UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sebastian Castro

v. Case N o . 10-cv-554-PB Opinion N o .

Charles Panica et a l .

MEMORANDUM AND ORDER

Sebastian Castro was injured when Manchester police officer

Charles Panica tackled him during the course of an arrest. Castro

brought a variety of state and federal claims against Panica,

several other officers who were present when Castro was arrested,

the Chief of Police, and the City of Manchester. Defendants have

challenged all of Castro’s claims in a motion for summary judgment.

As I explain below, Castro has waived many of his claims by failing

to defend them in response to defendants’ motion for summary

judgment. On the remaining claims, I conclude that the excessive

force and the assault and battery claims against Panica survive

summary judgment, as does the claim that the City is vicariously

liable for the assault and battery.

I. BACKGROUND

Around midnight on August 1 5 , 2009, a police officer escorted

Castro and three of his friends (Marin, Harrold, and Jubrey) from

1 the Black Brimmer Bar in Manchester following a dispute with a

bouncer. They joined a crowd that had gathered outside the bar. At

least five police officers, including two on horseback, were

attempting to disperse the crowd. Castro and his friends began to

walk away from the bar as directed.

As they were passing by several officers, Castro directed swear

words at the officers’ horses, which upset the officers. The group

continued walking at a slow pace, with Castro ahead of his friends.

Marin then heard one of the officers say “you’re arrested for

disorderly conduct.” He turned around because he did not know to

whom the officer was speaking. Castro continued walking at the same

pace. Officer Panica then sprinted toward Castro and tackled him

from behind at full speed in a football-style maneuver, slamming

Castro’s head on the pavement. Castro was immediately rendered

unconscious. Officer Steven Flynn arrived to assist Panica in

handcuffing the unconscious Castro while Marin urged them to call an

ambulance. A mounted officer approached the scene as Panica and

Flynn were handcuffing Castro. The horse lost its footing trying to

climb onto the sidewalk and hit Officer Panica on the forehead.1

Castro was transported by ambulance to the emergency room. A

CAT scan showed that he had suffered a concussion. The cut on his

1 The officers speculate that the horse also hit Castro. They state that Castro was conscious when Panica “transitioned him to the ground” and was in fact resisting arrest. Only after the horse hit Panica did the officers notice Castro’s head injury. 2 head was approximately four inches long. Four staples were required

to close the laceration.

Castro was discharged to police custody the next morning. He

was charged with disorderly conduct, resisting detention, and

resisting arrest. The charges were ultimately dismissed.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The evidence submitted in support of the motion must be considered

in the light most favorable to the nonmoving party, drawing all

reasonable inferences in its favor. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder of

fact, under the appropriate proof burden, could base a verdict for

i t ; if that party cannot produce such evidence, the motion must be

granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94

(1st Cir. 1996); see Celotex,

.

3 III. ANALYSIS

Castro asserts eight federal and state claims against a variety

of defendants, all stemming from his core contention that Officer

Panica used excessive force to arrest him. Defendants seek summary

judgment on all counts. As I explain in the next section, Castro

has effectively waived a number of the claims by failing to defend

or even mention them in his objection to defendants’ motion. I then

address the three remaining claims: the excessive force, the assault

and battery, and the negligent training and supervision claims.

A. Waiver

According to the First Circuit’s well-established “raise-or-

waive” rule, all claims not raised, plead, or argued with

sufficiency are waived. See Higgins v . New Balance Athletic Shoe,

Inc.,

5 2 , 259-60 (1st Cir. 1999); McCoy v . Mass. Inst. of

Tech.,

3 , 22 (1st Cir. 1991). The rule “applies with

equal force to situations where a plaintiff properly raises an issue

in his complaint, but then fails to adequately address it as part of

his summary judgment argument.” Rocafort v . IBM Corp.,

(1st Cir. 2003); see Higgins, 194 F.3d at 260 (“A party who

aspires to oppose a summary motion must spell out his arguments

squarely and distinctly, or else forever hold his peace.”); Grenier

v . Cyanamid Plastics, Inc.,

6 7 , 678 (1st Cir. 1995) (“If a

party fails to assert a legal reason why summary judgment should not

4 be granted, that ground is waived and cannot be considered or raised

on appeal.” (internal quotation marks omitted)).

Here, the raise-or-waive rule applies in two instances. First,

in his objection to the motion, Castro fails to make any response to

defendants’ request for summary judgment on the following five

counts: (1) a Section 1983 malicious prosecution claim; (2) a state

law malicious prosecution claim; (3) a Fourth Amendment illegal

seizure claim; (4) a state law false arrest claim; and (5) a Section

1983 failure to train and supervise claim. Nor has Castro produced

any evidence tending to substantiate the claims. Castro’s failure

to respond in any way to defendants’ motion on the five counts is

tantamount to a waiver. See Rocafort,

.

Accordingly, I grant defendants’ motion as to those unaddressed

claims.

Second, Castro argues that the unlawful conduct relevant to the

three claims that he does defend is Officer Panica’s football-style

tackle that hurled Castro onto the pavement, causing major trauma to

his head. He denies that a police horse caused his injury.

Accordingly, he does not argue that Officers Marc LaChance and Scott

Tardiff, the two mounted officers whom he sued, had any connection

with his injuries. Nor does he argue or present any evidence that

Officer Flynn, the defendant who assisted Panica in handcuffing

Castro, acted unlawfully. Castro has therefore waived any claims

5 against those officers, and I grant summary judgment on all counts

for Officers Flynn, LaChance, Tardiff, and any “unknown police

officers.” See Rocafort,

; Grenier,

.

The claims that Castro has not waived, then, are as follows:

(1) the excessive force claim against Panica (Count I ) ; (2) the

assault and battery claim against Panica and the related vicarious

liability claim against the City (Count I I ) ; and (3) the negligent

training and supervision claim against the Chief of Police and the

City (Count VIII). I address those claims in turn.

B. Excessive Force Claim

Officer Panica argues he is entitled to summary judgment on the

excessive force claim because the force he used to effect Castro’s

arrest was objectively reasonable. Alternatively, he contends he is

entitled to qualified immunity on the claim. Neither argument is

persuasive in light of Castro’s version of the events.

1. Reasonableness of Force Used

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). Determining whether the force

used to effect an arrest is objectively reasonable requires a fact-

specific inquiry of the totality of the circumstances in the

particular case, “including the severity of the crime at issue,

6 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,

9 6 ) . “The

‘reasonableness’ of a particular use of force must be judged from

the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham,

. The

court must also take into account “the fact that police officers are

often forced to make split-second judgments — in circumstances that

are tense, uncertain, and rapidly evolving — about the amount of

force that is necessary in a particular situation” and that “[n]ot

every push or shove . . . violates the Fourth Amendment.”

(internal quotation marks and citation omitted). Because the

reasonableness test is an objective one, the officer’s subjective

motivation that prompted the use of force is inconsequential.

.

For the purpose of Panica’s summary judgment motion, I must

accept as true the witness testimony that Castro has produced and I

must draw all reasonable inferences in his favor.2 See Navarro, 261

2 For the most part, defendants argue that the force Panica used was reasonable in light of the police officers’ version of the events, which differs from the account provided by Castro’s witnesses in several key respects. The officers state that Castro began a “slow run” after Panica told him to stop several times; that Panica “transitioned” Castro to the ground without injuring his head; and that Castro then resisted arrest. Because Castro has controverted 7 F.3d at 9 4 . Viewing those facts from the perspective of a

reasonable officer, a jury could find that Panica’s use of force was

unreasonable. According to Castro’s witnesses, Panica used

substantial force to arrest Castro and caused him significant

injury. He sprinted toward Castro, who was merely walking away, and

tackled him from behind at full speed in a football-style maneuver

that hurled Castro from the sidewalk onto the street. Castro’s head

hit the pavement with sufficient force to render him unconscious.

The trauma resulted in a concussion and a four inch long laceration

that required four staples.

The three Graham factors all suggest that the force was

unreasonable. See

. First, the crime that Castro

reportedly committed – disorderly conduct for directing swear words

at the police officers’ horses – is a relatively minor infraction.

See

Second, there is no indication that Castro posed an

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

given that he was walking away from the officers as previously

directed. See

That he may have insulted the officers by using

profane language did not make him dangerous in any way. Lastly, a

jury could conclude that Castro was not attempting to evade arrest

by flight. See

He continued walking at the same pace after

defendants’ statements with competent evidence of record, I do not consider defendants’ version of the events for the purpose of this motion. 8 Panica told him to stop. Though he may have been disobeying the

officer’s orders, a reasonable officer would hardly consider

Castro’s slow walk away from a group of police officers as an

earnest attempt to flee. Accordingly, a jury could conclude that

Panica’s high-speed tackle was excessive force, especially in light

of the significant injury that Castro suffered as a result. Whether

the force used here was reasonable is therefore a matter that cannot

be resolved on summary judgment.

2. Qualified Immunity

Panica argues that even if the force he used to effect the

arrest was excessive, he is nonetheless entitled to qualified

immunity. I disagree.

The doctrine of qualified immunity protects public officials

from personal liability that arises out of their performance of

discretionary functions. Barton v . Clancy,

(1st Cir.

2011). It attaches when officials “make reasonable but mistaken

judgments,” and it shields from suit “all but the plainly

incompetent or those who knowingly violate the law.” Ashcroft v .

al-Kidd, 131 S . C t . 2074, 2085 (2011) (citation omitted). A court

engaging in a qualified immunity analysis must consider two things:

“(1) whether the facts alleged or shown by plaintiff make out a

violation of a constitutional right; and (2) if s o , whether the

right was ‘clearly established’ at the time of the defendant’s

9 alleged violation.” Glik v . Cunniffe,

8 , 81 (1st Cir.

2011) (quoting Maldanado v . Fontanes,

(1st Cir.

2009)). The prongs may be resolved in any order.

The inquiry into whether a right was “clearly established”

encompasses both the clarity of the law at the time of the

violation, and whether, in light of the particular facts of the

case, “a reasonable defendant would have understood that his conduct

violated the plaintiff[’s] constitutional rights.”

(quoting

Barton,

) (alteration in original). “[T]he law is

clearly established either if courts have previously ruled that

materially similar conduct was unconstitutional, or if ‘a general

constitutional rule already identified in the decisional law

[applies] with obvious clarity to the specific conduct’ at issue.”

Jennings,

(quoting United States v . Lanier,

(1997)).

Here, if the encounter occurred as Castro’s witnesses describe

i t , Panica’s excessive conduct “was such an obvious violation of the

Fourth Amendment’s general prohibition on unreasonable force that a

reasonable officer would not have required prior case law on point

to be on notice that his conduct was unlawful.”

at 1 7 . Panica

tackled Castro from behind while running at full speed and slammed

Castro’s head on the pavement. The arrest was for a minor charge of

disorderly conduct. There was no evidence that Castro was armed or

10 dangerous in any way. Nor was he attempting to flee in a manner

that precluded less intrusive means to effect the arrest. He was

merely walking away at slow pace from a group of police officers.

Under these circumstances, the Graham factors overwhelmingly weigh

in one direction such that it would have been clear to a reasonable

officer that Panica’s excessive force was an obvious violation of

the Supreme Court’s well-established jurisprudence on the

prohibition of excessive force. See

. Accordingly,

summary judgment on qualified immunity grounds is inappropriate.

C. Assault and Battery

Castro alleges that Officer Panica’s conduct in arresting him

also constitutes assault and battery, and that the City is

vicariously liable for the tort. Panica argues that the contact was

justified, and in the alternative, that he is entitled to official

immunity. The City moves for summary judgment on all claims against

it without specific arguments as to this claim. I address each

argument in turn.

1. Justification Defense

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[.]”

, 627:1. Under this

11 statute, reasonableness is determined by an objective standard. New

Hampshire v . Cunningham,

(2009). As previously

discussed, if a jury were to accept Castro’s version of the events,

it could find that the amount of force Panica used to arrest Castro

was not objectively reasonable. Accordingly, the justification

defense does not entitle Panica to summary judgment on the state law

claim.

2. Official Immunity

Panica argues in the alternative that he is entitled to

official immunity from liability for assault and battery because his

arrest of Castro involved a discretionary function that was within

the scope of his official duties, and was neither wanton nor

reckless under the circumstances. I conclude that Panica cannot

avail himself of official immunity at this stage of the case.

“Official immunity protects government officials or employees

from personal liability for discretionary actions taken by them

within the course of their employment or official duties.” Everitt

v . Gen. Elec. Co.,

0 2 , 214 (2007); see also

-D:1 (codifying common law doctrine of official

immunity for officers and employees of the state). In assessing

whether a police officer has official immunity, a three-prong

standard governs: immunity attaches for “decisions, acts or

omissions that are (1) made within the scope of [one’s] official

12 duties while in the course of [his or her] employment; (2)

discretionary, rather than ministerial; and (3) not made in a wanton

or reckless manner.” Everitt, 156 N.H. at 219. It is evident that

Officer Panica’s decision to arrest Castro satisfies the first two

prongs. Thus, the only remaining issue is whether Panica acted

wantonly or recklessly when he tackled Castro from behind in order

to arrest him.

Although no New Hampshire Supreme Court case has addressed what

might constitute “wanton or reckless” conduct in the official

immunity context, in an advisory opinion primarily addressing the

withdrawal of sovereign immunity, the court explained that

government employees should be immune from prosecution if they act

with a reasonable belief in the lawfulness of their conduct. See

Opinion of Justices,

5 4 , 564-65 (1985). This court has

interpreted that advisory opinion as “conditioning official immunity

for intentional torts upon the employee’s reasonable belief in the

lawfulness of his conduct.” Soltani v . Smith,

(D.N.H. 1993).

Panica has not argued that the reasonable belief test differs

in any way from the qualified immunity test. In fact, he merely

states in a conclusory fashion that his conduct was neither reckless

nor wanton. Accordingly, for the reasons set forth above in my

13 discussion of qualified immunity, I also determine that Panica is

not entitled to official immunity on the assault and battery claim.

3. Vicarious Liability

Castro asserts that the City is vicariously liable for Panica’s

assault and battery. The City seeks summary judgment as to all

claims against i t . I deny the motion as to this claim.

Under the doctrine of respondeat superior, “an employer may be

held vicariously responsible for the tortious acts of its employee

if the employee was acting within the scope of his or her employment

when his or her tortious act injured the plaintiff.” Tessier v .

Rockefeller,

2 4 , 342 (2011) (internal quotation marks

omitted). “Conduct falls within the scope of employment i f : (1) it

is of the kind the employee is employed to perform; (2) it occurs

substantially within the authorized time and space limits; and (3)

it is actuated, at least in part, by a purpose to serve the

employer.” Id. at 342-43. (internal quotation marks and alterations

omitted). If the requisite elements are met, a municipality may be

liable for intentional torts committed by its police officers. See

Daigle v . City of Portsmouth,

6 1 , 566 (1987).

Because the record does not support the conclusion that Panica

was acting beyond the scope of his employment when he allegedly

assaulted Castro, the City is not entitled to summary judgment on

the claim.

14 D. Negligent Training and Supervision

Castro asserts that the Chief of Police and the City are liable

for negligently training and supervising Panica. New Hampshire

recognizes “a cause of action against an employer for negligently

hiring or retaining an employee that the employer knew or should

have known was unfit for the job so as to create a danger of harm to

third persons.” Marquay v . Eno,

0 8 , 718 (1995). To

prevail on the claim, Castro would have to show that Panica was

“incompetent, inexperienced or unskilled in a way that caused [his]

injury, the risk of which was within the scope of [his] employment

and was known to the employer-municipality.” Cutter v . Town of

Farmington,

(1985). He has presented no evidence

that either the Chief or the City knew or should have known of a

risk of Panica’s incompetence in the use of force. Rather, the

uncontested evidence shows that Panica received annual training on

the proper use of force to effect an arrest. The City, moreover, is

immune from liability arising out of its performance of

discretionary functions such as decisions regarding the training and

supervision of municipal employees. See Austin v . Town of

Brookline, N o . 00-284-JD,

, at *7 (D.N.H. Sept. 2 1 ,

2001); Hacking v . Town of Belmont,

(1999). I

therefore grant the motion for summary judgment on the negligent

15 training and supervision claim.3

IV. CONCLUSION

For the aforementioned reasons, I deny the motion for summary

judgment (Doc. N o . 8 ) on the excessive force claim and the assault

and battery claim as to Officer Panica. I also deny the City’s

motion on the claim that the City is vicariously liable for the

assault and battery. I grant the motion in all other respects.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 1 7 , 2012

Cc: Richard J. Lehmann, Esq. Robert J. Meagher, Esq.

3 In his objection, Castro only argues that Panica was negligent because he used an unreasonable amount of force to arrest him, a claim he did not assert in his complaint as a separate cause of action. It is well settled that the negligence of a supervised actor, standing alone, is insufficient to impose liability on supervisors for negligent training and supervision. See Cutter v . Town of Farmington,

(1985) (liability for negligent hiring, training, and supervision “results not merely from the agent’s incompetence or carelessness, but from the principal’s lack of prudence in selecting the person for the business in hand.” (internal quotation marks omitted)).

16