Shibley v. Begin CV-96-267-SD 02/20/97
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mark P. Shibley
v. Civil No. 96-267-SD
J.P. Begin, et al
O R D E R
This civil rights action arises from defendants' alleged
conduct when they arrived at plaintiff Mark B. Shibley's
apartment in response to information that plaintiff's roommate
might have taken a drug overdose. The complaint alleges that
defendants entered plaintiff's apartment without a warrant or
probable cause; physically assaulted and maced him; arrested him
without probable cause; and ignored his medical needs. The
complaint contains eleven different counts brought pursuant to 42
U.S.C. § 1983 and state law and includes as defendants both the
police officers and the paramedics, who worked for American
Medical Response of Massachusetts, Inc., formerly known as Chaulk
Ambulance Service, Inc. The complaint alleges that Chaulk and
its employees, Robert McCombie and Guy Robinson, violated
plaintiff's constitutional rights by conducting an unreasonable search (Count I) and displaying "callous" indifference to
plaintiff's medical needs (Count IV).
Presently before the court are (1) a motion for judgment on
the pleadings filed by defendants Chaulk, McCombie, and Robinson
(document 22), to which plaintiff objects, and (2) plaintiff's
motion to amend the complaint (document 24), to which defendants
obj ect.
Background
On June 6, 1993, Marina Oliszczak made a telephone call to a
drug counseling center and indicated that she might have
overdosed on drugs. As a result of the call, two members of the
Manchester Fire Department arrived at Oliszczak's apartment to
assess her condition. They determined that she had not taken an
overdose.
After the fire fighters had left, defendant J.P. Begin, a
police officer, arrived at the apartment, accompanied by
defendants McCombie and Robinson, both paramedics employed by
Chaulk. Shibley, who was at the time residing with Oliszczak in
the apartment, met these defendants at the door and informed them
that the fire department had already been there and had
determined that Oliszczak had not taken an overdose. In
response. Begin placed his foot between the door and the door
2 jamb, shoved plaintiff out of the doorway, sprayed him twice in
the face with mace, and entered the apartment with McCombie and
Robinson. Plaintiff then ran to a bathroom sink to rinse his
face, at which point he was handcuffed by Begin and placed under
arrest.
Subsequently, plaintiff, who has a diagnosis of chronic
paranoic schizophrenia, informed defendants of his diagnosis and
his need to take medication and receive medical assistance.
Defendants searched the medications in plaintiff's apartment, but
refused to allow him to take any medication.
Shibley was later charged with the offense of disorderly
conduct, but the charge was dismissed by the Manchester District
Court on the ground that Begin, McCombie, and defendant David
Mara, another police officer involved, had engaged in an illegal
search and seizure.
Analysis
1. Judgment on the Pleadings Standard
Under Rule 12(c), Fed. R. Civ. P., "[a]fter the pleadings
are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings." "The standard for
evaluating a Rule 1 2 (c) motion for judgment on the pleadings is
essentially the same as the standard for evaluating a Rule
3 12(b)(6) motion." Metromedia Steakhouses Co., L.P. v. Resco
Management, 168 B.R. 483, 485 (D.N.H. 1994) (citation omitted).
"In reviewing the defendants' motion for judgment on the
pleadings . . . the court must accept all of the factual
averments contained in the complaint as true and draw every
reasonable inference helpful to the plaintiff's cause." Sinclair
v. Brill, 815 F. Supp. 44, 46 (D.N.H. 1993) (citing Santiago de
Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991)); see
also Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)
("because rendition of judgment in such an abrupt fashion
represents an extremely early assessment of the merits of the
case, the trial court must accept all of the nonmovant's well-
pleaded factual averments as true and draw all reasonable
inferences in his favor") (citations omitted).
Even then, judgment may not be entered on the pleadings
"'"unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of [her] claim which would entitle [her]
to relief."'" Rivera-Gomez, supra, 843 F.2d at 635 (guoting
George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete
Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977) (guoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957))).
4 2. State Action
Defendants first argue that the allegations in the complaint
are insufficient to support that Chaulk or the individual
paramedics were acting under color of law, as reguired by 42
U.S.C. § 1983. The state action reguirement of section 1983
contains two components: (1) the deprivation must have been
"caused by the exercise of some right or privilege created by the
state, or by a rule of conduct imposed by the state, or by a
person for whom the state is responsible," Alexis v. McDonald's
Restaurants of Massachusetts, 67 F.3d 341, 351 (1st Cir. 1995);
and (2) the party who effected the deprivation "must be a person
who may fairly be said to be a state actor, " id.
Where, as here, a private party is a defendant in a section
1983 action, the plaintiff must show that the private party and
the state actor "jointly deprived the plaintiff of his civil
rights." See id. This reguirement is satisfied by showing that
the private person is a willful participant in the challenged
action. See Dennis v. Sparks, 449 U.S. 24, 27-29 (1980).
Shibley's complaint alleges that McCombie and Robinson
followed the police officer into Shibley's apartment and aided
the police officer in searching his home and depriving him of
appropriate medical care. The court finds that allegations of
such collective action sufficiently show that the alleged
5 constitutional violations resulted from "concerted action
tantamount to substituting the judgment of a private party for
that of the police or allowing the private party to exercise
state power." See Alexis, supra, 67 F.3d at 352. Thus, the
defendants are not entitled to dismissal of Shibley's claims on
the grounds of lack of state action.
Defendants next argue that even if the paramedics were
acting under color of law, there can be no recovery against
Chaulk.
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Shibley v. Begin CV-96-267-SD 02/20/97
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Mark P. Shibley
v. Civil No. 96-267-SD
J.P. Begin, et al
O R D E R
This civil rights action arises from defendants' alleged
conduct when they arrived at plaintiff Mark B. Shibley's
apartment in response to information that plaintiff's roommate
might have taken a drug overdose. The complaint alleges that
defendants entered plaintiff's apartment without a warrant or
probable cause; physically assaulted and maced him; arrested him
without probable cause; and ignored his medical needs. The
complaint contains eleven different counts brought pursuant to 42
U.S.C. § 1983 and state law and includes as defendants both the
police officers and the paramedics, who worked for American
Medical Response of Massachusetts, Inc., formerly known as Chaulk
Ambulance Service, Inc. The complaint alleges that Chaulk and
its employees, Robert McCombie and Guy Robinson, violated
plaintiff's constitutional rights by conducting an unreasonable search (Count I) and displaying "callous" indifference to
plaintiff's medical needs (Count IV).
Presently before the court are (1) a motion for judgment on
the pleadings filed by defendants Chaulk, McCombie, and Robinson
(document 22), to which plaintiff objects, and (2) plaintiff's
motion to amend the complaint (document 24), to which defendants
obj ect.
Background
On June 6, 1993, Marina Oliszczak made a telephone call to a
drug counseling center and indicated that she might have
overdosed on drugs. As a result of the call, two members of the
Manchester Fire Department arrived at Oliszczak's apartment to
assess her condition. They determined that she had not taken an
overdose.
After the fire fighters had left, defendant J.P. Begin, a
police officer, arrived at the apartment, accompanied by
defendants McCombie and Robinson, both paramedics employed by
Chaulk. Shibley, who was at the time residing with Oliszczak in
the apartment, met these defendants at the door and informed them
that the fire department had already been there and had
determined that Oliszczak had not taken an overdose. In
response. Begin placed his foot between the door and the door
2 jamb, shoved plaintiff out of the doorway, sprayed him twice in
the face with mace, and entered the apartment with McCombie and
Robinson. Plaintiff then ran to a bathroom sink to rinse his
face, at which point he was handcuffed by Begin and placed under
arrest.
Subsequently, plaintiff, who has a diagnosis of chronic
paranoic schizophrenia, informed defendants of his diagnosis and
his need to take medication and receive medical assistance.
Defendants searched the medications in plaintiff's apartment, but
refused to allow him to take any medication.
Shibley was later charged with the offense of disorderly
conduct, but the charge was dismissed by the Manchester District
Court on the ground that Begin, McCombie, and defendant David
Mara, another police officer involved, had engaged in an illegal
search and seizure.
Analysis
1. Judgment on the Pleadings Standard
Under Rule 12(c), Fed. R. Civ. P., "[a]fter the pleadings
are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings." "The standard for
evaluating a Rule 1 2 (c) motion for judgment on the pleadings is
essentially the same as the standard for evaluating a Rule
3 12(b)(6) motion." Metromedia Steakhouses Co., L.P. v. Resco
Management, 168 B.R. 483, 485 (D.N.H. 1994) (citation omitted).
"In reviewing the defendants' motion for judgment on the
pleadings . . . the court must accept all of the factual
averments contained in the complaint as true and draw every
reasonable inference helpful to the plaintiff's cause." Sinclair
v. Brill, 815 F. Supp. 44, 46 (D.N.H. 1993) (citing Santiago de
Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991)); see
also Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)
("because rendition of judgment in such an abrupt fashion
represents an extremely early assessment of the merits of the
case, the trial court must accept all of the nonmovant's well-
pleaded factual averments as true and draw all reasonable
inferences in his favor") (citations omitted).
Even then, judgment may not be entered on the pleadings
"'"unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of [her] claim which would entitle [her]
to relief."'" Rivera-Gomez, supra, 843 F.2d at 635 (guoting
George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete
Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977) (guoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957))).
4 2. State Action
Defendants first argue that the allegations in the complaint
are insufficient to support that Chaulk or the individual
paramedics were acting under color of law, as reguired by 42
U.S.C. § 1983. The state action reguirement of section 1983
contains two components: (1) the deprivation must have been
"caused by the exercise of some right or privilege created by the
state, or by a rule of conduct imposed by the state, or by a
person for whom the state is responsible," Alexis v. McDonald's
Restaurants of Massachusetts, 67 F.3d 341, 351 (1st Cir. 1995);
and (2) the party who effected the deprivation "must be a person
who may fairly be said to be a state actor, " id.
Where, as here, a private party is a defendant in a section
1983 action, the plaintiff must show that the private party and
the state actor "jointly deprived the plaintiff of his civil
rights." See id. This reguirement is satisfied by showing that
the private person is a willful participant in the challenged
action. See Dennis v. Sparks, 449 U.S. 24, 27-29 (1980).
Shibley's complaint alleges that McCombie and Robinson
followed the police officer into Shibley's apartment and aided
the police officer in searching his home and depriving him of
appropriate medical care. The court finds that allegations of
such collective action sufficiently show that the alleged
5 constitutional violations resulted from "concerted action
tantamount to substituting the judgment of a private party for
that of the police or allowing the private party to exercise
state power." See Alexis, supra, 67 F.3d at 352. Thus, the
defendants are not entitled to dismissal of Shibley's claims on
the grounds of lack of state action.
Defendants next argue that even if the paramedics were
acting under color of law, there can be no recovery against
Chaulk. The well-established rule is that liability under
section 1983 cannot be based on the doctrine of respondeat
superior. See Polk County v. Dodson, 454 U.S. 312, 325 (1981);
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
1989). Thus, a private corporation cannot be held vicariously
liable under section 1983 for the acts of its employees. See
Lyons v. National Car Rental Svs., Inc., 30 F.3d 240, 246-47 (1st
Cir. 1994) .1
There is some authority supporting the proposition that a
private employer is liable for the constitutional torts of its
employees when the plaintiff shows the employee's
unconstitutional conduct was pursuant to a policy of the
1The Lyons court makes this statement in the course of determining whether under the Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, § 111, the scope of employer liability is greater than that available under section 1983.
6 employer. See, e.g., Rojas v. Alexander's Pep't Store, Inc., 924
F.2d 406, 408 (2d Cir. 1990), cert, denied, 502 U.S. 809 (1991).
Such cases generally recognize that the rule of law enunciated in
Monell v. Pep't of Social Serv. of the City of New York, 436 U.S.
658, 691 (1978), applicable to municipal employers, can be
extended to private businesses.2
Even assuming Monell's "custom or policy" rule can be
extended to the instant case, the court finds that the complaint
fails to state a claim against Chaulk. The complaint, as
plaintiff seeks to amend it, simply alleges in conclusory fashion
that Chaulk "had a policy of not training its employees to deal
with the treatment needs of people with mental illnesses, in
particular, when responding to a situation where there had been
police intervention." Proposed Amended Complaint I 44. An
entity can be liable under section 1983 for its inaction "only
when its failure to act amounts to deliberate indifference to the
2The Court in Monell held that
a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Monell, supra, 436 U.S. at 694.
7 plaintiff's constitutional rights." Forbes v. R.I. Bhd. of
Correctional Officers, 923 F. Supp. 315, 324 (D.R.I. 1996)
(citing Canton v. Harris, 489 U.S. 378, 392 (1989)). The factual
allegations in the complaint fail to show that Chaulk's "policy"
resulted from its deliberate indifference to his constitutional
rights. Accordingly, the court grants Chaulk's motion for
judgment on the pleadings as to Counts I and IV of the complaint.
Conclusion
For the reasons stated above, the court grants in part and
denies in part defendants' motion for judgment on the pleadings
(document 22). The motion is granted as to Counts I and IV
against defendant Chaulk only, and is otherwise denied. In
addition, the court grants in part plaintiff's motion to amend
the complaint (document 24) as to proposed paragraph 43, and
otherwise denies plaintiff's motion.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
February 20, 1997
cc: H. Jonathan Meyer, Esg. Cindy Robertson, Esg. Peter E. Mosseau, Esg.