Kinney v. Pepperell CV-00-087-JD 10/26/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Kinney
v. Civil No. 00-87-JD Opinion No. 2000 DNH 229 Town of Pepperell, et al.
O R D E R
The plaintiff, David Kinney, brings a civil rights action
and related state tort claims, arising from his arrest and
prosecution on charges of simple assault and resisting arrest.
Kinney brings claims against the towns of Brookline, Milford, and
Hollis, New Hampshire, and Pepperell, Massachusetts, and against
Deborah Clark, a police officer in Brookline, and David Turgeon
and Steven Desilets, police officers in Hollis. Two related
cases were filed in this court by Marcia and Clarence Farwell who
also allege civil rights and related tort claims against the same
defendants. See Farwell v. Brookline, et a l ., Civil No. 00-86-M,
and Farwell v. Brookline, et a l ., Civil No. 00-89-M. The towns
of Milford, New Hampshire, and Pepperell, Massachusetts, moved
for judgment on the pleadings in all three cases.
Standard of Review
"After the pleadings are closed but within such time as not
to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). When considering a motion
for judgment on the pleadings, the "court must accept all of the
nonmoving part[ies'] well-pleaded factual averments as true and
draw all reasonable inferences in [their] favor." Feliciano v.
Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998). Judgment on the
pleadings is not appropriate "'unless it appears beyond doubt
that the plaintiff[s] can prove no set of facts in support of
[their] claim which would entitle [them] to relief.'" Santiago
de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991)
(quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.
1988)).
Background
David Kinney alleges that on July 3, 1997, he and his family
were visiting at the home of his parents-in-law, the Bentses, in
Brookline, New Hampshire. At about midnight, the bell in the
Brookline Church of Christ began to ring, which had been a
tradition in the town for more than a hundred years. When
Kinney's son reported that someone had been arrested for ringing
the bell, the family walked from the house to the church.
Police officers from the towns of Hollis, Pepperell, and Milford
were assembled with officers from Brookline near the church.
Brookline had issued a "mutual aid" call for police assistance
2 from the other towns, but had not adhered to the proper protocol
for "mutual aid."
When the family reached the town hall, Kinney saw Marcia
Farwell being arrested and saw Clarence Farwell being forced to
the ground and sprayed with "pepper" spray.1 Kinney approached a
police officer and asked if he could speak to him. The police
officer said "yes," but when Kinney began to walk along and talk
with the officer about the situation, the officer turned, butted
into Kinney, and accused Kinney of assaulting him. The officer
asked Kinney if he wanted to fight, and Kinney declined. The
officer then grabbed Kinney and drove him into the ground face
down. One or two other officers approached them, and one of the
officers raised Kinney's head and slammed it onto the road
multiple times. Kinney was handcuffed in a way that twisted his
wrists painfully.
Kinney was charged with simple assault and resisting arrest.
After a bench trial, Kinney was found not guilty of the charges.
1Although Kinney does not include this information in his complaint, Marcia and Clarence Farwell were also guests, with the Kinneys, at the Bentses' home.
3 Discussion
Kinney brought suit against the towns and three police
officers. In count one, Kinney brings claims pursuant to 42
U.S.C.A. § 1983, alleging that all of the defendants violated his
First, Fourth, and Fourteenth Amendment rights, and articles
fifteen, nineteen, and twenty-two of the New Hampshire
Constitution. In count two, Kinney claims respondeat superior
liability for the police officers' actions for the state tort
claims and violations of statutory and constitutional law. In
count three, Kinney claims that the towns and defendant Stephen
Desilets are liable under § 1983 and the New Hampshire
Constitution for negligent training and supervision of the police
officers who were involved in the altercation with him. In count
four, Kinney alleges state tort claims of assault and battery
against all of the defendants. In count five, Kinney alleges
negligence against the individual defendants, and in count six
Kinney alleges malicious prosecution against the towns of Hollis
and Brookline and the individual defendants. The Farwells allege
substantially similar claims in their cases, although they both
also bring claims for defamation and Clarence Farwell does not
bring a claim for malicious prosecution.
The Towns of Pepperell and Milford move for judgment on the
pleadings as to all of the claims against them. Pepperell and
4 Milford also moved for judgment on the pleadings in the Farwell
cases, and Judge McAuliffe granted those motions, in part, in
orders dated October 20, 2000. Due to the similarity of the
claims and the motions for judgment on the pleadings in all three
cases, the court has reviewed the orders issued by Judge
McAuliffe and, in the exercise of its independent judgment,
concurs with pertinent portions of those orders as noted below.
Kinney's claims against Milford and Pepperell are generally
deficient for the same reasons that the Farwells' claims were
dismissed. Kinney does not allege actions or conduct by any
police officers or other agents or employees of Milford or
Pepperell that violated his constitutional rights or constituted
state law torts committed against him. Absent allegations of
constitutional violations for which the towns would be liable,
Kinney has not stated a claim under § 1983 against the towns.
See Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir. 1996); Marcia
Farwell, No. 00-89-M, slip op. at 5-7; see also Romero-Barcelo v.
Hernandez-Aqosto, 75 F.3d 23, 34 (1st Cir. 1996) (holding that
plaintiffs must plead the elements of civil rights actions).
Similarly, state law claims against an employer, based on a
theory of respondeat superior, require allegations of tortious
activity by an employee. See Trahan-Laroche v. Lockheed Sanders,
Inc., 139 N.H. 483, 485 (1995). Kinney has not alleged that any
5 officers from Milford or Pepperell committed assault and battery
or any other state law torts. Therefore, his claims for
respondeat superior and assault and battery against those towns
are dismissed.
In addition, to the extent Kinney intended to bring claims
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Kinney v. Pepperell CV-00-087-JD 10/26/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Kinney
v. Civil No. 00-87-JD Opinion No. 2000 DNH 229 Town of Pepperell, et al.
O R D E R
The plaintiff, David Kinney, brings a civil rights action
and related state tort claims, arising from his arrest and
prosecution on charges of simple assault and resisting arrest.
Kinney brings claims against the towns of Brookline, Milford, and
Hollis, New Hampshire, and Pepperell, Massachusetts, and against
Deborah Clark, a police officer in Brookline, and David Turgeon
and Steven Desilets, police officers in Hollis. Two related
cases were filed in this court by Marcia and Clarence Farwell who
also allege civil rights and related tort claims against the same
defendants. See Farwell v. Brookline, et a l ., Civil No. 00-86-M,
and Farwell v. Brookline, et a l ., Civil No. 00-89-M. The towns
of Milford, New Hampshire, and Pepperell, Massachusetts, moved
for judgment on the pleadings in all three cases.
Standard of Review
"After the pleadings are closed but within such time as not
to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). When considering a motion
for judgment on the pleadings, the "court must accept all of the
nonmoving part[ies'] well-pleaded factual averments as true and
draw all reasonable inferences in [their] favor." Feliciano v.
Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998). Judgment on the
pleadings is not appropriate "'unless it appears beyond doubt
that the plaintiff[s] can prove no set of facts in support of
[their] claim which would entitle [them] to relief.'" Santiago
de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991)
(quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.
1988)).
Background
David Kinney alleges that on July 3, 1997, he and his family
were visiting at the home of his parents-in-law, the Bentses, in
Brookline, New Hampshire. At about midnight, the bell in the
Brookline Church of Christ began to ring, which had been a
tradition in the town for more than a hundred years. When
Kinney's son reported that someone had been arrested for ringing
the bell, the family walked from the house to the church.
Police officers from the towns of Hollis, Pepperell, and Milford
were assembled with officers from Brookline near the church.
Brookline had issued a "mutual aid" call for police assistance
2 from the other towns, but had not adhered to the proper protocol
for "mutual aid."
When the family reached the town hall, Kinney saw Marcia
Farwell being arrested and saw Clarence Farwell being forced to
the ground and sprayed with "pepper" spray.1 Kinney approached a
police officer and asked if he could speak to him. The police
officer said "yes," but when Kinney began to walk along and talk
with the officer about the situation, the officer turned, butted
into Kinney, and accused Kinney of assaulting him. The officer
asked Kinney if he wanted to fight, and Kinney declined. The
officer then grabbed Kinney and drove him into the ground face
down. One or two other officers approached them, and one of the
officers raised Kinney's head and slammed it onto the road
multiple times. Kinney was handcuffed in a way that twisted his
wrists painfully.
Kinney was charged with simple assault and resisting arrest.
After a bench trial, Kinney was found not guilty of the charges.
1Although Kinney does not include this information in his complaint, Marcia and Clarence Farwell were also guests, with the Kinneys, at the Bentses' home.
3 Discussion
Kinney brought suit against the towns and three police
officers. In count one, Kinney brings claims pursuant to 42
U.S.C.A. § 1983, alleging that all of the defendants violated his
First, Fourth, and Fourteenth Amendment rights, and articles
fifteen, nineteen, and twenty-two of the New Hampshire
Constitution. In count two, Kinney claims respondeat superior
liability for the police officers' actions for the state tort
claims and violations of statutory and constitutional law. In
count three, Kinney claims that the towns and defendant Stephen
Desilets are liable under § 1983 and the New Hampshire
Constitution for negligent training and supervision of the police
officers who were involved in the altercation with him. In count
four, Kinney alleges state tort claims of assault and battery
against all of the defendants. In count five, Kinney alleges
negligence against the individual defendants, and in count six
Kinney alleges malicious prosecution against the towns of Hollis
and Brookline and the individual defendants. The Farwells allege
substantially similar claims in their cases, although they both
also bring claims for defamation and Clarence Farwell does not
bring a claim for malicious prosecution.
The Towns of Pepperell and Milford move for judgment on the
pleadings as to all of the claims against them. Pepperell and
4 Milford also moved for judgment on the pleadings in the Farwell
cases, and Judge McAuliffe granted those motions, in part, in
orders dated October 20, 2000. Due to the similarity of the
claims and the motions for judgment on the pleadings in all three
cases, the court has reviewed the orders issued by Judge
McAuliffe and, in the exercise of its independent judgment,
concurs with pertinent portions of those orders as noted below.
Kinney's claims against Milford and Pepperell are generally
deficient for the same reasons that the Farwells' claims were
dismissed. Kinney does not allege actions or conduct by any
police officers or other agents or employees of Milford or
Pepperell that violated his constitutional rights or constituted
state law torts committed against him. Absent allegations of
constitutional violations for which the towns would be liable,
Kinney has not stated a claim under § 1983 against the towns.
See Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir. 1996); Marcia
Farwell, No. 00-89-M, slip op. at 5-7; see also Romero-Barcelo v.
Hernandez-Aqosto, 75 F.3d 23, 34 (1st Cir. 1996) (holding that
plaintiffs must plead the elements of civil rights actions).
Similarly, state law claims against an employer, based on a
theory of respondeat superior, require allegations of tortious
activity by an employee. See Trahan-Laroche v. Lockheed Sanders,
Inc., 139 N.H. 483, 485 (1995). Kinney has not alleged that any
5 officers from Milford or Pepperell committed assault and battery
or any other state law torts. Therefore, his claims for
respondeat superior and assault and battery against those towns
are dismissed.
In addition, to the extent Kinney intended to bring claims
premised on the New Hampshire Constitution, those claims are also
dismissed. Section 1983 provides a cause of action for
violations of the federal constitution. The New Hampshire
Constitution does not provide remedies for violations, and Kinney
has not shown that the New Hampshire Supreme Court has
established remedies for the violations he alleges. See Marquav
v. E n o , 139 N.H. 708, 721 (1995). As the court held in the
Farwell cases, see Marcia Farwell. No. 00-89-M at 11-12, this
court will not extend state law beyond its established
boundaries. See Andrade v. Jamestown H o u s . Auth., 82 F.3d 1179,
1187 (1st Cir. 1996) .
Therefore, counts one, two, three, and four are dismissed as
to the towns of Milford and Pepperell. Those are the only claims
brought against those defendants.
6 Conclusion
For the foregoing reasons, the defendants' motions for
judgment on the pleadings (documents no. 12 and 14) are granted.
Judgment shall be entered in favor of the defendants, the Towns
of Pepperell and Milford.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
October 26, 2000
cc: Kenneth G. Bouchard, Esquire Donald E. Gardner, Esquire John A. Curran, Esquire Michael B. O'Shaughnessy, Esquire