Makris v. Salem, NH CV-97-330-SD 10/29/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
and as Administrator of the Estate of Dimitrios "James Makris; and Sofia Beredimas Makris
Civil No. 97-330-SD
Town of Salem, New Hampshire; Steven MacKinnon, individually and as Chief of Police of the Town of Salem, New Hampshire; and Stephen Daly; Charles Moore; William Teuber; Fred Rheault; John Doe; Peter Delorev, individually and as Police Officers for the Town of Salem
O R D E R
The plaintiffs,1 parents of an individual who died in a
motorcycle accident while being pursued by police, as
representatives of their son's estate, claim that the defendants
Town of Salem, New Hampshire, and Salem police officers
associated with the chase, deprived their son of his
constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985
Plaintiffs have requested oral argument on their motion. The court does not believe that oral argument would be helpful and therefore denies this request. In addition, plaintiffs allege state-law claims of wrongful
death, intentional infliction of emotional distress, and
negligence. Currently before the court is defendants' motion for
summary judgment as to all federal claims, to which plaintiffs,
Spiros and Sofia Makris, object. For the reasons that follow,
this court grants the defendants' motion in its entirety.
BACKGROUND
This case arises from a police surveillance and chase of
plaintiffs' son, James Makris (Makris), that began because the
police believed that Makris had possession of a stolen, loaded
weapon. On the afternoon of July 12, 1995, the Atkinson, New
Hampshire, police department informed the Salem police department
that a loaded Smith & Wesson .45 caliber semiautomatic handgun
had been stolen from a construction site and that three male
suspects were headed toward Salem in a red Camaro. Shortly after
receiving this information. Officer Steven Malisos of the Salem
police department stopped a red Camaro with two male occupants at
the Rockingham Mall in Salem, New Hampshire. Detective Fred
Rheault, Sergeant Peter Delorey, and Officer William Teuber, all
from the Salem police department, arrived soon after to assist
Malisos. Incident to the arrest of the Camaro's two occupants,
Frank Bemis and Dana Fritsch, the police found a black pellet gun
2 in the car, but did not find the stolen handgun. In questioning
Bemis and Fritsch, Malisos and Rheault discovered that
immediately prior to coming to the mall, Bemis and Fritsch had
given a third person, James Makris, a ride to his parents' home
on Cortland Drive in Salem. In addition, both Bemis and Fritsch
knew that their boss kept a handgun in his truck at a
construction site and informed the police that Makris also was
aware of this information. They said they did not know whether
Makris had the gun. Based upon this investigation, Delorey
suspected that Makris had possession of the stolen, loaded
weapon, so Delorey instructed Teuber to survey (discreetly) the
Makris home and to make sure Makris did not leave the area while
a search warrant was being obtained for the gun.
The Makris home is located at the end of Cortland Drive, a
dead-end street. The only exit from the Makris home by vehicle
is through the intersection of Cortland Drive and Brady Avenue.
Because Teuber did not have an unmarked cruiser when he went to
survey the Makris home, he parked his car near the end of
Cortland Drive where it intersected with Brady Avenue. From this
position Teuber could not see the Makris home, nor could the
occupants of the Makris house see his car, but Teuber could see
3 vehicles as they drove down Cortland Drive toward Brady Avenue.2
After Teuber had been parked on Cortland Drive for at least
twenty minutes. Officer Charles Moore pulled up along the
driver's side of Teuber's car so that Moore's cruiser faced Brady
Avenue. Teuber informed Moore that Makris was suspected of being
in possession of a stolen, loaded handgun, that Makris had been
last seen at his parents' address on Cortland Drive, and that
Teuber was instructed to make sure Makris did not leave the area
until the police obtained a search warrant for the gun.
Soon after this conversation, Teuber thought he saw Makris
slowly traveling down Cortland Drive toward him on a motorcycle.
Although Makris wore a full face helmet, Teuber alleges he was
able to identify Makris from his physique.3 Teuber communicated
to Moore that the operator of the motorcycle was Makris and
pulled out after Makris. Moore followed Teuber in pursuit of
Makris. Both officers followed Makris onto Brady Avenue and
engaged their emergency lights and sirens to pull Makris over.
Soon after, Makris pulled over to the side of the road on Brady
2Teuber's car was positioned on the grass perpendicular to Cortland Drive, allowing him to pull out onto Cortland Drive without difficulty.
3Teuber had encountered Makris weightlifting at his gym for over a year and knew that Makris had an unnaturally bulky physique (which Teuber suspected was due to steroid abuse).
4 Avenue. Teuber parked directly behind Makris. Moore parked next
to Makris at an angle partially boxing in Makris's motorcycle.
At this time Teuber reported license plate information from
Makris's motorcycle to the Salem police department. The
motorcycle had been stopped for approximately fifteen to thirty
seconds, but before either officer could approach Makris, he took
off on his motorcycle at a high rate of speed down Brady Avenue
toward Cross Street.
After Makris took off, both officers followed Makris with
their blue lights and sirens engaged. At this time Moore was
behind Makris, and Teuber followed Moore. Both officers traveled
approximately a quarter mile down Brady Avenue before turning
onto Cross Street after Makris. After turning onto Cross Street,
Teuber could not see Makris, but Moore could. At about this time
the police officers learned from headquarters that the motorcycle
Makris was operating had been stolen within the last month. As
Makris sped4 down Cross Street toward New Hampshire Road, Moore
began to lose sight of him until he could only see Makris's
motorcycle intermittently in the distance ahead of him.5 When
4The officers estimate that Makris was traveling at approximately a hundred miles per hour.
5Brady Avenue and New Hampshire Road are mostly rural roads without sidewalks. Cross Street is more built up, with residences which are closer together, but this road also does not have sidewalks. 5 Moore and Teuber reached the intersection of Cross Street and New
Hampshire Road, they did not know which way Makris had gone.
Moore took a right onto New Hampshire Road and Teuber took a left
onto New Hampshire Road.
Shortly after Teuber turned left onto New Hampshire Road, he
saw Officer Rheault traveling toward him in the opposite
direction on that street. Rheault, who knew of the chase via the
police radio and had been looking for Makris in this area,
informed Teuber that Makris had not gone in the direction in
which Teuber was proceeding.
As Moore traveled down New Hampshire Road (in the opposite
direction of Teuber), he saw a flash in the distance ahead of him
that he thought might be the motorcycle and transmitted this
information to the police department. Within a half mile after
seeing this flash, Moore came upon Makris, who was lying in the
middle of New Hampshire Road.
Makris's motorcycle had crashed into a fire hydrant, and the
impact threw Makris onto the street. Moore radioed for an
ambulance and approached Makris. Makris was conscious and still
wore his helmet. When Moore tried to question Makris about the
location of the stolen gun, he could not understand anything
Makris said and could tell that Makris was physically injured and
in pain. Makris attempted to get up and to remove his helmet.
6 Moore instructed Makris to stay where he was until the ambulance
arrived and helped Makris take off his helmet. Soon after.
Officer Rheault arrived at the scene and also questioned Makris
about the gun without any success.6 The total distance traveled
from Cortland Drive to the scene of the crash was between 1.5 and
2.0 miles. As a result of injuries from the motorcycle crash,
Makris died a few days later.
DISCUSSION
1. Standard of Review
The court may only grant a motion for summary judgment where
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). Accordingly, at this stage of the
proceeding, the court does not weigh the evidence and determine
the truth of the matter, but instead determines whether there is
a genuine issue of fact for trial. See Stone & Michaud Ins. Bank
Five for Savinas, 785 F. Supp. 1065, 1068 (D.N.H. 1992) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The
6The stolen gun was not found at the scene of the accident but was found by police at the Makris's house later in the day. 7 substantive law identifies which facts are material so that
[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.'" Caputo v. Boston Edison Co.,
924 F.2d 11, 12-13 (1st Cir. 1991) (quoting Anderson, supra, 477
U.S. at 248).
The party seeking summary judgment bears the initial burden
of establishing the lack of genuine issues of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Quintero de
Quintero v. Aponte-Rocrue, 974 F.2d 226, 227-28 (1st Cir. 1992).
As a result, the court must view the entire record in the light
most favorable to the nonmoving party, "'indulging all reasonable
inferences in that party's favor.'" Mesnick v. General Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Griggs-Rvan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990)). However, once a
defendant has submitted a properly supported motion for summary
judgment, the plaintiff "may not rest upon mere allegation or
denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial." Anderson,
supra, 477 U.S. at 256.
8 2. 42 U.S.C. § 1983
Pursuant to 42 U.S.C. § 1983, litigants can bring civil
actions against government officials who "under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory . . ., subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . ."
42 U.S.C. § 1983 (1994). As the basis for their section 1983
action, plaintiffs claim that the police officers violated
Makris's Fourth and Fourteenth Amendment rights by pursuing and
stopping him as they did.
Defendants assert three defenses against this section 1983
claim: (1) plaintiffs fail to establish a Fourth Amendment due
process violation because Makris was not seized as the term
applies to the Fourth Amendment; (2) plaintiffs fail to establish
a substantive due process violation under the Fourteenth
Amendment because Salem Police had a legitimate police purpose in
pursuing Makris; and (3) even if a constitutional violation is
established under the Fourth or Fourteenth Amendments, the police
officers are entitled to qualified immunity. See Defendants'
Motion For Summary Judgment.
To determine whether the police officers should be afforded
the protection of qualified immunity, the court first must
9 evaluate the merits of this case. See Siegert v. Gilley, 500
U.S. 226, 232 (1991) ("A necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is 'clearly established' at the time the defendant
acted is the determination of whether the plaintiff has asserted
a violation of a constitutional right at all."), reh'g denied,
501 U.S. 65 (1991). According to the First Circuit, "[a] court
may . . . bypass the qualified immunity analysis if it would be
futile because current law forecloses the claim on the merits."
Aversa v. United States, 99 F.3d 1200, 1215 (1st Cir. 1996)
(bypassing qualified immunity analysis, court found no viable
constitutional claim where plaintiff was discharged by a third
party as a result of defendant's defamatory statements). Like
the Aversa court, this court will bypass the issue of qualified
immunity because current law forecloses the claim on the merits,
making it unnecessary to engage in qualified immunity analysis.
3. Fourth Amendment
Plaintiffs claim that Makris's temporary stop and the
following pursuit were an unreasonable seizure by the police in
violation of the Fourth Amendment, which states, in part, that
people have the right "to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures."
10 U.S. Co n s t , amend. IV. Before the court can reach the question of
reasonableness of the police action involved, the court must
first determine if the police actually seized Makris, as
plaintiffs allege.
According to Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968),
"[o]nly when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen
may we conclude that a 'seizure' has occurred." Thus, for a
seizure to occur, there must be some physical force or show of
authority by the police. It is obvious in this case that the
police, in their marked cars with lights and sirens engaged at
the time they pulled Makris over and during their pursuit of
Makris, displayed their authority to Makris.
Even if there is some show of authority by police, such as
when the police flash their lights or run after a person, there
is no seizure unless the individual submits to the show of
authority. See California v. Hodari D . , 499 U.S. 621, 628-29
(1991) (Court found no seizure during pursuit of individual
because individual did not comply with police order to stop).
Before the court will find a seizure under the Fourth Amendment,
there must be a restraint of an individual's movement by
authorities in one of two ways: either through submission by the
individual to authorities or through government action,
11 intentionally applied, that is successful in terminating an
individual's movement. This physical control of an individual by
authorities is necessary because a seizure occurs when possession
of an item is taken which brings the item under the physical
control of another. See id. at 624. Furthermore, contrary to
plaintiffs' suggestion, a seizure is not continuous, but rather
is a single event. See id. at 625. Thus, even if an official
physically restrains a person in some way, either through the
individual's submission or through physical force which is
intentionally applied, if that person escapes the official's
physical control, the seizure ends. An individual who flees
from government officials certainly has not submitted to these
officials in any way that would result in a Fourth Amendment
seizure. See id. at 624. Consistent with the Court's view on
submission and individuals in flight, the District of Columbia
Circuit has ruled that the operator of a vehicle who initially
stopped when police pulled him over was not "seized" within the
meaning of the Fourth Amendment because he did not actually
submit to police authority when he drove away before officers
could reach his vehicle. United States v. Washington, 12 F.3d
1128, 1132 (D.C. Cir. 1994), cert, denied, 513 U.S. 828 (1994).
Thus, according to current law, if a person has not submitted to
the authorities in some way, absent some intentional exertion of
12 physical force over a person by authorities, there cannot be a
seizure. See United States v. Young, 105 F.3d 1, 6 (1st Cir.
1997) (court found no seizure where police officers pulled their
car next to the operator of a vehicle and asked if they could
question him briefly) (citing United States v. Sealy, 30 F.3d 7,
9-10 (1st Cir. 1994) (court found no seizure where police
officers briefly questioned from their cruiser an individual on
the street, and he fled)).
Contrary to plaintiffs' assertions, an individual, prior to
his or her capture, will not be considered to be seized while
fleeing from officials because this individual has not submitted
to authorities in any way. Even though Makris initially stopped
for the police, this stop can hardly be considered a submission
to police authority when he sped away before the officers could
approach him. Thus the court cannot find a Fourth Amendment
seizure based upon submission to authority where Makris showed no
signs of submission.
Without submission, an individual in flight, as was Makris,
could still be seized under the Fourth Amendment if government
officials actually stop him or her by an intentional act. See
Brower v. County of Inyo, 489 U.S. 593, 596-98 (1989). The court
has specifically addressed this issue in several cases involving
police chases. In Brower, the court found that the police seized
13 an individual when he crashed into a roadblock which police had
purposefully positioned in such a way that he would crash into
it. See id. at 598. Despite this ruling, the Court has noted
specifically that, even though a chase by police communicates to
an individual that they want the individual to stop, this does
not necessarily implicate Fourth Amendment protections. See
Michigan v. Chesternut, 486 U.S. 567, 574-75 (1988) (Court found
no Fourth Amendment seizure where police drove alongside an
individual who was running away from them). Accordingly, when a
police chase is terminated because the suspect crashes, there is
no seizure unless law officials purposely caused the crash in
some way. See County of Sacramento v. Lewis, ___ U.S. , ,
118 S. Ct. 1708, 1715 (1998) ("no Fourth Amendment seizure would
take place where a 'pursuing police car sought to stop the
suspect only by the show of authority represented by flashing
lights and continuing pursuit,' but accidentally stopped the
suspect by crashing into him"); Horta v. Sullivan, 4 F.3d 2, 9-10
(1st Cir. 1993) (court found no seizure by a pursuing officer who
chased a motorcyclist for over three miles at speeds as high as
75-80 miles per hour, even though motorcyclist lost control of
his motorcycle and crashed into another officer's vehicle).
According to these standards set by the Court, even though
Makris temporarily pulled over, no physical force was
14 intentionally applied by the police toward Makris that would
suggest they had seized him. This is not a case like Terry,
where a seizure occurred because an officer physically touched a
suspect. See Terry, supra, 392 U.S. at 17-19. Instead, the
officers in this case could not get physically close to Makris
during his temporary stop. Because Makris fled before police
approached him, the court cannot find that the police took
physical "possession" of Makris during his temporary stop in any
way that would result in a seizure.
Additionally, even though Makris's movement was terminated
when he lost control of his motorcycle and crashed into a fire
hydrant, in no way can this termination of Makris be considered a
seizure by police. Only if the police had intentionally caused
Makris to stop in some way, such as placing a roadblock in a
manner that would cause him to crash, could the court find that
these police officers seized Makris when he lost control of his
motorcycle. Because the court finds no evidence of a seizure in
this case, the Fourth Amendment claim against the defendants must
fail.
4. Fourteenth Amendment
If a constitutional claim alleging abusive conduct by
government officials is covered by a specific constitutional
15 provision, like the Fourth Amendment, the claim must be analyzed
under the standard appropriate to that provision. See Lewis,
supra, ___ U.S. at ___ , 118 S. Ct. at 1715. On the other hand,
if no specific constitutional provision applies regarding
allegations of physical abuse caused by government officials, as
in the present case, the court may analyze the claim according to
the substantive due process standards of the Fourteenth
Amendment. See id. Accordingly, despite the failure of
plaintiffs' Fourth Amendment claim, there is still a possibility
that defendants could be liable under section 1983 based on the
Fourteenth Amendment.
Plaintiffs urge the court to apply a deliberate indifference
standard when determining if defendants violated Makris's
substantive due process rights under the Fourteenth Amendment.
Alternatively, plaintiffs allege that even if the court applies a
shock-the-conscience standard rather than a deliberate
indifference standard to defendants' conduct, they can still
prove violations of Makris's Fourteenth Amendment rights because
the actions by defendants were so egregious. Contrary to these
assertions, the court is not convinced that plaintiffs have
presented evidence to prove that the actions of the police
officers rise to the level of "conscience shocking" as required
by the Fourteenth Amendment standard.
16 The Fourteenth Amendment provides in part that no state
shall "deprive any person of life, liberty or property, without
due process of the law." U.S. Co n s t , amend. XIV, § 1. This
provision protects individuals against deliberate action by
government officials intended "'to deprive a person of life,
liberty, or p r o p e r t y . See Lewis, supra, ___ U.S. at ___ , 118
S. Ct. at 1718 (quoting Daniels v. Williams, 474 U.S. 327, 332
(1986)). Again, the court considers the totality of the
circumstances to determine whether there has been a Fourteenth
Amendment violation by such officials. See, e.g., Evan v . Avery,
100 F.3d 1033, 1038 (1st Cir. 1996), cert, denied, 117 S. Ct.
1693 (1997).
The Court has emphasized that not all government action
which causes harm to an individual is actionable under the
Constitution. See Lewis, supra, ___ U.S. at ___ , 118 S. Ct. at
1717-18. In high-speed police pursuits in particular, the First
Circuit has ruled that only those actions by government officials
that "shock the conscience" will be violations of due process
under the Fourteenth Amendment. See Evans, supra, 100 F.3d at
1038. In Evans, the police pursued a suspect in a densely
populated residential area where traffic was heavy and
pedestrians were prevalent. Even though the pursuit resulted in
the death of a ten-year-old pedestrian, the court, considering
17 the totality of the circumstances, ruled that because the actions
by the police did not amount to anything more than ordinary
negligence, and did not shock the conscience, there could be no
Fourteenth Amendment violation. See id. at 1038. Since Evans,
the Supreme Court, specifically rejecting the "deliberate
indifference" standard proposed by plaintiff here, adopted this
shock-the-conscience standard for all actions involving
Fourteenth Amendment violations by law enforcement officials
during high-speed police chases. See Lewis, supra, ___ U.S. at
, 118 S. Ct. at 1717. In establishing this higher standard to
apply to situations where the police have to make split-second
decisions, the Court explained that the Constitution focuses on
the major concerns between "'the governors and the governed, but
it does not purport to supplant traditional tort law in laying
down rules of conduct to regulate liability for injuries that
attend living together in society.'" Id. at 1718 (quoting
Daniels, supra, 474 U.S. at 332). Accordingly, this court will
apply a shock-the-conscience standard to defendants' actions to
determine whether these government officials violated Makris's
substantive due process rights under the Fourteenth Amendment.
Actions of government officials that can be deemed to be
so arbitrary and so egregious that they shock the conscience
occur in situations where government officials intend "to injure
18 [an individual] in some way unjustifiable by any government
interest." See Lewis, supra, ___ U.S. at ___ , 118 S. Ct. at
1718. For instance, in circumstances where a police officer is
engaged in a high-speed automobile chase aimed at apprehending a
suspected offender, a due process violation under the Fourteenth
Amendment will only be found if the purpose of the police chase
was to cause harm to the individual, unrelated to any legitimate
police objective. See id. at 1720. This result may seem harsh,
but as Justice Kennedy points out in his concurrence in Lewis,
"[t]here is a real danger in announcing a rule, or suggesting a
principle, that . . . suspects may ignore a lawful command [by
police] to stop and then sue for damages sustained in an ensuing
chase," as this could cause suspects to flee more often. Id. at
1722 (Kennedy, J . , concurring).
Accordingly, in the instant case, for a violation of the
Fourteenth Amendment, there must be evidence that the police
officers had an intent to harm the decedent that was not
justified by any legitimate police purpose. Based on the
standards discussed above, there is no evidence in this case that
the police officers engaged in activity that deprived Makris of
his Fourteenth Amendment rights. The officers attempted to pull
Makris over only because they thought he was the person driving
the motorcycle and they suspected he was in possession of a
19 stolen, loaded weapon. Furthermore, after Makris fled and
engaged the officers in pursuit, the officers then knew that
Makris had failed to stop for them, that he was operating a
stolen vehicle, and that he was driving greatly in excess of the
posted speed limit. It is clear that these officers had a
legitimate police purpose in pursuing Makris. To the contrary,
there is no evidence that the officers' intent was to harm
Makris. Like the officers in Lewis, Teuber and Moore were faced
with lawless behavior for which they were not to blame; these
officers only acted upon their duties to enforce the law, not to
harm or kill Makris. See id. at 1721. Consequently, the
totality of the circumstances in this case does not suggest that
the officers' behavior was conscience shocking, and therefore
there can be no Fourteenth Amendment claim against the
defendants.
Because the court has determined that the defendants'
actions did not involve either Fourth or Fourteenth Amendment
violations, as alleged by the plaintiffs, the section 1983 claim
against the police officers must fail.
5. 42 U.S.C. § 1985
Plaintiffs allege that the police officers, as individual
defendants, conspired against Makris in violation of 42 U.S.C.
20 § 1985. Federal law protects individuals against two or more
people who conspire "for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws" by allowing individuals to recover for
injuries caused by these conspirators in a civil action. 42
U.S.C. § 1985(3)(1994). Unlike section 1983 actions, defendants
in section 1985 actions are not required to be acting "under
color of state law;" therefore, private as well as public
officials may be named as defendants. See Griffin v.
Breckenridge, 403 U.S. 88, 96-97 (1971) (Court ruled that
according to 42 U.S.C. § 1985 private conspirators who committed
a racially motivated assault while on a public highway could be
sued by injured plaintiffs).
Without distinguishing between private or public defendants,
the Griffin Court also ruled that to bring a conspiracy claim
under 42 U.S.C. §1985(3), plaintiffs must show that the
conspiracy was motivated by "'some racial, or perhaps otherwise
class-based, invidiously discriminatory animus.'" Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (because town selectman
could not show he belonged to cognizable class, his conspiracy
claim under 42 U.S.C. § 1985(3) failed) (quoting Griffin, supra,
403 U.S. at 102). The First Circuit and several other circuits
21 have interpreted the Griffin Court's analysis regarding section
1985(3) conspiracies to mean that there is "no principled basis
for distinguishing between public and private conspiracies."
Aulson, supra, 83 F.2d 4. Thus all plaintiffs who bring civil
actions under this statute "must allege facts showing that (1)
the defendants conspired against them because of their membership
in a class, and (2) the criteria defining the class are
invidious." Id.
Plaintiffs in this case have not alleged that defendants'
actions were motivated by any class bias. "'Judges are not
expected to be mindreaders. . . . [A] litigant has an obligation
"to spell out its arguments squarely and distinctly . . .
Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir. 1991) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (other
citations omitted)). Accordingly, where the plaintiffs have not
alleged that Makris belonged to any cognizable class against
which the defendants were invidiously conspiring, the court will
not analyze this issue further.
6. Town and Supervisory Liability
Plaintiffs allege that the Town of Salem failed to train its
employees adequately in the areas of surveillance and high-speed
police chases and that this failure resulted in the violation of
22 Makris's constitutional rights. According to Monell v. New York
City Dep't of Social Services, 436 U.S. 658, 694-95 (1978), a
municipality will only be held liable under section 1983 if: (1)
municipal employees have deprived individuals of their
constitutional rights and (2) it is the execution of the
government's policy that is ultimately responsible for the
deprivation of rights. See also Bordanaro v . McLeod, 871 F.2d
1151, 1154-55 (1st Cir. 1989).
This court has emphasized that even though a person may be
harmed in some way through his or her interaction with municipal
employees, if that person has suffered no constitutional injuries
by these employees, then the municipality itself cannot be liable
under section 1983. See Evans, supra, 100 F.3d at 1039; Havden
v. Gravson, 134 F.3d 449 (1st Cir. 1998) (where plaintiffs could
not prove equal protection violation against police chief, town
could not be found liable for its police policies). Accordingly,
because all of plaintiffs' federal claims against the pursuing
officers fail, there remains no federal basis for imposing
liability against the Town of Salem, the police department, or
the police officers' supervisors.
23 7. State Claims
Because this court has eliminated the federal claims, the
court declines to hear this case based upon state-law claims
alone. See 28 U.S.C. §1367(c) (1998) (authorizing district court
to decline jurisdiction after it "has dismissed all claims over
which it has original jurisdiction"); Camelio v. American
Federation, 137 F.3d 666, 672 (1st Cir. 1998) ("balance of
competing factors ordinarily will weigh strongly in favor of
declining jurisdiction over state law claims where the
foundational federal claims have been dismissed at an early stage
in the litigation").
Plaintiffs have asked this court to remand the instant case
to state court. "Remand" is impossible, however, because
plaintiffs, by choice, initiated this case in federal court, not
state court. See 28 U.S.C. § 1447(c) (1998) (case removed from
state court to federal court "shall be remanded" back to state
court if at any time before final judgment the district court
lacks subject matter jurisdiction (emphasis added) ) . If
plaintiffs wish to have their state claims adjudicated in state
court, then they will have to file those claims with that court.
24 Conclusion
For the abovementioned reasons, defendants' motion for
summary judgment (document 8) is granted as to Counts I-IV. The
remaining state claims in Counts V-VIII are dismissed without
prejudice. The clerk of court shall enter judgment accordingly.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
October 29, 1998
cc: Peter G. Callaghan, Esq. Mitchell J. Wallman, Esq. James B. Krasnoo, Esq. Donald E. Gardner, Esq.