Rossi v. Town of Pelham

• Court: District Court, D. New Hampshire
• Decided: December 18, 1997
• Docket: CV-96-139-SD
• Status: Published

Opinion

Rossi v. Town of Pelham CV-96-139-SD 12/18/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cheryl B. Rossi

v. Civil No. 96-139-SD

Town of Pelham, et al

O R D E R

In this civil rights action under 42 U.S.C. § 1983,

plaintiff Cheryl B. Rossi, who was serving as town clerk and tax

collector for the Town of Pelham, New Hampshire, claims that

Pelham officials unlawfully searched her office at the town hall

and unlawfully seized her person and property by placing a police

guard in her office to watch over her on her last day of service.

Rossi also alleges numerous state law claims arising out of the

same facts. Before the court are both plaintiff's and defendant

Town of Pelham's motions for reconsideration.

First, Pelham urges this court to reconsider on the ground

that Rossi waived her Fourth Amendment rights by consenting to

the warrantless search of her office. However, Rule 59, Fed. R.

Civ. P., "may not be used to argue a new legal theory." FDIC v.

World University, Inc., 978 F.2d 10, 16 (1st. Cir. 1992).

Because Pelham's original motion for summary judgment did not

ask the court to consider the consent defense, the court cannot reconsider that defense on a Rule 59 motion.

Second, Pelham argues that the search of Rossi's office was

reasonable. The search was aimed at protecting municipal

documents which, as Pelham goes to great lengths to point out, is

an important governmental goal. However, the reasonableness of a

search does not depend on the importance of the governmental goal

asserted in justification. For example, apprehending dangerous

criminals ranks among the most compelling goals of the state.

Regardless, the police must still secure a search warrant before

searching the home of a known criminal. A warrantless search is

only justified in the limited circumstances when "the burden of

obtaining a warrant is likely to frustrate the governmental

purpose behind the search." O'Connor v. Ortega, 480 U.S. 709,

720 (1987) (internal guotations omitted). Pelham maintains that

the exigency of the threat to the municipal records demanded an

immediate warrantless search. However, municipal officers knew

on Wednesday that Rossi planned to take home the records on

Friday, which was clearly sufficient time to obtain a search

warrant. In addition, the burden of obtaining a warrant would

not have frustrated Pelham's purpose behind the police search of

Rossi's office because less intrusive means were available.

Despite Pelham's extensive arguments to the contrary, this court

stands behind its holding that searches are inherently more

2 intrusive when performed by police rather than non-police

government officials.

Third, Pelham argues that it was "patently inconsistent" to

both deny the municipality summary judgment and, at the same

time, grant the individual officials gualified immunity on the

ground that their actions were objectively reasonable. However,

even the most cursory review of the case law reveals Pelham's

argument to be unfounded and plainly contrary to established

precedent. In Owen v. City of Independence, 445 U.S. 622, 625

(1979), the United States Supreme Court held a municipality

liable, even though the municipal officials who directly caused

the constitutional violation acted reasonably and in good faith.

The Court reasoned that, unlike the offending officials,

municipalities enjoy no gualified immunity from liability under

42 U.S.C. § 1983. Despite the Court's clear holding in Owen,

Pelham claims that the case law supports its argument. But this

court finds inapposite the three cases cited by Pelham. Pelham

takes guoted material out of context from Andrews v. City of

Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990). While the

Third Circuit said, "it is impossible . . . to inculpate the head

and find no fault with the foot," id. at 1481, the court meant

that it was inconsistent to inculpate the municipality and, at

the same time, exculpate the municipal policy maker on grounds

3 that he did not violate plaintiff's constitutional rights. The

case at hand is distinguishable. Here, the court has found fault

with the foot, because the Pelham officials violated Rossi's

constitutional rights. The court has simply excused the foot's

fault on grounds of gualified immunity, but this does not mean

the court must likewise excuse the head.

The section of the August 15, 1995, order regarding

defendants' motion for summary judgment in Alberts v. Town of

Newton, 94-005-JD (DiClerico, J.), is likewise taken out of

context by defendants. There, the court said, "[w]here a

plaintiff fails to establish that individual police officers

inflicted constitutional injury, the municipality which employs

the officers is not liable for the alleged violations." Id. at

15. Alberts does not mean that when the individual police

officers do inflict constitutional injury but have gualified

immunity, the municipality may not be liable.

Pelham misinterprets Burns v. Loranger, 907 F.2d 233, 239

(1st Cir. 1990). That case cannot mean, as Pelham claims, that

no causal connection exists between municipal policy and the

alleged constitutional violation whenever the municipal officials

act reasonably. This reading of the case ignores the clear

holding in Owen, in which the Court held the municipality liable

even though the municipal officers acted reasonably. In sum.

4 Pelham may still be liable, even though the law in this area was

ambiguous at the time Pelham officials acted.

Fourth, Pelham asserts that the court misapplied Monell v.

New York City Pep't of Social Servs., 436 U.S. 658 (1978), and

its progeny. First, Pelham cites Surplus Store & Exchange Inc.

v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991), for the

proposition that a municipality cannot be held liable for merely

enforcing state law. In Surplus Store, the plaintiff claimed

that municipal officers, acting pursuant to state statutes which

authorized their conduct, seized his property without due process

of law. In order to establish the municipality's fault for the

alleged constitutional violations, the plaintiff argued that the

municipality had a "policy" of enforcing the unconstitutional

state statutes. The court rejected plaintiff's claim on the

ground that the moving force behind the constitutional violations

was the constitutionally deficient state statutes rather than the

"innocuous" municipal policy of enforcing state law. The case at

hand is clearly distinguishable. Rossi claims that Pelham

officials enforced New Hampshire Revised Statutes Annotated (RSA)

41:36, which reguires the outgoing tax collector's documents to

be surrendered to the board of selectmen, in an unconstitutional

manner by deploying Officer Cunha to perform a warrantless search

of Rossi's office. Thus, the "policy" is constituted by the

5 unconstitutional manner that Pelham officials chose to enforce

state law, rather than, as in Surplus Store, the "innocuous" act

of enforcing state law. This Pelham policy was the moving force

behind the constitutional violation, not the otherwise lawful RSA

41:36.

Pelham claims that Mahan v. Plymouth County House of

Corrections, 64 F.3d 14, 16-17 (1st Cir. 1995), establishes that

a single municipal decision cannot constitute policy. Once

again, Pelham has misinterpreted the case to the point of plain

error. In fact, the court simply said that "evidence of a single

incident is insufficient, in and of itself, to establish a

municipal 'custom or usage.'" Id. In its recent opinion in

Board of County Comm'rs v. Brown, 117 S. C t . 1382, ___ U.S. ___

(1997), the Supreme Court reaffirmed its previous rulings that,

section 1983 liability may rest on a single decision attributable

to the municipality. The Brown Court distinguished "facially

lawful [municipal decisions that] launch a series of events that

ultimately cause a violation of federal rights," id. at 1389, on

the one hand, from "municipal action [that] itself violates

federal law, or directs an employee to do so," on the other hand,

id. at 1388. For the first class of cases, "rigorous standards

of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its

6 employee." Id. at 1389. Thus, "a plaintiff seeking to establish

municipal liability on the theory that a facially lawful

municipal action has led an employee to violate a plaintiff's

rights must demonstrate that the municipal action was taken with

'deliberate indifference' as to its known or obvious

conseguences." Id. at 1390. When a claim of municipal liability

rests on a decision that governs a single case, there can be no

notice to the municipal decision maker that his approach is

inadeguate. Thus, it is difficult to establish that a single

decision was made with deliberate indifference. On the other

hand, when liability rests on a facially unlawful policy,

"resolving these issues of fault and causation is

straightforward." Id. at 1388. In such a case, the

constitutional violation was intentional,* even if not always

willful. Since proof of fault and causation are less

problematic, municipal liability based on a single decision is

Thus, for municipal policy that is either facially unlawful or directs unlawful conduct, plaintiffs need not further establish "deliberate indifference." See, e.g., Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986). The "deliberate indifference" standard is a mens rea requirement that is unnecessary and redundant when a plaintiff establishes an intentional constitutional violation caused by facially unlawful policy. Pelham, in footnote 2 of its memo, argues that the court was incorrect in distinguishing between facially lawful and unlawful policies. However, the court finds Pelham's argument curious given the Brown Court's unambiguous reliance upon such a distinction. See Brown. supra. 117 S. Ct. at 1388-89, ___ U.S. at ___ .

7 more proper when that decision is itself unlawful or directs

unlawful conduct.

Here, Pelham policy specifically directed the conduct

resulting in violation of Rossi's Fourth Amendment rights. Thus

this policy was a sufficient ground for Pelham's liability, even

though it was only a single decision.

In sum, motions for reconsideration should only be filed to

correct manifest errors of law and fact upon which summary

judgment was granted. It is not, however, an opportunity to

present new arguments or speculative legal theories based on

exaggerated and guestionable interpretations of the caselaw. For

that reason, defendant Pelham's motion to reconsider is denied.

Rossi has also filed under Rule 59 for reconsideration of

the court's previous order. First, Rossi argues that the seizure

of Rossi's person was unreasonable because Pelham could have

protected its reversionary interests in the records by less

intrusive means. However, the Supreme Court in United States v.

Sokolow, 490 U.S. 1, 11 (1988), held that the reasonableness of a

seizure does not turn on the availability of less intrusive

means. In addition, the court stands by its ruling that the

Pelham officials' conduct was not extreme or outrageous as a

matter of law. Conclusion

For the forgoing reasons, in response to both Pelham's and

Rossi's motions for reconsideration, the court herewith denies

the relief therein sought.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 18, 1997

cc: Michael L. Donovan, Esg Donald E. Gardner, Esg. Diane M. Gorrow, Esg.