Reppucci v . Winchester P D , et a l . 12-CV-316-SM 9/23/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Daniel Reppucci, Plaintiff

v. Case N o . 12-cv-316-SM Opinion N o .

Kelvin Macie, Richard A . Foote, Cheshire County Sheriff’s Office, Cheshire County, Gary A . Phillips, Christopher Roberts, Winchester Police Department, Town of Winchester, Defendants

O R D E R

David Reppucci was a full-time police officer for the Town

of Winchester, New Hampshire, from March of 2003 until July of

2009, when he was suspended from duty. About a month later, the

Winchester Board of Selectmen terminated his employment. He

brings this action seeking compensatory and punitive damages, as

well as costs and attorney’s fees, claiming he was the victim of

wrongful termination and retaliatory discharge. Additionally, he

says defendants deprived him of various constitutionally

protected rights.

Defendants deny any wrongdoing and move to dismiss

Reppucci’s claims on grounds that they are barred by the doctrine of collateral estoppel, fail to state viable causes of action, and are time-barred.1

For the reasons discussed, those motions to dismiss are

granted.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences in

favor of the pleader.” SEC v . Tambone,

(1st

Cir. 2010). Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each

of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v .

Iqbal,

6 2 , 678 (2009) (citation and internal

punctuation omitted).

1 After defendants filed their motions to dismiss, the court granted Reppucci’s request for leave to file an amended complaint. Although Reppucci is no longer pursuing a common law defamation claim, the remaining causes of action are largely the same. Accordingly, defendants have not supplemented their original motions or supporting memoranda.

2 In other words, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v .

Twombly,

4 4 , 555 (2007). Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to

“nudge[] [plaintiff’s] claims across the line from conceivable to

plausible.” Id. at 570. I f , however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove

the possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal.” Tambone,

.

Here, in support of their motions to dismiss, defendants

rely upon a written decision issued by the New Hampshire Superior

Court (Cheshire County), in which the court addressed Reppucci’s

claims that his firing was unlawful. They also rely upon the

written decision of the New Hampshire Employment Security Appeal

Tribunal, reversing Reppucci’s award of unemployment benefits.

Although a court must typically decide a motion to dismiss

exclusively upon the allegations set forth in the complaint (and

any documents attached to that complaint) or convert the motion

into one for summary judgment, see Fed. R. Civ. P. 12(d), there

is an exception to that general rule:

3 [C]ourts have made narrow exceptions for documents the authenticity of which [is] not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the complaint.

Watterson v . Page,

, 3 (1st Cir. 1993) (citations

omitted). See also Trans-Spec Truck Serv. v . Caterpillar Inc.,

(1st Cir. 2008); Beddall v . State S t . Bank &

Trust Co.,

2 , 17 (1st Cir. 1998). Since Reppucci does

not dispute the authenticity of the state court’s written

decision or that of the NHES Appeal Tribunal, the court may

properly consider those documents without converting defendants’

motions to dismiss into ones for summary judgment.

Background

The relevant factual background is largely undisputed and

set forth in detail in the Superior Court’s order dated June 2 8 ,

2010. See Reppucci v . Town of Winchester, N o . 09-C-136 (N.H.

Sup. C t . June 2 8 , 2010) (document n o . 9-3) (“Reppucci I ” ) . In

brief, they are as follows.

In March of 2003, Reppucci became a full-time police officer

for the Town of Winchester and, by 2006, he had been promoted to

Detective Sergeant. In 2009, he applied for a vacant position as

Lieutenant, but he was not selected for the job. In response, he

filed a grievance with the Chief of Police, outlining why he

4 believed he should have been selected for the position and

challenging the department’s promotion procedures. In that

grievance, Reppucci made reference to a confidential, internal

investigation involving another officer who had also been a

candidate for the vacant Lieutenant position.

Town officials became concerned that Reppucci had disclosed

a copy of that grievance - including the confidential personnel

information about the other police officer - to a member of the

public. Accordingly, the Town asked the Cheshire County

Sheriff’s Department to conduct an investigation. As part of

that investigation, on July 9, 2009, Deputy Sheriff Kelvin Macie

attempted to interview Reppucci. At the outset, Deputy Macie

issued an “Administrative Warning,” informing Reppucci that the

Sheriff’s Office was conducting an investigation into allegations

that Reppucci had engaged in misconduct. Macie informed Reppucci

that, “You are required to answer all questions fully and

truthfully, and disciplinary action including dismissal may be

taken if you refuse to answer fully and truthfully.” Reppucci I ,

at 2 (citation omitted). He also told Reppucci that, “You are

further advised that by law, any admission made by you cannot be

used against you in any subsequent criminal proceeding.”

(emphasis supplied).

5 The “Administrative Warning” given to Reppucci is also known

as a “Garrity Warning,” which the New Hampshire Supreme Court has

described as follows:

Such a warning informs the accused that the purpose of questioning is to assist in determining whether to impose administrative discipline. Even if the accused were to disclose during questioning information indicating that he may be guilty of criminal conduct, the warning explains that neither his self- incriminating statements, nor the fruits thereof will be used against him in any criminal proceeding. The warning further states that if the accused refuses to answer questions or fails to give truthful answers, he will be subject to disciplinary action, up to and including dismissal.

In re Waterman,

3 7 , 442 (2006) (citation and quotation

marks omitted). See generally Garrity v . New Jersey,

(1967).

Reppucci signed the document, but refused to answer any of

Macie’s questions before he had the opportunity to speak with an

attorney. Macie then summoned the Chief of Police, Gary

Phillips, who gave Reppucci a direct order to answer Deputy

Macie’s questions. Reppucci refused. Chief Phillips placed

Reppucci on administrative leave that day (July 9, 2009). And,

although Reppucci consulted with an attorney shortly thereafter,

he never answered Deputy Macie’s questions. During a subsequent

security check of Reppucci’s computer, the police department

discovered that he had sent, to his personal e-mail account,

6 confidential information about internal investigations involving

other police officers.

On August 4 , 2009, Reppucci received written notice that

Chief Phillips was recommending that he be fired. He was also

told that a hearing before the Board of Selectmen had been

scheduled for August 1 7 , at which he would have an opportunity to

present any evidence relevant to the proposed termination of his

employment. Finally, Reppucci was advised to contact the Town’s

attorney and let him know whether he would be represented by an

attorney, whether he wished to have a public hearing, whether he

needed any additional documents, and whether he had a list of

potential witnesses that he might call.

The hearing before the Board of Selectman occurred on August

17. Reppucci revealed that he did not plan to testify and

informed the Board that his attorney was unable to attend. He

claimed that he sought a continuance from the Town’s counsel, but

counsel denied that Reppucci made any such request. The Police

Department objected to any continuance and the Board elected to

proceed with the hearing. The Board then heard from several

witnesses about Reppucci’s disclosure of confidential information

to a member of the public (in violation of police department

regulations), his refusal to follow the Chief’s direct order to

7 answer Deputy Macie’s questions, and his having e-mailed

confidential police files to his personal e-mail account.

The Board issued its Notice of Decision on August 2 6 ,

concluding that the termination of Reppucci’s employment was

warranted. Reppucci appealed that decision to the New Hampshire

Superior Court (Cheshire County), asserting that his discharge

was unlawful. In his appeal, Reppucci advanced the following

claims:

1. That the Town of Winchester (acting through its police department) violated his federally protected right to free speech when it initiated an investigation into his disclosure of confidential information to the public;

2. That he was the victim of retaliatory discharge, when his employment was terminated “as a result of Plaintiff’s request to speak to counsel before answering questions;”

3. That the Town deprived him of his federally protected right to the assistance of counsel when he was “forced to appear at [the Board’s meeting] without counsel and without the ability to present a defense” - all of which Reppucci claimed violated his constitutionally protected right to due process; and, finally,

4. That the Town deprived him of “a significant property right (continued employment under RSA 41:48) without Due Process or legal justification.”

See Appeal of Termination (document n o . 9-2) at 1-3. See also

Reppucci I , at 7 (construing plaintiff’s claims on appeal).

8 In a lengthy and thorough opinion, the Superior Court

rejected each of Reppucci’s claims and affirmed the Board’s

decision to terminate Reppucci’s employment. In summary, the

court concluded that:

1. The Board did not abuse its discretion, nor did it violate any of Reppucci’s statutory or constitutional rights, in denying his request for a continuance;

2. Although Reppucci had a constitutionally protected right to communicate with counsel, the Board did not violate that right;

3. The Board did not unlawfully terminate Reppucci’s employment; and

4. The Board had a number of lawful reasons for terminating Reppucci’s employment, including: Reppucci’s insubordinate refusal to follow a direct order from the Chief; his transmission of e-mails containing confidential personnel information from his work computer to his personal e-mail account, in violation of Town and Police Department regulations; and his disclosure of a confidential personnel record to a member of the public.

See Reppucci I , at 9-15. And, perhaps most importantly for

purposes of this litigation, the state court concluded that “the

Town did not terminate M r . Reppucci because he engaged in a

protected activity. Instead, the Town terminated him for

disclosing a confidential personnel record, in violation of town

and department rules which he was obligated to follow.” Id. at

13.

9 In short, the court concluded that: Reppucci’s termination

was entirely consistent with state law; Reppucci was not deprived

of procedural due process, his right to counsel, or his right of

free speech; and he was not fired in retaliation for having

engaged in any protected activity. Accordingly, the court

affirmed the Board’s decision terminating Reppucci’s employment

as a police officer for the Town. Id. at 1 5 . Reppucci did not

appeal that decision to the New Hampshire Supreme Court.

Following his discharge, Reppucci applied for, and received,

unemployment benefits. The Town appealed that award to the New

Hampshire Employment Security Appeal Tribunal. After a hearing

on the matter, the NHES Appeal Tribunal reached essentially the

same conclusions as the Superior Court and held that, “the

claimant’s separation from employment is due to a discharge for

misconduct connected with his work.” NHES Appeal Tribunal

Decision dated January 2 1 , 2010 (document n o . 9-4) at 4 .

Accordingly, the NHES Appeal Tribunal reversed Reppucci’s award

of benefits and ordered him to make restitution to New Hampshire

Employment Security. Id. Reppucci did not appeal that decision.

On August 1 6 , 2012 - slightly more than three years after

his suspension - Reppucci filed this action. In his seven-count

amended complaint, he advances state common law and statutory

10 claims, as well as federal constitutional claims - all arising

out of the termination of his employment.

Discussion

I. State Law Employment Claims.

In counts one and two of his amended complaint, Reppucci

alleges that the Town and its police department unlawfully

terminated his employment, in retaliation for his having engaged

in protected activity. Those claims were “inextricably

intertwined” with those raised (and resolved) in Reppucci I and,

therefore, the Rooker-Feldman doctrine precludes this court from

reviewing them (even if it were persuaded that the state court’s

resolution of those issues was legally incorrect). See Rooker v .

Fidelity Trust Co.,

(1923); District of

Columbia Court of Appeals v . Feldman,

6 2 , 476 (1983).

See also Wang v . New Hampshire Bd. of Registration in Medicine,

9 8 , 703 (1st Cir. 1995).

Moreover, even if the Rooker-Feldman doctrine did not

preclude relitigation of Reppucci’s employment-related claims,

those claims would be barred by the doctrines of res judicata

(claim preclusion) and collateral estoppel (issue preclusion).

See generally Qualters v . Town of Winchester,

(D.N.H.

Feb. 9, 2005) (discussing the concepts of res judicata and

11 collateral estoppel under New Hampshire l a w ) . The preclusive

effect of the state court’s decision applies not only to the Town

of Winchester (which was a named defendant in Reppucci’s appeal),

but the remaining defendants in this case as well. See generally

Aubert v . Aubert,

2 2 , 427 (1987) (“We note that, in New

Hampshire, it is not necessary for collateral estoppel that there

be mutuality of parties. Thus a party who, after full

litigation, has lost on an issue is barred from litigating the

issue with new parties. [Proper application of this principal]

turns on whether or not the party against whom preclusion is

sought had a full and fair opportunity to litigate the issue.”)

(citations and punctuation omitted).

Reppucci had a full and fair opportunity to litigate his

employment related claims (based on both state law and the United

States Constitution) in the state superior court. To the extent

he was displeased with the superior court’s resolution of those

claims, his remedy was to appeal that decision to the New

Hampshire Supreme Court. He did not. He cannot relitigate those

claims in this forum.

Parenthetically, the court notes that Reppucci asserts that

the state superior court’s decision lacks preclusive effect in

this forum and, in support of that view, he relies upon Thomas v .

12 Contoocook Valley Sch. Dist.,

(1st Cir. 1998). That

reliance is misplaced. See Moron-Barradas v . Dep’t of Educ. of

Comm. of Puerto Rico,

7 2 , 479-80 (1st Cir. 2007)

(limiting the holding in Thomas to the “particularly unusual

circumstances” and unique facts presented in that case). Here,

the state superior court directly addressed and resolved

Reppucci’s claims (under both state and federal law) that he was

wrongfully terminated. Consequently, as in Moron-Barradas, the

factual findings and legal conclusions of the state court

preclude him from establishing the essential elements of the

state law employment claims he advances in this case. Defendants

are, therefore, entitled to the dismissal of those claims (counts

one and t w o ) .

II. Federal Constitutional Claims.

A. Equal Protection.

In counts three and four of his amended complaint, Reppucci

alleges that various defendants deprived him of his

constitutionally protected right to equal protection. As

defendants point out, however, Reppucci cannot (nor does he)

allege that he is a member of a protected class. He i s , then,

necessarily asserting “class-of-one” equal protection claims,

“alleging that [he] was fired not because [he] was a member of an

identified class . . . but simply for ‘arbitrary, vindictive, and

13 malicious reasons.’” Engquist v . Oregon Dep’t of Agric.,

9 1 , 595 (2008) (citation omitted). But, the Supreme Court

has made clear that “the class-of-one theory of equal protection

has no application in the public employment context.” Id. at

607.

We agree that, even if we accepted [plaintiff’s] claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of-one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.”

Id. at 608-609 (quoting Garcetti v . Ceballos,

1 0 , 423

(2006)). See also Balsamo v . Univ. Sys. of N.H.,

* 7 - 8 ,

(D.N.H. Sept. 3 0 , 2011) (addressing

and rejecting the “class-of-one” equal protection claims advanced

by a former employee of the University of New Hampshire).

B. Negligent Training and Supervision.

In counts five and six of his amended complaint, Reppucci

alleges that, as a result of failures by the Town and the County

to properly train and supervise their employees, those employees

violated Reppucci’s (unspecified) constitutional rights. The

14 captions used to describe those counts are somewhat confusing,

and suggest that Reppucci might be bringing common law negligence claims.2

Nevertheless, it is clear that, by invoking the provisions

of

, Reppucci intends to bring a Monell-type

claim against the two named municipal entities as well as the

individually named defendants in their official capacities. That

2 A “negligent training and supervision” claim - as Reppucci has captioned counts five and six of his amended complaint - is a state common law claim. A Monell claim that his constitutional rights were violated as a result of an unconstitutional municipal custom or policy involves a higher standard of proof. Rather than showing mere negligence, a plaintiff must demonstrate that the municipal defendants were, in essence, deliberately indifferent to the unconstitutional behavior of municipal employees. See, e.g., Haley v . City of Boston,

9 , 52 (1st Cir. 2011) (“Triggering municipal liability on a claim of failure to train requires a showing that municipal decisionmakers either knew or should have known that training was inadequate but nonetheless exhibited deliberate indifference to the unconstitutional effects of those inadequacies.”). See generally Dye v . Wargo,

, 298- 99 (7th Cir. 2001) (“In litigation under § 1983 a municipality is not vicariously liable for the constitutional torts of its employees but is answerable only for the consequences of its policies. . . . Although Dye contends that Elkhart did not properly train either Wargo or Frei, shortcomings of this kind do not establish direct liability, because the Constitution does not require municipalities to conduct training programs. Poor training is instead a means of showing intent for those constitutional torts where intent matters . . . . Proof of failure to train officers could be used to demonstrate that the municipality approves (hence has a policy of) improper conduct that training could extirpate. Such a claim in a case like this would depend on establishing that the City’s policymakers knew that the police were [violating the Constitution], yet did nothing to solve the problem. ” ) (citations omitted).

15 i s , Reppucci asserts that his alleged injuries were the product

of unconstitutional municipal customs or policies. See generally

Monell v . Dep’t of Soc. Services of City of New York,

(1978).

For the reasons discussed above, it is plain that none of

the defendants violated any of Reppucci’s constitutional rights

(and, at a minimum, that he is precluded from relitigating his

claims to the contrary in this forum). Consequently, his Monell

claims necessarily fail as a matter of law. As the Supreme Court

has observed:

[N]either Monell . . . nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the [court] has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized [unconstitutional behavior] is quite beside the point.

City of Los Angeles v . Heller,

(1986) (emphasis

in original). See also Jarrett v . Town of Yarmouth,

(1st Cir. 2003) (“Our determination that [plaintiff]

suffered no constitutional injury is dispositive of his municipal

liability claim against the Town.”).

16 C . Conspiracy to Violate Constitutional Rights.

Finally, in count seven of his amended complaint, Reppucci

invokes the provisions of

and alleges that

various individual defendants (both known and unknown to him)

conspired to “deny him his right to Counsel, his right to not

incriminate himself, and violate his Equal Protection Rights.”

Amended complaint at para. 8 9 . But, as the Court of Appeals for

the First Circuit has noted, “[w]hile conspiracies may be

actionable under section 1983, it is necessary that there have

been, besides the agreement among conspirators, an actual

deprivation of a right secured by the Constitution and laws.”

Thore v . Howe,

(1st Cir. 2006) (quoting

Landrigan v . City of Warwick,

(1st Cir. 1980)) (emphasis supplied). 3

Here, Reppucci cannot demonstrate an “actual deprivation” of

a constitutionally protected right. As noted above, because he

was a government employee, his equal protection “class-of-one”

claim fails. And, his assertion that defendants violated his

3 The Cheshire County Defendants (Foote, Macie, the Sheriff’s Office and the County itself) attempt to cast Reppucci’s conspiracy claims as being brought pursuant to

(3). The court disagrees. Reppucci’s complaint and his various responsive pleadings make clear that those claims are brought pursuant to

. Accordingly, the court has treated them as such.

17 right to due process and/or counsel was fully and finally

resolved against him in Reppucci I .

Conclusion

For the foregoing reasons, as well as those set forth in

defendants’ legal memoranda (documents n o . 9-1, 12-1, 1 7 , and

2 4 ) , defendants’ motions to dismiss (documents n o . 9 and 12) are

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 23, 2013

cc: Brian J. S . Cullen, Esq. Stephen T . Martin, Esq. Daniel P. Schwarz, Esq.

18