White v . Union Leader Corp. CV-00-122-B 07/13/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stacey White

v. Civil No. 00-122-B Opinion No.

Union Leader Corporation, et a l .

MEMORANDUM AND ORDER

Stacey White pro se brings this action against two members

of the Manchester, New Hampshire Police Department, Charles

Anderson and Keith Chandonnet, alleging that they violated her

First Amendment rights by preventing her from distributing a

newsletter.1 I have before me Anderson and Chandonnet’s motion

for summary judgment, (Doc. N o . 2 4 ) . For the reasons discussed

herein, I grant their motion.

1 White also asserts claims against the Union Leader Corporation (“Union Leader”), four employees of Union Leader, and Union Leader’s attorneys. I dismissed the federal claims against these defendants in a separate Memorandum and Order. I. BACKGROUND2

Stacey White worked as a newspaper carrier for Union Leader,

the publisher of The Union Leader and New Hampshire Sunday News,

from September 2 9 , 1997 until her contract was terminated on

December 2 7 , 1998.

In October 1999, White created a newsletter for newspaper

carriers called The Carrier Times. In the early morning hours of

October 2 , 1999, White went to a parking lot in Manchester, New

Hampshire where Union Leader drops off and distributes newspapers

to its carriers. When Union Leader leaves its newspapers at the

drop-off site, they are tied up in bundles. On top o f , and

attached t o , each bundle is a sheaf of administrative paperwork,

including memoranda from Union Leader to the carriers.

When White arrived at the drop-off site, she began placing

her newsletter in with the carriers’ paperwork. Donald Groulx, a

Union Leader employee, promptly began harassing White and

removing her newsletter from the bundles. White then went into a

pharmacy adjacent to the parking lot and asked Patricia Hubert, a

2 I describe the background facts in the light most favorable to White, the nonmoving party. I set forth onl facts that are relevant to the instant motion.

-2- pharmacy employee, to call the police, claiming that Groulx was

harassing her and stealing her newsletters.

A number of police officers, including Officers Anderson and

Chandonnet, arrived at the parking lot shortly thereafter. When

White attempted to explain the situation to them, they became

annoyed and told her that she did not have the right to place her

newsletters in with the newspapers.

A superior officer, Sergeant Mosley, soon arrived on the

scene. Mosley told White that she had the right to distribute

her newsletter to the carriers by hand, but that she did not have

the right to place her newsletter in with the bundled newspapers

without Union Leader’s permission. Groulx, however, apparently

had told some of the officers that White was violating a court

order by distributing her newsletter. Some of the officers

approached White to discuss the matter. In the interim, Groulx

continued to take the newsletters out of the bundles and away

from the newspaper carriers who had begun to arrive.

After White informed the officers that no court order

existed, they retrieved the newsletters from Groulx and gave them

back to White. White then waited to see if any more carriers

would arrive.

-3- While White was waiting, Officer Chandonnet asked her

whether she was going to leave the drop-off site. She replied

that Sergeant Mosley had told her that she could remain and

distribute her newsletter by hand and that she would continue to

do s o .

Officer Chandonnet asked Hubert whether the pharmacy would

allow White to remain in the parking lot. She said that White

could stay. Chandonnet then entered the pharmacy to determine

whether Hubert’s manager was willing to allow White to continue

distributing her newsletter in the parking lot. Shortly

thereafter, White went inside as well, concerned that Chandonnet

might try to convince the pharmacy manager to have White removed.

When White asked Chandonnet about his intentions, Chandonnet

yelled at her, saying that he was speaking with the manager, not

with her. When she persisted, he asked her if she wanted to go

to jail and guided her out of the pharmacy. Eventually, the

officers told White that she had the manager’s permission to

remain in the parking lot.

White complained to the police department about Chandonnet’s

behavior. She received no response to her complaint. White

initiated this litigation on March 1 7 , 2000.

-4- II. STANDARD OF REVIEW

Summary judgment is appropriate if the record, viewed in the

light most favorable to the non-moving party, shows that no

genuine issues of material fact exist and that the moving party

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

56(c); Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94-

95 (1st Cir. 1996). A material fact is one “that might affect

the outcome of the suit under the governing law.” Anderson v .

Liberty Lobby, Inc.,

(1986). A genuine factual

issue exists if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.”

The party moving for summary judgment “bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] . . .

which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena, 95

-5- F.3d at 94 (citing Celotex,

; Anderson,

4 9 ) .

Although pro se litigants are generally held to a less

stringent standard than lawyers, pro se status “does not free a

litigant in a civil case of the obligation to comply with” the

Federal Rules of Civil Procedure. Ruiz Rivera v . Riley,

4 , 28 n.2 (1st Cir. 2000).

I apply this standard in reviewing defendants’ motion for

summary judgment.

III. DISCUSSION

White asserts claims under

against Officers

Anderson and Chandonnet. She claims that Anderson and

Chandonnet, while acting under color of state law, violated her

rights under the First Amendment to the Constitution by

interfering with her attempts to distribute her newsletter to the

Union Leader’s newspaper carriers.3 See Pl.’s First Amended

Complaint (“Cplt.”), (Doc. N o . 6 ) , ¶¶ 154-203, 474-89.

3 White also claims that defendants violated her rights under the New Hampshire Constitution, Part 1 , Article 2 2 . I decline to reach the merits of this claim and instead, dismiss the claim without prejudice.

-6- Specifically, White alleges that the defendants: (1) failed to

prevent Groulx from interfering with her attempts to place her

newsletter in the newspaper bundles; (2) told her that she could

not place her newsletter in the bundles; (3) failed to prevent

Groulx from interfering with her attempts to distribute her

newsletter to the carriers by hand; and (4) attempted to persuade

her to leave the newspaper drop-off area. See id.; Pl.’s

Opposition to Defs.’ Mot. for Summ. J., (Doc. N o . 2 7 ) , 3 .

Anderson and Chandonnet move for summary judgment on the grounds

that they are entitled to qualified immunity.4

4 Anderson and Chandonnet offered affidavits in support of their summary judgment motion. White moves to strike portions of those affidavits, (Doc. N o . 3 3 ) , on the grounds that they contain legal conclusions and opinions. Because these affidavits satisfy the requirements of Federal Rule of Civil Procedure 56(e), I deny her motion to strike. In her opposition to the defendants’ motion for summary judgment, (Doc. N o . 2 7 ) , White relied solely on the allegations in her amended complaint. Defendants then filed a partially- assented-to motion for leave to file a reply to White’s opposition, (Doc. N o . 2 8 ) , in which they argued that the “court must disregard any factual assertions in [White’s] objection because she has not attached a counter affidavit or referenced a verified pleading.” In response, White filed an objection to the defendants’ motion for leave to reply, (Doc. N o . 2 9 ) . Appended to that objection are affidavits of White (“White Aff.”) and Patrcia Hubert (“Hubert Aff.”). The defendants move to strike these affidavits, (Doc. N o . 3 0 ) , because they were filed after the response deadline. Given White’s pro se status, I deny the defendants’ motion to strike these affidavits.

-7- Before addressing the issue of qualified immunity, I must

first determine whether White has “introduced sufficient evidence

to create a genuine issue of material fact that” Anderson and

Chandonnet violated White’s constitutional rights. Febus-

Rodriguez v . Betancourt-Lebron,

7 , 91 (1st Cir. 1994);

see Souza v . Pina,

(1st Cir. 1995).

In order to prevail on her claims, White must establish

that: (1) she had a First Amendment right; (2) defendants acted

with the intent to prevent her from exercising that right; (3)

defendants did, in fact, prevent or intimidate her from

exercising that right; and (4) defendants acted under color of

state law. See Tatro v . Kervin,

(1st Cir. 1994)

(establishing the motive requirement for a First Amendment claim

against a police officer); Sullivan v . Carrick,

, 4

(1st Cir. 1989) (discussing the First Amendment causation

requirement). I address her claims in turn.

A. The “Bundle” Claims

White’s first two claims depend, in the first instance, on

whether she had a First Amendment right to insert her newsletter

into the administrative paperwork that was on top of the bundled

newspapers.

-8- The distribution of newsletters, handbills, and leaflets in

a public place is “an activity that long has enjoyed the full

protection of the First Amendment.” Jews for Jesus, Inc. v .

Mass. Bay Transp. Auth.,

(1st Cir. 1993)

(citing Lovell v . City of Griffin,

(1938));

see Schenck v . Pro-Choice Network of Western New York,

(1997) (“Leafletting and commenting on matters of public

concern are classic forms of speech that lie at the heart of the

First Amendment.”); United States v . Grace,

(1983) (“There is no doubt that as a general matter peaceful

picketing and leafleting are . . . protected by the First

Amendment.”). However, “the First Amendment does not guarantee

the right to communicate one’s views at all times and places or

in any manner that may be desired.” Heffron v . Int’l Soc’y for

Krishna Consciousness, Inc.,

(1981). Thus, as

a general matter, a person has no First Amendment right to

communicate her views on another person’s private property

without their consent. See, e.g., Lloyd Corp. v . Tanner,

(1972) (“this Court has never held that a

trespasser or an uninvited guest may exercise general rights of

free speech on property privately owned and used

-9- nondiscriminatorily for private purposes only”); Kay v . New

Hampshire Democratic Party,

1 , 33-34 (1st Cir. 1987)

(per curiam) (holding that plaintiff had no right to speak at

private political forum); Cape Cod Nursing Home Council v .

Rambling Rose Rest Home,

(1st Cir. 1981)

(holding that plaintiff had no right to speak at private nursing

home).

In this case, White does not contend that she had any

property interest in either the newspapers or the documents that

were attached to them. See, e.g., White Aff. ¶ 1 (stating that

she placed the newsletters “with other memos and communications

intended for the newspaper carriers attached to the bundles of

newspapers”); Cplt. ¶¶ 155 (alleging that she attempted to place

her newsletter “with the carriers’ paperwork attached to the

newspapers”), 169 (alleging that the newspapers belonged to the

carriers), 173 (alleging that Groulx said that the newspapers did

not belong to Union Leader). Neither does she claim that she had

the permission of the carriers or Union Leader to place her

newsletter inside those attached documents. Therefore, I

conclude she had no First Amendment right to do s o . See Tanner,

; Kay,

; Cape Cod Nursing Home

-10- Council,

.

Because White did not have a First Amendment right to place

her newsletters inside the documents, defendants’ actions cannot

give rise to a Section 1983 claim based upon the First Amendment.

See Kay,

; Cape Cod Nursing Home Council,

. Therefore, I grant defendants’ motion for summary

judgment as to White’s first two claims.

B. The Leafletting Claims

White next argues that defendants interfered with her right

to distribute her newsletter by: (1) refusing to prevent Groulx

from harassing her and taking her newsletter; and (2) attempting

to persuade her to leave the newspaper drop-off area. She fails,

however, to introduce “sufficient evidence to create a genuine

issue of material fact that” Anderson and Chandonnet violated her

constitutional rights. Febus-Rodriguez,

1 .

As to her first claim, White acknowledges that once the

defendants had interviewed her and Groulx, and after she informed

them that there was no court order which prevented her from

distributing her newsletter to the carriers, the defendants

retrieved the newsletters from Groulx and told her that she could

continue to distribute them by hand. White Aff. ¶¶ 14-16.

-11- Although White characterizes the defendants’ attempts to

investigate the situation and ascertain the parties’ rights as

“inaction,” she offers no evidence to suggest that the defendants

were motivated by a desire to chill her right to distribute her

newsletter. See Tatro,

(holding that a plaintiff

must “show that the officer’s intent or desire to curb the

[plaintiff’s] expression was the determining or motivating

factor”). Accordingly, I grant the defendants’ motion for

summary judgment as to this claim.

White’s final claim is based on the events that occurred

after the defendants returned the newsletters to her and told her

that she could distribute them by hand. Many carriers had come

and gone by this point, but White waited to see if any more would

arrive. White Aff. ¶¶ 1 6 , 27-28; Hubert Aff. ¶ 2 7 . She offers

no evidence to suggest that any more carriers, or anyone else for

that matter, arrived at the drop-off site. Nor does she offer

any evidence to suggest that she attempted to distribute her

newsletter to anyone. In addition, I note that the bulk of

Officer Chandonnet’s allegedly rude behavior occurred after she

followed him into the pharmacy of her own accord and interrupted

his conversation with the pharmacy manager.

-12- White has failed to come forward with evidence that would

suggest that the defendants’ actions prevented or intimidated her

from distributing her newsletter by hand or that the defendants

were motivated by an intent to do s o . See Tatro,

8 ;

Sullivan,

(holding that in order to prove a First

Amendment violation, the plaintiff must show that her “speech was

in fact chilled or intimidated . . . Absent such an allegation,

no violation occurred . . . Where a chilling effect is

speculative, indirect or too remote, finding an abridgement of

First Amendment rights is unfounded”). Therefore, I grant the

defendants’ motion for summary judgment with regard to this

claim.

IV. CONCLUSION

For the reasons discussed herein, I deny White’s motion to

strike portions of the defendants’ affidavits, (Doc. N o . 3 3 ) , and

I deny the defendants’ motion to strike White’s affidavits, (Doc.

No. 3 0 ) . I grant the defendants’ motion for summary judgment,

(Doc. N o . 2 4 ) , as to the federal claims asserted against them.

The only claims that remain pending in this case are claims

based upon state law. Rather than attempt to assess the merits

-13- of these claims, I decline to exercise supplemental jurisdiction

over them and, instead, dismiss these claims without prejudice to

White’s right to pursue the claims in state court. I direct the

Clerk to enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

July , 2001

cc: Stacey White, pro se Donald A . Kennedy, Esq. Richard B . McNamara, Esq. Michael O’Shaughnessy, Esq.

-14-