Blaisdell v. Rochester CV-02-399-M 10/24/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

George Blaisdell, Plaintiff

v. Civil No. 02-399-M Opinion No.

City of Rochester, Defendant

O R D E R

Over the years, George Blaisdell has been involved in

several disputes with the City of Rochester. Most often, it

appears, those disputes involved various land use issues and

alleged takings of real or personal property. See, e.g.,

Blaisdell v. City of Rochester, No. 03-138-JD,

(D.N.H. June 30, 2003); Blaisdell v. Citv of Rochester, No. 97-

82-M (D.N.H. Oct. 19, 1999); Blaisdell v. Citv of Rochester,

(1992). This is another such case.

Blaisdell brings this action pursuant to

,

seeking damages for what he says was an unconstitutional taking

of his personal property without just compensation. He also

advances various state law causes of action for intentional infliction of emotional distress, malicious prosecution, and

abuse of process. The City of Rochester asserts that it is

entitled to judgment as a matter of law as to each of Blaisdell's

claims and, therefore, moves for summary judgment. Blaisdell

obj ects.

Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griqqs-Ryan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

'material' if it potentially affects the outcome of the suit and

a dispute over it is 'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Intern'1 Ass'n of

Machinists and Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

2 Nevertheless, if the non-moving party's "evidence is merely

colorable, or is not significantly probative," no genuine dispute

as to a material fact has been proved, and "summary judgment may

be granted." Anderson v. Liberty Lobby, Inc.,

, 249-

50 (1986) (citations omitted). As the Court of Appeals for the

First Circuit has observed, "the evidence illustrating the

factual controversy cannot be conjectural or problematic; it must

have substance in the sense that it limns differing versions of

the truth which a factfinder must resolve at an ensuing trial.

Conclusory allegations, improbable inferences, and unsupported

speculation will not suffice." Cadle Co. v. Haves,

(1st Cir. 1997) (citations and internal guotation marks

omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant's ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

Fed. R. Civ. P. 56(e). Conseguently, while a reviewing court

must take into account all properly documented facts, it may

ignore bald assertions, unsupported conclusions, and mere

3 speculation. See Serapion v. Martinez,

(1st

Cir. 1997).

Background

Viewing the record presently before the court in the light

most favorable to Blaisdell, the material facts appear as

follows.

I. The Sidewalk Obstructions.

Blaisdell owns a split-level ranch home in a residential

neighborhood where he operates what he calls a "plant farm/garden

center." Complaint at para. 3. During the summer of 1999, the

City received a number of complaints about obstructions that

Blaisdell had placed on the sidewalk in front of his property.

In July of that year, while driving past Blaisdell's property, a

Rochester Police Officer observed that the sidewalk in front of

the property was partially obstructed by a number of boxed plants

and a watering device. The officer photographed the scene, see

Exhibit H to defendant's memorandum, informed Blaisdell that he

could not obstruct a city sidewalk, and instructed him to remove

his personal property. Otherwise, the officer said he would have

4 no choice but to issue Blaisdell a citation for violating a local

ordinance that prohibits such conduct. See Exhibit C to

defendant's memorandum. Affidavit of Captain Douglas Donlon;

Exhibit D, Police Report filed by Captain Donlon. See also

Exhibit E, Rochester City Ordinance 15.8 and 15.11 (prohibiting

citizens from obstructing city sidewalks). Blaisdell complied.

The following day, however, the officer returned to the

scene and noticed that the sidewalk was again partially

obstructed by Blaisdell's plants and gardening accessories.

Again, he photographed the scene. See Exhibit M to defendant's

memorandum. He also observed a jogger who was forced off the

sidewalk and into the road by the obstructions placed by

Blaisdell on the sidewalk - a situation the officer reasonably

viewed as a safety hazard. The officer then obtained a sworn

statement from one of Blaisdell's neighbors, who complained about

Blaisdell having repeatedly placed his personal belongings, as

well as a sign pertaining to his business, on the sidewalk. See

Exhibit G to defendant's memorandum.

5 The next day, Blaisdell was served with a summons for having

violated the local ordinance that prohibits citizens from placing

obstructions on city sidewalks. Although the officer also had an

arrest warrant for Blaisdell, he did not take him into custody.

The officer did, however, instruct Blaisdell to permanently

remove all obstructions from the city sidewalk for safety

reasons. He informed Blaisdell that if he did not comply, or if

he returned his personal belongings to the sidewalk at some later

point, city workers would be called upon to remove them. See

Exhibit D to defendant's memorandum, police report filed by

Captain Douglas Donlon.

The City continued to receive complaints about Blaisdell's

practice of placing plant boxes, watering eguipment, signage, and

other materials on the sidewalk. See, e.g.. Exhibit J to

defendant's memorandum, letter of Colin and Gail Claffey. See

also Exhibit K, affidavit of Officer Anthony Macaione, Jr.;

Exhibit L, police reports submitted by Officer Macaione. On

August 23, 1999, two city police officers observed that the

sidewalk in front of Blaisdell's property was again obstructed.

The officers concluded that Blaisdell was again in violation of

6 the ordinance prohibiting citizens from obstructing sidewalks

with personal property and/or signs. The officers could not

locate Mr. Blaisdell, but instructed one of his employees to

remove the materials from City property.

The following day. Officer Macaione returned to Blaisdell's

property and reported that the situation was worse. He contacted

an employee of the City's Department of Public Works, who

responded to the scene and confirmed the boundary markers of the

sidewalk, as well as the fact that Blaisdell's boxed plants,

hose, and a water-filled drum were all on City property. Officer

Macaione documented the fact that Blaisdell's personal property

was again obstructing the city sidewalk by photographing the

scene. Then, concluding that the situation presented a potential

safety hazard to pedestrians, he had city workers clear the

sidewalk. When he was unable to locate Blaisdell, Officer

Macaione says he left a note in which he informed Blaisdell that

he was again in violation of the local ordinance, told him that

city workers had cleared the sidewalk and taken some of his

plants to the department of public works, and explained how he

could retrieve those plants. On August 28, Officer Macaione

7 served Blaisdell with two additional summonses for violations of

the city ordinance that he had observed on August 23 and 24.

II. Blaisdell's Theft of Services.

On December 18, 1999, Rochester police officers observed

Blaisdell and a companion dumping trash into a dumpster owned or

leased by one of the local schools. See generally Exhibits P, Q

and R to defendant's memorandum. The officers spoke with

Blaisdell, who, they say, admitted that he did not have

permission to dump trash into the school's dumpster. The

officers then arrested Blaisdell for theft of services and

brought him to the station for guestioning. He was subseguently

released on a personal recognizance bond.

III. The Criminal Prosecutions.

In July of 2000, the theft of services charge against

Blaisdell was dropped, when the arresting officers were

unavailable to testify. See Exhibit U to defendant's memorandum

affidavit of Diane Dubay, prosecutor for the City of Rochester. With regard to the three charges that Blaisdell violated the

City's ordinance by obstructing the sidewalk with personal

property, Blaisdell entered into a plea agreement. In exchange

for his agreement to enter a plea of nolo contendere to the

charge that he violated the ordinance on August 23, 1999, the

City dropped the other two charges (i.e., those alleging

violations of the same ordinance on July 21 and August24, 1999).

The court found Blaisdell guilty of the sole remainingcharge and

fined him $10 0.

Blaisdell was also prosecuted for two other violations of

the same city ordinance, which occurred in May of 2001. He was,

again, found guilty. See Exhibit U to defendant's memorandum,

affidavit of Diane Dubay.

Discussion

In his complaint, Blaisdell advances two federal causes of

action: first, that the City unconstitutionally took his personal

property (i.e., his plants) without due process and just

compensation (count two); and second, that the City maintained an

unconstitutional custom or practice of violating his constitutional rights, as well as an official policy of

inadequately training its police officers (count three). The

remaining counts in his complaint advance various state law

theories of recovery, including conversion, intentional

infliction of emotional distress, and malicious prosecution, over

which Blaisdell asks the court to exercise supplemental

jurisdiction.

I. Count Two - Unconstitutional Taking Without Due Process.

The claim advanced in count two of Blaisdell's complaint is

virtually identical to one he pursued in an earlier, unrelated

federal case he brought against the City. See Blaisdell v. Citv

of Rochester, No. 97-82-M. There, Blaisdell alleged that the

City had unconstitutionally deprived him of personal property

without due process and just compensation when, after a fire

destroyed a home in which Blaisdell had been storing some

personal property, the fire marshal ordered the property's owner

(the City) to raze the building. In granting the City's motion

for summary judgment, the court explained:

The court (DiClerico, J.) recently addressed the elements of a viable claim, under

, for deprivation of procedural due process.

10 To state a Fourteenth Amendment procedural due process claim based on the deprivation of a property interest, the plaintiff must allege first that it has a property interest as defined by state law and second, that the defendants, acting under color of state law, deprived it of that property interest without constitutionally adeguate process. To determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adeguate. Therefore, to state a viable claim, a plaintiff must allege the unavailability of constitutionally- adeguate remedies under state law.

Blaisdell v. Rochester, No. 97-82, slip op. at 5-6 (D.N.H. Jan.

4, 1999) (guoting Giant Lift Equip. Manufacturing Co., Inc. v.

Town of North Hampton, No. 97-470-D, slip op. at 8 (D.N.H.

November 17, 1998) (footnote omitted)). See also Williamson

County Reg'1 Planning Comm'n v. Hamilton Bank,

, 194

n.13 (1985) ("[BJecause the Fifth Amendment proscribes takings

without iust compensation, no constitutional violation occurs

until just compensation has been denied. The nature of the

constitutional right therefore reguires that a property owner

utilize procedures for obtaining compensation before bringing a §

1983 action.") (emphasis in original).

11 As Justice O'Connor observed in her concurring opinion in

Hudson v. Palmer,

(1984):

Of course, a mere allegation of property deprivation does not by itself state a constitutional claim under either [the Due Process or Takings] Clause. The Constitution reguires the Government, if it deprives people of their property, to provide due process of law and to make just compensation for any takings. The due process reguirement means that government must provide to the [claimant] the remedies it promised would be available. Concomitantly, the just compensation reguirement means that the remedies made available must adeguately compensate for any takings that have occurred. Thus, in challenging a property deprivation, the claimant must either avail himself of the remedies guaranteed by state law or prove that the available remedies are inadequate.

(emphasis supplied).

Here, as in his earlier litigation against the City,

Blaisdell has failed to carry that burden. He has neither

demonstrated that he lacks an adeguate post-deprivation remedy

(whether statutorily or at common law) nor has he shown that

availing himself of such a remedy would be futile or provide him

with inadeguate compensation.1

1 Blaisdell is guite familiar with the remedies afforded under state law to citizens who believe they have suffered an unconstitutional taking without due process and just compensation. In 2002, he pursued the state law claims against

12 Parenthetically, the court notes that, in addition to the

remedies available to him under state law, the City provided

Blaisdell with a specific means by which to retrieve the property

that had been removed from the sidewalk in front of his property:

Officer Macaione left him a note, explaining that the property

(i.e., his plants) had been moved to the highway department

facility, where he could go to retrieve it. He did not, nor does

it appear that he ever contacted the police or any other city

officials to inguire as to the whereabouts of those plants.

In light of the foregoing, the City is entitled to judgment

as a matter of law as to the claims advanced in count two of

Blaisdell's complaint.

II. Count Three - Unconstitutional Municipal Policy.

In count three of his complaint, Blaisdell alleges that the

City maintained:

the City he had attempted to advance in the earlier federal litigation (i.e., those relating to the loss of his property in the home that was destroyed by the City after it suffered irreparable fire damage) and over which this court declined to exercise supplemental jurisdiction. A state jury ruled in favor of the City.

13 an official and/or de facto unconstitutional custom, practice, and/or policy of depriving Blaisdell of his above stated constitutional rights . . . .

No meaningful swift remedial action was ever taken by the City to prevent the continued violation of Blaisdell's rights once it was manifest that said rights were being violated.

Complaint at paras. 22 and 23.

In order to prevail on his claim that the City maintained an

unconstitutional custom or policy, Blaisdell must first

demonstrate that he suffered some constitutional injury. See,

e.g., Los Angeles v. Heller,

(1986) (holding

that "[i]f a person has suffered no constitutional injury at the

hands of the individual police officer," that person has no claim

under section 1983 against the officer's municipal employer). He

cannot do so.

In support of the claims advanced in count three of his

complaint, Blaisdell alleges that Rochester officials acted in

concert and ordered "the Police Department to aid them in their

mission via [m]ultiple unlawful summons and arrest[s] of

Blaisdell with respect to the violation and/or attempted

14 violation of Blaisdell's rights." Complaint at para. 22.

Consequently, although the precise nature of his claim is

unclear, it would seem that Blaisdell alleges that the underlying

constitutional injury he sustained (as a result of the unlawful

municipal custom or policy) was that Rochester officials

conspired to maliciously prosecute him for violations of the

local ordinance, as well as theft of services.

A. Malicious Prosecution and the Due Process Clause.

If one assumes that Blaisdell's malicious prosecution claim

is based upon alleged violations of the Due Process Clause, his

claim necessarily fails. As the Court of Appeals for the First

Circuit has observed:

It is perfectly clear that the Due Process Clause cannot serve to ground [a] federal malicious prosecution claim. No procedural due process claim can flourish in this soil because [the State] provides an adequate remedy for malicious prosecution. Similarly, a plurality of the Supreme Court has concluded that "substantive due process may not furnish the constitutional peg on which to hang" a federal malicious prosecution tort.

Nieves v. McSweenev,

, 53 (1st Cir. 2001) (citations

omitted).

15 B. Malicious Prosecution and the Fourth Amendment.

Alternatively, it is possible that Blaisdell's malicious

prosecution claim is based upon an alleged Fourth Amendment

violation. That is to say, a claim that he was "seized" in

violation of his constitutionally protected rights. Although he

was never arrested for having violated the City's ordinance

concerning sidewalk obstructions, Blaisdell was taken into

custody on the theft of services charge (following which, he was

released on personal recognizance) - a fact which, under

appropriate circumstances, might give rise to a viable Fourth

Amendment claim.2

Under the circumstances presented in this case, however,

Blaisdell's claim fails for several reasons. First, Blaisdell

2 That he was summoned to appear in court and answer the three charges that he violated the local ordinance does not amount to a "seizure" in violation of Blaisdell's Fourth Amendment rights. See generally Nieves, 241 F.3d at 54-56 (noting, among other things, that "the view that an obligation to appear in court to face criminal charges constitutes a Fourth Amendment seizure is not the law"). See also Britton v. Maloney,

(1st Cir. 1999) ("Absent any evidence that [plaintiff] was arrested, detained, restricted in his travel, or otherwise subject to a deprivation of his liberty before the charges against him were dismissed, the fact that he was given a date to appear in court is insufficient to establish a seizure within the meaning of the Fourth Amendment.").

16 has not pointed to any admissible evidence in support of his

assertion that the arresting officers lacked probable cause to

believe that he had engaged in "theft of services" by dumping

trash into the school dumpster. While he claims to have received

permission from a school janitor to use the dumpster, see

plaintiff's objection (document no. 28) at paras. 21 and 53, he

has not submitted an affidavit from that janitor, nor has he

pointed to any documentation or other evidence suggesting that

the janitor had actual (or even apparent) authority to authorize

him to use the school's property.

That point is, however, not entirely relevant. The critical

guestion, of course, is whether a reasonable officer, armed with

the information reasonably available at the time, could have

concluded that there was probable cause to arrest Blaisdell for

theft of services. The answer to that guestion is simple and

straightforward: there was probable cause to support Blaisdell's

arrest. Notwithstanding Blaisdell's unsupported assertions that

he had permission to use the school's property, he does not claim

to have shared that information with the officers (in fact, the

officers say that when they guestioned him at the scene, he

17 admitted he lacked any such permission). In light of the facts

known (and available) to them, the arresting officers had ample

justification to conclude that there was probable cause to

believe that Blaisdell had violated the law. See N.H. Rev. Stat.

Ann. ("RSA") 637:8 ("Theft of Services. A person commits theft

if he obtains services which he knows are available only for

compensation by . . . any other means designed to avoid the due

payment therefor."). See also RSA 594:10 ("An arrest by a peace

officer without a warrant on a charge of a misdemeanor or a

violation is lawful whenever . . . [h]e has probable cause to

believe that the person to be arrested has committed a

misdemeanor or a violation in his presence."). See generally

Illinois v. Gates,

(1983) ("Perhaps the

central teaching of our decisions bearing on the probable cause

standard is that it is a practical, nontechnical conception.

In dealing with probable cause, as the very name implies, we deal

with probabilities. These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.")

(citations and internal guotation marks omitted).

18 Moreover, even if plaintiff had told the officers about his

claim to have received prior permission to use the school's

dumpster (a point he does not advance), they would not have been

required to accept that assertion as true. See generally Romero

v. Fav,

(10th Cir. 1995) ("In sum, we

reject Plaintiff's contention that Defendant Fay's failure to

contact his alleged alibi witnesses in itself amounted to a

constitutional violation that rendered the arrest without

probable cause. Defendant Fay's failure to investigate

Plaintiff's alleged alibi witnesses did not negate the probable

cause for the warrantless arrest in the absence of a showing that

Defendant Fay's initial probable cause determination was itself

unreasonable."); Thompson v. Olson,

(1st Cir.

1986) ("Police officers hear many self-exonerating claims from

suspects and should not be required to give significant weight to

these statements in post-arrest determinations of whether

probable cause has dissipated to such an extent that the suspect

should be released.").

On this record, it is plain that Rochester police officers

had probable cause to arrest Blaisdell for theft of services

19 stemming from his (seemingly unauthorized) use of the school's

dumpster. Conseguently, Blaisdell cannot, as a matter of law,

prevail on his claim that he was seized in violation of the

Fourth Amendment as a result of his warrantless arrest. Nor can

Blaisdell demonstrate that, by virtue of having been released on

personal recognizance bond and reguired to appear at his

subseguent trial on the theft of services charge, he was

subjected to any "post-arraignment deprivation of liberty, caused

by the application of legal process, that approximates a Fourth

Amendment seizure." Nieves, 241 F.3d at 54 (holding that "run-

of-the-mill conditions of pretrial release do not fit comfortably

within the recognized parameters of the term [seizure].").

Blaisdell's section 1983 malicious prosecution claim fails

for another reason as well. Such a constitutional claim (to the

extent it is actually recognized in this circuit)3 is precluded

by the fact that it cannot be based upon a warrantless arrest.

See Meehan v. Town of Plymouth,

(1st Cir.

3 The Court of Appeals for the First Circuit has observed that it "is an open guestion whether the Constitution permits the assertion of a section 1983 claim for malicious prosecution on the basis of an alleged Fourth Amendment violation." Nieves, 241 F .3d at 54 .

20 1999) (holding that a viable § 1983 malicious prosecution claim

cannot be based upon a warrantless arrest).

Finally, to the extent Blaisdell's complaint advances a

claim against the City for having inadeguately hired and/or

trained its police officers, that claim also fails. Because the

City's police officers did not violate Blaisdell's

constitutionally protected rights, Blaisdell's section 1983 claim

against the City for inadeguate training/hiring necessarily

fails. See Heller,

.

Conclusion

For the foregoing reasons, and for those set forth in the

City's comprehensive memorandum of law (document no. 2 6) and its

reply memorandum (document no. 30), the City is entitled to

judgment as a matter of law as to counts two and three of

plaintiff's complaint. As to those two counts, then, its motion

for summary judgment (document no. 26) is granted.

With regard to plaintiff's state law claims (counts one,

four, and five), the court declines to exercise supplemental

21 jurisdiction and those counts are dismissed without prejudice.

See

(c); See generally Camelio v. American Fed'n,

137 F .3d 666, 672 (1st Cir. 1998).

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 24, 2003

cc: George Blaisdell John P. Sherman, Esg.

22