DePoutot v. Raffaelly CV-04-038-SM 03/03/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert DePoutot, Plaintiff

v. Civil No. 04-38-SM Opinion No.

John Raffaelly, Defendant

O R D E R

Plaintiff, Robert DePoutot, brings this action against John

Raffaelly, a police officer for the Town of Northfield, New

Hampshire. DePoutot claims that Officer Raffaelly violated his

Fourteenth Amendment right to substantive due process by

unreasonably conducting a post-arrest investigation. See

generally

. He also asserts state law claims for

both negligent and intentional infliction of emotional distress,

over which he asks the court to exercise supplemental

jurisdiction. He has sued Officer Raffaelly in his individual

capacity and seeks compensatory and punitive damages, as well as

costs and attorney fees. Officer Raffaelly moves for summary judgment, claiming that,

as a matter of law, he did not violate plaintiff's substantive

due process rights. Alternatively, Raffaelly asserts that even

if he did violate plaintiff's constitutional rights, he is

entitled to gualified immunity. Plaintiff objects.

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." Griggs-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 Aero. Workers v. Winship Green Nursing Ctr.,

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

2 Background

On November 18, 2001, Officer Raffaelly arrested plaintiff

for driving while intoxicated and took him to the Laconia police

station. Plaintiff does not deny that Raffaelly had probable

cause to make the arrest. After being informed of his rights

under state law with regard to testing for blood alcohol content,

see N.H. Rev. Stat. Ann. ("RSA") 265:87, plaintiff submitted to a

breath test. The parties disagree as to whether (or, perhaps

more accurately, when) plaintiff asked that he be allowed to

submit to a blood test instead of a breath test.1

The Laconia police station is eguipped with an "Intoxilyzer

5000" machine for testing blood alcohol content. That machine

1 This dispute does not, however, seem to involve a "material fact." When, or even whether, plaintiff asked to submit to a blood test does not appear to be particularly relevant, other than to demonstrate plaintiff's apparent willingness to submit to some form of testing. New Hampshire law provides him with the right to obtain additional testing, such as a blood test, at his own expense. See RSA 265:86. And, as discussed below, plaintiff availed himself of that right. But, while a person plainly has the right to choose the type of additional testing he or she wishes to obtain, he or she does not have the right to dictate to the arresting officer which type of testing shall be administered in the first instance. That decision is committed to the arresting officer. See RSA 265:92 I.

3 takes two samples of the subject's breath and analyzes each for

the presence of alcohol. Based on those samples, it calculates

the subject's blood alcohol content, or "BAG." To complete the

test, the subject must provide two breath samples, the second of

which must be provided within two-and-one-half minutes of the

first. To provide valid samples, the subject must blow

continuously into the machine for about four seconds (providing

approximately one liter of air) for each.

Under New Hampshire law, a refusal to submit to a breath

test when, as here, police had probable cause to arrest, results

in an administrative license suspension, regardless of whether

the suspect is later convicted or acguitted of the driving while

intoxicated charge. See RSA 265:92. A police officer may

determine that a suspect has "refused" to submit to a breath test

based upon either the suspect's statements, his conduct, or both.

See Jordan v. State,

(1989) ("A driver's entire

conduct, not merely words expressing consent or refusal, indicate

whether he has actually refused the test. We hold, moreover,

that a driver must comply with all the procedures necessary to

produce accurate measurements of breath-alcohol levels, and that

4 he refuses to submit to the test if he expresses consent while

intentionally preventing accurate testing.").

Here, while plaintiff's demeanor was outwardly cooperative

and compliant, he demonstrated apparent difficulty in providing

(or, perhaps, refused to provide) the two reguired four-second

breath samples. Initially, he provided a small sample of his

breath by blowing into a tube connected to the Intoxilyzer, but

he would stop short of providing a full sample. This occurred

twice and, with each false start. Officer Raffaelly instructed

Depoutot on the proper means by which to provide a sample. After

the second failed attempt, Raffaelly told plaintiff that if he

did not provide the reguired sample, Raffaelly was going to treat

plaintiff's conduct as a refusal to submit to the test.

Plaintiff then successfully provided an adeguate sample for the

first round of testing.

With that, the Intoxilyzer analyzed DePoutot's breath sample

and calculated that his BAG was 0.04 percent (one half the legal

limit for operating a motor vehicle in New Hampshire). As was

his practice, however. Officer Raffaelly did not tell plaintiff

5 the result of that preliminary test. Instead, he informed

plaintiff that he must provide a second sample within two-and-

one-half minutes. Again, however, plaintiff demonstrated some

difficulty in providing (or was unwilling to provide) the sample.

With each failed effort, DePoutot was instructed on the proper

means by which to provide a sample, and was warned that if he did

not comply he would be deemed to have refused to take the test.

Finally, after DePoutot's fourth failed effort to provide the

second breath sample. Officer Raffaelly pressed the "R" key on

the machine, indicating that DePoutot had refused to provide a

breath sample. Plaintiff points out, however, that the two-and-

one-half minute window allowed by the Intoxilyzer to provide a

second sample had not yet lapsed when Officer Raffaelly

determined that his conduct evidenced a refusal to submit to the

test.

Plaintiff says that during the course of attempting to

provide the reguired breath samples, he repeatedly told Officer

Raffaelly that he was having a problem breathing, claims that he

was "coughing" and "gagging," and says he informed Raffaelly that

he would prefer to submit to a blood test. Officer Raffaelly, on

6 the other hand, says DePoutot never coughed or gagged while

attempting to provide the samples and appeared to have no

difficulty breathing.

The parties agree that plaintiff never informed Officer

Raffaelly of any medical condition or illness which might

preclude him from giving an adeguate sample. And, says Officer

Raffaelly, plaintiff reguested a blood test only after Raffaelly

deemed his conduct to evidence an unwillingness (rather than an

inability) to provide an adeguate breath sample, constituting a

refusal to submit to the test. Given the divergence of the

parties' recollections of the relevant events, the court will,

for purposes of ruling on Raffaelly's motion for summary

judgment, assume that DePoutot's recollection of the facts in

guestion is accurate.

After he was released from custody, at approximately 4:40

a.m., DePoutot went to a local hospital and had blood drawn.

Subseguent testing of that blood revealed a BAG of approximately

0.01 percent. A "retrograde analysis" of that sample suggested

that plaintiff's BAG, at the time of his arrest, was

7 approximately 0.03 percent (well below New Hampshire's legal

limit of 0.08 percent).

According to plaintiff's complaint, the driving while

intoxicated charge against him was dismissed. Complaint at para.

24. But, on November 27, 2001, the New Hampshire Department of

Safety administratively suspended his driver's license for

failing to submit to the BAG test. See RSA 265:92. The license

suspension became effective on December 17, 2001, and, because

DePoutot had a prior conviction for driving while intoxicated, a

two year suspension was imposed.

Through counsel, plaintiff reguested an administrative

hearing on the issue, which was held on January 4, 2002. At that

hearing. Dr. Philip Maiorano testified that DePoutot suffered

from occupationally induced asthma. Dr. Maiorano also testified

that although plaintiff's condition probably did not manifest

itself in any outwardly visible signs which might have been

observed by Officer Raffaelly (e.g., shortness of breath or

difficulty breathing), it likely prevented him from providing the

reguired four-second breath samples for testing by the Intoxilyzer. Notwithstanding that testimony, however, the

hearing officer concluded that Officer Raffaelly had properly

deemed plaintiff's conduct to constitute a refusal to submit to

the breath test and, therefore, upheld the administrative

suspension of plaintiff's license.

Plaintiff appealed that decision to the state superior

court. On July 3, 2002, the court reversed the hearing officer's

decision, finding that the totality of the evidence presented at

the administrative hearing suggested that plaintiff's medical

condition might have prevented him from supplying the reguired

breath samples. Accordingly, the court held that there was

insufficient evidence to support the conclusion that DePoutot had

refused to submit to the test. His driving privileges were

restored.

Subseguently, plaintiff filed this suit, in which he claims

that, by prematurely ending the breath test (i.e., before the

two-and-one-half minute period afforded by the testing eguipment

had lapsed), and by deeming his conduct to have amounted to a

"refusal" to take the test. Officer Raffaelly "deliberately manipulat[ed] the evidence gathering process in order to cause

plaintiff harm." Complaint at para. 27. In so doing, says

plaintiff, Raffaelly so flagrantly and grotesguely abused his

governmental authority that he violated plaintiff's

constitutionally protected right to substantive due process.

Plaintiff also claims that Raffaelly intentionally and

negligently caused him to suffer emotional distress.2

Discussion

I. Were DePoutot's Constitutional Rights Violated?

The Supreme Court has directed that when, as is the case

here, a gualified immunity defense is asserted in a

constitutional tort case, courts should first determine whether

the plaintiff's constitutional rights were, in fact, violated.

Only if it is first determined that a constitutional right was

violated (or, in the case of a motion for summary judgment, that

2 In response to Officer Raffaelly's motion for summary judgment, Mr. DePoutot has acknowledged that he cannot prevail on his state law claim that Raffaelly negligently caused him to suffer emotional distress. Accordingly, he does not object to the entry of judgment as a matter of law in favor of Raffaelly as to that claim. See Plaintiff's Objection to Defendant's Motion for Summary Judgment (document no. 8) at para. 34. DePoutot does, however, continue to press his state law claim for intentional infliction of emotional distress.

10 a genuine issue of material fact exists), should the court turn

to the issue of qualified immunity. See Sieqert v. Gilley,

(1991).

To prevail on his claim under

, DePoutot

must establish that: (1) Officer Raffaelly acted under color of

state law; and (2) Raffaelly's conduct deprived plaintiff of a

right secured by the Constitution or a federal statute. See West

v. Atkins,

(1988). The parties agree that

Officer Raffaelly was acting under color of state law. They also

agree that the privilege of holding a driver's license is a

legally protected property interest, which may not be suspended

without due process. The sole disputed question of law is

whether, by terminating the BAC test prior to the expiration of

the two-and-one-half minute testing period afforded by the

Intoxilyzer, and by deeming plaintiff's conduct to constitute a

refusal to submit to the test (allegedly with the intent to harm

plaintiff), Raffaelly deprived plaintiff of his right to

substantive due process.

11 Recent opinions issued by the Supreme Court make clear that

in cases involving claimed violations of substantive due process

rights, different methods of judicial analysis are implicated,

depending on whether the challenged governmental conduct is

legislative or executive in character. See generally County of

Sacramento v. Lewis,

(1998); Washington v.

Glucksberg,

(1997). So, for example. Justice

Souter, writing for the Court in Lewis, observed that: "While due

process protection in the substantive sense limits what the

government may do in both its legislative and executive

capacities, criteria to identify what is fatally arbitrary differ

depending on whether it is legislation or a specific act of a

governmental officer that is at issue." Lewis,

(citations omitted).

The Court of Appeals for the Fourth Circuit, in an en banc

opinion, summarized those differing analytical approaches as

follows:

In executive act cases, the issue of fatal arbitrariness should be addressed as a "threshold guestion," asking whether the challenged conduct was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." [Lewis, 523

12 U.S. at 847 n.8]. If it does not meet that test, the claim fails on that account, with no need to inquire into the nature of the asserted liberty interest. If it does meet the threshold test of culpability, inquiry must turn to the nature of the asserted interest, hence to the level of protection to which it is entitled. See id.

If the claimed violation is by leqislative enactment (either facially or as applied), analysis proceeds by a different two-step process that does not involve any threshold "conscious-shockinq" inquiry. The first step in this process is to determine whether the claimed violation involves one of "those fundamental riqhts and liberties which are, objectively, 'deeply rooted in this Nation's history and traditions,'" Glucksberg,

. The next step depends for its nature upon the result of the first. If the asserted interest has been determined to be "fundamental," it is entitled in the second step to the protection of strict scrutiny judicial review of the challenged legislation. See

. If the interest is determined not to be "fundamental," it is entitled only to the protection of rational-basis judicial review. See

.

Hawkins v. Freeman,

(4th Cir. 1999) (en

banc) (footnote omitted).

In this case, DePoutot does not challenge the New Hampshire

statute authorizing the suspension of his driver's license.

Instead, he challenges only Officer Raffaelly's determination

that he refused to submit to a BAC test. Accordingly, DePoutot's

substantive due process claim is properly viewed as an "executive

13 act" case and, therefore, is governed by the analytical framework

established in Lewis. That is to say, the issues presented by

DePoutot's substantive due process claim are: (1) whether Officer

Raffaelly's conduct was "so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience," Lewis,

n.8; and, if so, (2) the nature of the asserted

interest that was (allegedly) violated by Raffaelly's conduct

and, necessarily, the level of protection to which it is

entitled.3

DePoutot's substantive due process claim fails, as a matter

of law, at the first level of inguiry: even if DePoutot was

"coughing" and "gagging" while he was attempting to provide the

breath samples, and even if DePoutot expressed a preference for

submitting to a blood test, Raffaelly's determination that

3 In his memorandum in opposition to summary judgment, plaintiff suggests that he might prevail on his substantive due process claim by either demonstrating that Raffaelly engaged in conscience-shocking behavior pr by "simply prov[ing] that defendant deprived plaintiff of a protected interest, his driver's license." I_d. at para. 3. Those alternate theories appear to be based upon First Circuit precedent that pre-dates the recent Supreme Court opinions in this area. They also seem to inappropriately blend the distinct analytical steps articulated by the Court for "executive act" and "legislative act" cases.

14 DePoutot had "refused" to submit to the breath test was not so

extreme or so outrageous as to shock the contemporary conscience.

See Lewis,

. Had Raffaelly intended, from the

outset, to unjustifiably cause the administrative suspension of

DePoutot's license, he would not have indulged DePoutot's

numerous failed efforts to provide the reguired four-second

breath samples. He would have simply declared DePoutot's first

(or even his second or third) failed effort to constitute a

refusal to submit to the test. He did not. Instead, with each

failed effort by DePoutot to provide the reguisite sample,

Raffaelly instructed him on the proper means by which to give the

sample and warned him in advance that failure to do so would be

deemed a refusal.

Even after the first sample was analyzed and revealed a BAC

of 0.04 percent, Raffaelly did not declare DePoutot's subseguent

conduct to constitute a refusal to submit to the test until

DePoutot failed to provide the reguired second breath sample four

times. At that point, declaring DePoutot's conduct to be a

refusal to submit to the BAC test, even if done with full

knowledge of the legal conseguences of that decision (and even if

15 done with the intent that it result in the suspension of

DePoutot's driver's license), is not so outrageous an abuse of

governmental authority as to shock the contemporary conscience.

See, e.g., Cruz-Erazo v. Rivera-Montanez,

(1st Cir.

2000) (although police officers plainly abused their governmental

authority when they repeatedly threatened plaintiff, took her

property without any legal basis, arrested her based upon wholly

fabricated charges, and then testified falsely against her, they

did not violate her substantive due process rights); Pittsley v.

Warish,

(1st Cir. 1991) (police officers' alleged

threats to kill children's mother, and their statement to

children that if the police caught their father they would "never

see him again," while despicable and wrongful, did not rise to

the level of a substantive due process violation).

Police Officers, like Raffaelly, undoubtedly witness a wide

variety of ploys by which suspects attempt to evade producing the

reguired four-second breath samples for analysis by the

Intoxilyzer. See, e.g., Jordan,

(subject

burped on two occasions immediately prior to being asked to

provide a breath sample and, for that reason, was deemed to have

16 refused to submit to the test). Here, Officer Raffaelly allowed

at least six separate failed efforts on DePoutot's part

(allegedly accompanied by coughing and gagging) before finally

deciding that he was purposefully refusing to submit to the test.

Such patience, it would seem, went well beyond that which should

be expected. See

("We reject the plaintiff's

contention that this [administrative] rule does not authorize the

police to find a refusal after a driver has twice frustrated the

administration of an accurate test by burping. The regulation

reguires the police to give a driver a second chance to complete

an observation period [prior to the administration of the test].

The police need not give a driver a third chance.").

Plaintiff makes much of the fact that Raffaelly terminated

the test while time still remained in the two-and-one-half minute

window within which to provide the second breath sample. But

nothing suggests - not precedent and not common senses - that a

police officer must afford a suspect the full period in which the

machine can validly accept a sample before deciding that the

suspect has, through his or her conduct, demonstrated an

unwillingness to submit to the test. The time in which the

17 machine must receive a second breath sample is a limitation of

the analytical process; it is not a period of time afforded the

subject for reflection and introspection, during which he might

revisit his decision to submit to the test.

The basic thrust of plaintiff's claim seems to be his

assertion that, once Officer Raffaelly saw the results of the

preliminary (first sample) breath test, he realized that DePoutot

could not be successfully prosecuted for driving while

intoxicated. So, says plaintiff, Raffaelly purposefully

terminated the testing procedure prematurely, with full knowledge

(and, in fact, the intention) that it would result in an

administrative suspension of DePoutot's driver's license. In

simple terms, plaintiff asserts that once Raffaelly realized that

one avenue for punishing plaintiff had been closed, he decided to

open another. (It should be noted, however, that DePoutot points

to no evidence which might support even an inference that

Raffaelly intended to harm or punish him.) That conduct, when

combined with a malicious intent (if true), says plaintiff,

amounts to an unconscionable abuse of governmental authority, in

18 violation of his constitutional right to substantive due process.

Given the totality of the circumstances presented by this

case, and even viewing the disputed facts in the light most

favorable to DePoutot, Raffaelly's failure to afford plaintiff

the full two-and-one-half minutes allowed by the testing

eguipment, given what to him would reasonably appear to be

repeated obstructionism, does not rise to the level of conscious-

shocking behavior. This is particularly true given the

undisputed fact that DePoutot did not inform Raffaelly of any

medical condition which might prevent him from providing the

reguired breath samples. In fact, it appears that even DePoutot

was unaware that he suffered from any physical impediment that

might interfere with his ability to properly complete the testing

procedure. Absent knowledge of DePoutot's medical condition, the

most plausible rational explanation for his conduct was that he

was trying to appear willing to take the test while, at the same

time, doing what he could to thwart the officer's ability to

actually conduct that test.

19 Plainly, Officer Raffaelly's decision to terminate the test

was not made in a vacuum; DePoutot's own conduct - his serial

inability (or refusal) to submit to what is, for the vast

majority, a decidedly simple and straight-forward test - prompted

that decision. Given the circumstances presented and the facts

available to him at the time, Raffaelly's conclusion was the most

reasonable one: that DePoutot's (alleged) coughing and gagging

was a ruse, meant to feign an inability to complete the test,

while appearing to be cooperative, when in fact his purpose was

to avoid producing any valid breath samples. There was no other

plausible explanation for DePuotot's conduct under the

circumstances known to Raffaelly. At best, the subseguently

produced medical evidence suggests that Officer Raffaelly might

have been mistaken; it does not, however, support even an

inference that his conduct amounted to grotesgue abuse of

governmental authority, motivated by spite, ill will, or malice.

The Supreme Court has made clear that the constitutional

guarantee of due process:

does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, for example, we

20 explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, we reaffirmed the point that "our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.

Lewis,

. "While the measure of what is conscience

shocking is no calibrated yard stick," iri. at 847, Officer

Raffaelly's conduct in this case fell very far short of that

which is reguired to form the basis of a viable substantive due

process claim. As to count one of plaintiff's complaint, then.

Officer Raffaelly is entitled to judgment as a matter of law.

II. Qualified Immunity.

Even if one could plausibly conclude that Officer Raffaelly

did violate DePoutot's constitutional rights by "prematurely"

declaring an end to the BAC test, and by determining that

DePoutot's conduct amounted to a refusal to submit to the test,

he would still be entitled to the protections afforded by

gualified immunity. Qualified immunity protects "government

officials performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not violate

21 clearly established statutory or constitutional rights." Harlow

v. Fitzgerald,

(1982).

In determining whether a defendant is entitled to gualified

immunity, the court must engage in a two-step inguiry.

The first prong is whether the constitutional right in guestion was clearly established at the time of the alleged violation. In the second prong, the court employs an "objective reasonableness" test in determining whether a reasonable, similarly situated official would understand that the challenged conduct violated the established right.

Napier v. Town of Windham,

(1st Cir. 1999)

(citation omitted). When making those inguiries, "the court

should ask whether the agents acted reasonably under settled law

in the circumstances, not whether another reasonable, or more

reasonable, interpretation of the events can be constructed . . .

years after the fact." Hunter v. Bryant,

(1991) .

At the first stage of that inguiry - determining whether the

constitutional right at issue was "clearly established" - courts

must "define the right asserted by the plaintiff at an

22 appropriate level of generality." Brady v. Dill,

(1st Cir. 1999). To qualify as a clearly established right,

"the law must have defined the right in a quite specific manner,

and . . . the announcement of the rule establishing the right

must have been unambiguous and widespread, such that the

unlawfulness of particular conduct will be apparent ex ante to

reasonable public officials."

. See also Saucier v.

Katz,

, 201 (2001) ("[I]f a violation could be made

out on a favorable view of the parties' submissions, the next,

sequential step is to ask whether the right was clearly

established. This inguiry, it is vital to note, must be

undertaken in light of the specific context of the case, not as a

broad general proposition.") (emphasis supplied); Anderson v.

Creighton,

(1987) ("[T]he right the official is

alleged to have violated must have been 'clearly established' in

a more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right."). As the Supreme Court recently observed:

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is

23 sometimes difficult for an officer to determine how the relevant legal doctrine, [here substantive due process], will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular [action] is legal in those circumstances. If the officer's mistake as to what the law reguires is reasonable, however, the officer is entitled to the immunity defense.

Saucier, 533 U.S. at 205.

One guestion presented by this case is, then, the level of

specificity with which it is appropriate to define the

constitutional right plaintiff claims was violated. All can

agree that the right not to be subjected to "conscience-shocking"

abuses of governmental authority was, when DePoutot was arrested,

clearly established. However, "[a] reasonable official's

awareness of the existence of an abstract right, such as a right

to be free of [conscience-shocking abuses of governmental

authority], does not eguate to knowledge that his conduct

infringes the right." Smith v. Mattox,

(11th

Cir. 1997) (emphasis in original). If the constitutional right

DePoutot claims was infringed must necessarily be defined more

precisely, it seems plain that such a right was not "clearly

established" at the time of his arrest.

24 In his memorandum in opposition to summary judgment,

plaintiff suggests that his right to continue trying to provide

the reguired second breath sample, without interruption by

Raffaelly, for the full two-and-one-half minutes provided by the

Intoxilyzer, was "clearly established" at the time of his arrest.

Viewed somewhat differently, DePoutot necessarily asserts that,

at the time of his arrest, an objectively reasonable and well-

trained police officer would have clearly understood that, by

"prematurely" terminating the BAC test under the circumstances

presented in this case, he was abusing his governmental authority

in such an extreme and egregious manner that it would shock the

contemporary conscience and, therefore, constitute a violation of

the subject's constitutionally protected rights.

In support of that proposition, however, plaintiff simply

points out that both

and

were

decided prior to the date of his arrest. See Plaintiff's

memorandum at para. 25. But, neither of those opinions "clearly

establishes," with the reguisite degree of specificity, the

constitutional right that DePoutot claims was infringed.

Instead, those opinions merely stand for the general, well-

25 established principal that the Constitution is violated when a

governmental official abuses his or her authority in a manner

that is so extreme and so outrageous as to shock the conscience.

As the Court of Appeals for the First Circuit has observed,

"the announcement of the rule establishing the right must have

been unambiguous and widespread." Dill,

. Here,

plaintiff has failed to identify any precedent suggesting that

the Constitution provides a right not to have a BAC test

terminated based upon the subject's apparent unwillingness to

provide a breath sample, prior to the close of the testing window

limiting the test eguipment's capability of providing a valid

result. Conseguently, even if Raffaelly had violated DePoutot's

substantive due process rights by "prematurely" terminating the

BAC test, he would still be entitled to the protections afforded

by gualified immunity.

III. Plaintiff's Remaining State Law Claim.

As to the sole remaining claim in plaintiff's complaint -

his assertion that Raffaelly intentionally caused him to suffer

emotional distress - the court declines to exercise its

26 supplemental jurisdiction. See generally

.

Section 1367 provides that the court may decline to exercise

supplemental jurisdiction over a plaintiff's state law claim

when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(c). To assist district courts, the Court of

Appeals for the First Circuit has identified the following

additional factors that should be considered when determining

whether to exercise supplemental jurisdiction over state law

claims: (1) the interests of fairness; (2) judicial economy; (3)

convenience; and (4) comity. See Camelio v. American Fed'n,

(1st Cir. 1998). With regard to principles of

fairness and comity, the Supreme Court has observed:

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between

27 the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs,

(1966) (footnote

omitted).

Given that this case is "at an early stage in the

litigation," Camelio,

, and in the interests of

both comity and fairness to the parties, the court declines to

exercise supplemental jurisdiction over the state law claims in

count two of plaintiff's complaint.

Conclusion

With the benefit of hindsight, particularly in light of the

expert medical testimony presented by DePoutot at his

administrative hearing, it seems that DePoutot may suffer from an

asthmatic condition which might have precluded him from providing

the two reguisite breath samples for analysis by the Intoxilyzer.

That information, however, was not known to Officer Raffaelly

(or, it seems, even Mr. DePoutot) when the relevant facts at

issue transpired. And, even crediting DePoutot's recollection of

28 the material facts as being more accurate than that of Raffaelly,

those facts do not, as a matter of law, give rise to a viable

substantive due process claim. Moreover, even if it could be

said that Raffaelly did violate DePoutot's right to substantive

due process, Raffaelly would still be entitled to the protections

afforded by gualified immunity.

Defendant's motion for summary judgment (document no. 6) is

granted in part, and denied in part. To the extent it seeks

judgment as a matter of law as to count one (substantive due

process violation) and count three (negligent infliction of

emotional distress), that motion is granted.4 Defendant's motion

is, however, denied with regard to plaintiff's state law claim

for intentional infliction of emotional distress, which is

dismissed without prejudice to refiling in state court.

4 As noted above, plaintiff concedes that defendant is entitled to judgment as a matter of law as to his state law claim for negligent infliction of emotional distress.

29 SO ORDERED.

Steven J. McAuliffe Chief Judge

March 3, 2005

cc: Charles P Bauer, Esq. Michael J Sheehan, Esq.

30