Kelley v. City of Manchester CV-94-358-M 09/23/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Manchester Police Patrolman's Association and Edward J. Kelley, Plaintiffs

v. Civil No. 94-358-M

City of Manchester, Peter Favreau, Donald Vandal, and Louis B. Craig, Defendants

O R D E R

The Manchester Police Patrolman's Association (the "Union")

and its president, Edward J. Kelley, bring this action against

the City of Manchester and three current or former high ranking

members of the Manchester Police Department ("MPD") pursuant to

and New Hampshire common law. Plaintiffs allege

that defendants used the MPD disciplinary system in an unlawful

and selective manner to retaliate against them for exercising

their First Amendment rights. Additionally, plaintiffs claim

that in so doing, defendants also violated their substantive due

process rights under the Fourteenth Amendment.

As originally filed, plaintiffs' complaint was a rambling

and vague collection of some 20 separate counts describing a series of seemingly unconnected instances of alleged wrongdoing

in the MPD. The court granted defendants summary judgment on all

counts alleging violations of federally secured rights and

declined to exercise supplemental jurisdiction over plaintiffs'

state law claims. However, the court noted that:

the pleadings in this case are so convoluted, vague, and on occasion, indecipherable, that, to ensure that plaintiffs are not prejudiced by the fogginess of the pleadings filed on their behalf, the court will delay entry of judgment in accordance with this order for thirty (30) days.

Order on Defendants' Motion for Summary Judgment (September 29,

1995), at 36-37. The court then afforded plaintiffs the

opportunity to amend their complaint to clearly and concisely

articulate the basis for their claims.

In response, plaintiffs filed an amended complaint which

sets forth six counts against four defendants. Counts one

through five allege deprivations of constitutionally guaranteed

rights and are brought pursuant to

. The final

count alleges that defendants defamed Kelley under New Hampshire

common law. Defendants again move for summary judgment.

2 The pertinent facts underlying plaintiffs' claims and the

applicable standard of review are discussed in detail in the

court's September 29, 1995 order (the "Order") and need not be

recited again. It is sufficient to note that only two events

which led to Kelley's discipline are relevant to this proceeding:

the so-called Boisvert/Colbath incident and the Union's

demonstration at the homes of the mayor and various city

aldermen. Both events, the discipline imposed upon Kelley as a

result of his conduct with regard to those events, and the state

court litigation that ensued are fully described in the court's

earlier order. Order at 3-14.

Discussion

As a preliminary matter, the court notes that each of the

claims articulated by the Union (counts 1 through 5) is entirely

derivative of the corresponding claim asserted by Kelley. That

is to say, each of the harms which the Union says it suffered

came as a result of defendants' alleged wrongful conduct towards

Kelley (generally in the form of allegedly improper use of the

MPD disciplinary system). Because Kelley is the Union's

president, plaintiffs assert that defendants' alleged efforts to

chill his First Amendment rights were also intended to intimidate

3 the Union. Plaintiffs do not, however, allege any unlawful

conduct on the part of defendants which was directed exclusively

at the Union.

Reduced to its essence, then, plaintiffs' amended complaint

alleges that Kelley was subjected to selective, unwarranted, and

illegal disciplinary measures because of defendants' animosity

towards him, both individually and as president of the Union.

Plaintiffs also claim that Kelley was singled out for discipline

because defendants wished to intimidate him and the Union,

forcing them to adopt a less public, less adversarial, and more

compliant role in the operation of the Manchester Police

Department.

Defendants object to plaintiffs' characterization of their

conduct. They claim that each time Kelley was disciplined,

discipline was both justified and consistent with the MP D 's Rules

and Regulations, to which plaintiffs agreed when the Union

members ratified the collective bargaining agreement.1 More

1 Plaintiffs specifically agreed to abide by the MPD Rules and Regulations when they ratified the collective bargaining agreement with the City of Manchester. That agreement provides:

Rules and Regulations The Rules and Regulations of the

4 fundamentally, defendants assert that their actions were not

motivated by an intent to interfere with the constitutional

rights of either Kelley or the Union.

A. Count 1 - Chilling of Right to Free Speech.

Having carefully reviewed the pleadings and other papers

filed in this proceeding, as well as binding circuit precedent,

the court is constrained to conclude that there exist genuine

issues of material fact which preclude granting defendants'

motion for summary judgment with regard to count 1.

Typically, in order to show that a deprivation of a First

Amendment right has occurred, a plaintiff must, at a minimum,

demonstrate that the defendant intended to inhibit speech

protected by the First Amendment, Tatro v. Kervin,

(1st Cir. 1994), and that the defendant's conduct had a chilling

effect on the protected speech that was more than merely

Manchester, New Hampshire Police Department which are now in effect or as may be amended by the Police Commission shall be the prime governing factor in the conduct of all actions of all police officers and every police officer shall be thoroughly conversant with them.

Exhibit B to Defendants' First Motion for Summary Judgment, at para. 25.1.

5 "speculative, indirect, or too remote." Sullivan v. Carrick,

(1st Cir. 1989). Here, plaintiffs have merely alleged

that "Kelley has suffered harm for which [defendants] are liable"

and that defendants have "unlawfully impeded the Union's capacity

to communicate, to have access to the courts and administrative

agencies and to otherwise exercise its rights under the First and

Fourteenth Amendments." Complaint, para. 36. Plaintiffs' "mere

allegation that [they were] harmed does not amount to satisfying

the causation requirement of a Section 1983 action." Sullivan,

. See also Therrien v. Hamilton, 849 F .Supp. 110

(D.Mass. 1994) (A case involving substantially similar legal and

factual issues, in which plaintiff, a police officer and head of

the local police officer's union, failed to show either a

potential or actual deprivation of First Amendment rights,

leading the court to grant defendant's motion for summary

judgment.) .

Plaintiffs have failed to point to any genuine issue of

material fact regarding an "actual chilling" of their protected

speech. In fact, the record (largely in the form of exhibits

filed by plaintiffs) demonstrates that plaintiffs were anything

but intimidated by defendants' conduct. They continued to

6 vigorously represent the interests of union members and continued

to bring their concerns to the attention of the news media.

Absent an allegation of actual chilling of their rights to free

speech, plaintiffs cannot satisfy the requirements of Sullivan v.

Carrick.

In the public employment context, however, a disciplinary

action against a public employee violates his or her First

Amendment rights if (1) the conduct for which the employee was

punished can be "fairly characterized as constituting speech on a

matter of public concern," Connick v. Myers,

(1983), and (2) the interest of the employee in commenting on the

matter of public concern outweighs the public employer's interest

in promoting its efficiency by prohibiting the conduct.

Pickering v. Board of Education.

(1968).

Additionally, in order to prevail in a § 1983 action against an

employer, the employee must, at a minimum, demonstrate that his

or her protected conduct was a "substantial" or "motivating"

factor in the defendant's decision to impose discipline. Mount

Healthy City Board of Education v. Doyle,

(1977). The burden of persuasion then shifts to the employer to

7 show that it would have disciplined the employee even in the

absence of the protected conduct. Id.

1. The Objective Reasonableness of Defendants' Conduct is not Relevant.

Defendants claim that they are entitled to qualified

immunity because their decisions to discipline Kelley on the

occasions at issue in this case were objectively reasonable and

entirely consistent with the MPD Rules and Regulations. The

Court of Appeals for the First Circuit has, however,

unequivocally rejected that argument, holding that when intent is

an integral element of a party's claim under the First Amendment,

the objective reasonableness of the defendant's conduct is

irrelevant. Broderick v. Roache,

(1st Cir.

1993). Instead, the court must focus its inquiry on the

defendant's state of mind and determine whether the plaintiff has

alleged facts which would permit a reasonable jury to conclude

that the defendant's "intent to retaliate against him for

engaging in protected conduct was a 'substantial' or 'motivating'

factor" in the decision to discipline plaintiff. .Id. at 1299,

citing Mount Healthy. Because the defendant's subjective state

of mind is a material fact, courts will be able to grant

defendants summary judgment and/or hold that they are entitled to

8 qualified immunity in very few, if any, such cases. See

Broderick v. Roache,

n.9 ("In so ruling, we are

mindful that 'in cases where . . . the state of mind of one of

the parties is crucial to the outcome of the case, resort to

summary judgment is vested with more than the usual

difficulty.'") (citation omitted). See also. Carter v. State of

Rhode Island,

(1st Cir. 1995) ("Determining the

presence or absence of discriminatory "intent" based on

evidentiary proffers at summary judgment entails a quintessential

factual assessment.") (emphasis in original); Penney v. Town of

Middleton. 888 F .Supp. 332, 343 (D.N.H. 1994) ("The essence of

[defendant's] argument is that clearly established law did not

prohibit him from engaging in the conduct described in the

complaint and his motives for undertaking the conduct cannot be

considered in determining whether he is entitled to qualified

immunity. . . . [However,] if, as [plaintiff] alleges,

[defendant] purposely retaliated against him because he had

[engaged in protected speech, defendant] may not claim qualified

immunity for his acts simply because the acts might have been

lawful if his motives had been pure.").2

2 In light of the holding in Broderick v.

the facts which support defendants' claim that their conduct was "objectively reasonable" are, at this juncture, irrelevant.

9 2. Defendants' Subjective Intent in Disciplining Kelley is a Genuine Issue of Material Fact.

While there is some evidence of general animosity between

Kelley and defendants, it is, at best, a tenuous basis from which

a reasonable trier of fact could conclude that defendants'

actions were motivated by a desire to retaliate against Kelley

for his protected speech. As noted in Rakovich v. Wade,

(7th Cir.), cert, denied,

(1988):

Importantly, those prior disagreements [between the parties] are not independently significant . . . They are significant only as they may relate to the officers' state of mind. As to state of mind, the probative value of these disagreements is, however, weakened when the nature of the cause of action is reiterated: retaliation for the exercise of first amendment rights, and not simply retaliation because the officers had a generic dislike of [plaintiff].

Accordingly, it would seem to be of little moment that: (1) Kelley and the Union agreed to be bound by the Rules and Regulations of the MPD, including the restrictions on speaking to the public on matters relating to certain MPD affairs (i.e., seemingly voluntarily waiving certain First Amendment rights); (2) the New Hampshire Superior Court and the PELRB concluded that defendants did not act illegally, ultra vires, or in a discriminatory manner toward Kelley when they disciplined him; (3) a reasonable person might well have concluded that Kelley was not speaking on matters of public concern when he violated the MPD rules against dissemination of certain information to the public; and (4) a reasonable person might well have concluded that Kelley's interest in speaking on those matters was outweighed by the MPD's interest in maintaining order, discipline, and efficiency.

10 Id. at 1193 (emphasis added).

Nevertheless, viewing the record liberally in plaintiffs'

favor, and applying binding circuit precedent, the court is

constrained to hold that the evidence of defendants' general

animosity toward Kelley, coupled with the fact that they

disciplined him for having engaged in protected speech (despite

the fact that such discipline appears to have been objectively

reasonable and consistent with the MPD Rules and Regulations),

are sufficient to permit a reasonable jury to conclude that

defendants' conduct was motivated by a desire to retaliate

against Kelley. See, e.g., Broderick.

(holding

that defendant's harsh and allegedly disparate treatment of the

plaintiff created a genuine issue of material fact as to whether

defendant was motivated by a desire to retaliate against

plaintiff for exercising his First amendment rights.).

Accordingly, the court holds that plaintiffs have met their

burden under Mount

Defendants' motion for

summary judgment with regard to count 1 of the complaint is

denied. For essentially the same reasons, defendants are not

entitled to judgment as a matter of law with regard to count 2.

11 Count 3 - Substantive Due Process.

The core of count 3 is plaintiffs' assertion that the

"selective and calculated use of the police disciplinary system

against Kelley and the Union to thwart the plaintiffs'

constitutional rights of expression is a violation of plaintiffs'

due process rights." Complaint, para. 44. As the court of

appeals for this circuit has noted:

[A] substantive due process claim implicates the essence of state action rather than its modalities; such a claim rests not on perceived procedural deficiencies but on the idea that the government's conduct, regardless of procedural swaddling, was in itself impermissible. Stating the proposition does not cabin it very well. It has been said, for instance, that substantive due process protects individuals against state actions which are "arbitrary and capricious," or those which run counter to "the concept of ordered liberty," or those which, in context, appear "shocking or violative of universal standards of decency."

. . . Word play aside, we agree with Judge Friendly that, in the circumscribed precincts patrolled by substantive due process, it is only when some basic and fundamental principle has been transgressed that "the constitutional line has been crossed." . . . [A]Ithough the yardstick against which substantive due process violations are measured has been characterized in various ways, we are satisfied that, before a constitutional infringement occurs, state action must in and of itself be egregiously unacceptable, outrageous, or conscious-shocking.

12 Amsden v. Moran,

(1st Cir. 1990) (citations

omitted) (emphasis in original), cert, denied,

(1991) .

Plaintiffs have failed to allege any facts which, if

credited as true, are sufficiently egregious, outrageous, or

conscious-shocking to describe a deprivation of substantive due

process. Moreover, the factual allegations upon which plaintiffs

do rely in support of their substantive due process claim have

been reviewed by several judicial or quasi-judicial bodies in the

past. On each occasion that a decision on the merits was

reached, the reviewing authority concluded that defendants had

not acted unlawfully, arbitrarily, or capriciously. See Order at

9-12, 31-32.

For the foregoing reasons, and for the reasons articulated

in the court's prior order, defendants are entitled to judgment

as a matter of law with regard to count 3.

C. Count 4 - Corruption/Equal Protection.

In count 4 of their complaint, plaintiffs allege that

defendants "initiate[d] actions or refrain[ed] from taking

13 actions which were designed to benefit defendants and provide

favored treatment of one segment of society versus another

segment of society." Complaint, para. 47. While such

allegations certainly sound ominous, they lack the functional

specificity necessary to describe a cognizable claim. Later in

their amended complaint, however, plaintiffs add a measure of

precision, alleging that:

plaintiffs were denied equal protection of the law under the United States Constitution and the Fourteenth Amendment of the U.S. Constitution in that Kelley, as Union President and a patrolman with the Manchester Police Department, was selectively treated and singled out by the defendants in the discriminatory enforcement of the MPD disciplinary procedures for the sole purpose of punishing and further chilling plaintiffs from exercising their constitutionally protected rights of speech and assembly.

Amended Complaint, para. 50.

As noted in the court's prior order, plaintiffs do not

allege that defendants failed to adhere to any of the procedural

rules set forth in the MPD's Rules and Regulations with regard to

the disciplining of Kelley. Instead, they focus exclusively upon

the claim that, although applied in a procedurally correct

fashion, the MPD Rules and Regulations have been selectively

14 enforced against him, in violation of his constitutionally

guaranteed right to equal protection of the laws.

The Court of Appeals for the First Circuit has held that

liability for an alleged deprivation of equal protection will

attach only upon:

proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of

Selectmen.

, 21 (1st Cir. 1989) (citations omitted).

Turning to the first element of the articulated test, it is

clear that Kelley has failed to allege facts showing that he has

been selectively treated. To be sure, Kelley has a long history

of disciplinary citations over the course of his tenure with the

MPD. From November of 1983 (predating his election as Union

president) through June of 1992, Kelley's disciplinary record

shows at least 36 separate charges for violations of the MPD

Rules and Regulations, ranging in severity from relatively minor

15 (e.g., failure to turn in paperwork in a timely fashion and

failure to submit legible reports) to serious (e.g., unnecessary

force (on 2 occasions), neglect of duty, and incompetence). That

the MPD deemed it necessary to discipline Kelley for his failure

to abide by the department's rules and regulations does not

establish that Kelley was singled out for selective treatment;

it's at least equally plausible that Kelley's performance of duty

placed him among the worst rather than the best police officers.

Stated somewhat differently, the mere fact that Kelley is a vocal

representative of the Union can hardly insulate him from

discipline for actual violations of the MPD Rules and

Regulations.

If Kelley (or any other officer) violates the MPD rules, he

must expect to be disciplined. Of course, he can and should

expect that he will be treated fairly and in a manner that is

consistent with how others are treated. But, the record before

the court fails to suggest that Kelley was treated any

differently than other officers on the MPD force. To be sure, he

has been the subject of numerous disciplinary actions, and the

record could facially support at least an allegation that there

was animosity between Kelley and some of the defendants. Those

16 facts alone do not, however, support Kelley's claim that

defendants selectively enforced the MPD Rules and Regulations

against him or, more to the point, that he was the subject of any

form of unlawful discrimination or equal protection violation.

In order to survive defendants' motion for summary judgment,

plaintiffs may not simply assert "an inequity and tack[] on the

self-serving conclusion that the defendant was motivated by a

discriminatory animus. The alleged facts must specifically

identify the particular instance(s) of discriminatory treatment

and, as a logical exercise, adequately support the thesis that

the discrimination was unlawful." Correa-Martinez v. Arrillaga-

Belendez.

(1st Cir. 1990). Kelley provides only

opinion and bold, unsupported conclusions in support of his claim

that he has been selectively disciplined for violating the MPD

Rules and Regulations. In short, he has failed to point to

specific instances in which he claims he was subjected to

discipline while other, similarly situated police officers were

spared discipline for substantially similar conduct or offenses.

See, e.g., Gillard v. Norris,

(6th Cir. 1988)

(Plaintiff, a state corrections officer who claimed that he was

selectively disciplined in violation of his right to equal

17 protection "failed to demonstrate that the defendants treated

similarly situated individuals in a disparate manner, and []

therefore failed to state a cause of action for denial of equal

protection."); Black v. City of Auburn. 857 F .Supp. 1540, 1549

(M.D.Ala. 1994) (Police officer failed to demonstrate that his

discipline violated his right to equal protection. "In sum,

there is neither any evidence that other similarly situated

officers were treated differently nor is there any evidence that

the prosecution or investigation was the product of

constitutionally improper motives."); Gates v. Sicaras,

(D.Conn. 1989) (In order to prevail on his equal

protection claim, the plaintiff (a former city police officer)

"must establish that he was in fact singled out for special

treatment and that defendants took the action intentionally to

discriminate against him because of his membership in a

constitutionally identifiable group. This plaintiff has not

done. Plaintiff's argument would give every person who claims

harassment by a government official a cause of action under the

equal protection clause. However, the equal protection clause

only protects individuals against invidious discrimination.").

18 While plaintiffs allege that defendants subjected Kelley to

discipline which was "unprecedented" those allegations are

legally insufficient to form the basis of an equal protection

claim. For example, paragraph 21 of the amended complaint

alleges that "there is no history in the MPD of bringing an

officer up on formal charges for late paperwork." First,

plaintiffs concede that other officers have been disciplined for

failing to submit timely paperwork. The focus of their

allegation appears to be on the fact that Kelley was subjected to

"formal charges" for his violation. Unfortunately, plaintiffs

fail to state precisely what they mean by formal charges (as

distinguished from "written reprimands"), nor do they explain the

legal significance of the distinction. And, more importantly, it

appears from the complaint and plaintiffs' other papers that the

officer charged with the violation controls whether his

discipline is handled informally (i.e., written reprimand) or

formally (i.e., hearing). See Amended Complaint, para. 15. The

mere fact that Kelley might have been the first MPD officer to

request a formal hearing after being cited for failing to submit

timely paperwork hardly establishes that he has been selectively

disciplined.

19 As another example of the "unprecedented" disciplinary

measures taken against Kelley, plaintiffs point to the fact that

he was charged with "discourtesy" (Amended Complaint, para. 19)

and "insubordination" (Amended Complaint, para. 29). They claim

that no other MPD officer has ever been charged with those

offenses and, therefore, sanctioning Kelley for such conduct was

unlawful, selective, and discriminatory. As noted above,

however, claims of that sort, without more, fail to state a

viable cause of action. Plaintiffs have neglected to allege even

a single instance where another MPD officer engaged in similar

conduct but, unlike Kelley, escaped discipline. Certainly, an

insubordinate and discourteous officer ought to be disciplined

and ought not to be held immune simply because most officers are

neither insubordinate nor discourteous.

Standing alone, the fact that Kelley may have been the first

MPD officer disciplined for discourtesy or insubordination is

legally insignificant; he might well have been the rare officer

who engaged in activity of that type sufficiently serious to

warrant discipline. The first officer charged with a violation

of a particular provision of the MPD Rules and Regulations does

not, without more, have a claim that his or her equal protection

20 rights are being violated. In short, plaintiffs have failed to

plead the requisite connection between Kelley's alleged

"selective" treatment and a violation of the equal protection

clause of the Constitution. They simply recite a number of

factual anecdotes and then conclude that defendants' motivation

in disciplining Kelley was unlawful and discriminatory.

As the Court of Appeals for the First Circuit has repeatedly

held, more than mere conclusory statements and unsupported

allegations are necessary in order to raise a triable, genuine

issue of material fact. Plaintiffs cannot rely exclusively on

"subjective characterizations" or "unsubstantiated conclusions,"

Fleming v. Lind-Waldock & C o .,

(1st Cir. 1990),

or bald assertions, or "opprobrious epithets." Chongris v. Board

of Appeals of Andover.

(1st Cir.), cert, denied,

(1987). Accordingly, the court holds that

defendants are entitled to summary judgment with regard to Count

4 of plaintiffs' complaint.

D. Count 5 - Municipal Liability.

A municipality cannot be held vicariously liable under

§ 1983 for the wrongful acts of its employees. Collins v. City

21 of Harker Heights,

(1992). A municipality may

be liable, however, when one of its employees acts pursuant to a

municipal custom or policy and, in so doing, violates someone's

constitutional rights. .Id. Municipal liability attaches under

§ 1983 only 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 body's officers." Monell v. New York City

Department of Social Services,

(1978). So, in

order to prevail on their § 1983 claim against the City of

Manchester, plaintiffs must show a direct causal connection

between municipal conduct and a constitutional deprivation. See,

e.g., Oklahoma City v. Tuttle,

, 824-25 n.8 (1985)

(requiring an "affirmative link" between the municipal policy and

the alleged constitutional deprivation.).

Again, however, to avoid summary judgment, plaintiffs must

support their claims with something more than mere subjective

characterizations or unsubstantiated conclusions. Plaintiffs

have failed to carry that burden. In the absence of some

indication of municipal direction via a policy, practice, or

custom, and given that a respondeat superior cause of action is

22 not cognizable under § 1983, the City is entitled to summary

judgment with regard to count 5 of plaintiff's complaint.

Moreover, defendants Favreau, Craig, and Vandal are not

liable in their officials capacities for any alleged

constitutional deprivations. Because "official capacity suits

generally represent only another way of pleading an action

against an entity for which an officer is an agent," Brandon v.

Holt,

, 472 n.21 (1984), and because plaintiffs have

failed to show that their alleged injuries are the product of any

municipal custom or policy, defendants are entitled to summary

judgment in their official capacities. Although they claim that

the individual defendants "possess[ed] final authority to

establish municipal policy with respect to matters effecting the

administration of the MPD," Amended Complaint at para. 53,

plaintiffs have failed to alleged sufficient facts from which a

reasonable jury could conclude that some policy existed, that the

policy resulted in constitutional violations, or that they

suffered harm as a result of any such municipal custom or policy

adopted by defendants. See generally, Penney v. Town of

Middleton. 888 F.Supp. at 340-41.

23 The claims in counts 1, 2, and 6 alleged against defendants

Craig, Favreau, and Vandal in their individual capacities shall,

howeve r , rema in .

E. Count 6 - Defamation.

With regard to the final count of plaintiffs' complaint,

defendants simply assert that, because they believe plaintiffs

have failed to state any viable federal causes of action, the

court should decline to exercise supplemental jurisdiction over

Kelley's state defamation claim. They have not addressed the

merits of Kelley's claims.

Because plaintiffs may proceed on counts 1 and 2, and

because defendants have provided no basis for finding that they

are entitled to judgment as a matter of law with regard to

Kelley's state law claim, the court will exercise its

supplemental jurisdiction over count 6 and permit plaintiffs to

present their claims to a jury.

Conclusion

While many of their factual allegations certainly sound

ominous and sinister, plaintiffs have, in large measure, failed

24 to link those allegations to cognizable causes of action.

Nevertheless, recognizing that the requisite elements of

plaintiffs' various claims might well be buried in the volumes of

largely irrelevant facts and argument, the court has spent

considerable time sifting through the record in an effort to

piece together the essential components of viable legal claims.

Based upon that review, and reading the pleadings and circuit

precedent liberally in plaintiffs' favor, the court holds that

plaintiffs are entitled to present the arguments raised in counts

1, 2, and 6 to a jury.

For the foregoing reasons, defendants are entitled to

judgment as a matter of law on counts 3, 4, and 5 in plaintiffs'

amended complaint. Defendants Favreau, Craig, and Vandal are

also entitled to summary judgment with regard to all claims

against them in the official capacities. With regard to counts

1, 2, and 6 (against defendants in their individual capacities),

however, there exist genuine issues of material fact and summary

judgment is inappropriate. Defendants' second motion for summary

judgment (document no. 45) is granted with regard to counts 3, 4,

and 5. It is denied with regard to counts 1, 2, and 6.

25 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 23, 1996

cc: Kenneth J. Gould, Esq. Joseph H. Groff, III, Esq. Michael B. 0'Shaughnessy, Esq.

26