Wilson v. Brock

2003 DNH 046

• Court: District Court, D. New Hampshire
• Decided: March 19, 2003
• Docket: CV-01-284-JD
• Status: Published

Opinion

Wilson v. Brock CV-01-284-JD 03/19/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary D. Wilson

v. Civil No. 01-284-JD Opinion No. 2003 DNH 046 David Brock, et al.

O R D E R

The plaintiff, Gary D. Wilson, proceeding pro se, brought

civil rights and state law claims against his former wife, state

and federal officials, agencies, a town, and town and county

officers. Wilson's claims have been dismissed as to all of the

defendants except his former wife, Julie Pierce, and Brenda

Blonigen, a sergeant in the Rockingham County Sheriff's

Department. Sergeant Blonigen moves for summary judgment as to

the claims against her.

Background

Gary Wilson's claims arise from a custody dispute with his

former wife, Julie Pierce, involving their daughter, Jennifer.

At the end of Jennifer's summer stay with Wilson on July 28,

1998, he refused to return her to Pierce. Wilson filed an ex

parte motion in state court to change the terms of the custody

arrangement. On July 29, 1998, Judge Gray, sitting in the

Rockingham County Superior Court, denied Wilson's motion to change custody and ordered Wilson to immediately return Jennifer

to her mother. When Wilson would not release Jennifer and would

not disclose her location, he was found to be in contempt of

court and was ordered held at the Rockingham County Jail until he

disclosed his daughter's location and she was returned to her

mother. The daughter was returned to her mother by Wilson's

relatives on July 30, 1998.

The incident was investigated by Jim Houghton, a special

investigator with the Rockingham County Attorney's Office. He

recommended that the only criminal charge that might arise from

the incident was a charge against Wilson for interference with

custody.

In late February of 1999, Assistant County Attorney Thomas

Reid told Blonigen that Judge Gray had asked for an inguiry into

the Wilson incident for potential charges of interference with

custody in violation of New Hampshire Revised Statute Annotated

("RSA") § 633:4. Reid gave Blonigen the case file which included

the investigative report by Houghton. Blonigen interviewed

Pierce by telephone and asked her to send a statement by fax.

She reviewed the Wilson-Pierce marital file and the pleadings in

the July 28 proceeding before Judge Gray.

Blonigen prepared an affidavit in support of an arrest

warrant and a criminal complaint against Wilson, charging Wilson

with the misdemeanor of interference with custody in violation of

2 RSA 633:4. The arrest warrant issued on March 18, 1999, after

being reviewed and signed by Carol Taylor-Wright, clerk of the

Exeter District Court. Blonigen talked to Wilson on the

telephone on March 24, and he agreed to surrender. He was booked

at the sheriff's office; his bail was set and tendered, and he

was released. Counsel representing Wilson moved to dismiss the

charge because Wilson's custody rights had never been revoked by

the court so that a violation of the 1998 version of RSA 633:4

would not be proven.1 The charge against Wilson was "nol

pressed" on August 23, 1999.

Discussion

Wilson alleges that Blonigen violated his constitutional

rights by arresting him for violation of RSA 633:4 based on false

information. Blonigen asserts that she is entitled to gualified

immunity, and alternatively seeks summary judgment on the merits

of Wilson's claims, construed as state law tort claims.2 Wilson

1Until January 1, 1999, RSA 633:4, II provided that a person was guilty of a misdemeanor if he knowingly concealed or detained a child under the age of 18 or caused that to happen "with the intent to detain or conceal such child from a parent . . . having lawful charge of such child" and if he did "not have a right of custody with respect to such child." RSA 633:4 was amended, effective January 1, 1999, to eliminate the guestion of custody and to, instead, refer to RSA 458:17.

2It appears that Blonigen's counsel may have inadvertently filed a preliminary draft of the motion and memorandum rather

3 opposes summary judgment.

Summary judgment is appropriate when "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

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). In considering a claim of gualified immunity, the court

must first determine "'whether the plaintiff has alleged the

deprivation of an actual constitutional right.'" Abreu-Guzman v.

Ford, 241 F.3d 69, 73 (1st Cir. 2001) (guoting Wilson v. Lavne,

526 U.S. 603, 609 (1999)). If that appears to be true, then "the

court must 'proceed to determine whether that right was clearly

established at the time of the alleged violation.'" Id. Third,

if the first two steps are met, the court must decide "whether an

objectively reasonable officer, performing discretionary

functions, would have understood his or her conduct violated that

clearly established constitutional right." Id.

In this case, Wilson alleges that Blonigen arrested him

without probable cause based on her affidavit which she knew to

be false. He contends that because of the illegal arrest, he was

forced to agree to have no contact with his daughter as a bail

condition. Although Wilson cites a variety of asserted

than a thoroughly prepared final version.

4 constitutional violations, his allegations of an illegal arrest

fall within the protection of the Fourth Amendment and his

allegations of interference with family relations fall under the

due process protections of the Fourteenth Amendment. See, e.g.,

Troxel v. Granville, 530 U.S. 57, 66 (2000) (family

relationship); Aponte Matos v. Toledo Davila, 135 F.3d 182, 187

(1st Cir. 1998) (arrest). These rights were clearly established

before 1999, when Wilson was arrested. See, e.g., Troxel, 530

U.S. at 66 (parent's right to custody of children); Abreu-Guzman,

241 F.3d at 73 (right to arrest based on probably cause); Aponte

Matos, 135 F.3d at 187 (same in contextof false affidavit);

Egervary v. Young, 159 F. Supp. 2d 132, 161 (E.D. Pa. 2001)

(parent's right to custody of children).

The remaining guestion is whether an objectively reasonable

officer, in Blonigen's situation, would have understood that her

actions violated Wilson's constitutional rights. Under the

circumstances of this case, the answer is no.

Wilson contends that Blonigen's affidavit did not support

probable cause to arrest him because RSA 633:4, in the applicable

version at the time, reguired both that he knowingly concealed or

detained a child from her parent with "lawful charge," and that

he not have "a right of custody with respect to such child." He

argues that because he had a right of legal custody to Jennifer

at the time he refused to return her to her mother, no violation

5 of RSA 633:4 occurred. That was ultimately the reason the

charges were dropped against him.

Blonigen's affidavit, however, shows that she researched the

custody agreement between Wilson and Pierce and that she

accurately stated that Wilson had physical custody rights during

summer visitation. She then noted that Judge Gray ordered Wilson

to transfer Jennifer immediately to her mother and that Wilson

refused. Wilson has not shown a factual issue as to the truth of

Blonigen's statements in the affidavit.

A reasonable officer in Blonigen's position, as Blonigen

apparently did, could interpret Judge Gray's order to mean that

all custody rights were transferred to Jennifer's mother,

negating Wilson's custody rights. Nothing in the record suggests

that Blonigen intentionally misunderstood or misapplied the

import of Judge Gray's order. "Qualified immunity is available

to officials who err in their duties so long as the mistake is

one that a 'reasonable' officer could have made." Liu v .

Phillips, 234 F.3d 55, 57 (1st Cir. 2000) . That is the case

here.3 Therefore, Blonigen is entitled to gualified immunity

from liability as to Wilson's claims based on the alleged false

3Counsel's argument based on a misunderstanding of the applicable law does not appear to fit the circumstances of this case. However, to the extent Blonigen may also have relied on the amended version of RSA 633:4, given the time seguence, her reliance would have been reasonable.

6 arrest and the resulting bail condition.

With the resolution of Wilson's claims against Blonigen, all

of his claims, except those alleged against Julie Pierce, have

been dismissed. Wilson alleges only state law claims against

Pierce. Although Wilson provided a post office box number in

Manchester, New Hampshire, in his complaint, he appears to have

been a resident of Florida from the inception of this suit. He

alleges that Pierce is also a resident of Florida. Therefore,

the only basis for subject matter jurisdiction as to Wilson's

claims against Pierce appears to be supplemental jurisdiction

pursuant to 28 U.S.C. § 1367.

When federal claims, which were the basis of subject matter

jurisdiction, have been dismissed, the court is obligated to

reassess the jurisdictional basis for the state claims. See

Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998). "The

district court may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if "the district court has

dismissed all claims over which it has original jurisdiction

. . . ." 28 U.S.C. § 1367 (c) (3) . "Courts generally decline to

exercise supplemental jurisdiction over state claims if the

federal predicate is dismissed early in the litigation."

O'Connor v. Commonwealth Gas Co., 251 F.3d 262, 273 (1st Cir.

2001). "Certainly, if the federal claims are dismissed before

trial, even though not unsubstantial in a jurisdictional sense,

7 the state claims should be dismissed as well." Camelio, 137 F.3d

at 672.

Therefore, the court declines supplemental jurisdiction as

to the state law claims, the only remaining claims in this case.

Those claims are dismissed, without prejudice, for lack of

subject matter jurisdiction.

Conclusion

For the foregoing reasons, the motion for summary judgment

filed by Sergeant Blonigen (document 55) is granted. The claims

against Julie Pierce are dismissed without prejudice for lack of

As all claims against all of the defendants have now been

dismissed, the clerk of court shall enter judgment accordingly

and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

March 19, 2003

cc: Gary D. Wilson, pro se John A. Curran, Esguire Julie A. Pierce, pro se