Farwell v. Town of Brookline

District Court, D. New Hampshire October 20, 2000

Farwell v. Town of Brookline, 2000 DNH 223 (2000)

Opinion

Farwell v. Town of Brookline CV-00-089-M 10/20/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Marcia Farwell, Plaintiff

v. Civil No. 00-89-M Opinion No.

2000 DNH 223

Town of Brookline, Town of Milford, Town of Hollis, Town of Pepperell, Deborah Clark, David Turqeon, Steven Desilets, and Richard Darling, Defendants

O R D E R

Marcia Farwell brings this action pursuant to

42 U.S.C. § 1983

, seeking damages for alleged violations of her

constitutional rights. Specifically, she claims that defendants

unlawfully arrested (and subseguently prosecuted) her for

disorderly conduct. She also brings several common law and state

constitutional claims, over which she says the court may properly

exercise supplemental jurisdiction. Named as defendants are the

Town of Brookline, New Hampshire, the Town of Milford, New

Hampshire, the Town of Hollis, New Hampshire, and the Town of

Pepperell, Massachusetts (collectively, the "Municipal

Defendants"). Also named as defendants, and sued in their individual capacities, are Brookline Police Officer Deborah

Clark, Hollis Police Officer David Turgeon, Sergeant Steven

Desilets of the Hollis Police Department, and Hollis Police Chief

Richard Darling. No individual employees of the towns of Milford

or Pepperell are identified in the complaint.

Pursuant to Federal Rule of Civil Procedure 12 (c), the

Municipal Defendants move for judgment on the pleadings as to all

claims against them. In response, plaintiff has not moved to

amend her complaint. Instead, she simply objects to the relief

reguested by the Municipal Defendants.

Standard of Review

Federal Rule of Civil Procedure 12 (c) provides that,

"[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." In reviewing such a motion, the court must credit

all material allegations in the complaint as true and draw all

reasonable inferences in the non-moving party's favor. See

Feliciano v. State of Rhode Island,

160 F.3d 780, 788

(1st Cir.

2 1998). Like a motion to dismiss, a motion for judgment on the

pleadings may be granted only if it appears beyond doubt that the

plaintiff can prove no set of facts in support of her claims that

would entitle her to relief. See Gaskell v. The Harvard

Cooperative Society,

3 F.3d 495, 497-98

(1st Cir. 1993); Santiago

de Castro v. Morales Medina,

943 F.2d 129, 130

(1st Cir. 1991) .

Background

Viewed in the light most favorable to plaintiff, the

material facts appear as follows. On the evening of July 3,

1997, plaintiff was socializing at the home of friends in

Brookline, New Hampshire. Shortly after midnight, as is

apparently the tradition in Brookline, the church bell of the

Brookline Church of Christ began to ring. Plaintiff soon learned

that police officers had arrived on the scene and arrested

someone for ringing the bell. Plaintiff walked the short

distance from her friend's home to the scene of the disturbance.

When she reached the church, plaintiff observed police

cruisers from the towns of Brookline, Hollis, Milford, and

3 Pepperell. A small group of on-lookers had also begun to gather.

Plaintiff says that officers from neighboring towns had arrived

in response to a "mutual aid" call placed by officers of

Brookline. She claims, however, that "the Brookline police

department had not adhered to the reguired protocol to reguest

'mutual aid' from surrounding towns and the officers from the

surrounding towns were therefore acting without authority."

Complaint, at para. 17. The complaint fails to identify how the

mutual aid reguest was deficient, nor does it discuss how an

allegedly improper reguest for mutual aid would render the

responding officers "without authority."

According to plaintiff. Defendant Officer Clark ordered the

crowd to disperse. Apparently dissatisfied with the conduct of

the police officers, plaintiff told them that they were "acting

like a bunch of assholes." Complaint, para. 18. She was then

arrested for disturbing the peace, handcuffed, and placed in the

back of a police cruiser. She claims to have complained that the

handcuffs were too tight and says the only response she received

was that they were not designed for comfort.

4 Plaintiff was subsequently tried for disorderly conduct,

under N.H. Rev. Stat. Ann. ("RSA") 644:2. She was acquitted in a

bench trial.

Discussion

I. Count 1 - Unreasonable Seizure:

42 U.S.C. § 1983

The Municipal Defendants assert that count 1 of plaintiff's

complaint fails, as a matter of law, to state a viable claim

insofar as it does not alleqe that plaintiff's claimed injuries

were the product of a municipal custom or policy. In response,

plaintiff arques that to impose such a pleadinq requirement would

run afoul of the Federal Rules' "liberal pleadinq" standards and

the Supreme Court's opinion in Leatherman v. Tarrant City

Narcotics Unit,

507 U.S. 163

(1993). Accordinqly, she says:

That the plaintiff supposedly failed to alleqe a municipal custom or practice as the cause of the harm, and that the plaintiff failed to alleqe facts that showed deliberate indifference on the part of the defendant[s] is not an accepted basis for dismissal of a claim brouqht pursuant to

42 U.S.C. § 1983

. Only if the plaintiff fails to prove these elements must the cause of action fail. To hold otherwise is to apply a heiqhtened pleadinq standard.

5 Plaintiff's memorandum (document no. 13) at 7. The court

disagrees.

To state a viable § 1983 claim against a municipality, a

plaintiff must, at a minimum, allege that his or her injuries

were the product of a municipal custom of policy. See, e.g.,

Dwares v. City of New York,

985 F.2d 94, 100-01

(2d Cir. 1993).

(D.N.H. Aug. 18, 1994).

Because count 1 of plaintiff's complaint fails to allege an

essential element of a viable cause of action against the

Municipal Defendants - that her claimed constitutional injuries

were the product of a municipal custom or policy - it fails to

7 state a cognizable claim. It is, therefore, dismissed without

prej udice.

II. Count 2 - Respondeat Superior.

Municipal entities cannot be held liable under § 1983 for

the unlawful conduct of their employees on a theory of respondeat

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

436 U.S. 658, 694

(1978); Gaudreault v. Municipality of Salem,

Mass.,

923 F.2d 203, 209

(1st Cir. 1990). Consequently, to the

extent count 2 of plaintiff's complaint seeks to impose such

liability on the Municipal Defendants under § 1983, it fails to

state a viable claim. Plaintiff acknowledges as much. She

argues, however, that count 2 of her complaint should survive

defendants' motion insofar as it seeks to hold defendants liable

for the assault and battery she allegedly suffered at the hands

of the Municipal Defendants' employees, as described in count 4.

See Plaintiff's memorandum (document no. 13) at 9.

Plaintiff's argument suffers from at least two flaws.

First, to the extent she seeks to impose liability on the Municipal Defendants for an alleged assault and battery, that

claim is set forth with clarity in count 4 of the complaint, and

each of the Municipal Defendants is specifically identified in

that claim. Consequently, to the extent that count 2 seeks to

hold the Municipal Defendants liable for the alleged assault and

battery committed by their employees, it is duplicative of the

claim set forth in count 4.

Moreover, defendants assert that, as to her common law

claim(s) in count 2 (and, presumably, as to all other common law

claims against the Municipal Defendants), plaintiff has failed to

comply with the notice provisions set forth in RSA 507-B:7. That

statute provides, in pertinent part, that:

As a condition precedent to commencement of the action [against a municipality for bodily injury, personal injury, or property damage], the clerk of the governmental unit shall be notified by registered mail within 60 days after the time of the injury or damage or discovery of the injury or damage, . . . as to the date, time and location where the injury or damage occurred. Defendants point out that plaintiff's complaint fails to allege

that she complied with the requirements of this statute.1

Consequently, they assert that dismissal of that count is

warranted.

In Simoneau v. Enfield,

112 N.H. 242

(1972), the New

Hampshire Supreme Court concluded that the trial court properly

dismissed a complaint for plaintiff's failure to provide the

statutorily required notice of claim to the town. Here,

plaintiff has failed to allege that she complied with that

statutory requirement by filing a timely notice of claim (and

defendants say that she cannot make such an allegation).

Consequently, count 2 of plaintiffs complaint is necessarily

dismissed under applicable state law, without prejudice.

III. Count 3 - Failure to Adequately Train:

42 U.S.C. § 1983

In support of their motion for judgment on the pleadings as

to count 3, defendants assert that plaintiff has failed to allege

1 Defendants also point out that what notice plaintiff actually provided was untimely, as it was submitted approximately one year after plaintiff's arrest.

10 that they acted with "deliberate indifference" to her

constitutionally protected rights. As to the Towns of Pepperell

and Milford, the court agrees that count 3 fails to allege the

elements of a viable claim. Critically, the complaint fails to

allege that plaintiff suffered any injuries as a result of the

conduct of any employees of either Pepperell or Milford. Nor

does the complaint provide any indication of how an alleged

"failure to train" on the part of those towns actually caused her

any injury. Instead, all of the injuries identified by plaintiff

are alleged to have occurred as a result of the wrongful conduct

of employees of the towns of Brookline and Hollis. Conseguently,

as to the towns of Pepperell and Milford, count 3 of the

complaint does fail to state a viable claim and, as to those

defendants, it is dismissed without prejudice.

As to the towns of Hollis and Brookline, however, the

complaint (when read with the reguired deference) adeguately

alleges the essential elements of a failure to train cause of

action. Whether, at trial, plaintiff can demonstrate that those

defendants acted with the reguisite indifference to her rights.

11 is of course a different matter. At this juncture, however, the

court concludes that count 3 of the complaint is at least

sufficient to survive a motion for judgment on the pleadings.

IV. Plaintiff's State Constitutional Claims.

Finally, defendants urge the court to grant them judgment on

the pleadings as to plaintiff's claims arising from various

provisions of New Hampshire's Constitution. Plaintiff has not

pointed to any authority suggesting that the New Hampshire

Supreme Court has recognized a private right of action based upon

alleged violations of the constitutional provisions identified in

the complaint. In the absence of such authority, the court is

not inclined to recognize a novel state cause of action. A

federal court called upon to apply state law must "take state law

as it finds it: 'not as it might conceivably be, some day; nor

even as it should be.'" Kassel v. Gannett Co., Inc.,

875 F.2d 935, 950

(1st Cir. 1989) (quoting Plummer v. Abbott Laboratories,

568 F.Supp. 920, 927

(D.R.I. 1983)). When state law has been

authoritatively interpreted by the state's highest court, this

court should apply that law according to its tenor. See Kassel,

875 F.2d at 950

. When the signposts are blurred, the federal

court may assume that the state court would adopt an

interpretation of state law that is consistent with logic and

supported by reasoned authority. See Moores v. Greenberg,

834 F.2d 1105

, 1107 n.3 (1st Cir. 1987). However, this court is and

should be hesitant to blaze new, previously uncharted state-law

trails. Expansive reading of New Hampshire's constitutional

provisions is a realm best occupied by the New Hampshire Supreme

Court. Accordingly, plaintiff's claims based upon alleged

violations of the New Hampshire Constitution, p t . 1, art. 15, 19,

and 22 (as alleged in counts 1 and 3) are dismissed without

prej udice.

Conclusion

For the foregoing reasons, defendants' motions for judgment

as a matter of law (documents no. 10 and 12) are granted in part

and denied in part. As to all Municipal Defendants, counts 1 and

2 are dismissed without prejudice. Count 3 is dismissed, without

prejudice, as to the towns of Pepperell and Milford. Finally, as

to all defendants, plaintiff's claims based upon alleged

13 violations of the New Hampshire Constitution are dismissed

without prejudice.

Plaintiff is, however, granted leave to file an amended

complaint. To the extent she is able, consistent with the

requirements of Fed. R. Civ. P. 11, she may amend her complaint

to cure the deficiencies identified in this order. Should

plaintiff elect to file an amended complaint, she shall do so on

or before November 20, 2000.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 20, 2000

cc: Kenneth G. Bouchard, Esq. Donald E. Gardner, Esq. John A. Curran, Esq. Michael B. O'Shaughnessy, Esq.

Reference

Status: Published