Soukup v . Garvin CV-09-146-JL 8/11/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William Soukup

v. Civil N o . 09-cv-146-JL Opinion N o .

Robert Garvin et al.

O R D E R

This case involves the pleading requirements for § 1983

actions against municipalities. Plaintiff William Soukup was

arrested and charged with disorderly conduct and with violating

bail conditions after an encounter with his neighbor, Robert

Brooks. Soukup sued the arresting officer and his employer, the

Town of Lisbon, alleging violations of his civil rights under the

Fourth and Fourteenth Amendments, see

, as well

as state common law false imprisonment. The Town of Lisbon moves

for judgment on the pleadings on the constitutional claim,

arguing that Soukup’s complaint fails to allege sufficient facts

to make out a cause of action. See Fed. R. Civ. P. 12(c). The

arresting officer, Robert Garvin, moves for summary judgment on

the basis of qualified immunity. See Fed. R. Civ. P. 56(b).

This court has subject-matter jurisdiction under

(federal question) and 1367 (supplemental jurisdiction).

After oral argument, the Town of Lisbon’s motion for judgment on the pleadings is granted, and Robert Garvin’s motion for summary

judgment is denied. Although Soukup’s complaint alleges a

constitutionally violative policy or custom as required to prove

municipal liability under § 1983, it does so with insufficient

factual specificity to satisfy Rule 8 as interpreted by the

Supreme Court and First Circuit Court of Appeals. Genuine issues

of material fact exist, however, precluding summary judgment on

Officer Garvin’s qualified immunity defense.

I . Applicable legal standards

To survive a Rule 12(c) motion for judgment on the

pleadings, Soukup’s complaint must “contain factual allegations

that raise a right to relief above the speculative level.” Gray

v . Evercore Restructuring L.L.C.,

2 0 , 324 (1st Cir.

2008) (internal quotation marks omitted). Such allegations must

“state facts sufficient to establish a claim to relief that is

plausible on its face.”

(internal quotation marks omitted);

see Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v . Twombly,

(2007) (“[A] plaintiff’s obligation . . . requires more

than labels and conclusions, and a formulaic recitation of a

cause of action’s elements will not d o . ” ) . In making this

determination, the court must view the facts contained in the

pleadings in the light most favorable to the non-moving party,

2 and draw all reasonable inferences in that party’s favor. Curran

v . Cousins,

6 , 43-44 (1st Cir. 2007).

Summary judgment is appropriate where the pleadings, along

with any affidavits on file, 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). This

indulgence, however, does not relieve the non-moving party of the

burden of producing “specific facts sufficient to deflect the

swing of the summary judgment scythe.”

II. Background

In 2006, Soukup and Brooks were involved in an altercation

in Soukup’s Lisbon, New Hampshire yard that resulted in Soukup’s

arrest. Soukup was later released subject to bail conditions

forbidding him to come within 50 feet of Brooks. The following

week, Soukup and his wife were crossing the public roadway in

front of their home when they saw Brooks’ vehicle approaching.

Soukup alleges that when Brooks saw them, he “dramatically

increased the speed of his vehicle.” Soukup then yelled at

3 Brooks to slow down. The next day, Soukup filed a complaint

about the incident with the Lisbon police department.

But Brooks had already made a complaint of his own, on the

date of the incident itself, alleging that Soukup had dangerously

charged into the roadway, almost causing an accident. Officer

Robert Garvin interviewed Brooks, Soukup, and Soukup’s wife.

Garvin then obtained an arrest warrant for Soukup on a charge of

contempt of court for violating his bail conditions by

intentionally coming within 50 feet of Brooks. Garvin called

Soukup, informed him of the warrant, and asked him to come down

to the police station for processing. Soukup did s o , posted

bail, and was released several hours later.

II. Analysis

A. Motion for judgment on the pleadings

Soukup’s complaint asserts a claim against the Town of

Lisbon under

, alleging that its police

department “developed and maintained policies or customs

exhibiting deliberate indifference to the constitutional rights

of persons in the Town of Lisbon” and that it was the

department’s “policy and/or custom . . . to fail to exercise

reasonable care in supervising and training its police officers.”

In moving to dismiss these claims, the Town argues that they

4 amount merely to “conclusory allegations” unsupported by facts.

Given the lack of any supporting factual allegations in Soukup’s

complaint, the court agrees.

In Monell v . Department of Social Services, the Supreme

Court held that a municipality may not be held liable under §

1983 “unless action pursuant to official municipal policy of some

nature caused a constitutional tort.”

5 8 , 691 (1978).

A municipality may not be held liable under § 1983 on a theory of

respondeat superior. Id. Rather, a plaintiff must identify a

particular “policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent

official policy,” and show that the policy in question directly

led to the plaintiff’s injury. Id. at 694; see Maldonado-Denis

v . Castillo-Rodriguez,

(1st Cir. 1994).

Soukup’s complaint evidences an awareness of this rule; he

alleges such a policy or custom. The question is whether his

allegations are made with sufficient factual specificity.

Rule 8 requires a claim for relief to contain a “short and

plain statement of the claim showing the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2); see Conley v . Gibson,

1 , 47 (1957) (“all the Rules require is ‘a short and plain

statement of the claim’ that will give the defendant fair notice

of what the plaintiff’s claim is and the grounds upon which it

5 rests.”). In 2007, however, the Supreme Court held in Bell

Atlantic Corp. v . Twombly that an accusation of parallel conduct

under § 1 of the Sherman Act required “enough fact to raise a

reasonable expectation that discovery will reveal evidence of

illegal agreement . . . an allegation of parallel conduct and a

bare assertion of conspiracy will not suffice.”

4 4 ,

556 (2007). More recently, the Court held in Ashcroft v . Iqbal

that “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions.”

(2009).

Despite Twombly and Iqbal, Soukup argues that the Conley

“notice pleading” standard is still good law. He points to

Erickson v . Pardus, decided two weeks after Twombly, which

reversed a lower court’s dismissal of a pro se prisoner’s § 1983

deliberate indifference claim against prison medical officials

who removed him from his hepatitis C treatment after suspecting

illegal drug use.

9 , 90-92 (2007). Soukup points to

language in Erickson which, quoting Twombly, arguably implies

that Conley’s “notice pleading” standard is still good law. See

Erickson,

(“Specific facts are not necessary; the

statement need only give the defendant fair notice of what the .

. . claim is and the grounds upon which it rests.”) (internal

quotation marks omitted).

6 The debate over the extent to which Twombly and Iqbal have

heightened the pleading standard under Rule 8 continues, and will

undoubtedly fill law review articles, but is ultimately

irrelevant to the disposition of this motion. Soukup cites

Conley’s maxim that a complaint requires notice only of “what the

plaintiff’s claim is and the grounds upon which it rests,” 355

U.S. at 4 7 , but elides the second requirement, arguing that

“pleadings are intended to give notice to the defendant of the

claims--not of the facts supporting them.”

This is incorrect. In fact, even before Twombly and Iqbal,

the court of appeals had repeatedly held that a complaint needs

more than “bald assertions . . . [or] unsubstantiated

conclusions,” Correa-Martinez v . Arrillaga-Belendez,

9 ,

52 (1st Cir. 1990), overruled on other grounds by Educadores

Puertorriquenos en Accion v . Hernandez,

(1st Cir.

2004); nor may a plaintiff “rest on subjective characterizations

or conclusory descriptions of a general scenario.” Murphy v .

United States,

2 0 , 522 (1st Cir. 1995); see also

Redondo-Borges v . U.S. Dept. of Hous. and Urban Dev.,

,

9 (1st Cir. 2005) (“The fact that notice pleading governs . . .

does not save the plaintiffs’ conclusory allegation.”); Centro

Medico del Turabo, Inc. v . Feliciano de Melecio,

, 6

(1st Cir. 2005) (requiring pleadings to “set forth factual

7 allegations, either direct or inferential, respecting each

material element necessary to sustain recovery under some

actionable legal theory”) (emphasis added) (internal quotation

marks omitted). Soukup’s complaint offers nothing more than

these.

While Soukup attempts to argue otherwise, he is belied by

his complaint which, as to the constitutional claims against the

Town of Lisbon, contains not a single assertion of fact. Rather,

Soukup’s accusations are couched completely as legal conclusions,

with the defendant’s name merely plugged into the elements of a

municipal liability claim. Even if Twombly or Iqbal had never

been decided, Soukup’s complaint would fall short of the pleading

requirements under prior First Circuit authority; as it i s , it

certainly fails to avoid Twombly’s warning that “formulaic

recitation of a cause of action’s elements will not do.”

. His complaint therefore fails to state a claim that

the Town of Lisbon violated his federal constitutional rights.

B. Motion for summary judgment

Although Officer Garvin’s motion for summary judgment

asserts a colorable, and arguably meritorious, qualified immunity

defense, see, e.g., Pearson v . Callahan,

0 8 , 815-21

8 (2009), Soukup’s objection establishes genuine issues of material

fact that preclude the entry of summary judgment.

In general, Soukup simply disputes Officer Garvin’s sworn

accounts of his conduct during the incident itself, and during

Garvin’s investigation. Specifically, he alleges that both of

Garvin’s affidavits--his summary judgment affidavit and the

affidavit in support of the arrest warrant--contain material

falsehoods.

For example, in the supporting affidavit accompanying his

arrest warrant application, Officer Garvin averred that Soukup

admitted being “right near” Brooks’ car when Brooks drove by.1

Soukup’s summary judgment affidavit contains a sworn denial of

any such statement to Officer Garvin. The parties also dispute

whether Officer Garvin possessed information, not contained in

the arrest warrant affidavit, that undermined Brooks’ credibility

as a complainant.

These factual disputes create genuine issues of material

fact as to both Soukup’s Fourth Amendment claim and Officer

Garvin’s qualified immunity defense. Discovery may eliminate

these disputes, allowing for summary judgment later in the

1 Officer Garvin’s summary judgment affidavit attributes a similar, though not identical admission to Soukup.

9 litigation. At this point, however, the Fourth Amendment claim

must proceed in the normal course.

III. Conclusion

For the foregoing reasons, the Town of Lisbon’s motion for

judgment on the pleadings2 is GRANTED, and Officer Garvin’s

motion for summary judgment3 is DENIED.

SO ORDERED.

Joseph N . Laplante United States District Judge

August 1 1 , 2009

cc: Frank P. Spinella, Jr., Esq. Andrew B . Livernois, Esq.

2 Document #6 3 Document #9

10