Dionne v. Amatucci et a l . CV-10-230-PB 10/17/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul Dionne

v. Civil No. lO-cv-230-PB Opinion No. 2 011 DNH 17 0 Sergeant Matthew Amatucci et a l .

MEMORANDUM AND ORDER

The claims in this case arise out of an incident that began

when Paul Dionne drove to the scene of an auto accident

involving his son and daughter. The incident culminated in the

arrest of Dionne by three Somersworth police officers. Dionne

alleges that the officers used excessive force, causing him

humiliation, reputational harm, pain, and serious injury to his

left shoulder and two of the fingers on his left hand. He

asserts Section 1983 claims against the City of Somersworth,

Police Chief Crombie, and the three officers who subdued him:

Sergeant Matthew Amatucci, Officer Michael Belleau, and Officer

Gary O'Brien. He also presents claims for common law assault

and battery and for negligent supervision, and pleads a new

cause of action under the New Hampshire Constitution. Dionne

and the government have filed cross-motions for summary

judgment. For the reasons set forth below, I grant the

government's motion. I. BACKGROUND

Around noon on May 9, 2009, Dionne's son, Paul Jr., was

driving an Isuzu Rodeo when he collided with another vehicle in

Somersworth, New Hampshire. Dionne's daughter, Lindsey, a

passenger in the vehicle, called her father after the accident

to ask if he could come and get her.

When Dionne arrived, he saw Paul Jr. handcuffed in the back

of Officer Michael Belleau's police cruiser. He first went to

speak with his son, and then walked over to speak with Sergeant

Matthew Amatucci. As he was walking toward Amatucci, Officer

Belleau gave him a "nasty" look. Dionne asked if there was a

problem, and Belleau responded, "Why, do you fucking want one?"

Dionne continued toward Amatucci, who informed him that his son

was being arrested because he had two outstanding warrants.

Dionne protested, explaining that his son had taken care of one

of the warrants. Pi's Dep. at 27, Doc. No. 18-6.

When Dionne and Amatucci began to discuss moving the Isuzu,

Dionne asked if he could tow the vehicle himself to save money.

Amatucci acceded to his request. Dionne asked the Sergeant for

permission to speak with the owners of the land adjacent to the

road, to inquire if he could move the Isuzu further onto private

2 property until he retrieved the tow bar. Amatucci responded,

"No. You're not going to go beaten [sic] on doors to find out

who owns the property." Id. at 30. Dionne informed him that he

already knew the owners, and calmly asked the Sergeant, "What

legal theory are you doing this [sic] to stop me from asking

people if I can leave the vehicle that's on private property on

the property?" Id. at 32. Amatucci did not directly respond to

the question, but reiterated that Dionne should not be going and

knocking on doors. Id. Dionne believed Amatucci's change to a

more confrontational demeanor was not serious, but was the

Sergeant's way of joking around.

Dionne then told Amatucci, "Okay. Well, I'll just push it

a little bit further from the road." Id. at 32-33. He entered

the car and tried, but was unable, to turn the steering wheel.

The key was still in the ignition, and Dionne turned it enough

to activate the power steering so that he could maneuver the

wheel. At that point, Amatucci believed that Dionne was

attempting to drive the vehicle that he had deemed inoperable,

and shouted for Dionne to get out. Instead of exiting, Dionne

attempted to explain what he was doing. The Sergeant reached in

the car and took the key.

3 Dionne then got out of the Isuzu, and the Sergeant told him

he was under arrest and ordered him to put his hands on the roof

of the car. Dionne asked "For what? What did I do wrong?" Id.

at 35. Amatucci responded, "Shut up and put your hands on the

roof." Id. Dionne complied, and as he stood facing the car,

Amatucci ordered him to put his hands behind his back. Dionne

attempted to explain that a pre-existing shoulder injury

rendered him unable to do so. Nonetheless, Amatucci tried to

handcuff Dionne, and in so doing he pushed his hand into the

middle of Dionne's back.

Dionne has a disability where even a light touch on his

back can cause his legs to go numb, id. at 36-37, and when the

Sergeant pressed on his back, Dionne lost sensation in his legs

and began to fall. To avoid falling down, he grabbed the roof

rack and swung himself into the car. Id. at 37-38. His legs

were left dangling outside the vehicle, and one of his arms

ended up going through the steering wheel and resting on the

steering column. Sergeant Amatucci commanded Dionne to exit the

Isuzu, and Dionne responded that he could not because his legs

were numb. For a couple of minutes, id. at 39, Amatucci

continued ordering Dionne out of the car, and Dionne continued

to respond that he could not. Amatucci then called for backup,

4 and Dionne called 9-1-1 and asked the operator to keep the phone

line open to record the event.

Officer O'Brien arrived on the scene and the two policemen

started to pull Dionne from the Isuzu by his wrists.1 Id. at 42.

Because one of his arms was entangled in the steering wheel, the

officers had difficulty pulling Dionne out, and had to use

sufficient force that they bruised his arm and ripped his shirt.

Even after he had been removed from the Isuzu, his arm was still

caught in the steering wheel. Dionne had been pleading with the

officers to let him extricate his arm, and after he was out of

the vehicle, the officers acquiesced. Dionne freed his arm and

then allowed the police to regain their grasp of it.

Once out of the vehicle, Dionne, who had regained some

feeling in his legs, was able to stand. For 20 or 30 seconds,

the officers continued to pull Dionne's arms to his sides,

demanding that he put his hands behind his back. During this

1 O'Brien claims not to have arrived until after Dionne had been subdued. Dep. of O'Brien at 14, Doc No. 18-4. Amatucci corroborates this version, explaining that Belleau, not O'Brien, arrived first on scene and assisted with Dionne's arrest. Dep. of Amatucci at 20, 47-48, Doc. No. 17-4. For the purposes of this opinion I accept Dionne's version as it appears in his deposition and his objection to defendants' motion for summary judgment (Doc. No. 19-2), but insofar as the record illustrates that Dionne has confused Belleau with O'Brien, the outcome remains unaffected. 5 time, Dionne was telling them that his injury prevented him from

moving his arms in that way.

At the end of the 20- to 30-second period. Officer Belleau

approached Dionne and punched him in the chest. Dionne's

glasses fell off and he fell first to his knees and then onto

his stomach. Id. at 52-53. As Dionne was falling to the

ground, Amatucci grabbed Dionne's phone and twisted it out of

his hand. Id. at 62. Dionne later admitted that he was not

surprised that Belleau punched him because Belleau "probably

came up and thought that I was really fighting these guys and I

wasn't. The steering wheel was." Id. at 53.

The officers were holding Dionne as he fell, and prevented

him from hitting the ground too hard. Id. at 65. Dionne lay on

the grass and the officers demanded that he put his hands behind

his back. Amatucci was applying a "reasonable amount of

pressure" in trying to push one of Dionne's arms behind his

back, and refrained from "push[ing] it further than what it was

going." Id. at 61, 66. Officer O'Brien was on the other side,

attempting to push Dionne's other arm behind his back. As

O'Brien tried to force Dionne's arm behind him, he was holding

Dionne's thumb in one hand and two of Dionne's fingers in

another, pulling them apart from each other; he was also

6 pressing his knee into Dionne's side. Officer Belleau was also

pulling at Dionne's arms. Belleau's Dep. at 26, Doc. No. 18-2.

Dionne kept saying that his arm would not go, and Officer

O'Brien (or Belleau) finally commanded, "put your arm behind

your back or I'm going to drop a knee into your back." Pi's

Dep. at 66. The officer began to knee Dionne in the shoulder

and side in an attempt to get leverage to push his arm back.

Id. at 61, 66. At that point, allegedly because the pain was so

severe, Dionne lost consciousness. Id. at 68; Compl. 5 29,

Doc. No. 8.

When Dionne awoke, he was sitting next to the Isuzu with

his hands cuffed in front of him. He does not recall his hands

ever having been cuffed behind his back.- As he regained

consciousness, Dionne felt chest pains and had difficulty

breathing. Amatucci called for an ambulance, which arrived

shortly and took Dionne to the hospital.

As a result of the physical encounter between Dionne and

the defendant officers, Dionne asserts that he has lost range of

- Dionne states in his deposition that his wife and another individual told him that for some period of time he was lying face-down and unconscious with his hands cuffed behind him. Pi's Dep. at 76-79, Doc. No. 18-6. However, Dionne points to no competent evidence in the summary judgment record that his hands were cuffed behind his back at any point.

7 motion in his left shoulder (the previously uninjured shoulder)

that will require an operation. Compl. 5 31. He also asserts

that the new shoulder injury has caused him to lose feeling in

two fingers on his left hand. Id.

Dionne was prosecuted for his conduct on that day, and was

convicted of misdemeanor resisting arrest. He was acquitted of

disorderly conduct and obstruction of government administration

charges.

Dionne has filed suit against the three officers on the

scene, as well as Police Chief Dean Crombie and the City of

Somersworth. The three officers are all employed by the

Somersworth Police Department, and each graduated from the New

Hampshire Police Academy. All three have received training on

the continuum of force twice per year. The continuum involves

five levels: 1) police presence; 2) verbal command; 3) soft

hand, ranging from escorting an individual to striking an

individual; 4) use of tools, such as using a baton or pepper

spray to subdue an individual; and 5) deadly force. Officers

are taught to use one level of force above that used by the

suspect being engaged, but they have discretion depending on the

situation. Amatucci Dep. at 8-10, Doc. No. 17-4; Crombie Dep.

at 14, Doc. No. 17-6.

8 In the altercation at issue, the officers used an open-hand

level of force, which is within the third level (soft-hand) on

the continuum of force. Additionally, in attempting to cuff

Dionne's hands behind him, the officers were following the

standard department policy of handcuffing arrestees with their

hands behind their back. Crombie Dep. at 23. Cuffing a

person's hands in front of him is more dangerous, although

officers have discretion to do so in certain situations. Id.

Pursuant to normal operating procedures, two captains of

the Somersworth Police Department reviewed the actions of the

officers at the scene. Id. at 24-25. The captains and Chief

Crombie determined that there were no problems with the conduct

of the officers, and so did not engage in further conversations

with the officers or institute any further review of that day's

events. Id. at 25-26.

II. STANDARD OF REVIEW

A summary judgment motion should be granted when the record

reveals "that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). A material fact "is one 'that might

affect the outcome of the suit under the governing law.'"

9 United States v. One Parcel of Real Prop.,

(1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). In assessing whether a genuine dispute

exists, the evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

with all reasonable inferences drawn in that party's favor. See

Navarro v. Pfizer Corp.,

(1st Cir. 2001).

Ill. ANALYSIS

Dionne alleges that the officers at the scene are liable

under Section 1983 (

) for using excessive force,

in violation of the Fourth Amendment of the U.S. Constitution.

He further alleges that the City and Chief Crombie are liable

under Section 1983 for maintaining policies or customs that

authorized the use of excessive force. Dionne also asserts

state law causes of action, specifically that the officers are

liable for assault and battery, the City and Chief are

vicariously liable for assault and battery, and the City and

Chief are liable for negligent training and supervision.

Additionally, Dionne asks this Court to recognize a new cause of

action under the New Hampshire Constitution.

10 A. Section 1983 Excessive Force Claims

When law enforcement officers arrest an individual, they

violate his rights under the Fourth Amendment if they use more

force than is objectively reasonable under the circumstances.

Graham v. Connor,

(1989). "Whether the

force used to effect a particular seizure is reasonable 'must be

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.'"

Jennings v. Jones,

(1st Cir. 2007) (quoting

Graham,

); see also Alexis v. McDonald's Rests,

of Mass., Inc.,

(1st Cir. 1995) ("[A] viable

excessive force claim must demonstrate that the police

defendant's actions were not objectively reasonable, viewed in

light of the facts and circumstances confronting him and without

regard to his underlying intent or motivation."). Because

police officers often must make split-second decisions in

difficult and uncertain conditions about whether, and how much,

force is appropriate, "[n]ot every push or shove, even if it may

later seem unnecessary in the peace of a judge's chambers,

violates the Fourth Amendment." Graham,

(internal quotation marks and citation omitted).

11 Determining whether a given use of force was objectively

reasonable "requires careful attention to the facts and

circumstances of [the] particular case."

Among the factors

to be considered are "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[.]" Jennings,

(quoting Graham,

).

Because Dionne does not specify which particular conduct

qualifies as excessive force, I analyze all parts of the

encounter. I find that based on the uncontested facts, a

reasonable officer on the scene would have perceived Dionne's

actions as a pattern of escalating resistance, and that no part

of the officers' conduct constitutes an objectively unreasonable

use of force.

After arriving and contesting the validity of his son's

arrest, Dionne entered the inoperable Isuzu without informing

Sergeant Amatucci of his intentions. When he turned the key in

the ignition, Amatucci reasonably thought that Dionne was

attempting to drive the car, and shouted for Dionne to exit the

vehicle. Instead of promptly complying, Dionne tried to explain

his actions. At that point, Amatucci decided to place Dionne

12 under arrest. Dionne does not challenge the lawfulness of the

arrest.

When Amatucci instructed Dionne to place his hands behind

his back, Dionne attempted to explain why he was physically

unable to do so. In certain cases where a peaceable arrestee

has a disability or injury, an officer's use of a customary

amount of force to handcuff the individual may be excessive.

See, e.g., Dixon v. Donald,

(6th Cir.

2008). Especially where a clearly visible disability or injury

puts an officer on notice, the officer may have the obligation

to make some accommodation, if the situation so permits. See,

e.g., Guite v. Wright,

(8th Cir. 1998); Howard v.

Dickerson,

(10th Cir. 1994); see also Caron v.

Hester, No. CIV. 00-394-M,

, at *5 (D.N.H. Nov.

13, 2001) .

In this case, Dionne had no apparent disability or injury,

and had already demonstrated an unwillingness to promptly comply

with police orders. A reasonable officer would therefore have

been justified in questioning the truthfulness of his assertion.

Under the circumstances, it is not unreasonable for an officer

to attempt to handcuff Dionne in the customary manner. See

Rodriguez v. Farrell,

(11th Cir. 2002)

13 (noting that "a police officer need not credit everything a

suspect tells him," a maxim that "is especially true when the

officer is in the process of handcuffing a suspect").

Before even attempting to force Dionne's arms together,

however, Amatucci touched Dionne's back with his hand. The

small amount of pressure on Dionne's back triggered pre-existing

nerve damage and caused Dionne's legs to go numb. Grabbing the

roof rack, Dionne swung himself into the front seat of the

Isuzu. At this point, even giving Dionne all favorable

inferences and assuming that his medical condition acts in

exactly the manner he claims, Dionne's action would have

objectively appeared to be an act of resistance. From

Amatucci's perspective, he was in the process of handcuffing a

suspect who suddenly and inexplicably swung himself away and

into a vehicle.

When Dionne did not exit the Isuzu, despite repeated

commands to do so over a period of a couple minutes, it was

reasonable for the officers to assume he was willfully failing

to comply with their orders and to pull him from the vehicle.

Although Dionne claims that he had become unintentionally

entangled in the steering wheel, the officers perceived him to

be struggling against them. In response to a suspect who had

14 mysteriously fallen into a car and appeared to be holding on to

the steering wheel, the police reasonably resorted to forceful

pulling, which resulted in bruises and a torn shirt.

Once the officers extricated Dionne from the Isuzu, they

overpowered him and took him to the ground. Dionne alleges that

he was punched, but concedes that at the time he was punched it

must have appeared that he was fighting the officers because he

was struggling with the steering wheel. As the officers took

Dionne to the ground, they were careful to hold him so that he

did not hit the ground too hard. Once on the ground, Dionne

appeared to be continuing to resist the officers' attempt to put

his hands behind his back, and so the officers used additional

force to subdue him, specifically twisting his fingers apart and

pushing a knee into his body to gain leverage.

Viewing the facts in the light most favorable to Dionne, a

reasonable officer on the scene would not have understood

Dionne's inability to submit to arrest to be a result of hidden

injuries, but would have perceived his actions as willful

resistance. See Graham,

(third factor). In

particular, Dionne's improbable sudden swing into the vehicle

and his strange inability to free his arm from the steering

wheel would have appeared to any reasonable officer as efforts

15 to resist arrest.J In light of the chain of events, the officers

did not act unreasonably in failing to give credence to Dionne's

exhortations, and in using progressively greater force to subdue

him. See Statchen v. Palmer, No. 08-cv-128-JD,

,

at *8 (D.N.H. Sept. 15, 2009) (officers are entitled to use

physical force sufficient to subdue an individual who refuses to

submit to arrest). On the particular facts of this case, the

arresting officers used force that was objectively reasonable

under the circumstances. I therefore grant defendants' motion

for summary judgment on the Section 1983 claims against the

officers on the scene.

Dionne has also filed Section 1983 claims against Chief

Crombie and the City for maintaining policies or customs that

caused the officers on scene to use excessive force. These

claims fail because there has been no cognizable constitutional

harm. In the absence of a constitutional injury, it is

immaterial whether or not a supervisor's actions or a

departmental policy might have authorized or encouraged the

J In fact, because Dionne was convicted of resisting arrest in state court, he is judicially estopped from contesting that he "knowingly or purposefully physically interfere[d] with" the police officers who arrested him. See

. Regardless of the conviction, however, his actions would have appeared to an objective observer to constitute resistance.

16 arresting officers to use excessive force. See City of Los

Angeles v. Heller,

(1986) (per curiam); Evans

v. Avery,

(1st Cir. 1996). I therefore

grant defendants' motion for summary judgment on the Section

1983 claims against Chief Crombie and the City.

B. Assault and Battery

Dionne alleges that the officers' conduct in arresting him

constitutes assault and battery. In New Hampshire,

justification is a complete defense to any civil action, and

" [a] law enforcement officer is justified in using non-deadly

force upon another person when and to the extent that he

reasonably believes it necessary to effect an arrest or

detention[.]"

;

. Under this statute, reasonableness is determined

by an objective standard. State v. Cunningham,

(2009). As previously discussed, the officers' conduct was

objectively reasonable. I therefore grant defendants' motion

for summary judgment on the claims for assault and battery, and

I grant summary judgment on the vicarious liability claims

premised on the existence of tortious conduct.

17 C . Negligent Training and Supervision

Dionne asserts common law claims for negligent training and

supervision against the City and Chief Crombie. The record is

bare of any competent evidence that would substantiate this

claim. The uncontested evidence shows that the officers

received training twice a year on the broadly utilized continuum

of force, and adhered to the principles of that training when

they arrested Dionne. Dionne has failed to create a genuine

dispute of fact on whether the officers were adequately

supervised and trained, and I therefore grant defendants' motion

for summary judgment on the claim.

D . New Hampshire Constitutional Tort

Dionne urges this court to recognize a new cause of action

under Part I, Article 19 of the New Hampshire Constitution.

According to Dionne, a new cause of action is necessary because

current law insulates law enforcement officers who use force

they believe reasonably necessary to effect an arrest.

Litigants who choose a federal forum, however, cannot expect a

federal court to push the boundaries of state law. DCPB, Inc.

v. City of Lebanon,

(1st Cir. 1992). I

decline to recognize a cause of action the New Hampshire Supreme

18 Court has so far declined to recognize, and I grant defendants'

motion for summary judgment on this claim.

IV. CONCLUSION

For the reasons stated above, I grant defendants' motion

for summary judgment (Doc. No. 18). Plaintiff's motion for

summary judgment is denied. (Doc. No. 17). The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro_____ Paul Barbadoro United States District Judge

October 17, 2011

cc: Seth J. Hippie, ESq. Stephen T. Martin, Esq. Susan Aileen Lowry, Esq. William G. Scott, Esq.

19