Nye v. Newport Police

• Court: District Court, D. New Hampshire
• Decided: January 22, 2014
• Docket: 13-cv-420-LM
• Status: Published

Opinion

Nye v. Newport Police 13-cv-420-LM 1/22/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thadius B. Nye

v. Civil No. 13-CV-420-LM Opinion No. 2 014 DNH Oil Newport Police Department and Aaron Aldridge

O R D E R

Before the court is Thadius B. Nye's complaint (doc. no.

1). Nye's complaint is construed as intending to state claims,

under 42 U.S.C. § 1983 and state tort law, against defendants

Aaron Aldridge, a fellow inmate at the New Hampshire State

Prison ("NHSP") , and Aldridge's former employer, the Newport

Police Department ("NPD"). The matter is before the court for

preliminary review pursuant to 28 U.S.C. § 1915A, to determine

if plaintiff has stated any claims upon which relief can be

granted.

Background

Aldridge, a former NPD officer, is currently incarcerated

at the NHSP where Nye is also incarcerated. Aldridge is serving

a sentence for possession of child pornography. Nye alleges

that upon seeing Aldridge's face recently, Nye recalled that when Nye was a minor, Aldridge arrested and brought Nye into

custody. Nye recalls that at that time, Aldridge "overly

touched" Nye; Aldridge kept "going to [Nye's] pockets," "looked"

around Nye "way too much," and made sounds or said words Nye

could not quite hear, while looking at Nye from behind. Nye

further recalls Aldridge telling Nye to "stop moving" when Nye

turned around, wondering what Aldridge was doing. Nye believes

that Aldridge's search was a sexual assault, and that the NPD is

liable for failing to prevent Aldridge from sexually assaulting

him when he was a minor.

Claims

Nye asserts the following claims in this action:

1. Aldridge violated Nye's (a) Fourth Amendment right to be free from an unreasonable search and seizure, and (b) Fourteenth Amendment right to substantive due process, when Aldridge sexually assaulted Nye when Nye was a minor.

2. The NPD violated Nye's Fourth and Fourteenth Amendment rights, under 42 U.S.C. § 1983, by failing to prevent its employee, NPD Officer Aldridge, from sexually assaulting minors.

3. Aldridge and the NPD are liable to Nye under state tort law for assault and battery, based on the same allegations giving rise to Nye's federal constitutional claims.

2 Discussion

I. Standard for Preliminary F.eview

The court undertakes a preliminary review of Nye's

complaint, pursuant to 28 U.S.C. § 1915A, to determine whether

the action may proceed. In determining whether a pro se

complaint states a claim, the court construes the complaint

liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Disregarding any legal conclusions, the court considers whether

the factual content in the complaint and inferences reasonably

drawn therefrom, taken as true, state a facially plausible claim

to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st

Cir. 2013) (citing Ashcroft, v. Iqbal, 556 U.S. 662, 678 (2009) ) .

II. Fourteenth Amendment Substantive Due Process Claim

Allegations that an officer used force as well as his

position of authority to sexually assault an arrestee may be

actionable under the Fourteenth Amendment, to the extent that

the officer's conduct may be deemed to shock the conscience.

See, e.g., Marrero-Rodriguez v. Mun'y of San Juan, 677 F.3d 497,

501-02 (1st Cir. 2012) ("conduct intended to injure in some way

unjustifiable by any government interest, is most likely to

support a substantive due process claim" (citation and internal

3 quotation marks omitted)). Stripped of Nye's legal conclusion

that Aldridge's actions constituted a "sexual assault," Nye's

description of the incident does not distinguish Aldridge's

conduct from a permissible search incident to an arrest,

conducted for justifiable police purposes. The facts asserted

therefore do not state a plausible claim for relief for a

substantive due process violation.

III. Fourth Amendment Claim

The Fourth Amendment prohibits unreasonable searches.

Searches incident to arrests that involve sexual contact or

inspections may be actionable under 42 U.S.C. § 1983 as

violations of the Fourth Amendment. See, e.g., Swain v.

Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (strip and visual body

cavity search incident to arrest is subject to Fourth Amendment

strictures). The facts Nye has alleged, without more, do not

demonstrate that Aldridge employed unreasonable procedures in

searching Nye at the time of Nye's arrest. Thus, Nye has failed

to state a plausible Fourth Amendment claim with respect to that

search.

4 IV. Municipal Liability

Even if there were a basis for finding that Aldridge's

search violated Nye's federal rights, the facts alleged by Nye

fail to show any basis for finding the NPD liable under federal

law for failing to protect minors from a sexual assault by

Aldridge. See Connick v. Thompson, 131 S. C t . 1350, 1359

(2011); Young v. City of Providence ex rel. Napolitano, 404 F.3d

4, 25 (1st Cir. 2005).

V. Tort Claims

The court declines to exercise supplemental jurisdiction

over the state law claims asserted by Nye, as the court finds

that the complaint fails to state any plausible federal claim

for relief. The court therefore declines to address whether Nye

has stated any plausible claim for relief under state law, as

all of Nye's state law claims would properly be dismissed

without prejudice, pursuant to 28 U.S.C. § 1367(c), if the

federal claims are dismissed.

Conclusion

For the foregoing reasons, Nye is granted fourteen days to

show cause why the Fourth and Fourteenth Amendment claims

identified in this order should not be dismissed for failure to

5 state a claim upon which relief can be granted, and to show

cause why the court should exercise jurisdiction over the state

law claims asserted against defendants.

SO ORDERED.

Landya MqCa/fferty United Sth-tes District Judge

January 22, 2 014

cc: Thadius B. Nye, pro se

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