Brown v . Town of Seabrook et a l . CV-06-194-JL 11/6/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Colby Brown

v. Civil N o . 06-194-JL Opinion N o .

Town of Seabrook et al.

O R D E R

Colby Brown has sued the Town of Seabrook, its former chief

of police, and two of its police officers, claiming excessive

force, false imprisonment, and other violations of his rights

under the federal and state constitutions, as well as state-law

torts, arising out of his arrest five years ago, when he was

fourteen years old. Brown alleges that he was stomped, choked,

and subdued with pepper spray during the arrest, which was

carried out jointly by the defendant officers and members of the

New Hampshire State Police who are not named as defendants here.

The defendants move for summary judgment on a number of

grounds, most notably the lack of competent proof that the

Seabrook officers--as opposed to their state police counterparts-

-participated in any of the violent aspects of the arrest.

Brown, who is represented by counsel, has not responded to the

motion.

This court, which has jurisdiction under

(federal question), heard oral argument on the motion on November 5 , 2008. For the foregoing reasons, the court grants the

defendants’ motion for summary judgment.

I. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). In making this determination, the “court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v . Top-Flite Golf Co.,

5 , 19 (1st Cir. 2003).

As just noted, Brown has not filed any response to the

defendants’ motion for summary judgment. This does not affect

the standard of review: the court still “must assure itself that

the moving party’s submission shows that ‘there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.’” NEPSK, Inc. v . Town

of Houlton,

, 7 (1st Cir. 2002) (quoting Fed. R. Civ.

P. 56(c)). But it does mean, under this court’s Local Rules,

that “[a]ll properly supported material facts in the moving

party’s factual statement shall be deemed admitted,” since they

2 were not “properly opposed by the adverse party.” L.R.

7.2(b)(2). Those facts are set forth below.1

II. BACKGROUND

On the evening of November 1 8 , 2003, defendant Chester

Felch, an officer with the Seabrook Police Department, arrived at

Brown’s home in response to a call of a runaway juvenile.

Brown’s father told Felch that Brown, who was fourteen years old

at the time, had left the house without permission after being

grounded following his most recent suspension from school.

Brown’s father described his son as “out of control” due to

escalating behavioral problems, adding that he would occasionally

1 There is one part of the defendants’ factual statement, however, that the court cannot accept: its account of the juvenile delinquency proceedings that were commenced against Brown following his arrest. New Hampshire law treats records of such proceedings as confidential,

- B:35, I , and makes disclosing them illegal except in limited circumstances not applicable here,

§§ 169-B:36, B:37, I I . So this court will not consider any aspect of the delinquency proceedings in deciding the defendants’ summary judgment motion. To protect the confidentiality of those proceedings, the court will seal, at Level I , the defendants’ memorandum in support of their motion and strike its Exhibit C , which consists of records of the proceedings. See L.R. 83.11(a)(1). The New York Court of Appeals has held that, under that state’s juvenile confidentiality laws, a juvenile “waive[s] the statutory privilege . . . [b]y bringing a civil suit alleging that the police had used excessive force in apprehending him.” Green v . Montgomery,

(N.Y. 2001). But whether a juvenile can “waive” the confidentiality that protects delinquency proceedings has never been decided by a New Hampshire court o r , it would appear, by the courts of any state but New York; this court will not consider the issue here.

3 become angry and “break things.” Brown’s father asked Felch to

find Brown and bring him home. So Felch set out to take Brown

into protective custody as authorized by New Hampshire law. See

-B:9, II (recognizing police officer’s

authority for “taking into custody any minor . . . whose

circumstances are such as to endanger such minor’s person or

welfare, unless immediate action is taken”).

Traveling in his patrol car, Felch soon spotted Brown as he

was walking along Route 1 , a major road in Seabrook. Felch

called out to Brown, asking him to come over to the car, but

Brown ignored him. Felch then got out of the car, approached

Brown, and ordered him to get in so Felch could take him home.

Brown responded, “I ain’t going anywhere,” and kept walking. So

Felch grabbed Brown by his shirtsleeve in an attempt to pull him

over to the patrol car, marking the start of a protracted

physical struggle between them. Felch grappled with Brown,

vainly trying to force him toward the car; Brown, despite his

youth, was taller and heavier than Felch. Felch did manage to

use his radio to call for backup at some point. Eventually,

Brown slipped out of his shirt, evading Felch’s grasp, and ran

around a nearby corner on to Railroad Avenue.

By that point, however, two state troopers had responded to

Felch’s call for backup. They arrived on the scene, exited their

4 vehicles, and pursued Brown down Railroad Avenue. Felch, who was

exhausted from struggling with Brown, did not join the pursuit.

Another Seabrook police officer, defendant John Wasson, also

arrived on the scene of the initial struggle. After learning

from Felch that Brown had fled with state troopers in pursuit,

Wasson proceeded to drive his police cruiser down Railroad

Avenue. He soon came upon Brown, who had been apprehended by the

troopers but was continuing to struggle with them. Wasson did

not assist the state troopers as they eventually placed Brown in

handcuffs; Wasson did not even touch Brown during his struggle

with the troopers. Felch, for his part, did not reach the scene

until after Brown had already been handcuffed.

Brown, who had been sprayed in the face with pepper spray by

the state troopers, was placed in the back of Wasson’s cruiser.

Wasson drove him to the Seabrook police station, where he

assisted him with washing the pepper spray from his eyes. There,

Brown was booked on a charge of resisting arrest. See

.

Brown later filed separate actions in the Rockingham County

Superior Court against (1) the town of Seabrook, its chief of

police, Felch, and two pseudonymous defendants2 and (2) those

2 The pseudonymous defendants were unidentified officers of the Seabrook Police Department and the New Hampshire State Police. Brown has never amended his complaint to name them or attempted to join them as defendants.

5 same defendants as well as Wasson. Invoking federal question

jurisdiction, the defendants duly removed the cases to this

court, where they were consolidated into this action.

III. ANALYSIS

Brown brings a number of claims against the defendants:

(1) excessive force in violation of his rights under the federal

and state constitutions, (2) false arrest and imprisonment in

violation of his rights under the federal and state

constitutions, (3) violations of his right to substantive due

process under the federal and state constitutions, (4) a common-

law claim for assault and battery, and (5) a common-law claim for

intentional infliction of emotional distress. He further alleges

that the Town of Seabrook and its police chief are liable for

these violations under theories of municipal liability,

supervisory liability, respondeat superior, and negligent

training, supervision, and retention of the officers.

A. Excessive Force

The fatal defect in Brown’s claim for excessive force is the

absence of evidence that the defendants here, i.e., Officers

Felch and Wasson of the Seabrook Police Department, its chief,

6 and the town itself, participated in the application of the

allegedly excessive force during Brown’s arrest. Felch and

Wasson, as just discussed, did not join in their state police

counterparts’ struggle with Brown on Railroad Avenue, during

which he was doused with pepper spray and, he says, kicked,

choked, and otherwise assaulted. So neither Felch nor Wasson is

responsible for this allegedly excessive force. “It is well-

established that only those individuals who participated in the

conduct that deprived the plaintiff of his rights can be held

liable” under § 1983.3 Velez-Rivera v . Agosto-Alicea,

(1st Cir. 2006) (internal quotation marks omitted).

It should be noted that, in interrogatory answers that the

defendants have submitted with their motion, the plaintiff states

that, before his alleged assault on Railroad Avenue, he

was tripped by an officer and fell to the ground. I turned to face up and the first person I saw was a

3 Brown’s amended complaint alleges that “[t]he Defendant officers acted together, in agreement with, and in conspiracy with each other.” Insofar as this could be read to charge a conspiracy among Felch, Wasson, and the state troopers to use excessive force against Brown, it is a charge devoid of evidentiary support. Again, Felch was not present while the state troopers subdued Brown; Wasson barely was; and the only communication between either Felch or Wasson and the state troopers prior to their involvement was Felch’s call for assistance on his radio during his struggle with Brown. A request for an officer’s assistance, plus that officer’s “sudden, unilateral decision . . . to effect the arrest,” does not equal a conspiracy. Crawford v . City of Quincy,

(table),

, at *2 (1st Cir. Feb. 1 7 , 2000) (unpublished decision).

7 State Trooper pointing a can at me and I was sprayed by pepper spray . . . . I assumed Felch had chased me and was the one who had initially tripped and knocked me down and was involved in assaulting m e .

Brown also states that Wasson choked him during the ensuing

assault, but Brown--who, by his own account, had only just been

hit in the face with pepper spray--does not explain how he was

able to identify Wasson as the one who choked him.

The defendants argue that Brown’s version of events, though

markedly different from theirs, does not create a genuine issue

of fact sufficient to defeat summary judgment, since statements

offered for that purpose “must be made on personal knowledge, set

out matters that would be admissible in evidence, and show that

the affiant is competent to testify on the matters stated.” Fed.

R. Civ. P. 56(e)(1). Specifically, the defendants argue, Brown

has simply “assumed” that Felch took part in the alleged assault,

and provides only a “conclusory allegation” of Wasson’s role.

“For purposes of summary judgment, an allegation . . . must

be based on personal knowledge and show affirmatively that the

affiant is competent to testify to the matters stated therein.”

Nieves-Luciano v . Hernandez-Torres,

, 5 (1st Cir.

2005). Just a s , in certain circumstances, these foundational

requirements may be fairly inferred from the balance of a

witness’s testimony, see, e.g., Simas v . First Citizens’ Fed.

Credit Union,

7 , 50-51 (1st Cir. 1999), other

8 circumstances may call them into question so as to demand that

the witness expressly state the basis of his personal knowledge

and competence. See, e.g., Nieves-Luciano,

(refusing to assume, “[w]ithout further foundation,” employee’s

personal knowledge of what transpired in the workplace after he

had been terminated); Perez v . Volvo Car Corp.,

(1st Cir. 2001) (ruling that employee’s statements about his

employer’s business relationships were inadmissible under Rule

56(e) where they existed before he commenced employment).

Brown, by saying that he “assumed” what Felch did during the

alleged assault, has essentially conceded a lack of personal

knowledge, making the interrogatory answer inadmissible on that

subject. See Schubert v . Nissan Motor Corp. in U.S.A.,

5 , 30 (1st Cir. 1998). Indeed, “rank speculation” cannot defeat

a properly supported motion for summary judgment. Rathbun v .

Autozone, Inc.,

2 , 66 (1st Cir. 2004). While Brown

states, rather than assumes, that Wasson choked him, Brown does

not explain how he knows this, and his personal knowledge cannot

be taken for granted, considering that, by his own account, he

had just been sprayed in the face with pepper spray at that time.

Cf. Nieves-Luciano,

. The personal knowledge

requirement, as set forth in both Rule 56(e)(1) of the Federal

Rules of Civil Procedure and Rule 602 of the Federal Rules of

Evidence, prevents a witness from testifying to what he “could

9 not have actually perceived or observed.” United States v .

Rodriguez,

(1st Cir. 1998). Because Brown, in

his blinded state, could not have actually perceived or observed

the identity of the officer choking him, his statement

implicating Wasson does not demonstrate the requisite personal

knowledge.4 Brown’s statements in his interrogatory answers,

then, cannot serve to create a genuine issue of material fact

precluding summary judgment.

The statements in Brown’s interrogatory answers are

immaterial here for an independent reason: they are at odds with

the defendants’ version of events as set forth in the statement

of facts supporting their summary judgment motion (and, in turn,

in the accompanying affidavits of Felch and Wasson), which has

been deemed admitted under L.R. 7.2(b)(2) by virtue of Brown’s

failure to file any response. See Part

S o , even if

the statements in Brown’s interrogatory answers were admissible

to prove the defendants’ identity, he has lost the opportunity to

use that proof to contest the defendants’ factual account by not

4 It is not impossible, of course, for Brown personally to know which officer was choking him: for example, Brown might have heard and recognized that officer’s voice, or heard him referred to by name by his colleagues. But Brown’s statement does not set forth any such facts that might establish his personal knowledge in this way, and, as Rule 56(e)(1) specifically provides, it is his burden to do s o . Furthermore, at oral argument, Brown’s counsel did not explain how his client was able to identify Wasson as the officer who choked him.

10 opposing their motion. As the First Circuit has observed in

upholding the application of a similar local rule to the same

effect, “the decision to sit idly by and allow the summary

judgment proponent to configure the summary judgment record is

likely to prove fraught with consequence. This case is no

exception.”5 Kelly v . United States,

(1st

Cir. 1991) (upholding application of similar local rule in the

District of Massachusetts).

By Felch’s own account, he did apply some force to Brown

during their initial encounter, by grabbing his clothing in an

5 Brown suggested at oral argument that, because the defendants filed the interrogatory answers with their moving papers, the court is obligated to consider the answers as “discovery and disclosure materials on file” in deciding whether there is a genuine issue of material fact under Rule 56(c), despite Brown’s failure to dispute the defendants’ factual statement under Local Rule 7.2(b)(2)(b). In essence, Brown argues, Rule 56(c) trumps application of the local rule to deem the movant’s properly supported facts undisputed, so long as the record contains evidence disputing them. The court of appeals has held, however, that “the presence of a valid local rule requiring the opposing party to file a response to guide the court removes any requirement that might otherwise exist that the district court ferret through the record to consider [the plaintiff’s] complaint.” Jaroma v . Massey,

7 , 21 (1st Cir. 1989). Jaroma distinguished Stepanischen v . Merchants Despatch Transp. Corp.,

(1st Cir. 1983), where the court held that Rule 56(c) requires the court to peruse the entire summary judgment record, including materials filed with the moving party’s papers and not referred to in the non-moving party’s papers, but only absent a local rule like L.R. 7.2(b)(2)(b).

. It follows that the Local Rule can be applied to deem the defendants’ properly supported facts admitted, even though the record contains evidence, i.e., the interrogatory answers, that arguably disputes those facts.

11 ultimately futile attempt to force him into the patrol car. This

force was not excessive as a matter of law. “To establish a

Fourth Amendment violation based on excessive force, a plaintiff

must show that the defendant officer employed force that was

unreasonable under the circumstances . . . ‘including the

severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.’” Jennings v . Jones,

, 11 (1st Cir.

2007) (quoting Graham v . Connor,

(1989)),

cert. denied, 128 S . C t . 1125 (2008). While these kinds of fact-

bound inquiries into reasonableness often present questions for

the jury, “the facts might point so clearly toward reasonableness

that no reasonable jury could decide for the plaintiff,” making

summary judgment appropriate. Roy v . Inhabitants of City of

Lewiston,

(1st Cir. 1994).

No reasonable jury could find on this record that Felch

applied excessive force to Brown by trying to push him into the

car. Though Felch was attempting to take Brown into protective

custody, not to arrest him for any crime, Felch had been told

that Brown was increasingly prone to angry outbursts, and Brown

refused to go willingly with Felch when asked. Brown also

resisted Felch’s first application of physical force, i.e.,

grabbing Brown by the shirt, by attempting to flee. Felch used

12 reasonable force under these circumstances.6 Because the

defendants, according to the undisputed facts of record, had no

role in the alleged assault upon Brown, and because Felch used

reasonable force during his previous encounter with Brown, the

defendants are entitled to summary judgment on his excessive

force and substantive due process claims.7

B. False Arrest

Brown also claims that his arrest violated his rights under

the Fourth Amendment. As noted supra, New Hampshire law allows a

police officer to “tak[e] into custody any minor . . . whose

circumstances are such as to endanger such minor’s person or

6 In an interrogatory answer, Brown states that he was on his way home when Felch approached, and that he communicated that to the officer. Brown further states that, right after grabbing him, Felch knocked Brown to his knees and attempted to force him to the ground. As just explained, however, because this answer is at odds with the defendants’ statement of facts in their summary judgment motion, and Brown has not submitted any opposition to that statement, the interrogatory answer is irrelevant. Regardless, even taking into account Brown’s version of events, and accepting it as true, does not alter the ruling that Felch applied reasonable force as a matter of law. 7 The Court in Graham made clear that “all claims that law enforcement officers have used excessive force . . . in the course of an arrest . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”

. Accordingly, a plaintiff has only a Fourth Amendment claim--and no substantive due process claim--arising out of the use of allegedly excessive force during an arrest. See Horta v . Sullivan,

, 13 n . 12 (1st Cir. 1993).

13 welfare, unless immediate action is taken.”

-B:9, I I . The court of appeals has held that the use of

this statute to take “temporary protective detention of a child

when there is reasonable suspicion to believe that he or she is

in immediate danger” comports with the Fourth Amendment.

Tremblay v . McClellan,

(1st Cir. 2003). The

existence of the requisite quantum of suspicion for an arrest

presents a question of law for the court, unless the answer

depends on the resolution of disputed facts. Acosta v . Ames

Dep’t Stores, Inc.,

, 9 (1st Cir. 2004).

Here, by virtue of Brown’s failure to contest the

defendants’ factual statement, the facts are undisputed: after

Brown’s father told Felch that Brown, a fourteen-year old who had

been exhibiting behavioral problems, had left home without

permission, Felch encountered Brown walking by himself along a

busy road after dark, and Brown refused to let Felch take him

home when asked. This evidence gave Felch reasonable suspicion

to believe that Brown was in immediate danger so as to justify

protective custody. See Tremblay,

(ruling that

officer had reasonable suspicion for protective custody of

juvenile “walking along a highway at two in the morning” where

additional circumstances placed him in further danger).

It might be argued that Brown was not, in fact, taken into

protective custody, but was arrested for resisting detention. In

14 any event, the police had probable cause to arrest Brown for that

offense, which occurs “when the person knowingly or purposely

physically interferes with a person recognized to be a law

enforcement official . . . seeking to effect an arrest or

detention,”

, including protective

custody, New Hampshire v . Kelley,

(2006).

Probable cause to arrest Brown for that crime existed based

solely on Brown’s struggle with Felch--in which Brown, according

to the undisputed facts, acted in precisely the manner prohibited

by the statute--regardless of whatever happened afterwards.8 The

defendants are entitled to summary judgment on Brown’s false

arrest claim.9

C. Other Claims

Brown’s claims of municipal and supervisory liability

against the town and its police chief cannot succeed in the

absence of a constitutional violation by the defendant officers

8 Again, even if Brown’s interrogatory answers--in which he states that he said he was on his way home, but admits “pull[ing] away” and ultimately fleeing from Felch--are taken into account, there was still sufficient cause either to take Brown into protective custody or to arrest him for resisting detention. 9 Though Brown’s amended complaint also refers to “false imprisonment,” its factual allegations do not include anything that happened after he was placed in Wasson’s police cruiser, so the court need not consider the lawfulness of any further detention after that point.

15 which, as just discussed, cannot be proven. See, e.g., Acosta,

2 . The court grants summary judgment for the

defendants on those claims as well.

Finally, in light of the entry of judgment for the

defendants on all of Brown’s federal constitutional claims, the

court declines to exercise supplemental jurisdiction over his

state-law claims, including violations of the state constitution,

assault and battery, negligence, and intentional infliction of

emotional distress. See

(c)(3). “[I]n the usual

case in which all federal-law claims are eliminated before trial

. . . judicial economy, convenience, fairness, and efficiency

. . . will point toward declining to exercise jurisdiction over

the remaining state-law claims.” Carnegie-Mellon Univ. v .

Cohill,

, 350 n.7 (1988). This is the usual case.

IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’

motion for summary judgment (document n o . 20) on Brown’s federal

law claims, declines to exercise supplemental jurisdiction over

his state law claims, and remands those state law claims to the

Rockingham County Superior Court. The court also seals, at Level

I , the defendants’ memorandum in support of their motion

(document n o . 20-1) and strikes its Exhibit C (document n o . 20-

16 4). The clerk shall enter judgment accordingly and close the

case. SO ORDERED. _____________ Laplante ted States District Judge

Dated: November 6, 2008

cc: Richard N . Foley, Esq. Andrew B . Livernois, Esq. Lawrence S . Smith, Esq.

17