Lima v. Decker CV-01-272-JD 10/28/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Edwardina Lima
v. Civil No. 01-2 72-JD Opinion No. 2002 DNH 191 Weslev C. Decker, Kenneth E. Mulchahev, and Town of Salem
O R D E R
The plaintiff, Edwardina Lima, brings a civil rights action,
pursuant to 42 U.S.C. § 1983, against the Town of Salem and Salem
police officers Wesley C. Decker and Kenneth E. Mulchahey,
arising out of her arrest and prosecution on charges of driving
while intoxicated. Lima contends that the officers' actions
violated her Fourth Amendment rights and her due process and
equal protection rights under the Fourteenth Amendment. Lima
also brings state law claims for negligence, false imprisonment,
and malicious prosecution. The defendants move for summary
judgment, and Lima objects.1
1Lima, who is represented by counsel, did not file a response to the motion for summary judgment within the time allowed. See LR 7.1(b). After the deadline, she moved for an extension of time to file an objection, which was granted. She did not file her objection or any other response on or before the extended deadline. She then filed a motion for an additional extension of time, along with her objection. Despite the lateness of Lima's objection, the court will consider it. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986); Torres v. E.I. Dupont de Nemours & Co., 219 F.3d 13,
18 (1st Cir. 2000). All reasonable inferences and all
credibility issues are resolved in favor of the nonmoving party.
See Anderson, 477 U.S. at 255.
Background
On June 30, 2000, Edwardina Lima awoke at about 4:30 a.m.
and drove to Salem to help her husband open the convenience store
the family operated in Salem, New Hampshire. She then drove to
Andover, Massachusetts, to her primary workplace, Adjulant, and
worked until two or three in the afternoon. After work, she did
2 errands and then drove back to Salem to the convenience store to
help her husband. When they were ready to leave for the night,
Mr. Lima asked his wife to drive home because he was very tired.
She was driving a car, purchased for their son, that she did not
like to drive.
As she drove through Salem, New Hampshire, around 11 p.m.,
Mrs. Lima drove passed two stationary police cars. One of the
police cars pulled out and began to follow her as she drove along
Veterans' Memorial Parkway, a one-lane road. Salem Police
Officer Wesley Decker saw the Limas' car driving well below the
speed limit and also noticed that the car was weaving over the
road in erratic movements. Mrs. Lima states that she attempted
to "change lanes" on the one-lane road to avoid Decker's
headlights behind her but asserts that she did not cross the
double yellow line.
Decker activated his lights and pulled the car over. He
approached the driver's side of the car and asked Mrs. Lima for
her license and car registration. Mrs. Lima was argumentative
and refused to allow him to speak, but she produced her license
and registration. Mrs. Lima appeared to be very hyperactive; her
arms were shaking, and she continually repeated her statements.
Decker asked Mrs. Lima if she had consumed alcohol, and she said
that she had not. He did not smell alcohol.
3 Salem Officer Kenneth E. Mulchahey arrived. Both Decker and
Mulchahey were trained, experienced, and state certified police
officers. Both were trained at the State Police Academy in
conducting field sobriety tests and for recognizing other
symptoms of intoxication. Mulchahey was also a Drug Recognition
and Evaluation Expert certified by the International Association
of Chiefs of Police. As part of his training, Mulchahey learned
physical and behavioral symptoms to recognize intoxication due to
different categories of drugs. His training had been updated
just two months before the incident involving Mrs. Lima.
Mrs. Lima agreed to take a series of sobriety tests. Decker
administered the tests while Mulchahey observed. Mrs. Lima
showed signs of intoxication in each of the three tests given.
She was unable to follow directions, and she argued with Decker's
directions even when she was asked to stop. She was very nervous
throughout the tests.
Decker told Mulchahey that he had seen the car cross the
double yellow line and the fog line before he made the stop.
Decker and Mulchahey agreed that Mrs. Lima showed symptoms that
indicated that she was impaired. Decker arrested Mrs. Lima for
driving while intoxicated and transported her to the Salem Police
Department.
At the Police Department, Mrs. Lima agreed to take a Breath
4 Test, which indicated a blood alcohol concentration of 0.0%.
Mulchahey then conducted a Drug Recognition Evaluation ("DRE")
examination. Mrs. Lima showed signs that she was under the
influence of intoxicating substances. Her pulse was 130 beats
per minute, above the normal range of 60 to 90. She began the
tests without waiting for the instructions. During one test that
required her to stand still and count, she swayed forward and in
a circular motion throughout the test. She had difficulty with a
balance test, and in four out of six tries she was unable to
touch her index finger to her nose with her eyes closed.
Based on the test results on the DRE Chart and his
experience, Mulchahey concluded that there was probable cause to
believe that Mrs. Lima was impaired by a stimulant drug and a
narcotic analgesic. Mulchahey then transported Mrs. Lima to
Parkland Medical Center for a blood test. Mulchahey referred the
matter to the Salem Police Department Prosecutor who filed a
complaint against Mrs. Lima in Salem District Court.
The Salem Police Department received the test results
several months later, on October 3, 2000. The results were
negative for the six drugs tested. Despite the negative results,
the prosecutor proceeded with the case against Mrs. Lima based on
the observations reported by Decker and Mulchahey. The charges
were dismissed before trial.
5 Discussion
In support of summary judgment, the defendants contend that
Mrs. Lima cannot prove a Fourth Amendment violation and that her
due process claim is precluded by the Fourth Amendment claim.
They also contend that she cannot provide any evidence of
discrimination in support of her equal protection claims. With
respect to the claims against the town, the defendants assert
that Mrs. Lima cannot show any town custom or policy that caused
the alleged constitutional violations.2 Alternatively, the
defendants assert qualified immunity as to the civil rights
claims against the officers. With respect to the state law
claims, the defendants ask the court to decline supplemental
jurisdiction, and alternatively, challenge the claims on the
merits .
A. Fourth Amendment Claim
In Count One, Mrs. Lima alleges that all of the defendants
violated her Fourth Amendment rights in the course of the stop,
arrest, and prosecution. In her objection to summary judgment.
2 The court first addresses the merits of Mrs. Lima's constitutional claims and will only consider qualified immunity if a triable issue exists as to the asserted violations. See Saucier v. Katz, 121 S. C t . 2151, 2156 (2001).
6 however, Mrs. Lima pursues her Fourth Amendment claim only as to
Officer Decker. She argues that Decker lacked probable cause or
reasonable suspicion to stop her car and lacked probable cause to
arrest her for driving while impaired. Therefore, Mrs. Lima is
deemed to have waived her Fourth Amendment claim as to the town
and Officer Mulchahey.
1. The initial stop.
"The Fourth Amendment prohibits 'unreasonable searches and
seizures' by the Government, and its protections extend to brief
investigatory stops of persons or vehicles that fall short of
traditional arrest." United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). To satisfy
the Fourth Amendment in making a Terry stop, an officer must have
reasonable articulable suspicion that a criminal violation is
occurring or is about to occur. See United States v. Velez-
Saldana, 252 F.3d 49, 52 (1st Cir. 2001); United States v.
Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). In assessing
whether reasonable suspicion existed, courts are to consider the
totality of the circumstances, including the officer's experience
and training, to determine "whether the detaining officer has a
particularized and objective basis for suspecting legal
wrongdoing." Arvizu, 534 U.S. 273.
7 Before Decker activated his cruiser's lights and stopped the
Limas' car, he saw the car driving slowly and weaving on a one-
lane road. Mrs. Lima provides no description of her driving
before the police cruiser began to follow her. She contends that
she was driving "within" the speed limit but she does not contest
that she was driving slowly. After she noticed the cruiser
behind her, she became nervous and found it difficult to see due
to the headlights. She confirms that she "changed lanes" on the
one-lane road, and she does not dispute that she crossed the fog
line on the right side of the road.
Therefore, despite Mrs. Lima's explanations, it is
undisputed that Decker observed erratic driving before he stopped
her. Decker believed, based on his training and experience, that
the erratic driving indicated the driver might be impaired. See,
e.g.. State v. Melanson, 140 N.H. 199, 203 (1995); State v.
Landry, 116 N.H. 288, 291 (1976). New Hampshire Revised Statute
Annotated ("RSA") § 265:82 prohibits driving while under the
influence of intoxicating liquor or a controlled drug. Based on
the undisputed circumstances, reasonable suspicion existed that
the driver of the Limas' car was driving while impaired, in
violation of RSA 265:82. See, e.g.. United States v. Dhinsa, 171
F.3d 721, 725 (2d Cir. 1998); United States v. Harris, 928 F.2d
1113, 1116 (11th Cir. 1991); State v. Galgav, 145 N.H. 100, 103-
04 (2000).
8 2. The arrest.
A warrantless arrest must be supported by probable cause.
See Diaz v. Citv of Fitchburg, 176 F.3d 560, 563 (1st Cir. 1999).
"Probable cause exists if, at the time of the arrest, the
collective knowledge of the officers involved was sufficient to
warrant a prudent person in believing that the defendant had
committed or was committing an offense." United States v. Link,
238 F.3d 106, 109 (1st Cir. 2001) (internal quotation omitted).
The probable cause standard applies, and, if satisfied, an arrest
is proper, without a need to balance the costs, benefits, or
necessity of the arrest. Atwater v. Citv of Lacro Vista, 532 U.S.
318, 354 (2001) .
Mrs. Lima was arrested after Decker observed her erratic
driving, talked with her, administered field sobriety tests, and
discussed the situation with Mulchahey. Mrs. Lima argues that
probable cause was lacking because Decker did not decide to
arrest her immediately after the field sobriety tests and because
Mulchahey did not have an opinion before the arrest as to whether
she was under the influence of a controlled drug. Mrs. Lima
misconstrues Decker's statement that he had not decided to arrest
her immediately after the field sobriety tests as an admission
that he lacked sufficient indication of impairment to support
9 probable cause. Instead, the undisputed evidence shows that
Decker had probable cause to arrest Mrs. Lima, based on her
conduct and test performance, and that he conferred with
Mulchahey to confirm his impression.3
Mrs. Lima does not dispute that she was initially
argumentative and would not allow Officer Decker to speak to her.
She does not dispute that she was shaking and repeating her own
statements. During the field sobriety tests, Mrs. Lima was
unable to follow Decker's directions; she continually swung her
body in a circular motion; she was unable to stand on one leg for
more than nine seconds; and she had difficulty walking in a
straight line and turning.
Decker conferred with Mulchahey after observing Mrs. Lima's
performance. When Mulchahey concurred with Decker's impression
of Mrs. Lima's impairment. Decker placed Mrs. Lima under arrest.
A driver's unusual behavior and failure to perform field sobriety
tests properly constitutes probable cause to support an arrest
for driving while impaired. See State v. Wong, 125 N.H. 610, 628
(1984); see also Ritz v. Breen, 2002 WL 519095, at *5 (D. Conn.
Mar. 11, 2002); Bulanov v. Town of Lumberland, 2002 WL 181365, at
*5 (S.D.N.Y. Feb. 6, 2002); Babers v. Citv of Tallassee, 152 F.
Supp. 2d 1298, 1306-07 (M.D. Ala. 2001).
3It is undisputed that Mrs. Lima agreed to take the field sobriety tests.
10 B. Substantive Due Process Claim
Mrs. Lima contends that the events surrounding the stop,
arrest, and prosecution violated her substantive due process
rights under the Fourteenth Amendment. Claims that a plaintiff
was stopped, arrested, or prosecuted without probable cause are
not actionable as substantive due process violations. See
Albright v. Oliver, 510 U.S. 266, 274-76, 288 n.2 (1994); Britton
v. Maloney, 196 F.3d 24, 28 (1st Cir. 1999). Therefore, the
defendants are entitled to summary judgment on Mrs. Lima's claim
in Count Two that the defendants' actions violated her
substantive due process rights.
C. Equal Protection Claim
Ordinarily, an equal protection claim consists of two
elements: "whether the [plaintiff] was treated differently than
others similarly situated, and (2) whether such a difference was
based on an impermissible consideration, such as race." Macone
v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002) .
Alternatively, a plaintiff may be able to show a denial of equal
protection by demonstrating a gross abuse of power or
fundamentally unfair procedures. See Collins v. Nuzzo, 244 F.3d
246, 251 (1st Cir. 2001). When a plaintiff asserts
discrimination only as to herself, constituting a class of one,
she must show that she has been intentionally treated differently
11 than others similarly situated and that no rational basis exists
for such treatment. See Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000); see also Woicik v. Mass. State Lottery
Comm'n, 300 F.3d 92, 104-05 (1st Cir. 2002).
Mrs. Lima asserts that she was stopped, arrested, and
prosecuted without probable cause because she is of Portuguese
descent. As is discussed above, Mrs. Lima has not provided
probative evidence that she was stopped or arrested without
probable cause. She has provided no evidence that the prosecutor
was aware of her national origin in making her decision to
prosecute Mrs. Lima.4 She has provided no evidence that she was
treated differently in any of the circumstances of this case than
others who were similarly situated. Further, the record includes
no evidence that the circumstances of this case constituted a
gross abuse of power or fundamentally unfair procedures, nor has
Mrs. Lima made any developed argument in that regard.
4In her affidavit, the prosecutor states that she decided to proceed with the prosecution, despite negative blood test results, because of Mrs. Lima's symptoms of impairment, as observed by Decker and Mulchahey, the results of Mulchahey's Drug Recognition Evaluation, and her own knowledge that drugs other than the six tested by the laboratory could impair a driver such as Mrs. Lima.
12 D. Federal Claims Against the Town5
A municipality cannot be liable under § 1983 on a theory of
respondeat superior based on the conduct of its employees. See
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
"Rather, liability can be imposed on a local government only
where that government's policy or custom is responsible for
causing the constitutional violation or injury." Kelley v.
Laforce, 288 F.3d 1, 9 (1st Cir. 2002). Although a governmental
custom or policy may be established by a single event, that will
occur only "where 'the decisionmaker possesses final authority to
establish municipal policy with respect to the action ordered.'"
Id. (quoting Pembaur v. Citv of Cincinnati, 475 U.S. 469, 481
(1986)). Whether such authority exists depends on state law.
See Pembaur, 475 U.S. at 484-85.
Mrs. Lima contends that the town prosecutor was a final
decisionmaker for purposes of deciding which cases to prosecute
and, therefore, her decision to prosecute Mrs. Lima constitutes
town policy. Mrs. Lima provides no evidence or legal authority
to show that the prosecutor was a final decisionmaker for the
town, stating only that she "is indisputably an authorized
decision maker for municipal liability purposes." Obj. at 9.
iAlthough Mrs. Lima does not now pursue her Fourth Amendment claim against the town, in her complaint she brings the claim against all three defendants.
13 She cites no state law that establishes that town prosecutors
generally, or the Salem prosecutor in particular, have final
authority in deciding which cases to prosecute. C f . Pembaur, 475
U.S. at 484-85; see also Kellev, 288 F.3d at 10. Therefore, Mrs.
Lima has not shown a trialworthy issue as to whether the decision
to prosecute her was made pursuant to town custom, practice, or
policy. The town is entitled to summary judgment due to Mrs.
Lima's failure to show a basis for municipal liability, in
addition to the lack of evidence of an underlying constitutional
violation.
E. State Law Claims
Mrs. Lima also brings state law claims of negligence, false
imprisonment, and malicious prosecution. She alleges in the
complaint that "pendant" jurisdiction exists as to the state law
claims, which the court deems to be a reference to supplemental
jurisdiction. See 28 U.S.C. § 1367(a). If supplemental
jurisdiction is the only jurisdictional predicate for state law
claims, ordinarily the court will decline jurisdiction once the
federal claims are dismissed. See § 1367(c).
In this case, however, it appears from the complaint that
Mrs. Lima and the town are of diverse citizenship.6 See 28
6M r s . Lima alleges that she resides in Methuen, Massachusetts.
14 U.S.C. § 1332(a). The complaint includes no allegations as to
the citizenship of the defendant officers. If Officer Decker and
Officer Mulchahey are both New Hampshire citizens, or citizens of
a state other than Massachusetts, complete diversity of
citizenship would exist, supporting subject matter jurisdiction
under § 1332(a). In contrast, if either officer is a citizen of
Massachusetts, along with Mrs. Lima, complete diversity does not
exist, precluding subject matter jurisdiction under § 1332. See,
e.g., Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74
(1978); Valentin v. Hosp. Bella Vista, 254 F.3d 358, 366 (1st
Cir. 2001). The complaint also includes no allegations as to the
amount in controversy. See § 1332 (a) .
Mrs. Lima bears the burden of showing that subject matter
jurisdiction exists. See Velentin, 254 F.3d at 366; Pei eoscot
Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 200-01
(1st Cir. 2000); Aversa v. United States, 99 F.3d 1200, 1209 (1st
Cir. 1996). Despite the defendants' argument that the court
should decline supplemental jurisdiction, pursuant to § 1367 (c),
Mrs. Lima failed to address subject matter jurisdiction in her
objection to summary judgment. Therefore, Mrs. Lima has failed
to carry her burden of showing that subject matter jurisdiction
exists on any basis other than § 1367(a).
Because the federal claims are now dismissed and Mrs. Lima's
state law claims are not well articulated or developed, the court
15 declines to exercise supplemental jurisdiction as to those
claims. See § 1367(c).
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 10) is granted. The clerk of
court shall enter judgment in favor of the defendants and close
the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
October 28, 2002
cc: Thomas J. Gleason, Esquire Donald E. Gardner, Esquire