Millard v . Wolfeboro, et a l . CV-94-38-B 08/18/94 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ralph Millard

v. Civil N o . 94-38-B

Town of Wolfeboro, e t . a l .

O R D E R

Ralph Millard seeks compensatory and punitive damages from

the Wolfeboro Police Department and Officers Scott Manchester and

Robert Engel.1 Millard contends that Officers Manchester and

Engel are liable pursuant to

because they used

unconstitutionally excessive force and arrested him without

probable cause. He contends that the Police Department is

similarly liable because the officers' unconstitutional conduct

was caused by inadequate training or by a department policy or

custom. He also alleges that the officers are liable for

battery, false arrest, intentional infliction of emotional distress and negligence.

Defendants move to dismiss Millard's § 1983 claims on the

1 Millard also sued the Town of Wolfeboro and the two officers in their official capacities. However, he has since consented to the dismissal of these claims.

1 ground that they fail to state enforceable claims. They also

contend that Millard's common law claims are barred because he

failed to comply with New Hampshire's notice of claim statute.

For the reasons that follow, I deny defendant's motion to dismiss

and give Millard 10 days to file a proposed amended complaint

correcting the deficiencies I describe in this order.

I. FACTS

Millard contends that Manchester and Engel illegally

arrested him while he was attending a high school basketball

game. According to Millard's complaint, Manchester was speaking

with two spectators about their behavior when Millard intervened

in support of one of the spectators. Millard admits that he

disobeyed Manchester's instruction to leave the gym and contends that Manchester and Engel arrested him when he attempted to

return to his seat. During the arrest, the officers allegedly

"thrusted [sic] the plaintiff against the interior wall of the

gymnasium" and "pushed [him] through a set of doors into a

lobby." As a result, Millard alleges that he suffered injuries

to his arms, chest, neck, and head. II. STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

requires the court to review the allegations of the complaint in

the light most favorable to plaintiff, accepting all material

allegations as true, with dismissal granted only if no set of

facts entitles plaintiff to relief. See, e.g., Scheuer v .

Rhodes,

3 2 , 236 (1974); Berniger v . Meadow Green-

Wildcat Corp.,

, 6 (1st Cir. 1991); Dartmouth Review v .

Dartmouth College,

3 , 16 (1st Cir. 1989).

Notwithstanding the liberal requirements of notice pleading

and the deferential reading of a litigant's complaint required

under Rule 12(b)(6), a district court must ensure that "each

general allegation be supported by a specific factual basis."

Fleming v . Lind-Waldock & Co.,

0 , 23 (1st Cir. 1990). Thus, a district court need not accept subjective characteri-

zations, bald assertions, or unsubstantiated conclusions. See

Correa-Martinez v . Arrillaga-Belendez,

9 , 52-53 (1st

Cir. 1990); Dewey v . University of New Hampshire,

, 3

(1st Cir. 1982), cert. denied,

(1983). Moreover,

while "the line between 'facts' and 'conclusions' is often

blurred," Dartmouth Review,

6 , the line must be

drawn. For

3 [i]t is only when such conclusions are logically compelled, or at least supported, by the stated facts, that i s , when the suggested inference rises to what experience indicates is an acceptable level of probability that "conclusions" become "facts" for pleading purposes. Id.; see Fleming, 922 F.2d at 2 4 ; Correa-Martinez, 903 F.2d at

53.

Care is required in determining the sufficiency of a

complaint to insure that "heightened pleading" requirements are

invoked only if such requirements are specifically authorized by

the Federal Rules of Civil Procedure. See Leatherman v . Tarrant

County Narcotics Intelligence and Coordination Unit, 113 S . C t .

1160, 1163 (1993) (comparing Fed. R. Civ. P. 8(a)(2)'s general

pleading requirement with the particular pleading requirement of

Fed. R. Civ. P. 9(b) and holding that a heightened pleading standard does not apply to civil rights claims). However, even

under the general pleading requirements of Fed. R. Civ. P. 8 ( a ) ,

a complaint will not withstand a motion to dismiss if the

plaintiff has merely recited the elements of the complaint's

causes of action in conclusory terms. Fleming, 922 F.2d at 2 4 .

Notice pleading requires factual allegations which, if true,

establish all of the required elements of plaintiff's causes of

action.

4 III. APPLICATION A. Constitutional Claims Against Manchester and Engel

Millard's complaint alleges that Manchester and Engel

violated his First, Fourth, Fifth, and Fourteenth Amendment

rights. However, in responding to defendants' motion to dismiss,

Millard has appropriately narrowed his constitutional claims to

the contention that the officers used excessive force and

arrested him without probable cause in violation of his Fourth

Amendment rights.2 Accordingly, I analyze defendants' challenge

to Millard's claims under the Fourth Amendment.

1. Excessive Force

A police officer will be deemed to have used excessive force

in connection with an arrest or a detention if he or she used

force that was "objectively unreasonable" when viewed from the officer's perspective. Graham, 490 U.S. at 396-97. In

elaborating on this standard, the First Circuit has stated that: [the] [p]roper application of the test of "objective reasonableness" requires the courts to pay careful attention to the facts

2 In making this concession, Manchester has followed the admonition of the Supreme Court that such claims must ordinarily be analyzed under the Fourth Amendment. Graham v . Connor,

(1989) (excessive force); Albright v . Oliver, 114 S . C t . 8 0 7 , 813 (1994) (plurality opinion) (prosecution on baseless charges).

5 and circumstances of the particular case at hand, including the severity of the crime, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight. Gaudreault v . Salem,

(1st Cir. 1990), cert. denied,

(1991).

Millard alleges: (i) that he was 61 years old when he was

arrested; (ii) that he was arrested for resisting arrest and

disorderly conduct; (iii) that the arresting officers thrust him

against a wall and pushed him through a set of doors; and (iv)

the officers injured Millard's arms, chest, neck and head

severely enough to cause permanent neck pain and chronic

headaches. Since the complaint does not contain any admission

that Millard resisted arrest or attempted to flee, I conclude that Millard's excessive force claim alleges sufficient facts to

support his claim that the officers' alleged use of force was

objectively unreasonable.

2. Arrest without probable cause

The Fourth Amendment requires that an arrest be supported by

probable cause. Illinois v . Gates,

(1983).

For more than a decade, the Supreme Court has endorsed a

"totality of circumstances" test to determine whether probable

6 cause exists.

Thus, in evaluating Millard's unlawful arrest

claim, I must determine whether he has sufficiently alleged that

the totality of the circumstances leading to his arrest were

sufficiently incriminating when viewed from the arresting

officers' perspective to cause a reasonable police officer to

believe that Millard had committed a crime. See generally,

United States v . Diallo,

(1st Cir.

July 1 4 , 1994).

Millard admits that he intervened in a discussion between

one of the police officers and two fans, and that he refused to

comply with the officers' order to leave the gym. He alleges no

other circumstances that would reasonably have supported the

arresting officers' conclusion that Millard had unlawfully

disturbed the peace and resisted arrest. Accepting these

allegations as true and construing them in the light most favorable to Millard, I conclude that these allegations are

sufficient to support Millard's claim that the arresting officers

lacked probable cause to arrest him.

3. Federal Punitive Damages Claims

A jury may award punitive damages against an individual

defendant pursuant to § 1983 if the defendant's conduct is

"motivated by evil motive or intent or when it involves reckless

7 or callous indifference to the federally protected rights of

others."3 Smith v . Wade,

0 , 57 (1983). The First

Circuit also requires that "the defendant's conduct [be] 'of the

sort that calls for deterrence and punishment over and above that

provided by compensatory damages.'" Davet v . Maccarone,

2 , 27 (1st Cir. 1992) (quoting Hernendez-Tirado v . Artau,

(1st Cir. 1989)). Since Millard's complaint

contains no allegations that satisfy this standard, his punitive

damages request cannot survive in its present form. Accordingly,

I will dismiss his punitive damages claim unless a satisfactory

proposed amended complaint is filed within 10 days of the date of

this order.

B. Constitutional Claims Against the Police Department Respondeat superior claims are not cognizable under § 1983.

Monell v . New York City Dept. of Social Services,

5 8 ,

694-95 (1978). Thus, in order to state a § 1983 claim against a

municipality or a municipal subdivision, a plaintiff must allege

that: (1) a municipal policy maker intentionally adopted a

3 Millard concedes that he may not recover punitive damages from the police department for its alleged constitutional violations. See, e.g., Newport v . Fact Concerts, Inc.,

(1981).

8 policy, implemented a training protocol, or allowed a custom to

develop; (2) the challenged policy, training protocol or custom

caused a violation of the plaintiff's constitutional rights; and

(3) the policy maker acted either with deliberate indifference or

willful blindness to the strong likelihood that unconstitutional

conduct will result from the implementation of the policy,

training protocol or custom. Canton v . Harris,

7 8 , 385

(1989); Maldonado-Denis v . Castillo-Rodriguez,

(1st Cir. 1994); Manarite v . Springfield,

, 958 (1st

Cir. 1992), cert. denied, 113 S . C t . 113. The deliberate

indifference component of this test can be satisfied through

allegations that the policy maker either knew or should have

known of the serious risk that the challenged policy, custom or

training protocol would result in unconstitutional conduct.

Canton, 489 U.S. at 389-90; Maldonado-Denis, 23 F.3rd at 582; Farmer v . Brennan, 114 S . C t . 1970, 1981 (1994) (comparing

subjective deliberate indifference test under Eighth Amendment

with the objective test of deliberate indifference governing

municipal liability claims).

Millard alleges that the officers acted pursuant to a police

department policy to "sumorily [sic] evict and/or arrest persons

whose behavior during a high school basketball game was

9 considered unacceptable." He also contends that the police

department "created and condoned a custom and practice which was

likely to cause the constitutional deprivations which occurred

here." Finally, he alleges that the police officers "were not

properly trained, instructed, supervised or encouraged to act

reasonably." These allegations are stated at such a high degree

of generality that they defy analysis. They certainly do not

sufficiently allege a municipal liability claim under § 1983.

Accordingly, I will give Millard 10 days to file a motion to

amend and a proposed amended complaint to specifically identify

the alleged policy, custom, or deficient training that caused his

injuries.

C. Common Law Claims 1. Notice of Claim Statute

Defendants invoke New Hampshire's notice of claim statute,

N.H. Rev. Stat. Ann. 507-B:7, and contend that Millard's state

law claims must be dismissed because he failed to comply with the

statute's 60-day notice provision. Millard concedes that he

failed to comply with the statute but argues that the defendants

cannot prove that they were prejudiced by Millard's

noncompliance. Since defendants' claim requires me to resolve a

10 disputed issue of material fact, i.e., prejudice, it cannot be

resolved on a motion to dismiss. Accordingly, I deny defendants'

motion to dismiss Millard's state law claims.4

2. Exemplary Damages

New Hampshire does not recognize punitive damages. However,

a jury may award enhanced damages if the plaintiff pleads and

proves that defendant's tortious actions were "wanton, malicious

or oppressive . . . ." Vratsenes v . N.H. Auto, Inc.,

1 , 7 2 ,

6 , 67 (1972); see also, Crowley v . Global

Realty, Inc.,

1 4 , 8 1 8 ,

(1984).

Because the complaint contains no allegations that the defendants

acted with this degree of culpability, Millard has not stated a

sufficient claim for enhanced damages. Thus, if a satisfactory

amendment is not filed within 10 days, I will dismiss this claim

as well.

4 Defendants have not challenged the sufficiency of Millard's common law claims. However, I note that these claims are so generally pleaded that they could not survive a Rule 12(b)(6) challenge. Accordingly, Millard will have to amend these claims if he intends to pursue them further.

11 IV. CONCLUSION

Defendants' motion to dismiss is denied. Millard shall have

10 days from the date of this order to file an amended complaint

correcting the deficiencies I have noted in his remaining claims.

Millard's claim against the Town of Wolfeboro, his claims against

the individual defendants in their official capacities, and his

punitive damages claim against the Wolfeboro Police Department

are dismissed by agreement.

SO ORDERED.

Paul Barbadoro United States District Judge

August 1 8 , 1994

cc: R. Peter Taylor, Esq. Charles P. Bauer, Esq.

12