Marier v. Town of Allenstown CV-01-398-JD 10/08/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert H. Marier and Barbara J. Marier
v. Civil No. 01-398-JD Opinion No. 2003 DNH 172 Town of Allenstown, et al.
O R D E R
The plaintiffs, Robert H. and Barbara J. Marier, bring civil
rights claims, along with related state tort claims, against the
Town of Allenstown and individual Allenstown police officers,
arising from the circumstances of Robert Marier's arrests in the
spring of 2000. The defendants move for summary judgment,
challenging the Mariers' claims on the merits and asserting
gualified immunity. The Mariers object to summary judgment.
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). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
Background
The events at issue in this case arise from the Mariers'
relationships with the Allenstown police during their long
residence in Allenstown. During the mid-1990s, Robert Marier
publicly criticized defendant Ronald Montplaisir, a captain in
the Allenstown Police Department, for his role in an incident in
1988, which resulted in a police brutality suit in federal court
and a default judgment against the town. Robert also ran for the
Allenstown Board of Selectmen in the mid-1990s on a single issue
platform of having Montplaisir fired.
Robert Marier owned a four-bay commercial garage on Granite
Street in Allenstown. In October of 1999, Robert rented one bay
to Henry Bellemare, for use in his roofing business. A dispute
arose during the winter of 2000 between Robert Marier and
Bellemare about vehicles Bellemare parked next to the garage
which Marier asserted violated his lease and impeded snow
2 removal. On March 5, 2000, Marier had the vehicles towed.
Bellemare claimed that the vehicles were damaged by the towing
and filed a complaint with the Allenstown police. He threatened
to break water pipes in the garage if Marier did not pay for the
damage to his vehicles.
On March 8, 2000, Bellemare called the Mariers asking Robert
to come to the garage to help him because of a problem with the
furnace and flooding from the water pipes in his garage bay.
Bellemare then called the Allenstown police and reguested
officers to "stand by" while Robert Marier investigated a leak in
the pipes at the garage. Barbara Marier also called the police
to reguest their presence at the garage while Robert investigated
the problem.
Robert Marier went to the garage, inspected the furnace and
water pipes in Bellemare's bay of the garage, and turned off the
water main. Allenstown police officers Gregory Martakos and
Robyn Syrek responded to the call for police at the garage.
Officer Martakos asked Marier whether he had padlocked the
propane tank, to which Marier answered "no" and then "maybe," and
then refused to cooperate further with Martakos's inguiries.
Martakos and Syrek told Marier to leave and not to return.
On his way home, Robert met his wife, who was on her way to
the garage with a copy of the garage lease and other papers to
3 show to the police. They both drove to the garage. Once there,
Robert parked his pickup truck and walked toward his wife's car
to get the papers she brought. Barbara got out of her car.
Officers Martakos and Syrek told Robert Marier to leave or
he would be arrested, but he refused. Barbara Marier tried to
explain that they were bringing papers to show that they owned
the garage, but she was ignored. Martakos thought that a
confrontation between Robert Marier and Bellemare was imminent.
He told Marier that he was under arrest.
The Mariers contend that Martakos approached Robert from
behind, pulled his arms up behind him, pushed him onto the fender
of Barbara Marier's car, threw him face first onto the ground,
and thrust his knee into his back. The defendants add that when
Martakos tried to handcuff Marier, he resisted and struck the
officer in the chest. Martakos says that in response he brought
Marier face down to the ground and held him in that position with
his knee to get his wrists into the handcuffs. He says that
Marier continued to resist until he was handcuffed. When Barbara
Marier attempted to get between Martakos and her husband, she was
shoved backwards and Officer Syrek told her to "go home, bitch."
Once Robert Marier was subdued, the police had him transported to
the hospital by ambulance because he was complaining of back
pain.
4 Robert Marier was charged with criminal trespass, simple
assault, and resisting arrest. Barbara Marier was not arrested
or charged. At Robert's arraignment on March 22, 2000, the court
released him on $1000 personal recognizance bail for each charge.
As bail conditions, the court ordered Marier to be of good
behavior, not to enter the Bellemare rental unit or the immediate
vicinity for any reason and to comply with particular directions
for entering the other rental units on the property, not to have
contact with any members of the Bellemare family except through
counsel or the police, and to surrender any firearms in his
possession. The criminal trespass charge was later dismissed by
nolle prosegui. Marier pled nollo contendere to the assault and
resisting arrest charges.
In the meantime, late in the evening of March 21, 2000, four
Allenstown police officers arrived at the Mariers' home and
arrested him for criminal mischief, criminal threatening, and
trespass. Those charges arose from a complaint made by
Bellemare, with support from his brother, that Marier had
threatened Bellemare and thrown a rock through the windshield of
a vehicle owned by his brother. The charges were subseguently
dismissed.
On April 27, 2000, Robert Marier was arrested again on a
complaint filed by Bellemare. The complaint involved an incident
5 between Marier and Bellemare's brother's stepson when the stepson
was riding an off-road vehicle on Marier's property. Marier was
charged with assault, criminal trespass, and breach of bail
conditions. The criminal trespass charge was dismissed by nolle
prosegui; the assault charge was filed, and Marier pled nolo
contendere to the charge of breaching bail conditions.
On May 2, 2000, another tenant of the garage called Marier
about lighting in his bay. Marier went to the garage to make
repairs without first notifying the Allenstown police as was
reguired by the conditions of his bail. Officer Martakos saw
Marier at the garage talking to one of his tenants. Martakos
stopped, radioed dispatch, and approached the tenant's bay where
the tenant confirmed that he had called Marier about repairs.
Martakos told Marier that his bail conditions reguired him to
first notify the police before going to the garage. Marier got
into his pickup truck. Captain Montplaisir arrived in his
cruiser. While Martakos stood next to the pickup truck talking
to Marier, Marier opened the truck door twice, hitting Martakos's
arm with the door each time. Marier then put the truck into
reverse, spun the tires as he backed up, and accidentally ran
into Martakos's police cruiser. Marier drove home.
Officer Martakos and Captain Montplaisir pursued Marier in
their cruisers. Marier did not stop until he reached his
6 driveway, where he left his truck and ran to the house. Martakos
caught up with him on the second floor porch of the house.
Martakos says that when he told Marier that he was under arrest
and to put his hands behind his back, Marier said he was not
going with him. When Martakos grabbed Marker's wrist, Marier
began to struggle. Martakos says he sprayed Marier with pepper
spray at that point, which allowed him to subdue Marier and put
him in handcuffs. The Mariers contend that Martakos sprayed
Robert with pepper spray without any provocation. Due to the
effects of the pepper spray, Martakos called an ambulance which
transported Marier to the police station. Barbara Marier
contends that when she tried to comfort her husband at the police
station, she was threatened with arrest.
As a result of the May 2, 2000, incident, Marier was charged
with resisting arrest, reckless conduct, conduct after an
accident, and assault. Marier pled nolo contendere to the
charges of assault, reckless conduct, and resisting arrest. The
charge of conduct after an accident was dismissed by nolle
prosegui.
7 Discussion
The Mariers bring civil rights claims under § 1983 against
Officers Martakos and Syrek, Captain Montplaisir, and the town,
alleging violations of the First, Fourth, Fifth, Eighth, and
Fourteenth Amendments. They also bring state law claims of
assault and battery, negligent infliction of emotional distress,
loss of consortium, and malicious prosecution against the
individual police officers.1 The defendants move for summary
judgment, and the Mariers object.
I. Civil Rights Claims
In Count I, the Mariers allege that during the events on
March 8, 2000,2 Officers Martakos and Syrek violated Robert
Marier's First Amendment right to express his opinion, his Fourth
Amendment right to be free from unlawful seizure of his person,
his Fifth Amendment right to due process of law, his Eighth
Amendment right to be free from unjustified and excessive force,
1Although the plaintiffs' statement is somewhat unclear, it appears that they intend to dismiss their claims of assault and battery against Officer Syrek in Counts VII and IX, and their claim of assault and battery against Captain Montplaisir in Count VIII. See Pi. Mem. (doc. no. 20) at 13.
2The complaint alleges "March 9, 2000," but the parties appear to agree that the events in guestion occurred on March 8, 2000, which is also confirmed by the documents submitted by the defendants.
8 and his Fourteenth Amendment right to equal protection by using
excessive force against him. Count II alleges violations of the
same constitutional rights by Officer Martakos and Captain
Montplaisir with respect to the events that occurred on May 2,
2000.3 Count III alleges violations of the same constitutional
rights by all of the Allenstown police officers during the period
from March through May of 2000 and also alleges that he was
"selectively treated" to punish him for exercising his
constitutional rights. Count IV alleges, as to Robert Marier,
that the town was deliberately indifferent to the same
constitutional rights as asserted in the previous counts in its
hiring, supervision, and training of the police force and of
Captain Montplaisir and Officers Martakos and Syrek in
particular.
In Count V, the plaintiffs allege that Officers Martakos and
Syrek violated Barbara Marier's Fourth Amendment right to be free
from unlawful seizure of her person, her Fifth and Fourteenth
Amendment rights to due process, and her Eighth Amendment right
to be free from unjustified and excessive force. Count VI
alleges violations of the same rights, as to Barbara Marier, by
3Count II adds a due process claim under the Fourteenth Amendment that does not appear in the other counts. the town in the hiring, supervision, and training of the police
force, and in particular of Captain Montplaisir and Officers
Martakos and Syrek.
The individual defendants contend that they are protected by
gualified immunity. The town contends that the Mariers cannot
show municipal liability as reguired to prove a claim against it
under § 1983. The defendants also challenge the Mariers' myriad
constitutional claims on the merits. In response, the Mariers do
not contest the defendants' motion as to their claims of
excessive force under the Eighth Amendment, due process under the
Fifth and Fourteenth Amendments (other than possibly a claim of
excessive force in violation of substantive due process on behalf
of Barbara), and egual protection under the Fourteenth Amendment.
Instead, the Mariers focus on their First Amendment claim that
the defendants retaliated against Robert to punish him for his
criticism of Captain Montplaisir, and their Fourth Amendment
claims that Robert was arrested without probable cause on March 8
and May 2, and that Robert and Barbara were subjected to
excessive force during the March 8 and May 2 incidents.
Because a gualified immunity analysis begins with
consideration of whether a constitutional violation occurred at
all, the court will first address the merits of the Mariers'
remaining constitutional claims as they are limited by their
10 objection to summary judgment. See, e.g., Savard v. Rhode
Island, 338 F.3d 23, 27 (1st Cir. 2003) .
A.___ Retaliation against Robert Marier in Violation of the First
_____ Amendment
The Mariers contend that the defendants exploited the civil
dispute between Bellemare and Robert Marier to punish Marier for
his outspoken criticism of Captain Montplaisir.4 In order to
prevail on his First Amendment claim, Robert Marier must show
that the defendants' intent to retaliate against him for
protected speech was a substantial factor in motivating the
actions taken by the police during his dispute with Bellemare.
Pontarelli v. Stone, 930 F.2d 104, 115 (1st Cir. 1991); accord
Collins v. Nuzzo, 244 F.3d 246, 252 (1st Cir. 2001) . If Marier
makes that showing, the burden then shifts to the defendants to
show that they would have responded to the circumstances of
Marier's dispute with Bellemare in the same way even if he had
not criticized Montplaisir. See id.,; see also Nestor Colon
Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 41 (1st Cir.
4Although the Mariers allege in Counts I, II, III, and IV that Robert Marier's First Amendment rights were violated, the retaliation claim appears to be alleged in Count III. For purposes of opposing summary judgment, the Mariers have not asserted any other theory of First Amendment violation.
11 1992) .
The parties dispute whether the police actions were
motivated by retaliatory animus. Marier offers Captain
Montplaisir's deposition testimony that shows he was aware of
Marier's criticisms, considered Marier's statements to be a
violation of New Hampshire law, thought Marier was not credible,
and thought that he was excitable. The Mariers point to a remark
that Barbara says Montplaisir made to her after Robert was
arrested on May 2, that Robert had to be made responsible.
Montplaisir, who ordinarily served as the police prosecutor,
asked the chief of police to have the Attorney General's office
prosecute the charges against Marier.5 The Mariers also point to
the number of arrests related to the Bellemare dispute and
challenge the legal bases for the arrests.
The defendants did not address the First Amendment claim in
the context of retaliation. In their reply memorandum, the
defendants contest the factual bases for the Mariers' claims of
retaliation but do not argue for gualified immunity in the
retaliation context. As a result, the defendants have not shown
5The plaintiffs failed to include in their materials submitted in support of their objection to summary judgment the page of Captain Montplaisir's deposition in which they contend that he said he asked to be removed because he thought it was a conflict of interest.
12 that undisputed facts demonstrate as a matter of law that the
Mariers cannot prove their First Amendment retaliation claim or
that they are entitled to qualified immunity as to that claim.
B. Unreasonable Search and Seizure
The defendants contend that their arrests of Robert Marier
on March 8 and May 2, 2000, did not violate the Fourth Amendment
because probable cause existed to support the arrests and they
did not use excessive force. They also contend that Barbara
Marier cannot show a constitutional violation because she has not
alleged and cannot show that she was "seized" within the meaning
of the Fourth Amendment. The Mariers oppose summary judgment but
provide little guidance as to the constitutional bases for their
claims.
1. Probable cause.
The Mariers assert that the defendants arrested Robert
Marier on March 8 and March 21, 2000, without probable cause.6 A
^Although the Mariers also mention the March 5 "incident" and events on April 27, they do not raise claims based on any arrests that occurred on those dates. The Mariers do not contend that the May 2 arrest lacked probable cause. Despite the defendants' protests to the contrary, the circumstances of the March 21, 2000, arrest are sufficiently alleged to be considered under Count III.
13 warrantless arrest must be based on probable cause to satisfy the
Fourth Amendment. Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.
2003). Probable cause exists if "the evidence would 'warrant a
man of reasonable caution' in believing that a crime has been
committed and committed by the person to be arrested.'" Id.
(quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)).
The defendants contend that probable cause existed for the
March 8 arrest. The defendants do not address the March 21
arrest for purposes of summary judgment. In their reply, the
defendants raise a question as to whether Robert Marier's claim
based on the March 8 arrest is barred by the Rooker-Feldman
doctrine.7 See District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923). Because the application of the Rooker-Feldman doctrine
is jurisdictional, the court must address that question first.
See Mills v. Harmon Law Offices, P.C., 2003 WL 22111105, at *4
n.l (1st Cir. Sept. 12, 2003).
Under the Rooker-Feldman doctrine, lower federal courts lack
7 The defendants do not raise Heck v. Humphrey, 512 U.S. 477 (1994). See, e.g., id. at 486-87 & n.6; Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998). Because the rule in Heck provides only an affirmative defense and is not jurisdictional, the court will not consider its application sua sponte. See Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999).
14 jurisdiction to review state court judgments or to consider
claims "that are 'inextricably intertwined' with the claims
adjudicated in a state court." Picard v. Members of Employee
Ret. B d ., 275 F.3d 139, 145 (1st Cir. 2001); see also In re
Middlesex Power Equip., 292 F.3d 61, 66 n.l (1st Cir. 2002) .
Claims are inextricably intertwined "if the federal claim
succeeds only to the extent that the state court wrongly decided
the issues before it." Hill v. Town of Conway, 193 F.3d 33, 39
(1st Cir. 1999). The federal and state actions need not be the
same for the Rooker-Feldman doctrine to apply. Mandel v. Town of
Orleans, 326 F.3d 267, 271 (1st Cir. 2003).
The Mariers believe that the officers, rather than Robert
Marier, were at fault in the March 8 incident that lead to
Robert's arrest. Based on their version of events, which is
contrary to the officers' statements, probable cause to arrest
would not exist. They contend that because the charges brought
against Robert for assault and resisting arrest on March 8 are
based on the arresting officers' version of events, a material
factual dispute exists. The Mariers' theory runs headlong into
the Rooker-Feldman doctrine.
After Robert Marier pled nolo contendere to the assault and
resisting arrest charges, he was found guilty and convicted of
those misdemeanor offenses. As such, he was found guilty of
15 knowingly causing unprivileged physical contact by striking
Officer Martakos in the chest and of purposefully interfering
with Officers Martakos and Syrek, who he recognized as police
officers, when they were trying to arrest him. Robert Marier's
convictions on those charges are based on the officers' version
of events, that Robert assaulted Officer Martakos and that he
resisted Officers Martakos's and Syrek's efforts to arrest him.8
The Mariers' claim, that those arrests were not supported by
probable cause, could only succeed to the extent the convictions
were wrong. In other words, if the officers lacked probable
cause to arrest Robert Marier for simple assault and resisting
arrest, based on their version of events, the misdemeanors of
which he was convicted on his nolo plea, based on the same
version of events, would be wrong. Therefore, this court lacks
jurisdiction to consider the Mariers' claim that Robert was
arrested on March 8 without probable cause.9
8"1he plain meaning of the term 'convict' is "[t]o find [one] guilty of a criminal charge, either upon a criminal trial, a plea of guilty, or a plea of nolo contendere.' Black's Law Dictionary 301 (5th ed. 1979)." State v. Wonvetve, 129 N.H. 452, 453 (1987) .
9Because the defendants did not address the March 21 arrest and because those charges were later dismissed, the court does not consider the Fourth Amendment claim in Count III to the extent it is premised on the March 21 arrest under the Rooker- Feldman doctrine.
16 2. Excessive force.
The Mariers claim that Officer Martakos used excessive force
in the course of arresting Robert on March 8 and May 2 and that
he used excessive force against Barbara on March 8.10 Claims
that excessive force was used in effecting an arrest are judged
under the reasonableness standard of the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 395 (1989). Claims of excessive
force by the police that do not involve arrest are judged under
the Fourteenth Amendment substantive due process standard.
Cummings v. Mclntire, 271 F.3d 341, 344 (1st Cir. 2001).
a. Barbara Marier
Barbara Marier was not arrested nor were the officers
attempting to arrest her on March 8. Therefore, her claim is
subject to the substantive due process standard. To succeed,
Barbara Marier must prove that the officers' conduct was so
extreme as to shock the conscience. See id. (discussing County
of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)).
To be sufficiently extreme to shock the conscience, police
conduct "must constitute force that is brutal, inhumane, or
10Although Captain Montplaisir and Officer Syrek are also named in the excessive force claims in the complaint, the Mariers only pursue claims against Officer Martakos in their objection to summary judgment.
17 vicious." Id. The court must also consider the context of the
police conduct because in more exigent circumstances, less
deliberation is possible, and more outrageous behavior is
tolerable. Id. at 345. When the circumstances fall into the
middle spectrum of police activity, the court must consider the
need for force, the amount of force needed, the extent of injury,
and whether the force was used in good faith for a legitimate
purpose or merely for causing harm. Id. (following Johnson v.
Click, 481 F .2d 1028, 1033 (2d Cir. 1973)).
Barbara Marier's claim is that Officer Martakos shoved her
while he was struggling during his efforts to arrest Robert and
that Officer Syrek said, "Go home, bitch." As Barbara tells it,
when she saw a police officer grab Robert's arms, she tried to
get between them, and the officer grabbed her arms and shoved
her. Because the officers were indisputedly involved in a
struggle with Robert Marier when Barbara attempted to intervene,
the context suggests at least a middle level of tenseness.
Barbara does not state that she was injured. She does not
indicate that the shove was particularly or unusually ferocious.
She also acknowledges that Officer Martakos was struggling with
her husband. For all that Barbara Marier offers, it appears that
Officer Martakos appropriately shoved her out of the way for the
legitimate reason that she was interfering in his efforts to
18 arrest Robert who was resisting. Under these circumstances, the
shove and offensive remark, even as Barbara recounts them, do not
rise to the level of conscience-shocking behavior, and therefore
do not constitute a constitutional violation. The defendants are
entitled to summary judgment on Count V.
_____ b. Robert Marier.
To show that the police used excessive force in violation of
the Fourth Amendment, Robert Marier "must demonstrate that the
police defendant[s'] actions were not objectively reasonable,
viewed in light of the facts and circumstances confronting [them]
without regard to [their] underlying intent or motivation."
Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002) . "The
relevant circumstances include 'the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.'" Id.
(guoting Graham, 490 U.S. at 396). The objective reasonableness
of the force used is also to be considered in light of the
officers' obligation to "to make split-second decisions about the
amount of force needed to effect an arrest while operating under
tense, dangerous and rapidly-changing circumstances." Gaudreault
v. Salem, 923 F.2d 203, 205 (1st Cir. 1990).
19 _____ i. March 8 , 2000.
The Mariers recount the events leading to Robert's arrest on
March 8, 2000, as follows. In early March, Robert was involved
in a dispute with his tenant, Henry Bellemare, concerning the
leased garage bay, which had included police intervention.
Related to that dispute, Bellemare threatened to break the water
pipes in the garage bay.
On March 8, 2000, Bellemare called the Mariers' home to
report problems with the furnace flooding in his garage bay.
Bellemare asked Barbara to have Robert come down to the garage.
Barbara called the Allenstown police to alert them. Robert
Marier drove to the garage, found the furnace was undamaged, and
turned off the water to prevent further flooding. Officers
Martakos and Syrek told Marier to leave, not to return, and that
if he returned he would be arrested.
Marier left, but then returned with his wife, each driving
separate vehicles. Robert got out of his pickup truck and as he
walked toward his wife's car. Officer Syrek yelled to him that
they had told him if he returned, he would be arrested. When
Robert heard the officer say that he would be arrested, he
responded that Bellemare should be arrested for vandalism. As he
reached into his wife's car. Officer Martakos pulled Robert's arm
20 from behind. Robert began to struggle. Barbara Marier attempted
to intervene to help her husband. In the course of the struggle,
Robert was thrown face down on the ground and the officer put his
knee into the small of Robert's back, which caused intense pain.
Robert was handcuffed and transported to Concord Hospital by
ambulance.
Officers Martakos and Syrek add, without dispute by the
Mariers, that Martakos told the Mariers to leave and that they
refused, that Robert Marier is large and muscular, and that he
was agitated, belligerent, and uncooperative. Martakos states
that he followed standard procedure in bringing Marier face down
on the ground and holding him in that position with his knee
while he handcuffed him.
Applying the reasonableness factors, the severity of the
crime at issue initially, trespass, is minimal. However, Robert
was uncooperative, resisted Officer Martakos's attempt to arrest
him, and struggled with Martakos. A reasonable officer in
Martakos's position could also have believed that Marier posed a
threat to him, to Officer Syrek, and to Bellemare. In addition,
the situation was tense and changing due to Marier's failure to
heed the officers' warnings and orders. Under these
circumstances, the Mariers have not shown that a trialworthy
issue exists as to whether force was necessary to subdue Robert
21 Marier under the circumstances, nor have they shown an issue as
to the reasonableness of the amount of force used. See, e.g.,
Jarrett v. Town of Yarmouth, 331 F.3d 140, 150 (1st Cir. 2003)
(holding as a matter law that releasing a police dog to apprehend
a fleeing suspect on a bite and hold order, resulting in bite
wounds to the suspect, was not excessive force although the
suspected offenses were only minor traffic violations).
_____ 11. May 2, 2000.
As a result of the March 8 incident, Marier was convicted on
his nolo contendere plea to simple assault and resistingarrest.
His bail conditions included a reguirement that Marier not enter
Bellemare's garage bay or the immediate vicinity and that he
enter the other bays only to make necessary repairs and only if
he first advised the police department of the date and time he
was going to make repairs. On May 2, Marier went to the garage
to make repairs without first notifying the police department.
While Marier was at the garage. Officer Martakos and Captain
Montplaisir stopped to tell him that he was not supposed to be
there without notifying the police first. Officer Martakos told
him he could be arrested. Marier got into his pickup truck,
struck Martakos twice with the door, and then backed into
Martakos's police cruiser. Marier heard Captain Montplaisir yell
22 to Martakos to arrest Marier.
Marier drove home. Officer Martakos and Captain Montplaisir
pursued Marier in their cruisers. Once at the Mariers' house.
Officer Martakos chased Marier to the second-floor porch and told
him he was under arrest. Officer Martakos used pepper spray to
subdue Marier. He handcuffed him and took him to the police
station.
Marier's actions on May 2 demonstrated his violent
potential. In addition, Marier drove away from the scene and
resisted the officers' attempts to stop him. Under the
circumstances, a reasonable police officer could consider Robert
Marier to be dangerous, justifying the use of pepper spray, even
if it was not, in fact, necessary. Saucier v. Katz, 533 U.S.
194, 205 (2001) ("If an officer reasonably, but mistakenly,
believed that a suspect was likely to fight back, for instance,
the officer would be justified in using more force than in fact
was needed."); see also McCormick v. City of Fort Lauderdale, 333
F.3d 1234, 1245 (11th Cir. 2003) (discussing police use of pepper
spray). Therefore, the Mariers have not shown a trialworthy
issue as to whether using pepper spray was an unreasonable use of
force.
23 iii. Qualified immunity.
Even if the force used on either occasion had been
unconstitutionally excessive. Officer Martakos would nevertheless
be entitled to qualified immunity, on this record, because
"reasonable mistakes [could] be made as to the legal constraints"
on the police conduct involved. Saucier, 533 U.S. at 205. The
Mariers do not suggest that the law applicable to excessive force
in the contexts they claim was clearly established. Cf.
McCormick, 333 F.3d at 1245 (pepper spray); Jones v. Buchanan,
325 F.3d 520, 534 (4th Cir. 2003) (pepper spray and other
conduct); Jones by Jones v. Webb, 45 F.3d 178, 184 (7th Cir.
1995) (knee in back restraint); Adams v. Metiva, 31 F.3d 375, 387
(6th Cir. 1994) (pepper spray); Johnson v. Wolaemuth, 257 F.
Supp. 2d 1013, 1032 (S.D. Ohio 2003) (pepper spray); Lawyer v.
Citv of Council Bluffs, 240 F. Supp. 2d 941, 954 (S.D. Iowa 2002)
(pepper spray); Bell v. Dawson, 144 F. Supp. 2d 454, 462
(W.D.N.C. 2001) (knee in back and other restraint; Stachel v.
Citv of Cape Canaveral, 51 F. Supp. 2d 1326, 1331 (M.D. Fla.
1999) (knee in back restraint); Price v. County of San Diego, 990
F. Supp. 1230, 1249 (S.D. Cal. 1998) (knee in back restraint).
It appears that the law is not clearly established, as
demonstrated by the cases cited above, with respect to the
constitutionally permissible use of force in circumstances
24 similar to those presented here. Therefore, qualified immunity
would also support summary judgment in favor of Martakos, even if
a constitutional violation had occurred. See Saucier, 533 U.S.
at 205-06.
C. Municipal Liability
In Counts IV and VI, the Mariers claim that Allenstown
violated their constitutional rights due to the hiring,
supervision, and training of the police force. They have not
pursued those claims in opposition to summary judgment, however.
Instead, they contend that the town is liable, because the police
department, including the chief, was aware of Captain
Montplaisir's lack of objectivity as to the Mariers but
"permitted the acts set forth in the Plaintiff's [sic]
Affidavits." Although far from clear, it appears that the
Mariers intend to assert a claim that the town violated Robert
Marier's First Amendment rights by allowing Captain Montplaisir
to involve the Allenstown police in the Mariers' dispute with
Bellemare for the purpose of retaliating against Robert for his
outspoken criticism of Montplaisir.
A town is liable under § 1983 "only if (1) a constitutional
harm occurred, and (2) the harm was caused by the execution of a
government's policy or custom." Rosenberg v. Citv of Everett,
25 328 F.3d 12, 17 (1st Cir. 2003) (internal quotation marks
omitted). Implementation or enforcement of the municipal policy
or custom must be "the moving force of a violation of federally
protected rights." Burrell v. Hampshire County, 307 F.3d 1, 10
(1st Cir. 2002). A custom or policy may be established by the
decision of a municipal policymaker who possesses authority to
establish such policy. Kelley v. Laforce, 288 F.3d 1, 9 (1st
Cir. 2 002).
In their motion and memorandum, the defendants presented the
requirements of municipal liability and argued that the Mariers
could not show that any of their claimed constitutional
violations occurred due to a custom or policy adopted by
Allenstown. In response, the Mariers have not addressed the
legal requirements for municipal liability under § 1983 or
offered any evidence or even an argument that the town acquiesced
in Captain's Montplaisir's alleged retaliation or that the town
was following a custom or policy in doing so. As such, the
Mariers' response is insufficient to avoid summary judgment on
their municipal liability claims. See Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999).
26 D. State Law Claims
The defendants move for summary judgment on the state law
claims. In addition to agreeing to dismiss some of the assault
and battery claims, the Mariers concede that they lack evidence
to support their negligent infliction of emotion distress claim.
As to the remaining state law claims, the Mariers contend only
generally that the evidence supporting their § 1983 claims for
unreasonable search and seizure and excessive force also supports
their state law claims.
1. Malicious prosecution.
As the defendants point out, "[t]o prevail upon a claim of
malicious prosecution, a plaintiff must prove that he was
subjected to a criminal prosecution instituted by the defendant
without probable asue and with malice, and that the criminal
proceeding terminated in his favor." Robinson v. Fimbel Door
C o ., 113 N.H. 348, 350 (1973); accord ERG, Inc. v. Barnes, 137
N.H. 186, 190 (1993). Some of the proceedings against Robert
Marier were not prosecuted; some were dismissed by nolle
prosegui; but many resulted in convictions that were not
appealed. Marier cannot recover on a malicious prosecution claim
arising from proceedings that did not terminate in his favor.
See Robinson, 113 N.H. at 350-51 (discussing favorable
27 termination element).
The Mariers have not explained which proceedings give rise
to their malicious prosecution claim nor have they acknowledged
the legal reguirements of a malicious prosecution claim. Given
the Mariers' lack of response on this issue and the defendants'
properly supported motion, the defendants are entitled to summary
judgment on the claim of malicious prosecution. Count XIII.
2. Assault and battery.
In Counts VII and VIII, Robert Marier brings claims of
assault and battery against Officer Martakos arising from the
circumstances of his arrests on March 8 and May 2, 2000. In
Count IX, Barbara Marier brings an assault and battery claim
against Officer Martakos based on the March 8 incident. The
defendants contend that the Mariers cannot maintain their assault
and battery claims as a matter of law because Officer Martakos's
actions were justified.
To prove assault, a plaintiff must show that the defendant
intended to cause harmful or offensive contact with the plaintiff
and that the defendant put the plaintiff "in imminent
apprehension of such contact." Yale v. Town of Allenstown, 969
F. Supp. 798, 801 (D.N.H. 1997) . Battery is the act which is the
legal cause of assault. Tupick v. Town of Gorham, 1994 WL
28 575608, *7 (D.N.H. Oct. 13, 1994). By statute, however, a police
officer is justified in using non-deadly force that is reasonably
necessary to make an arrest or to defend himself against the use
of non-deadly force while making an arrest. RSA 627:5, I.
Further, "[n]o person shall incur any civil liability to another
person by taking any action against such person which would
constitute justification pursuant to RSA 627." RSA 507:8-d.
Because the Mariers have not shown a triable issue as to
whether Officer Martakos used reasonable force against them, and
was therefore justified in his actions pursuant to RSA 627:5, I,
they cannot maintain their assault and battery claims due to the
bar imposed by RSA 507:8-d. The defendants are entitled to
summary judgment as to Counts VII, VIII, and IX.
3. Loss of Consortium.
Because the defendants are entitled to summary judgment as
to all of Barbara Marier's federal and state tort claims, the
defendants are entitled to summary judgment as to Robert Marier's
derivative loss of consortium claim in Count XII. See RSA 507:8-
a. The defendants are also entitled to summary judgment as to
all of Robert Marier's state tort claims. "[T]he spouse of an
alleged federal civil rights victim is not permitted an ancillary
cause of action for loss of consortium." Miller v. CBC Cos., 908
29 F. Supp. 1054, 1069 (D.N.H. 1995). Therefore, Robert Marier's
loss of consortium claim in Count XII is also resolved in favor
of the defendants.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 13) is granted as to the following
of the plaintiffs' claims and is otherwise denied:
All claims in Counts I, II, IV, V, VI, VII, VIII, IX, X, XI,
XII, and XIII;
Any claim in Count III, that Robert Marier was arrested on
March 8 in the absence of probable cause;
Any claim in Count III that the defendants used excessive
force in arresting Robert Marier, and
Any claim in Count III under the Fifth, Eighth, or
Fourteenth Amendments.
The claims that remain are:
Count III: Robert Marier's First Amendment retaliation
claim and Fourth Amendment claim that his arrest on March 21
lacked probable cause.
The complaint in this case demonstrates well why scattershot
pleading is disfavored and counterproductive.
30 The parties are placed on notice that the court will require
them to mediate this case before it proceeds to trial.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
October 8, 2003
cc: H. Jonathan Meyer, Esquire Charles P. Bauer, Esquire