Morneault v . Rochester, et a l . CV-04-171-SM 09/14/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephanie S . Morneault, Individually, as Administratrix of the Estate of Michael D. Morneault, and as Mother and Next Friend of Maggie May Morneault, Plaintiff
v. Civil N o . 04-171-SM Opinion N o . 2004 DNH 138 City of Rochester, New Hampshire; Rochester Police Department; and Officer Jamie Cormier, Defendants
O R D E R
This suit was removed from the New Hampshire Superior Court.
Plaintiff has sued to recover for the death of Michael D.
Morneault. M r . Morneault was killed when the car he was driving
was struck by a van operated by a suspected drunk driver, who was
being pursued by Officer Jamie Cormier of the Rochester Police
Department. Plaintiff has asserted claims for negligence (Counts
I-III), loss of consortium (Count V ) , and loss of familial
relationship (Count V I ) , as well as a claim under 42 U.S.C. §
1983 (Count I V ) . Before the court is the City of Rochester’s motion to dismiss Count I V . Plaintiff objects. For the reasons
given below, defendant’s motion to dismiss is granted.
Standard of Review
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U . S . 2 3 2 , 236 (1974). When considering a motion to
dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as
true the factual allegations of the complaint and construe all
reasonable inferences therefrom in favor of [plaintiff].” Perry
v . N . E . Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003)
(citing Beddall v . State S t . Bank & Trust Co., 137 F.3d 1 2 , 16
(1st Cir. 1998)). However, the court need not credit “claims
that are made in the complaint if they are ‘bald assertions’ or
‘unsupportable conclusions.’” United States ex rel. Karvelas v .
Melrose-Wakefield Hosp., 360 F.3d 2 2 0 , 224 (1st Cir. 2004)
(quoting Arruda v . Sears, Roebuck & Co., 310 F.3d 1 3 , 18 (1st
Cir. 2002)). Finally, “[a] district court may grant a 12(b)(c)
2 motion to dismiss for failure to state a claim upon which relief
can be granted only if ‘it clearly appears, according to the
facts alleged, that the plaintiff cannot recover on any viable
theory.’” Pomerleau v . W . Springfield Pub. Sch., 362 F.3d 143,
145 (1st Cir. 2004) (quoting Correa-Martinez v . Arrillaga-
Belendez, 903 F.2d 4 9 , 52 (1st Cir. 1990)).
While section 1983 actions in this circuit are not subject
to a heightened pleading standard, see Educadores Puertorriquenos
en Accion v . Hernandez, 367 F.3d 6 1 , 62 (1st Cir. 2004), they of
course are subject to the notice pleading requirements of F E D . R .
C I V . P . 8(a)(2), under which “the complaint should at least set
forth minimal facts as to who did what to whom, when, where and
why – although why, when why means the actor’s state of mind, can
be averred generally.” Id. at 6 8 .
Background
The relevant facts taken from plaintiff’s complaint and
assumed to be true, and the reasonable inferences drawn from
those facts, are as follows.
3 The Rochester Police Department (“RPD”) has adopted policies
and procedures regarding high-speed vehicle pursuit. Those
polices prohibit pursuits in excess of twenty miles per hour
above the speed limit, require an officer in pursuit to exercise
due care for the safety of others, and call for a high-speed
pursuit to be abandoned when the risks of injury to the public
outweigh the interests of swift apprehension. The RPD failed to
properly train Officer Jamie Cormier and other RPD personnel in
those policies and procedures, and failed to adequately enforce
them. The RPD’s failures in training and enforcement constituted
a custom or practice that “shows a deliberate indifference to the
constitutional rights of the members of the public, including
Michael D. Morneault” (Compl., Count I V ) , an indifference that
“should shock the conscience of the contemporary community”
(id.). When engaged in a high-speed pursuit of Edward Byron, a
suspected drunk driver, Officer Cormier failed to follow the RPD
policies on high-speed pursuit and, as a result, Byron’s van
collided with a car driven by Michael D. Morneault, who sustained
fatal injuries in the crash.
4 Discussion
The City of Rochester (“City”) moves to dismiss on grounds
that plaintiff has failed to allege facts which, if proven, would
establish: (1) a violation of her constitutional rights; and (2)
deliberate indifference on the part of the City in the training
and supervision of its police officers. Plaintiff objects,
categorically.
The United States Supreme Court recently addressed the
subject matter of Count IV. It held that in the context of a
high-speed police pursuit, “only a purpose to cause harm
unrelated to the legitimate object of arrest will satisfy the
element of arbitrary conduct shocking to the conscience,
necessary for a due process violation.” County of Sacramento v .
Lewis, 523 U.S. 833, 836 (1998). The complaint in this case does
not include an allegation that Officer Cormier acted with a
purpose to cause harm unrelated to the legitimate object of
arrest. Plaintiff attempts to overcome Lewis’s requirement by
arguing:
In alleging that Officer Cormier acted with deliberate indifference to the constitutional due process rights of members of the public and in a manner which shocks
5 the conscience of the community, the Plaintiffs have satisfied the requirement of Lewis that the officer b shown to have acted with an intent or purpose to caus harm unrelated to any legitimate police objective. Acting with the purpose of depriving members of the public their constitutional due process rights can reasonably be construed as acting with an intent or purpose to cause harm, unrelated to legitimate police objectives.
(Pl.’s O b j . to Def.’s Mot. to Dismiss ¶ 7.) Plaintiff’s argument
is not persuasive, especially in light of the Court’s extended
explanation in Lewis of precisely why, in the context of a police
pursuit, deliberate indifference is insufficient, as a matter of
law, to establish a due process violation. Id. at 848-54. Here,
plaintiff has failed to allege the state of mind necessary to a
due process violation – purpose to cause harm. Construing the
state of mind actually pled, “deliberate indifference,” as
“purpose to cause harm,” would go far beyond indulging a
reasonable inference arising from plaintiff’s factual
allegations. “Deliberate indifference” is simply not equivalent
to “purpose to cause harm.” Because plaintiff has failed to
allege facts sufficient to establish a constitutional violation,
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Morneault v . Rochester, et a l . CV-04-171-SM 09/14/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephanie S . Morneault, Individually, as Administratrix of the Estate of Michael D. Morneault, and as Mother and Next Friend of Maggie May Morneault, Plaintiff
v. Civil N o . 04-171-SM Opinion N o . 2004 DNH 138 City of Rochester, New Hampshire; Rochester Police Department; and Officer Jamie Cormier, Defendants
O R D E R
This suit was removed from the New Hampshire Superior Court.
Plaintiff has sued to recover for the death of Michael D.
Morneault. M r . Morneault was killed when the car he was driving
was struck by a van operated by a suspected drunk driver, who was
being pursued by Officer Jamie Cormier of the Rochester Police
Department. Plaintiff has asserted claims for negligence (Counts
I-III), loss of consortium (Count V ) , and loss of familial
relationship (Count V I ) , as well as a claim under 42 U.S.C. §
1983 (Count I V ) . Before the court is the City of Rochester’s motion to dismiss Count I V . Plaintiff objects. For the reasons
given below, defendant’s motion to dismiss is granted.
Standard of Review
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U . S . 2 3 2 , 236 (1974). When considering a motion to
dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as
true the factual allegations of the complaint and construe all
reasonable inferences therefrom in favor of [plaintiff].” Perry
v . N . E . Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003)
(citing Beddall v . State S t . Bank & Trust Co., 137 F.3d 1 2 , 16
(1st Cir. 1998)). However, the court need not credit “claims
that are made in the complaint if they are ‘bald assertions’ or
‘unsupportable conclusions.’” United States ex rel. Karvelas v .
Melrose-Wakefield Hosp., 360 F.3d 2 2 0 , 224 (1st Cir. 2004)
(quoting Arruda v . Sears, Roebuck & Co., 310 F.3d 1 3 , 18 (1st
Cir. 2002)). Finally, “[a] district court may grant a 12(b)(c)
2 motion to dismiss for failure to state a claim upon which relief
can be granted only if ‘it clearly appears, according to the
facts alleged, that the plaintiff cannot recover on any viable
theory.’” Pomerleau v . W . Springfield Pub. Sch., 362 F.3d 143,
145 (1st Cir. 2004) (quoting Correa-Martinez v . Arrillaga-
Belendez, 903 F.2d 4 9 , 52 (1st Cir. 1990)).
While section 1983 actions in this circuit are not subject
to a heightened pleading standard, see Educadores Puertorriquenos
en Accion v . Hernandez, 367 F.3d 6 1 , 62 (1st Cir. 2004), they of
course are subject to the notice pleading requirements of F E D . R .
C I V . P . 8(a)(2), under which “the complaint should at least set
forth minimal facts as to who did what to whom, when, where and
why – although why, when why means the actor’s state of mind, can
be averred generally.” Id. at 6 8 .
Background
The relevant facts taken from plaintiff’s complaint and
assumed to be true, and the reasonable inferences drawn from
those facts, are as follows.
3 The Rochester Police Department (“RPD”) has adopted policies
and procedures regarding high-speed vehicle pursuit. Those
polices prohibit pursuits in excess of twenty miles per hour
above the speed limit, require an officer in pursuit to exercise
due care for the safety of others, and call for a high-speed
pursuit to be abandoned when the risks of injury to the public
outweigh the interests of swift apprehension. The RPD failed to
properly train Officer Jamie Cormier and other RPD personnel in
those policies and procedures, and failed to adequately enforce
them. The RPD’s failures in training and enforcement constituted
a custom or practice that “shows a deliberate indifference to the
constitutional rights of the members of the public, including
Michael D. Morneault” (Compl., Count I V ) , an indifference that
“should shock the conscience of the contemporary community”
(id.). When engaged in a high-speed pursuit of Edward Byron, a
suspected drunk driver, Officer Cormier failed to follow the RPD
policies on high-speed pursuit and, as a result, Byron’s van
collided with a car driven by Michael D. Morneault, who sustained
fatal injuries in the crash.
4 Discussion
The City of Rochester (“City”) moves to dismiss on grounds
that plaintiff has failed to allege facts which, if proven, would
establish: (1) a violation of her constitutional rights; and (2)
deliberate indifference on the part of the City in the training
and supervision of its police officers. Plaintiff objects,
categorically.
The United States Supreme Court recently addressed the
subject matter of Count IV. It held that in the context of a
high-speed police pursuit, “only a purpose to cause harm
unrelated to the legitimate object of arrest will satisfy the
element of arbitrary conduct shocking to the conscience,
necessary for a due process violation.” County of Sacramento v .
Lewis, 523 U.S. 833, 836 (1998). The complaint in this case does
not include an allegation that Officer Cormier acted with a
purpose to cause harm unrelated to the legitimate object of
arrest. Plaintiff attempts to overcome Lewis’s requirement by
arguing:
In alleging that Officer Cormier acted with deliberate indifference to the constitutional due process rights of members of the public and in a manner which shocks
5 the conscience of the community, the Plaintiffs have satisfied the requirement of Lewis that the officer b shown to have acted with an intent or purpose to caus harm unrelated to any legitimate police objective. Acting with the purpose of depriving members of the public their constitutional due process rights can reasonably be construed as acting with an intent or purpose to cause harm, unrelated to legitimate police objectives.
(Pl.’s O b j . to Def.’s Mot. to Dismiss ¶ 7.) Plaintiff’s argument
is not persuasive, especially in light of the Court’s extended
explanation in Lewis of precisely why, in the context of a police
pursuit, deliberate indifference is insufficient, as a matter of
law, to establish a due process violation. Id. at 848-54. Here,
plaintiff has failed to allege the state of mind necessary to a
due process violation – purpose to cause harm. Construing the
state of mind actually pled, “deliberate indifference,” as
“purpose to cause harm,” would go far beyond indulging a
reasonable inference arising from plaintiff’s factual
allegations. “Deliberate indifference” is simply not equivalent
to “purpose to cause harm.” Because plaintiff has failed to
allege facts sufficient to establish a constitutional violation,
defendant is entitled to dismissal of Count IV.
6 On the facts alleged, the court also finds that it would be
futile for plaintiff to attempt to amend the complaint to allege
the requisite state of mind. State of mind may be averred
generally, see Educadores, 367 F.3d at 6 8 , but there must be some
factual basis for the averment. It is certainly possible for a
police officer to act with a purpose to cause harm to the object
of his or her pursuit, but M r . Morneault was not the object of
Officer Cormier’s pursuit, and nothing pled suggests any intent
to cause harm to Byron, the suspected drunk driver. It is
possible in theory to assert a police purpose to harm bystanders,
but it would not be reasonable, on even the most generous reading
of the facts alleged here, to infer that Officer Cormier acted
with a purpose to harm either M r . Morneault or Byron, or any
other bystander. No allegation is made and no factual basis
exists to infer that Officer Cormier knew there was a car on the
road ahead of the suspect he was chasing, and intended to cause
the eventual crash.
Conclusion
For the reasons given, the City’s motion to dismiss Count IV
(document n o . 5 ) is granted, as is its motion to dismiss the RPD
7 as a defendant (document n o . 6 ) , to which plaintiff does not
object. Accordingly, the case now consists of Counts I , I I , I I I ,
V , and V I , against two defendants, the City and Officer Cormier.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 1 4 , 2004
cc: Gary Casinghino, Esq. John P. Sherman, Esq.