Circuit has held that
liability for an alleged deprivation of equal protection 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).
Turning to the first element of the articulated test, it is
clear that Kelley has failed to allege facts showing that he has
been selectively treated. To be sure, Kelley has a long history
of disciplinary citations over the course of his tenure with the
MPD. From November of 1983 (predating his election as Union
president) through June of 1992, Kelley's disciplinary record
shows at least 36 separate charges for violations of the MPD
Rules and Regulations, ranging in severity from relatively minor
15 (e.g., failure to turn in paperwork in a timely fashion and
failure to submit legible reports) to serious (e.g., unnecessary
force (on 2 occasions), neglect of duty, and incompetence). That
the MPD deemed it necessary to discipline Kelley for his failure
to abide by the department's rules and regulations does not
establish that Kelley was singled out for selective treatment;
it's at least equally plausible that Kelley's performance of duty
placed him among the worst rather than the best police officers.
Stated somewhat differently, the mere fact that Kelley is a vocal
representative of the Union can hardly insulate him from
discipline for actual violations of the MPD Rules and
Regulations.
If Kelley (or any other officer) violates the MPD rules, he
must expect to be disciplined. Of course, he can and should
expect that he will be treated fairly and in a manner that is
consistent with how others are treated. But, the record before
the court fails to suggest that Kelley was treated any
differently than other officers on the MPD force. To be sure, he
has been the subject of numerous disciplinary actions, and the
record could facially support at least an allegation that there
was animosity between Kelley and some of the defendants. Those
16 facts alone do not, however, support Kelley's claim that
defendants selectively enforced the MPD Rules and Regulations
against him or, more to the point, that he was the subject of any
form of unlawful discrimination or equal protection violation.
In order to survive defendants' motion for summary judgment,
plaintiffs may not simply assert "an inequity and tack[] on the
self-serving conclusion that the defendant was motivated by a
discriminatory animus. The alleged facts must specifically
identify the particular instance(s) of discriminatory treatment
and, as a logical exercise, adequately support the thesis that
the discrimination was unlawful." Correa-Martinez v. Arrillaga-
Belendez. 903 F.2d 49, 53 (1st Cir. 1990). Kelley provides only
opinion and bold, unsupported conclusions in support of his claim
that he has been selectively disciplined for violating the MPD
Rules and Regulations. In short, he has failed to point to
specific instances in which he claims he was subjected to
discipline while other, similarly situated police officers were
spared discipline for substantially similar conduct or offenses.
See, e.g., Gillard v. Norris, 857 F.2d 1095, 1101 (6th Cir. 1988)
(Plaintiff, a state corrections officer who claimed that he was
selectively disciplined in violation of his right to equal
17 protection "failed to demonstrate that the defendants treated
similarly situated individuals in a disparate manner, and []
therefore failed to state a cause of action for denial of equal
protection."); Black v. City of Auburn. 857 F .Supp. 1540, 1549
(M.D.Ala. 1994) (Police officer failed to demonstrate that his
discipline violated his right to equal protection. "In sum,
there is neither any evidence that other similarly situated
officers were treated differently nor is there any evidence that
the prosecution or investigation was the product of
constitutionally improper motives."); Gates v. Sicaras, 706
F.Supp. 169, 174 (D.Conn. 1989) (In order to prevail on his equal
protection claim, the plaintiff (a former city police officer)
"must establish that he was in fact singled out for special
treatment and that defendants took the action intentionally to
discriminate against him because of his membership in a
constitutionally identifiable group. This plaintiff has not
done. Plaintiff's argument would give every person who claims
harassment by a government official a cause of action under the
equal protection clause. However, the equal protection clause
only protects individuals against invidious discrimination.").
18 While plaintiffs allege that defendants subjected Kelley to
discipline which was "unprecedented" those allegations are
legally insufficient to form the basis of an equal protection
claim. For example, paragraph 21 of the amended complaint
alleges that "there is no history in the MPD of bringing an
officer up on formal charges for late paperwork." First,
plaintiffs concede that other officers have been disciplined for
failing to submit timely paperwork. The focus of their
allegation appears to be on the fact that Kelley was subjected to
"formal charges" for his violation. Unfortunately, plaintiffs
fail to state precisely what they mean by formal charges (as
distinguished from "written reprimands"), nor do they explain the
legal significance of the distinction. And, more importantly, it
appears from the complaint and plaintiffs' other papers that the
officer charged with the violation controls whether his
discipline is handled informally (i.e., written reprimand) or
formally (i.e., hearing). See Amended Complaint, para. 15. The
mere fact that Kelley might have been the first MPD officer to
request a formal hearing after being cited for failing to submit
timely paperwork hardly establishes that he has been selectively
disciplined.
19 As another example of the "unprecedented" disciplinary
measures taken against Kelley, plaintiffs point to the fact that
he was charged with "discourtesy" (Amended Complaint, para. 19)
and "insubordination" (Amended Complaint, para. 29). They claim
that no other MPD officer has ever been charged with those
offenses and, therefore, sanctioning Kelley for such conduct was
unlawful, selective, and discriminatory. As noted above,
however, claims of that sort, without more, fail to state a
viable cause of action. Plaintiffs have neglected to allege even
a single instance where another MPD officer engaged in similar
conduct but, unlike Kelley, escaped discipline. Certainly, an
insubordinate and discourteous officer ought to be disciplined
and ought not to be held immune simply because most officers are
neither insubordinate nor discourteous.
Standing alone, the fact that Kelley may have been the first
MPD officer disciplined for discourtesy or insubordination is
legally insignificant; he might well have been the rare officer
who engaged in activity of that type sufficiently serious to
warrant discipline. The first officer charged with a violation
of a particular provision of the MPD Rules and Regulations does
not, without more, have a claim that his or her equal protection
20 rights are being violated. In short, plaintiffs have failed to
plead the requisite connection between Kelley's alleged
"selective" treatment and a violation of the equal protection
clause of the Constitution. They simply recite a number of
factual anecdotes and then conclude that defendants' motivation
in disciplining Kelley was unlawful and discriminatory.
As the Court of Appeals for the First Circuit has repeatedly
held, more than mere conclusory statements and unsupported
allegations are necessary in order to raise a triable, genuine
issue of material fact. Plaintiffs cannot rely exclusively on
"subjective characterizations" or "unsubstantiated conclusions,"
Fleming v. Lind-Waldock & C o ., 922 F.2d 20, 23 (1st Cir. 1990),
or bald assertions, or "opprobrious epithets." Chongris v. Board
of Appeals of Andover. 811 F.2d 36, 37 (1st Cir.), cert, denied,
483 U.S. 1021 (1987). Accordingly, the court holds that
defendants are entitled to summary judgment with regard to Count
4 of plaintiffs' complaint.
D. Count 5 - Municipal Liability.
A municipality cannot be held vicariously liable under
§ 1983 for the wrongful acts of its employees. Collins v. City
21 of Harker Heights, 503 U.S. 115, 121 (1992). A municipality may
be liable, however, when one of its employees acts pursuant to a
municipal custom or policy and, in so doing, violates someone's
constitutional rights. .Id. Municipal liability attaches under
§ 1983 only when the "action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation or decision officially adopted and
promulgated by the body's officers." Monell v. New York City
Department of Social Services, 436 U.S. 658, 690 (1978). So, in
order to prevail on their § 1983 claim against the City of
Manchester, plaintiffs must show a direct causal connection
between municipal conduct and a constitutional deprivation. See,
e.g., Oklahoma City v. Tuttle, 471 U.S. 808, 824-25 n.8 (1985)
(requiring an "affirmative link" between the municipal policy and
the alleged constitutional deprivation.).
Again, however, to avoid summary judgment, plaintiffs must
support their claims with something more than mere subjective
characterizations or unsubstantiated conclusions. Plaintiffs
have failed to carry that burden. 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
22 not cognizable under § 1983, the City is entitled to summary
judgment with regard to count 5 of plaintiff's complaint.
Moreover, defendants Favreau, Craig, and Vandal are not
liable in their officials capacities for any alleged
constitutional deprivations. Because "official capacity suits
generally represent only another way of pleading an action
against an entity for which an officer is an agent," Brandon v.
Holt, 469 U.S. 464, 472 n.21 (1984), and because plaintiffs have
failed to show that their alleged injuries are the product of any
municipal custom or policy, defendants are entitled to summary
judgment in their official capacities. Although they claim that
the individual defendants "possess[ed] final authority to
establish municipal policy with respect to matters effecting the
administration of the MPD," Amended Complaint at para. 53,
plaintiffs have failed to alleged sufficient facts from which a
reasonable jury could conclude that some policy existed, that the
policy resulted in constitutional violations, or that they
suffered harm as a result of any such municipal custom or policy
adopted by defendants. See generally, Penney v. Town of
Middleton. 888 F.Supp. at 340-41.
23 The claims in counts 1, 2, and 6 alleged against defendants
Craig, Favreau, and Vandal in their individual capacities shall,
howeve r , rema in .
E. Count 6 - Defamation.
With regard to the final count of plaintiffs' complaint,
defendants simply assert that, because they believe plaintiffs
have failed to state any viable federal causes of action, the
court should decline to exercise supplemental jurisdiction over
Kelley's state defamation claim. They have not addressed the
merits of Kelley's claims.
Because plaintiffs may proceed on counts 1 and 2, and
because defendants have provided no basis for finding that they
are entitled to judgment as a matter of law with regard to
Kelley's state law claim, the court will exercise its
supplemental jurisdiction over count 6 and permit plaintiffs to
present their claims to a jury.
Conclusion
While many of their factual allegations certainly sound
ominous and sinister, plaintiffs have, in large measure, failed
24 to link those allegations to cognizable causes of action.
Nevertheless, recognizing that the requisite elements of
plaintiffs' various claims might well be buried in the volumes of
largely irrelevant facts and argument, the court has spent
considerable time sifting through the record in an effort to
piece together the essential components of viable legal claims.
Based upon that review, and reading the pleadings and circuit
precedent liberally in plaintiffs' favor, the court holds that
plaintiffs are entitled to present the arguments raised in counts
1, 2, and 6 to a jury.
For the foregoing reasons, defendants are entitled to
judgment as a matter of law on counts 3, 4, and 5 in plaintiffs'
amended complaint. Defendants Favreau, Craig, and Vandal are
also entitled to summary judgment with regard to all claims
against them in the official capacities. With regard to counts
1, 2, and 6 (against defendants in their individual capacities),
however, there exist genuine issues of material fact and summary
judgment is inappropriate. Defendants' second motion for summary
judgment (document no. 45) is granted with regard to counts 3, 4,
and 5. It is denied with regard to counts 1, 2, and 6.
25 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 23, 1996
cc: Kenneth J. Gould, Esq. Joseph H. Groff, III, Esq. Michael B. 0'Shaughnessy, Esq.