Nagy v . Town of Andover, et a l . CV-01-112-M 10/19/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Paul Nagy and Mary Ann Nagy, Plaintiffs

v. Civil N o . 01-112-M Opinion N o .

Town of Andover, Seldon E . Nason, Glenn E . Laramie, J r . Herbert L. Blish, David Hawes and Lee-Ann Hawes, Defendants

O R D E R

Paul and Mary Ann Nagy (“the Nagys”) have sued the Town of

Andover (“the Town”), three of its police officers (Officers

Sheldon Nason, Glen Laramie, and Herbert Blish), and their

neighbors, David and Lee-Ann Hawes (“the Haweses”), in six

counts. Plaintiffs seek compensatory and punitive damages for

injuries allegedly inflicted upon them as a result of an unlawful

entry onto their property by three Andover Police Department

(“APD”) officers, which itself resulted from an alleged

conspiracy between the Haweses and Officer Nason. The Nagys’ suit consists of two federal claims, based upon

alleged violations of their federally protected constitutional

rights, see 42 U . S . C . § 1983, and four claims based upon state

law, over which they ask the court to exercise supplemental

jurisdiction. Before the court are: (1) two motions to dismiss

the original complaint, one filed by the Town and the three

police officers (“the Andover defendants”) (document n o . 1 1 ) , the

other by the Haweses (document n o . 1 3 ) ; and (2) two motions to

dismiss the Nagys’ amended complaint (document n o . 23 and

document n o . 2 4 ) . The Andover defendants base their motions to

dismiss on F E D . R . C I V . P . 12 (b)(6) (dismissal for failure to

state a claim), while the Haweses base their motions to dismiss

on both Rule 12(b)(6) and F E D . R . C I V . P . 12(b)(1) (dismissal for

lack of subject matter jurisdiction). The Nagys object to all

four motions. For the reasons given below, the two motions to

dismiss the original complaint are moot and the two motions to

dismiss the amended complaint are granted.

2 Standard of Review

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the

court to conduct a 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, 416 U . S . 232, 236 (1974). When considering a motion to

dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as

true all well-pleaded allegations and give plaintiffs the benefit

of all reasonable inferences.” Cooperman v . Individual, Inc.,

3 , 46 (1st Cir. 1999) (citing Gross v . Summa Four,

Inc.,

(1st Cir. 1996)). Furthermore,

“[d]ismissal under F E D . R . CIV. P . 12(b)(6) is only appropriate if

the complaint, so viewed, presents no set of facts justifying

recovery.” Cooperman, 171 F.3d at 46 (citing Dartmouth Review v .

Dartmouth College,

3 , 16 (1st Cir. 1989)).

3 Background

The facts of this case, as derived from the amended

complaint and viewed in the light most favorable to the Nagys,

are as follows.

The Nagys and the Haweses are residential neighbors who

share a common driveway. The Haweses operate a day-care service

in their home. The shared driveway is located on the Nagys’

property, but the Haweses own easement rights over a portion of

it. In June 2000, Mr. Nagy (“Nagy”) observed some of the

Haweses’ day-care customers driving too fast along the shared

driveway. He spoke with them about i t , and asked them to drive

more slowly. M s . Hawes (“Hawes”) confronted Nagy about his

confronting her customers and also reported him to the Andover

Police Department (“APD”) for allegedly blocking the shared

portion of the driveway.

On August 3 0 , 2000, Hawes again reported Nagy to the APD,

this time for allegedly videotaping her children while they were

4 waiting for a school bus (activity she perceived to be

harassing). Officer Nason of the APD, a long-time personal

friend of the Haweses, responded to the complaint. After

speaking with Nagy and, with Nagy’s consent, looking at his

videotape, Officer Nason determined that Nagy had not been

videotaping the Hawes children but, instead, had been videotaping

landscaping on his property, as he had claimed.

On September 1 4 , 2000, Hawes had three additional

communications with the APD.

First, at some unstated time, and in some unspecified

context, Hawes told Officer Nason that “Mr. Nagy would be served

with papers arising out of the dispute over the driveway and that

[she and her husband] feared Mr. Nagy’s reaction” (Am. Compl. ¶

16). (No such papers were ever actually served on Nagy.)

Second, Hawes reported to the APD that Nagy was driving up

and down the driveway at a high rate of speed (which Nagy

5 denied). Officers Nason and Laramie responded to Hawes’s call,

but by the time they arrived, Nagy was gone. When M r . Hawes

informed the officers that Nagy was on his way to Franklin, the

officers asked for assistance from the Franklin Police

Department. Officers from Franklin located Nagy and reported

that he was driving in a reasonable manner. When Nagy returned

home, Officer Laramie informed him that he had been reported for

erratic operation in the driveway. Nagy denied that he had been

driving erratically, and told Officer Laramie that he intended to

place a wooden speed bump in the shared driveway later that day.

After Officer Laramie spoke with Nagy, he and Officer Nason drove

their cruiser down the driveway and parked across the street,

where they could keep an eye on what obviously was a developing

hostile situation.

Third, at approximately 10:00 p.m., about an hour after

Officer Laramie last spoke with Nagy, Hawes called the APD to

report the sound of six gunshots coming from Nagy’s home. At the

time Hawes heard the sounds she identified as gunshots, Officers

6 Nason and Laramie were still parked across the street. Officers

Nason, Laramie, and Blish all responded to Hawes’s call. They

drove up the driveway, exited their cruiser(s), and walked toward

Nagy’s barn. As they approached the barn, Nagy emerged, carrying

a hammer. The officers shined a light in Nagy’s face, unbuckled

their holsters, and placed their hands on the butts of their

guns. One of the officers ordered Nagy to “stop, drop what was

in his hand, and place his hands in the air” (Am. Compl.¶ 2 2 ) .

Nagy complied. After Nagy dropped the hammer, Officer Nason

asked a few questions and determined that no gunshots had been

fired. Then Officer Nason ordered Nagy to remove two trucks and

some lumber, which, in Officer Nason’s view, were blocking the

driveway. When Nagy initially refused to do s o , Officer Nason

threatened him with arrest for disorderly conduct. At that

point, Nagy complied with the order and moved his vehicles and

lumber.

Based upon the foregoing, the Nagys filed this suit. Count

I asserts a federal claim, under

, in which the

7 Nagys claim that the Andover defendants violated their

constitutional rights as guaranteed by the Fourth and Fourteenth

Amendments to the U.S. Constitution by: (1) conducting an

unreasonable search of their property; (2) unreasonably seizing

Nagy; and (3) unlawfully coercing Nagy into moving his vehicles

and lumber, under the threat of arrest. Count II asserts a tort

claim under state law against the Town of Andover for negligently

hiring, training, and supervising Officers Nason, Laramie, and

Blish. Count III asserts a claim under state law against the

Andover defendants for the officers’ unlawful detention of Nagy.

Count IV asserts a claim under state law against Officers Nason,

Laramie, and Blish for trespass. Count V asserts a claim of

conspiracy against Officer Nason and the Haweses, in which they

are accused of agreeing to make false police reports and misuse

Officer Nason’s authority as a police officer in order t o : (1)

deprive the Nagys of their constitutional rights; and (2) inflict

emotional distress upon them. Count VI asserts a tort claim

under state law against Officer Nason and the Haweses for

intentional infliction of emotional distress.

8 Shortly after the Nagys filed suit, the Andover defendants

and the Haweses filed separate motions to dismiss for failure to

state a claim. The Nagys responded by filing an amended

complaint, which became the operative complaint in this case by

order dated August 1 0 , 2001 (document n o . 2 2 ) .

Discussion

As a preliminary matter, because the amended complaint is

the operative complaint in this case, the two motions to dismiss

the original complaint (document n o . 11 document n o . 13) are moot

and relevant only to the extent that they have been incorporated,

by reference, into the motions to dismiss the amended complaint.

In their motion to dismiss the amended complaint, the

Andover defendants argue that the amended complaint: (1) contains

unfair revisions and modifications; (2) fails to state a cause of

action, because it is based upon unsupported speculation rather

than factual allegations; and (3) fails to overcome the defense

of qualified immunity. (Because the court has already accepted

9 the amended complaint as the operative complaint in this case, it

does not consider the Andover defendants’ argument concerning the

unfairness of allowing the amended complaint.) The Haweses argue

in their motion to dismiss that: (1) the Nagys have failed to

state a valid federal claim against them; (2) dismissal of the

federal claim against the Andover defendants will eliminate the

basis for supplemental jurisdiction over the Nagys’ state law

claims; and (3) even if supplemental jurisdiction is proper, the

Nagys have failed to adequately assert any state law claims.

In response, the Nagys restate their theory of the case,

according to which the three Andover police officers violated

their constitutional rights by responding to Hawes’s report of

gunshots because: (1) Hawes had a history of making false reports

to the APD; and (2) on the evening in question, Officers Nason

and Laramie heard sounds which they knew to be hammering, rather

than gunshots, coming from the Nagys property, which gave them

reason to know, with certainty, that Hawes’s report of gunshots

was false.

10 I. Count I : The Nagys’ § 1983 Claim

The Nagys’ § 1983 claim fails because their factual

allegations, even if true, do not describe a constitutional

violation.1

In order to prevail on a § 1983 claim, a plaintiff must

prove that one or more individual defendants, acting under color

of state law, deprived him or her of a right, privilege, or

immunity secured by the Constitution or laws of the United

States. See, e.g., Blessing v . Freestone,

(1997). The Nagys claim that their rights, secured by the Fourth

and Fourteenth Amendments to the United States Constitution, were

violated when Officers Nason, Laramie, and Blish: (1) searched

1 Because the Nagys have failed to adequately allege a constitutional violation, the court need not reach the Andover defendants’ arguments concerning qualified immunity. See Wilson v . Layne,

(1999) (quoting Conn v . Gabbert,

(1999) (“A court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if s o , proceed to determine whether that right was clearly established at the time of the alleged violation.’”).

11 their property; (2) seized Nagy; and (3) coerced him into moving

his trucks and lumber. The court does not agree.

The Nagys’ first two claims, concerning the search of their

property and the seizure of Nagy, may be disposed of on a

straightforward Fourth-Amendment analysis. “The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated . . .” U . S . CONST. amend. I V . “[B]roadly speaking, an

unconsented-to, warrantless entry into the home by government

agents is presumptively unreasonable – valid only if an exception

to the warrant requirement applies.” Bilida v . McCleod,

(1st Cir. 2000) (citing McCabe v . Lifeline Ambulance

Serv., Inc.,

(1st Cir. 1996); 1 LaFave, Search

and Seizure § 2.3, at 465 (3d ed. 1996)). “Places adjacent to

the home, known as ‘curtilage,’ have generally been subject to

the warrant requirement so far as the government agent intrudes

beyond areas (e.g., the path to the front door) where uninvited

visitors are expected.” Bilida,

(citing 1 LaFave

12 § 2.3(f), at 504-09; Daughenbaugh v . City of Tiffin,

(6th Cir. 1998)). “Warrantless entries are most often

justified by ‘exigent circumstances,’ the best examples being hot

pursuit of a felon, imminent destruction or removal of evidence,

the threatened escape by a suspect, or imminent threat to the

life or safety of the public, police officers, or a person in

residence.” Bilida,

(citing McCabe,

).

Here, Officers Nason, Laramie, and Blish were presented with

exigent circumstances fully justifying their warrantless entry

onto the Nagys’ property and their brief seizure of Nagy. Even

if some or all of the officers were parked in front of the Nagys’

residence and recognized the sound of hammering, still the Nagys

enjoy no constitutional right to have the officers disregard a

citizen’s report of gunshots. Given the recent history of

personal animosity between the Nagys and the Haweses, the recent

escalation of that animosity, and the potential for serious

injury caused by gunfire, it would have been unreasonable, even

13 irresponsible, for the officers to have responded in any way

other than as they did. They entered onto the Nagys’ property in

response to a report of gunshots. They followed a path any

uninvited visitor might follow, proceeding directly to Nagy’s

location (the barn) to make appropriate inquiries, and searched

only so much of the property as was necessary to determine that

no shots had been fired. The officers “seized” Nagy only for a

limited time and to the limited degree necessary to insure that

he was not armed, and posed no threat to them or to others. On

the facts alleged by the Nagys, the police were not only within

their rights, but were obligated to investigate Hawes’s report of

gunshots.2 Because the officers’ warrantless search and seizure

2 In this regard, the court notes that the facts alleged by the Nagys do not support their conclusion that the officers should have known that Hawes’s report of gunshots was false because they knew she had recently made three false reports to the APD. As to the first “false report,” that Nagy had been videotaping the Hawes children, Officer Nason discovered that Nagy’s videotape did not include images of the Hawes children, but confirmed that Nagy had in fact been using a video camera outside his home and in the general proximity of the Hawes children. S o , there was some basis for Hawes’s police report. As to the second “false report,” that papers were going to be served on Nagy, that “report” had been made on the same day as the report of gunshots, which means that the police had no

14 were justified by exigent circumstances, i.e., a serious threat

of injury or death based upon a credible report of several

gunshots having been fired, their limited intrusion upon the

Nagys’ property and their brief seizure of Nagy himself were not

unreasonable within the meaning of the Fourth Amendment and did

not violate the Nagys’ constitutional rights.

reasonable basis for considering the report to be false at the time they had to decide whether to investigate the report of gunshots. Finally, as to the third “false report,” that Nagy had been driving erratically along the driveway, the police had no way of knowing how Nagy had been driving on the driveway other than Hawes’s report, and had no basis, other than Nagy’s own denial of erratic driving, for believing that Hawes’s report was in any way false. Obviously, if Nagy was driving erratically, it was for the purpose of irritating his neighbors, and the officers’ knowledge that Nagy had not been driving erratically later in the day, in Franklin, away from home, is not relevant. In sum, at the time Hawes made her report of gunshots, the police had no reasonable grounds for thinking anything other than that her report was based upon a good faith belief that she had heard gunshots. The fact that Nagy emerged from his barn carrying a hammer argues for, rather than against, Hawes’s good faith; even Nagy cannot claim that Hawes heard nothing and completely fabricated her report. The sound of hammering upon any number of media, particularly when heard by an anxious neighbor, can easily be mistaken for gunshots.

15 The Nagys’ third constitutional claim stands on a somewhat

different footing, but is no more availing than the first two.

Here, the Nagys claim that the Andover defendants

violated Mr. Nagy’s clearly-established and constitutionally-protected right under the Fourth and Fourteenth Amendments not to be coerced into following police orders without a lawful basis . . . [by] unlawfully ordering M r . Nagy to move his motor vehicles and remove boards on his property, and by threatening arrest without lawful authority to do so.

(Am. Compl. ¶ 30.) In their objection to the Andover defendants’

first motion to dismiss, the Nagys rely upon Michigan v .

Chesternut,

(1988), for the proposition that Officer

Nason’s threat that he would arrest Mr. Nagy if he did not move

his vehicles and lumber was a “clearly established violation of

Mr. Nagy’s rights under the Fourth Amendment” (Pl.’s O b j . to Mot.

to Dismiss (document n o . 14) at 1 3 ) . In Chesternut, the Supreme

Court ruled that the police did not seize a person, within the

meaning of the Fourth Amendment, by following him in a cruiser

after he saw them and took off running.

.

Chesternut is inapplicable to this case.

16 For their part, the Andover defendants contend that by

ordering Nagy to move his vehicles and lumber, the officers did

not effect a seizure of that property. The officers were simply

taking reasonable steps, within the scope of their authority, to

reduce the risk of further confrontation between the Nagys and

the Haweses. Finally, the Andover defendants contend that if the

police do not violate the constitutional rights of a person they

have arrested by threatening to “‘knock [his] remaining teeth out

of his mouth’ if he remained silent,” Hopson v . Fredericksen,

(8th Cir. 1992), the threat of arrest in this

case can hardly rise to the level of a constitutional violation.

The court agrees.

As a preliminary matter, Officer Nason’s directive to Nagy

that he move his trucks and lumber did not constitute a seizure,

because that command did not entail a “meaningful interference

with [Nagy’s] possessory interests in that property,” Soldal v .

Cook County, Ill.,

6 , 61 (1992) (quoting United States

v . Jacobsen,

(1984)); see also United States v .

17 TWP 17 R 4 ,

(1st Cir. 1992) (citing Maryland v .

Macon,

(1985)). According to the Nagys’

complaint, the officers never touched Nagy’s personalty, and only

ordered him to move it from one part of his real estate to

another, which renders their interference with Nagy’s possessory

interests de minimis at worst. See Ford v . Wilson,

(7th Cir. 1996) (de minimis seizures of property); compare

TWP 17 R 4 ,

(posting warrant of arrest in rem on

parcel of real estate did not constitute seizure of the real

estate) with Soldal,

(disconnecting trailer home

from utility hook-ups and towing it away was a seizure) and

Jacobsen,

(DEA agents’ “assertion of dominion and

control over the package and its contents did constitute a

‘seizure’”).

Not only did the officers not seize Nagy’s property, they

acted reasonably and lawfully. After determining that Nagy had

not fired a gun, the officers noticed two trucks and some lumber

on or near the shared driveway. Whether or not those things were

18 actually on the driveway is unimportant. Even if they were

located next to the driveway but not literally on i t , the

presence of those things in close proximity to the shared

driveway gave the officers reason to be concerned about a further

escalation of hostilities between the Nagys and the Haweses and a

concomitant breach of the peace. The officers’ concerns were

entirely reasonable given that: (1) use of the shared driveway

was the source of conflict between the two families, and the

driveway itself was the apparent battleground; and (2) the first

conflict between the Nagys and the Haweses, in June 2000, had

involved a claim by Nagy that Hawes’s day-care parents had been

driving too fast on the driveway and a report by Hawes that Nagy

had blocked the shared driveway. In light of that history, it

was prudent for Officer Nason to order Nagy to temporarily move

his trucks and lumber. Because that order did not amount to a

seizure, and because “[f]ear or emotional injury which results

solely from verbal harassment or idle threats is generally not

sufficient to constitute an invasion of an identified liberty

interest,” Pittsley v . Warish,

, 7 (1st Cir. 1991)

19 (citations omitted); see also King v . Olmsted County,

(8th Cir. 1997) (quoting Hopson,

)

(“Generally, mere verbal threats made by a state-actor do not

constitute a § 1983 claim.”), the Nagys can point to neither: (1)

an act by Officer Nason that exceeded his lawful authority to

take reasonable measures calculated to keep the peace; nor (2)

any act violative of their constitutional rights.

Because the Nagys have failed to allege facts under which

Officers Nason, Laramie, or Nason undertook an unreasonable

search or seizure, they have failed to state a claim under

. Accordingly, Count I of their complaint is

dismissed.

II. Count V: The Nagys’ Conspiracy Claim

While it is unclear from the Nagys’ amended complaint

whether Count V asserts a federal or a state law claim for civil

conspiracy, their objection to the Andover defendants’ first

20 motion to dismiss (document n o . 17) suggests that Count V at

least includes a federal claim, under § 1983.

A civil rights conspiracy as commonly defined is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damages.’” Hampton v . Hanrahan,

(7th Cir. 1979), rev’d in part on other grounds,

. . . (1980) (quoting Rotermund v . United States Steel Corp.,

(8th Cir. 1973)).

Earle v . Benoit,

(1st Cir. 1988) (parallel

citations omitted). “In order to make out an actionable

conspiracy under section 1983, a plaintiff has to prove not only

a conspiratorial agreement but also an actual abridgment of some

federally-secured right.” Nieves v . McSweeney,

6 , 53

(1st Cir. 2001) (citing Earle,

; Landrigan v . Cit

of Warwick,

(1st Cir. 1980)). Here, the Nagys

have failed to allege “an actual abridgment of some federally-

secured right,” Nieves, 241 F.3d at 5 3 , for the reasons given in

the discussion of Count I . Accordingly, their § 1983 conspiracy

claim must necessarily fail, as well.

21 Finally, for the sake of completeness, the court notes that

the Nagys have also failed to state a claim for conspiracy under

the civil rights conspiracy statute,

(3).

An actionable section 1985(3) claim must allege that (i) the alleged conspirators possessed “some racial, or perhaps otherwise class-based, invidiously discriminatory animus,” Griffin v . Breckenridge,

8 , 102 . . . (1971), and (ii) their alleged conspiracy was “aimed at interfering with rights . . . protected against private, as well as official, encroachment.” United Bhd. of Carpenters & Joiners of America v . Scott,

, 833 . . . (1983). . . . If no racial animus is charged, a discriminatory class- based animus must be alleged. See Harrison v . Brooks,

(1st Cir. 1975) (citing Griffin, 403 U.S. at 102 . . . ) . “The requirement that the discrimination be ‘class-based’ is not satisfied by an allegation that there was a conspiracy which affected the interests of a class of persons similarly situated with the plaintiffs. Rather, the complaint must allege facts showing that the defendants conspired against the plaintiffs because of their membership in a class and that the criteria defining the class were invidious.” Id. at 1359-60.

Romero-Barcelo v . Hernandez-Agosto,

3 , 34 (1st Cir.

1996) (parallel citations omitted). The Nagys have alleged

neither racial animus nor invidious class-based animus on the

part of Officer Nason and the Haweses. Thus, while the Nagys

generally allege that Officer Nason and the Haweses worked

22 together to harm them, they have failed to state a claim that is

cognizable under

(3). See Harrison,

(citing Turner v . Baxley,

(D. V t . 1972)

(evidence of animus toward individual is not probative of class-

based animus).

Because the Nagys have failed to state a claim under either

or

(3), Count V , to the extent

that it contains a federal claim, is dismissed.

III. The Nagys’ Remaining State Law Claims

The counts remaining in this case entail four state law

claims – unlawful detention, negligence, trespass, and

intentional infliction of emotional distress. Given that this

case is “at an early stage in the litigation,” Camelio v .

American Federation,

(1st Cir. 1998) (citing

Rodriguez v . Doral Mortgage Corp.,

(1st Cir.

1995)), and in the interest of comity, see Camelio,

(quoting United Mine Workers v. Gibbs,

(1966)), the court declines to exercise supplemental jurisdiction

23 over the state law claims in Counts II-IV and VI of the amended

complaint.

Conclusion

Because plaintiffs have failed to a state claim on which

relief could be granted under either

or

(3), and because the court declines to exercise

supplemental jurisdiction over the remaining state law claims,

the Andover defendants’ motion to dismiss the amended complaint

(document n o . 23) and the Haweses’ motion to dismiss the amended

complaint (document no. 24) are granted without prejudice to

filing state claims in a state court of competent jurisdiction.

The motions to dismiss the original complaint (document n o . 11

and document n o . 13) are moot.

The Clerk of the Court shall enter judgment in accordance

with the terms of this order and close the case.

24 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 1 9 , 2001

cc: Bryan K. Gould, Esq. Donald E . Gardner, Esq. Kris E . Durmer, Esq.

25