Machos v City of Manchester CV-94-627-M 09/20/95

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Ronald Machos and Ruth Machos, Plaintiffs, v. Civil N o . 94-627-M

The City of Manchester; The Manchester Police Department; The Manchester Police and Patrolman's Association; and Edward Kelley, Defendants.

O R D E R

Ronald and Ruth Machos filed this action against the

Manchester Police Patrolman's Association (the "Union"), its

president, Edward Kelley ("Kelley"), the City of Manchester (the

"City"), and the Manchester Police Department (the " M P D " ) .

Although the precise nature of their claims is unclear,

plaintiffs seem to allege that they have been deprived of

federally protected rights and seek redress under

and §1985(3). They also set forth several claims which, although

pled in §1983 form, seem to be based entirely upon alleged

violations of New Hampshire common law, such as assault and

defamation. Essentially, plaintiffs allege that defendants conspired to

and did deprive them of their constitutional rights to privacy

and free speech. Presently before the court is a motion to

dismiss for failure to state a claim, filed by defendants Kelley

and the Union. In the alternative, defendants ask that

plaintiffs be compelled to file an amended complaint, which more

fully and accurately states the precise factual basis for their

claims.

Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is one of

limited inquiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v . Rhodes,

(1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v . Village District of Eastman,

7 8 , 579

(D.N.H. 1983), aff'd without opinion,

(1st Cir. 1984)

(citations omitted).

2 Notwithstanding the liberal allowances of notice pleading

and the deferential reading mandated by 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). As this court (Barbadoro, J.) recently

noted:

[A] district court need not accept subjective characterizations, bald assertions, or unsubstantiated conclusions. Moreover, while "the line between `facts' and `conclusions' is often blurred," the line must be drawn. For it 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.

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. 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. Notice pleading requires factual allegations which, if true, establish all of the required elements of plaintiff's causes of action.

Millard v . Wolfeboro, N o . 94-38-B, slip o p . (D.N.H. August 1 8 ,

1994) (citations omitted).

3 While, as explained below, plaintiffs' complaint is plainly

deficient and could properly be dismissed pursuant to

Fed.R.Civ.P. 12(b)(6), considerations of equity and fairness

counsel in favor of allowing plaintiffs an opportunity to amend

their complaint.

Factual Background

As best as can be determined from the complaint, the facts pertinent to this matter, stated in the light most favorable to plaintiffs, appear to be as follows. Mr. Machos is a member of the City of Manchester Board of Aldermen as well as president of New England Traffic Control Services, Inc., a private company which provides traffic control at roadway work sites. On March 2 7 , 1994, a group of Union members, including Kelley, gathered outside the homes of various Manchester political figures. The Union was protesting proposed legislation which would have effectively nullified a City ordinance requiring that all traffic control at road and highway work sites be performed by Manchester police officers. The protest eventually reached plaintiffs' home.

4 Plaintiffs allege that a group of Union members dressed in Manchester Police uniforms and carrying service weapons, blocked access to their street and gathered on their front lawn. After being told that M r . Machos was not at home, the group was asked to leave the property. Kelley then reportedly punched his fist into his palm and stated that the Union would "get him." Plaintiffs claim that the Union's conduct was the product of a conspiracy among certain named and unnamed defendants "to control and intimidat[e] Machos' exercise of his . . . duties as an Alderman of the City of Manchester . . .." Complaint, ¶10. Plaintiffs also claim that as part of this alleged conspiracy defendants arranged to harass and intimidate Machos by placing repeated telephone calls to his home and business. The Union asserts that its members engaged in protected political speech, and were simply protesting proposed changes to the City ordinance then under consideration by the Aldermen as well as M r . Machos' apparent conflict of interest (emanating from his ownership of a company that provided identical traffic control services).

Plaintiffs claim that the Union's activity on and around

their property, and the menacing and threatening behavior by

certain Union members, violated their constitutional rights to

5 free speech and privacy. In addition, plaintiffs claim that

defendants' violated their constitutionally protected interests

when they released to the news media certain police reports which

implicated M r . Machos in criminal activity. Specifically, the

reports indicated that Machos had tipped-off certain targets of

police investigations and thereby facilitated their efforts to

avoid arrest.

Discussion

I. Count I - Conspiracy in Violation of

(3).

Although far from artfully pled, Count I of the complaint

appears to allege a cause of action under

(3),

which provides, in pertinent part:

If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, . . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

(3) (1994). In order to state a cause of action

under this statute:

6 a plaintiff alleging a Section 1985(3) violation must plead and prove the following: (a) the existence of a conspiracy, (b) intended to deny the plaintiff or plaintiffs equal protection of the laws, or equal privileges and immunities under the laws, (c) injury or deprivation of federally protected rights to the plaintiff or plaintiffs, (d) an overt act in furtherance of the object of the conspiracy, and (e) some racial or otherwise class-based invidiously discriminatory animus behind the conspirator's action.

Barcelo v . Agosto,

(D.P.R. 1995) (quoting

1 Antieau, Federal Civil Rights Acts, §274, p . 473-74 (2d. ed.

1980)). Plaintiffs have failed to allege any facts which, even

when liberally stretched in their favor, might begin to suggest

that defendants' conduct was motivated by some racial or

otherwise class-based invidiously discriminatory animus. See

generally United Brotherhood of Carpenters & Joiners, Local 610

v . Scott,

(1983); Griffin v . Breckenridge,

(1971); Rodriguez-Garcia v . Davila,

(1st Cir.

1990); Harrison v . Brooks,

(1st Cir. 1975); Kay v .

Bruno,

(D.N.H. 1985).

Accordingly, Count I of plaintiffs' complaint fails to state

a cognizable cause of action and plaintiffs are directed to file

an amended complaint setting forth specific factual allegations

which, if true, would establish each element of a §1985(3)

7 action, if they can do so consistently with the requirements of

Rule 1 1 , Fed.R.Civ.P.

II. Count II - Invasion of Privacy.

In Count II of their complaint, plaintiffs allege that

defendants violated their constitutionally protected rights to

privacy. Accordingly, they claim entitlement to damages in

excess of $1 million, pursuant to

, which

provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

.

Count II of plaintiffs' complaint incorporates by reference

the factual allegations set forth in paragraphs 1 through 2 0 ,

which are generally set forth above, and then makes the following

legal and factual allegations:

8 2 2 . On or about March 2 7 , 1994, defendants Kelley and members of the [Union], armed and wearing the uniform of the City of Manchester Police Department, knowingly and intentionally invaded the privacy of plaintiffs, without right or license to do s o , by means of blocking access to their street with a police cruiser and private vehicles and massing as a mob on or about plaintiffs' property and home. 2 3 . Defendants thereafter behaved in a riotous, reckless and threatening manner, entering upon plaintiffs' premises, and making verbal and demonstrative threats to plaintiffs' physical safety. These actions, motivated by malice, caused plaintiffs and their family severe emotional harm and mental distress, for which they are entitled to enhanced compensatory damages.

Plaintiffs' Complaint, ¶¶ 22 and 23.

Under §1983, liability depends upon (1) the existence of

some federal statutory or constitutional right which (2) was

violated by a person acting under color of state law. Watterson v . Page,

, 7 (1st Cir. 1993). Although the complaint

attempts to state a cause of action for an alleged violation of

plaintiffs' constitutionally protected rights to privacy, counsel

suggested at the September 1 4 , 1995, pretrial conference that

plaintiffs' claim might actually be that they were deprived of

their rights to free speech. Accordingly, the court need not

dwell upon the infirmities associated with plaintiffs' claimed

deprivation of privacy. Plaintiffs are directed to amend their

9 complaint accordingly and provide the necessary and appropriate

factual allegations which, if accepted as true, would support a

cause of action under §1983.

To the extent plaintiffs believe their complaint adequately sets forth a §1983 cause of action for violation of their freedom

of speech, they are mistaken. For example, they have failed to

allege that defendants' conduct actually chilled their exercise

of those rights. See, e.g., Sullivan v . Carrick,

, 4

(1st Cir. 1989) ("To show a First Amendment violation in this

context [plaintiff] must allege that his speech was in fact

chilled or intimidated."); Bart v . Telford,

2 2 , 625

(7th Cir. 1982) ("Section 1983 is a tort statute. A tort to be

actionable requires injury. It would trivialize the First

Amendment to hold that harassment for exercising the right of

free speech was always actionable no matter how unlikely to deter

a person of ordinary firmness from that exercise."); Therrien v .

Hamilton,

1 0 , 115 (D.Ma. 1994) (plaintiff must

allege either an actual or potential deprivation of First

Amendment rights; mere allegations of harm do not satisfy the

causation requirement of a §1983 action.).

10 In addition to identifying more precisely the federally

protected rights which they claim were infringed, plaintiffs are

instructed to plead with clarity and precision facts which, if

accepted as true, would support a finding that defendants acted

under color of state law when they gathered on or about

plaintiffs' property. Simply alleging that the individuals

involved in that gathering were uniformed police officers is

insufficient. See, e.g., Martinez v . Colon,

8 0 , 986

(1st Cir. 1995) ("In general, section 1983 is not implicated

unless a state actor's conduct occurs in the course of performing

an actual or apparent duty of his office, or unless the conduct

is such that the actor could not have behaved in that way but for

the authority of his office. Thus, whether a police officer is

acting under color of state law turns on the nature and

circumstances of the officer's conduct and the relationship of

that conduct to the performance of his official duties.").

Finally, it is unclear whether plaintiffs are proceeding

against Kelley in his official or individual capacity (or both).

It is equally unclear whether plaintiffs' §1983 and §1985 claims

extend to the City of Manchester. Nevertheless, because suits

against individuals in their official capacities generally

11 represent only another way of pleading an action against a

municipality for which the officer is an agent, plaintiffs'

attention is directed to Monell v . Dep't of Social Servs.,

(1978) (municipal liability only attaches when the

action that is alleged to be unconstitutional implements or

executes a policy, statement, ordinance, regulation, or decision

officially adopted and promulgated by the municipality.).

III. The Remaining Claims.

Plaintiffs' remaining claims all appear to be based upon

alleged violations of New Hampshire law. Curiously, however,

many are couched in terms descriptive of §1983 causes of action.

The law interpreting §1983 is clear:

Two essential elements of an action under

are, of course, (i) that the conduct complained of has been committed under color of state law, and (ii) that this conduct worked a denial of rights secured by the Constitution or laws of the United States.

Chongris v . Board of Appeals,

6 , 40 (1st C i r . ) , cert.

denied,

(1987). If plaintiffs actually intended to

bring these remaining claims under §1983, they are instructed to

state with clarity and precision the nature of the federally

protected right(s) which were infringed. If they intend to

12 abandon their original course and assert state law causes of

action, invoking this court's supplemental jurisdiction, they are

instructed to do so in a clear and unambiguous fashion.

Having heard the representations of plaintiffs' counsel at the pretrial conference, the court is inclined to accept that the facts underlying this action might give rise to viable federal causes of action. Accordingly, the court finds that notions of justice and equity support granting plaintiffs some latitude by permitting them to file an amended complaint. However, as the court previously noted, it is not inclined to expend additional time and energy attempting to decipher and recast in federal dress vague and poorly articulated claims. Plaintiffs' counsel are encouraged to amend their complaint in light of the applicable precedents in this circuit.

Conclusion

For the foregoing reasons, defendants' motion to dismiss

o r , in the alternative, for a more definite statement (document

n o . 12) is granted in part and denied in part. Plaintiffs are

instructed to file an amended complaint on or before November 1 ,

1995, which clearly and concisely sets forth factual allegations

13 which, if proven, would support recognized causes of action over

which this court has jurisdiction.

SO ORDERED.

Steven J. McAuliffe United States District Judge September 2 0 , 1995

cc: Lawrence B . Gormley, Esq. Michael E . Avakian, Esq. Michael B . O'Shaughnessy, Esq. Kenneth J. Gould, Esq.

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