Parks v . Tatarinowicz CV-04-445-PB 11/04/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William Alexander Parks
v. Civil No. 04-CV-445-PB Opinion No. 2005 DNH 149 Carol Ann Tatarinowicz, et a l .
MEMORANDUM AND ORDER
This civil action arises from plaintiff William Parks’s
strained relationship with his ex-girlfriend, Carol Tatarinowicz,
and from a series of encounters Parks had with the officers of
several Seacoast region police departments. Parks sued a laundry
list of defendants in Rockingham County Superior Court, including
Tatarinowicz, the Town of Seabrook and Seabrook police officers
Michael Gallagher and Scott Mendes (“Seabrook defendants”), the
Town of Kensington and Kensington police officer Brian Rathman
(“Kensington defendants”), the Town of Hampton Falls, Hampton
Falls police chief Robbie Dirsa and Hampton Falls police officers
Marshall Bennett and Joy LePage (“Hampton Falls defendants”), as
well as Ottoway Newspapers and its publisher John Tabor. He seeks damages, referrals to the appropriate prosecuting authority
for criminal prosecutions, expungement of his criminal record,
and return of/compensation for certain property.
Defendants removed the case from superior court on November
2 4 , 2004. The Seabrook, Kensington, and Hampton Falls defendants
have subsequently moved for summary judgment (Docs. N o . 6 3 , 3 1 , and 9 2 ) . 1
For the reasons set forth below, I grant the defendants’
motions as to Parks’s federal constitutional claims and remand
the case to Rockingham County Superior Court for adjudication of
the remaining claims, over which I decline to exercise
supplemental jurisdiction.
I. STANDARD OF REVIEW
Summary judgment is appropriate “if 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
1 Summary judgment motions have also been filed by Tatarinowicz (Doc. N o . 64) and Ottoway and Tabor (Doc. N o . 8 0 ) . Parks has not asserted federal claims against these defendants and I do not address their motions here.
-2- is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). In ruling on a motion for summary judgment, I construe
the evidence in the light most favorable to the nonmovant.
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001).
The party moving for summary judgment “bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 ,
323 (1986). Once the moving party has met its burden, the burden
shifts to the adverse party to “produce evidence on which a
reasonable finder of fact, under the appropriate proof burden,
could base a verdict for i t ; if that party cannot produce such
evidence, the motion must be granted.” Ayala-Gerena v . Bristol
Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996).
The “adverse party may not rest upon the mere allegations or
denials of the adverse party’s pleading, but the adverse party’s
response . . . must set forth specific facts showing that there
is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see also
Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986). 2
2 Parks claims that his complaint and pleadings are verified complaints. Pl.’s Mot. for Assignment of Counsel at 3 .
-3- Further, Local Rule 7.2(b)(2) dictates that “[a]ll properly
supported material facts set forth in the moving party's factual
statement shall be deemed admitted unless properly opposed by the
adverse party.” See also Stonkus v . City of Brockton Sch. Dep’t,
322 F.3d 9 7 , 102 (1st Cir. 2003) (applying Massachusetts Local
Rule 56.1, which is substantially similar to Rule 7.2(b)(2)).
Evidence that is “merely colorable or is not significantly
probative” is insufficient to defeat summary judgment. Anderson,
477 U.S. at 249 (citations omitted).
This standard of review influences my recitation of the
A party may set forth specific triable facts in a verified complaint rather than an affidavit “to the extent that [the verified complaint] satisfies the standards explicated in Rule 56(e).” Sheinkopf v . Stone, 927 F.2d 1259, 1262 (1st Cir. 1991). Cf. Felix v . Lugas, N o . 00-12225-DPW, 2004 U.S. Dist. LEXIS 15520 at *6 n.5 (D. Mass. March 2 , 2004) (unverified complaint, “is not the equivalent of an affidavit and therefore does not form part of the summary judgment record”). A verified complaint must comply with 28 U.S.C. § 1746, see Williams v . Browman, 981 F.2d 901, 904 (6th Cir. 1992), which requires that a party sign a statement “in substantially the following form: . . . . ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.’” 28 U.S.C. § 1746. As neither Parks’s complaint nor his pleadings contain such language, I may not treat them as affidavits for summary judgment purposes. C f . Nowaczyk v . Warden, N o . 97-309-JD, 2003 U.S. Dist. LEXIS 6912 at *3 n.1 (D.N.H. April 2 4 , 2003) (where plaintiff signed a petition pursuant to § 1746, the factual allegations contained therein could be considered).
-4- facts set forth below. While I adhere to the principle that I
must view the facts in the light most favorable to the adverse
party, I accept as true any facts described in defendants’
affidavits that Parks has failed to properly challenge.
II. FACTUAL BACKGROUND
Parks met Tatarinowicz on October 2 5 , 2002. Rockingham Cty.
Writ (“Compl.”) at 1 5 . The pair began a romantic relationship,
and Tatarinowicz invited Parks to move into her home after three
weeks of dating. Id. at 1 6 .
A. June 2003 Incident
On June 1 5 , 2003 3 , Hampton Falls defendant Bennett was on
patrol when he received a “be on the lookout” (“BOLO”) for a blue
Ford with Florida license plates. The car was wanted by the
Newbury, Massachusetts police department in connection with a
police impersonation incident. Bennett Aff. at 1-2. Bennett had
previously seen a car that matched the BOLO description turn into
Tatarinowicz’s driveway. Id. at 2 . He drove to Tatarinowicz’s
3 The dates in Parks’s writ conflict with those reported in the police officers’ affidavits, which I regard as accurate and use here. The exact dates are not determinative.
-5- neighborhood and confirmed that a car parked there had the same
license plate number as the car described in the BOLO. Id.
Bennett met three state police troopers and a detective from the
Newbury police department at the Hampton Falls police station,
and the group went to Tatarinowicz’s home to investigate. Id. at
3 ; Compl. at 2 0 . Tatarinowicz greeted the officers and led
Bennett and the Newbury detective behind the house to find Parks.
Parks emerged from the garage and met the state troopers.
Bennett Aff. at 3 . He gave his written consent to a search of
the car, which turned up police equipment including a rotating
light and a handheld radar gun.4 Id. at 3-4. Nevertheless, the
officers determined that Parks had not been involved in the
Newbury incident and left. Id. at 4 . Parks claims that the
police officers’ actions “violated [his] U.S. Constitutional 4th
amendment protections prohibiting unreasonable searches and
seizures, [and] violated [his] 5th amendment due process
protections; the Miranda Doctrine.” Compl. at 2 0 .
4 Parks denies that he consented to the search of his vehicle. Pl.’s Mem. in Opp. to Hampton Falls Defs.’ Mot. for Summ. J. at 1 6 . This general denial, in an unsworn pleading, is insufficient to give rise to a genuine factual dispute. In any event, the dispute is immaterial because Parks does not challenge the vehicle search.
-6- B. July 2003 Incident
On July 1 0 , 2003, Tatarinowicz called 911 from her home but
apparently hung up before making a request for assistance.
Compl. at 6. The 911 dispatch center returned the call and
Tatarinowicz stated that she had mis-dialed the number. Id.
Hampton Falls defendant LePage was dispatched to Tatarinowicz’s
home to investigate. LePage Aff. at 1 . LePage requested backup
from the Kensington police department, which sent an officer to
assist her.5 Id. at 1-2. When LePage arrived at the
Tatarinowicz home, Parks met her in the driveway and began
yelling that he and Tatarinowicz had been fighting “but that
nothing happened and it was over now.” Id. at 2 . LePage asked
Parks to wait by his car while she spoke to Tatarinowicz. Parks
“flashed a badge” and shouted that he would stay by his car
because he was a cop. Id. While LePage was inside speaking with
Tatarinowicz, she noticed that the Kensington officer had
5 LePage identifies the Kensington police officer as “Officer Doyle.” LePage Aff. at 2 . Doyle is not a defendant, and although Parks states that a second officer assisted LePage, he does not name him. He does claim that the “Town of Seabrook” and “the Rockingham County Sheriff Department” (which is also not a defendant) responded to the 911 call. Compl. at 6. My analysis of the incident in no way depends on the identity of the assisting officer.
-7- arrived. She radioed to him and asked him to stay at the end of
the driveway to avoid agitating Parks. Id. at 2-3. When Parks
continued to yell loudly and angrily after the arrival of the
Kensington officer, LePage went outside. She saw the Kensington
officer handcuffing Parks, reportedly because Parks had “[become]
enraged and charged at” the officer after being instructed to
stay outside the house.6 Id. at 3 . LePage took Parks to her
cruiser; “[h]e screamed that he wanted to be charged with
something.” Id. LePage attempted to explain to Parks that he
was not being arrested, but rather “detained for safety reasons”
until the end of the investigation into the 911 call. Id. Parks
was held in the back of LePage’s cruiser for nearly an hour until
LePage finished speaking with Tatarinowicz. Compl. at 6. Parks
claims his detention was “in violation of and depriv[ed] [him] of
his Fifth (5th) amendment due process rights as contained in the
U.S. Constitution.” Id.
6 Parks claims that he “showed no hostile [or] aggressive behavior” when the officers arrived at Tatarinowicz’s home, Compl. at 6, and denies that he yelled, screamed, or admitted to having had a fight with Tatarinowicz. Pl.’s Memo. in Opp. of Hampton Falls Defs.’ Mot. for Summ. J. at 1 8 . These statements are unsworn general denials of the officers’ statements rather than specific factual allegations, and as such they are insufficient to create a genuine issue of material fact.
-8- C. September 2003 Incident
On September 2 7 , 2003, Tatarinowicz obtained an emergency
restraining order against Parks. Id. at 2 ; LePage Aff. at 4 . On
September 2 8 , 2003, Hampton Falls defendant LePage learned that
Parks had returned to Tatarinowicz’s home in violation of the
order. She initiated a BOLO for his vehicle so that he could be
stopped and served with the restraining order. LePage Aff. at 5 .
Kensington defendant Rathman was traveling through Seabrook on
Route 95 when he heard the BOLO. Rathman Aff. at 2-3. He exited
the highway and promptly spotted a car meeting the BOLO
description. Id. at 3 . Rathman contacted the Seabrook police
department, which authorized him to stop the car. Id.
Subsequently, Seabrook defendants Gallagher and LePage arrived on
the scene. Id. at 4 ; LePage Aff. at 6. LePage served Parks with
the restraining order. LePage Aff. at 6.
When Rathman asked Parks for identification, Parks
responded by showing a badge and saying, “‘There, how’s that for
an ID.’” Rathman Aff. at 4 . Rathman reported this to Gallagher
when Gallagher arrived. Id. at 4-5. Eventually, Parks told the
-9- officers that he was retired.7 Gallagher Aff. at 3 . However,
neither the badge nor an identification card that Parks showed
said “retired.” Id. Gallagher called the Connecticut State
Police and could not confirm that Parks was a former law
enforcement officer of any kind. Id. at 3-4. Gallagher also
observed two police lights in the back seat of Parks’s car, a red
light with the word “Police” on it and a blue light with the
words “State Police” on i t . Id. at 4 . According to Parks, the
officers “detained [him] for almost an hour while figuring out
what to charge him with, and finally, unlawfully charged and
arrested [him] for impersonating a police officer.” Compl. at
14.
On September 2 9 , 2003, Parks was charged with false
personation in Hampton District Court.8 See Ex. D to Seabrook
7 Parks originally claimed that upon being stopped, he told Rathman that he was “a former Deputy Sheriff in New London County, Connecticut . . . and a former officer with the State of Connecticut, Department of Correction.” Compl. at 5 (emphasis added). However, he does not contest the officers’ description of the encounter in his most recent pleadings. Instead, Parks comments that the officers “sure can recall all the . . . minute details of what I said and how I said it.” Pl.’s Mem. in Opp. to Kensington Defs.’ Mot. for Summ. J. at 2 6 . 8 Under New Hampshire’s false personation statute, it is a misdemeanor when a person “not being a sheriff, deputy sheriff,
-10- Defs.’ Mot. for Summ. J. The complaint alleged that Parks,
“while not being a New London County Connecticut deputy sheriff
or a State of Connecticut Department of Corrections officer,
purposely pretend[ed] to be [such an officer] by presenting a New
London County Connecticut deputy sheriffs [sic] badge and a
Connecticut Department of Corrections identification card to
Sergeant Gallagher as a form of identification.” Id. On October
2 9 , 2003, Parks pleaded guilty to the charge and on December 1 8 ,
2003, the Hampton District Court entered a finding of guilty.
Id.
IV. ANALYSIS
Parks alleges that Hampton Falls defendant Bennett violated
Parks’s Fourth Amendment right to be free of unreasonable
searches and seizures and his Fifth Amendment rights to due
process and to Miranda warnings during Bennett’s investigation
state police officer, police officer of any city or town, or any other law enforcement officer or investigator . . . purposely pretends to be or assumes to act as such law enforcement officer or investigator.” N.H. Rev. Stat. Ann. § 104:28-a.
-11- into the Newbury BOLO. Compl. at 2 0 .
Although Parks baldly asserts that the defendant and others
“raid[ed]” his residence, Compl. at 2 0 , there is no evidence that
police officers entered his home. Id.; see Bennett Aff. at 3-4.
Tatarinowicz was at home at the time of the incident, and she met
the officers in the driveway and “led [them] around back to find”
Parks. Bennett Aff. at 3 . “[T]here is no expectation of privacy
in a driveway that is exposed to the public,” U.S. v . Roccio, 981
F.2d 5 8 7 , 591 (1st Cir. 1992), so Parks’s Fourth Amendment rights
were not violated when Bennett observed Parks’s license plate.
Even if Parks did have an expectation of privacy “around back,”
Tatarinowicz consented to the officers’ presence there. See
United States v . Meada, 408 F.3d 1 4 , 21 (1st Cir. 2005) (where
police obtain consent from the property owner, a warrantless
search does not violate the Fourth Amendment). The officers
searched Parks’s vehicle, but Parks has not challenged that
search, presumably because he consented to the search in writing.
Bennett Aff. at 3.9 Parks has failed to explain how the police
9 Apparently this written consent form is in the possession of the Newbury police department. Bennett Aff. at 3 ; Dirsa Aff. at 2 .
-12- officers’ conduct, which comported with the Fourth Amendment,
violated his right to due process under the Fifth Amendment.
Nor has Parks shown that he should have been given Miranda
warnings. The protections of Miranda do not apply unless a
person is in custody. Miranda v . Arizona, 384 U.S. 436, 467
(1966); Pasdon v . City of Peabody, 417 F.3d 225, 227 (1st Cir.
2005). Parks’s freedom of movement was not restricted in any
way during this incident, so he was not in custody and therefore
was not entitled to Miranda warnings.
Accordingly, defendants’ motion for summary judgment as to
this claim is granted.
B. July 1 0 , 2003 Incident
Parks claims that his detention in the Hampton Falls’ police
cruiser following the 911 call violated his Fifth Amendment right
to due process. It appears that Parks means to invoke his Fourth
Amendment right to be free of unreasonable seizures. He has not,
however, provided any evidence to support such a claim.
Under the rubric of Terry v . Ohio, 392 U.S. 1 , 27 (1968),
the police “may make brief investigative stops” in certain
circumstances. Flowers v . Fiore, 359 F.3d 2 4 , 29 (1st Cir.
2004). “In determining whether a challenged action is
-13- reasonable, and, thus, falls within the range of permissible
investigatory stops or detentions, a court should engage [in] a
two-step inquiry, asking (1) whether the officer’s action was
justified at its inception; and (2) whether the action taken was
reasonably related in scope to the circumstances justifying the
interference in the first place.” U.S. v . McCarthy, 77 F.3d 5 2 2 ,
530 (1st Cir. 1996). I discuss each step in turn.
1. Justification for the Stop
A Terry stop is appropriate where there is reasonable
suspicion that an individual has committed a crime. Flowers, 359
F.3d at 2 9 . Here, the police officers had ample reason to
believe that Parks had committed a crime. They were responding
to a late-night 911 hang-up that had been made from
Tatarinowicz’s home. LePage found Parks outside the home. He
appeared to be in an agitated state and eventually charged at the
Kensington officer. These circumstances gave rise to reasonable
suspicion that Parks had committed a crime, such as threatening
Tatarinowicz. See, e.g., U.S. v . Romain, 393 F.3d 6 3 , 72 (1st
Cir. 2004), cert. denied, 125 S . C t . 2924 (2005) (after receiving
a 911 call reporting that there was an armed man in a residence,
police had reasonable suspicion to conduct a Terry stop in part
-14- because of the suspect’s belligerent behavior when the police
arrived); U.S. v . Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir.
2002) (late hour relevant to determination of reasonable
suspicion); Gainor v . Douglas Cty., 59 F. Supp. 2d 1259, 1275-76
(N.D. G a . 1998) (angry and hostile behavior relevant to a
determination of reasonable suspicion).
2. Scope of the Stop
“Whether a Terry stop remained related in scope to the
circumstances justifying the interference is measured by an
objective reasonableness standard.” U.S. v . Moore, 235 F.3d 7 0 0 ,
703 (1st Cir. 2000). Courts are required to examine the
circumstances of the stop, and balance governmental interests
with the intrusion on the individual. Id. In this case, the
interference with Parks’s liberty was objectively reasonable and
did not escalate into a de facto arrest, for which probable cause
would have been required.
A Terry stop becomes a de facto arrest when a reasonable
person in the suspect’s position would have believed himself to
be under arrest. Flowers, 359 F.3d at 2 9 . The manner in which
the police carried out this stop demonstrates that a reasonable
person would not have believed himself to be under arrest.
-15- First, LePage told Parks that he was not under arrest,
LePage Aff. at 3 , and the officers did not treat him as if he had
been arrested. The officers did not interrogate Parks. They did
not take him anywhere in the police cruiser. Although Parks
claims he was “in agony, pain, and in sweltering heat” while he
was in the cruiser, Compl. at 6, he has not pointed to any
specific mistreatment by the police. In fact, it is evident that
Parks had no interaction with the police while he was in the
cruiser.
Second, the duration of the stop was reasonable. Although
Parks was held for close to an hour, there is “‘no rigid time
limitation on Terry stops.’” U.S. v . Quinn, 815 F.2d 153, 159
(1st Cir. 1987) (quoting U.S. v . Sharpe, 470 U.S. 675, 685
(1985)); see also McCarthy, 77 F.3d at 531 (upholding 75-minute
stop). Instead, courts must examine “whether the police
‘diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it
was necessary to detain the [suspect].’” Flowers, 359 F.3d at
30-31, (quoting Sharpe, 470 U.S. at 6 8 6 ) . In this case, Parks
was held until LePage finished her conversation with
Tatarinowicz. There is no suggestion that this conversation was
-16- unduly lengthy. See McCarthy, 77 F.3d at 531 (finding a stop
reasonable where “there [was] no evidence or even an allegation
of less than diligent behavior on the part of the police”).
Finally, the fact that the officers handcuffed Parks during
the stop is not determinative. Use of restraints does not
“automatically convert the encounter into a de facto arrest.”
U.S. v . Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998). Officers
“acting on less than probable cause” should not “handcuff
suspects as a matter of routine.” Id. However, the use of
handcuffs is appropriate if officers reasonably believe that
handcuffs are necessary to protect the officers, the public, or
the suspect during the stop. Id. at 1 9 . When the police arrived
at Tatarinowicz’s residence, Parks was in an enraged state and
behaved aggressively toward the officers. It was reasonable for
the officers to believe that handcuffs were necessary to preserve
Parks’s safety and their own.
In light of Parks’ hostile behavior and the officers’ need
to complete their investigation and protect themselves, the scope
of this Terry stop was objectively reasonable. Accordingly, I
grant defendants’ motion for summary judgment as to this claim.
-17- C. September 2 8 , 2003 Incident
Parks’s final constitutional claim is that he was unlawfully
arrested and charged with impersonating a police officer after
being pulled over for service of the restraining order.10 Parks
raises this claim despite his guilty plea in Hampton District
Court.
I reject Parks’s claim because the police officers had
probable cause to arrest Parks for false personation. The false
personation statute makes it a misdemeanor to pretend to be a law
enforcement officer. N.H. Rev. Stat. Ann. § 104:28-a. Parks
answered Rathman’s request for identification by presenting a
badge that said nothing about retired status. He had two police
light bars in the back seat of his car. Gallagher could not
confirm that Parks had ever been employed by a law enforcement
agency. These facts plainly gave the police probable cause to
believe that Parks had violated the false personation statute.
Accordingly, his arrest was valid.
For these reasons, the defendants’ motion for summary
judgment as to this claim is granted.
10 Parks challenges the service of the restraining order itself on state statutory grounds. Compl. at 1 4 .
-18- V. CONCLUSION
For the reasons set forth above, defendants’ motions for
summary judgment (Docs. N o . 6 3 , 3 1 , and 92) are granted as to
Parks’s federal constitutional claims against the Hampton Falls,
Seabrook, and Kensington defendants based on the events of June
1 5 , July 1 0 , and September 2 8 , 2003. Judgment shall be entered
for the defendants on these claims. I decline to exercise
supplemental jurisdiction over Parks’s state law claims.
Therefore, the remaining claims are remanded to Rockingham County
Superior Court.
SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge
Date November 4 , 2006
cc: William A . Parks, Esq. Donald E . Gardner, Esq. Lawrence Gormley, Esq. Daniel J. Mullen, Esq. Kenneth Murphy, Esq. William Scott, Esq.
-19-