UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Matthew Levine

v. Civil No. 14-cv-474-JD Opinion No.

Town of Pelham, et al.

O R D E R

Matthew Levine brought suit in state court, alleging state

law claims against the Town of Pelham, the Pelham Police

Department, and the Pelham School District, and alleging a claim

under

against the town and the police

department.1 The town removed the case to this court. After

filing their answers, the school district and the town filed

motions for judgment on the pleadings.2 Levine then moved to

amend his complaint.

Background

Levine alleges that in 2011, during the events that gave

rise to his claims, he was an educator in the Pelham School

1The town and the police department represent that the police department is a department of the town and not a separate entity for purposes of this suit. Therefore, those defendants will be referred to as the town.

2The school district had filed its answer when it filed its motion to dismiss and also purported to move to dismiss pursuant to Federal Rule of Civil Procedure 12(c). Therefore, the school district’s motion is construed to seek judgment on the pleadings under Rule 12(c) rather than dismissal under Rule 12(b)(6). District. He states that he was arrested in August of 2011 when

it was discovered that a Facebook account in his name was being

used to communicate inappropriately with a student in the Pelham

School District. Levine denies that he engaged in those

communications. Levine alleges that the police department wrote

in a report that he had agreed that he had communicated with the

student.

After his arrest, Levine was indicted by a grand jury. The

charges against him were ultimately dismissed in the superior

court.

Levine alleges that he lost his job in the school district

because of the arrest and the charges brought against him. He

also alleges that he lost a subsequent job in the Gloucester,

Massachusetts school system because of the arrest and charges.

He further alleges that his application for a license with the

Massachusetts Department of Education was put on hold because of

his arrest.

I. Motion to Amend

Levine moves to amend his complaint to add a statement to

paragraph 9 that he did not agree that he had communicated with

a student, as stated in the police report. He also proposes to

add a paragraph which alleges that the town lacked policies and

procedures to require its detectives to obtain Internet Protocol

2 addresses from Facebook. He further alleges in the new

paragraph that the town’s policies and procedures failed to

require the police to investigate whether the address associated

with the communications with the student was controlled by him.

The town objects to the motion to amend on the grounds that the

amendment is futile.

A. Standard of Review

Under Federal Rule of Civil Procedure 15(a)(2), a party may

move to amend his complaint, and “(t)he court should freely give

leave when justice so requires.” A motion for leave to amend

may be denied, however, if the amendment would be futile.

Todisco v. Verizon Commc’ns, Inc.,

, 98 (1st Cir.

2007). An amendment would be futile if it fails to make a

plausible claim for relief as tested under the Rule 12(b)(6)

standard. HSBC Realty Credit Corp. (USA) v. O’Neill,

, 570 & 578 (1st Cir. 2014).

Under the Rule 12(b)(6) standard, a plaintiff must allege

“enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly,

(2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal,

, 678

3 (2009). The court accepts all well-pleaded factual allegations

as true and draws reasonable inferences in the plaintiff’s favor

but does not accept legal conclusions or mere recitation of the

elements of a cause of action. San Geronimo Caribe Project,

Inc. v. Acevedo-Vila,

(1st Cir. 2012).

B. Discussion

The town contends that Levine’s proposed amended complaint

is futile because it fails to allege facts to support municipal

liability under § 1983, because the state law claims are barred

by RSA 507-B, and because the claims are barred by the statute

of limitations. Levine did not respond to the town’s assertion

of futility. The town raised the same issues in its motion for

judgment on the pleadings, however, and in his objection Levine

ignored the statute of limitations issue and argued that he had

adequately alleged facts to support his claims.

1. Section 1983 Claim - Count II

In the proposed amended complaint, Levine alleges that he

was “arrested and charged with a crime without cause.” He

states that Pelham police officers arrested him and “sought

prosecution” under their “official authority” and that “their

use of this authority violated [his] rights under the Fourth

Amendment of the United States Constitution.” Levine further

4 alleges that the town “is vicariously liable for actions of the

Pelham Police Department.”

The town contends that the § 1983 claim is barred by the

statute of limitations and also fails on the merits.

Specifically, the town asserts that it cannot be liable under a

theory of vicarious liability and that Levine has not alleged

facts to support municipal liability.

a. Statute of Limitations

Claims brought under § 1983 are governed by the appropriate

state law governing limitations periods. Vistamar, Inc. v.

Fagundo-Fagundo-Fagundo,

(1st Cir. 2005). For

§ 1983 claims brought in New Hampshire, the applicable statute

of limitations is three years, as provided by RSA 508:4.

Gorelik v. Costin,

(1st Cir. 2010). Federal

law, however, governs the date when a § 1983 claim accrues. Id.

For purposes of § 1983 claims for false arrest, when the charges

were later dropped or dismissed, the limitations period begins

to run “at the time the claimant becomes detained pursuant to

legal process.” Wallace v. Kato,

(2007).

Under New Hampshire Superior Court Rule 2, the limitation period

imposed by RSA 508:4 begins when the writ is filed or served,

whichever occurs first. See Bentley v. City of Lebanon,

, at *1 (Mar. 22, 2011).

5 In this case, Levine alleges that he was arrested in August

of 2011. The town asserts, supported by the affidavit of the

officer who arrested Levine, that Levine was arrested on August

24, 2011, and was released on bail the next day. Levine does

not dispute the dates of his arrest and release or contest the

officer’s statements in his affidavit. Levine’s original

complaint is dated August 28, 2011, and the state court record

shows that the complaint was filed on August 28, 2011. Service

on the defendants was completed on October 2, 2011.

Based on that chronology, Levine’s § 1983 claim, which

alleges that his arrest violated the Fourth Amendment, was filed

four days too late. As a result, absent other considerations

that have not been raised here, his § 1983 claim is time barred.

b. Merits

In addition, although the § 1983 claim is barred by the

statute of limitations, the claim would also fail on the merits.

The town cannot be vicariously liable under § 1983 for

actions taken by its police officers. See Monell v. Dep’t of

Soc. Servs.,

(1978). When a plaintiff

brings a § 1983 claim against a town, he must allege that “the

municipality itself cause[d] the constitutional violation at

issue.” City of Canton v. Harris,

(1989). To

do that, the plaintiff must allege facts that demonstrate the

6 existence of municipal custom, policy, or practice and a “direct

causal link” between the municipal custom, policy, or practice

and the constitutional violation.

.

A single instance of misconduct by a police officer,

standing alone, is insufficient to show a municipal custom,

policy, or practice.3 Fabiano v. Hopkins,

(1st

Cir. 2003). To be actionable under § 1983, an unwritten or

informal custom, policy, or practice must “be so well-settled

and widespread that the policy-making officials of the

municipality can be said to have either actual or constructive

knowledge of it yet did nothing to end it.” Walden v. City of

Providence,

, 57-8 (1st Cir. 2010) (internal

quotation marks omitted). When a plaintiff asserts that the

municipality’s failure to train its employees was a custom,

policy, or practice that resulted in a constitutional violation,

he must allege facts that the municipality’s failure to train

showed a deliberate indifference to the constitutional rights

allegedly violated. Haley v. City of Boston,

(1st Cir. 2011); Estate of Bennett v. Wainwright,

(1st Cir. 2008).

3In contrast, a single act by a final policy maker may establish an official custom, practice, or policy. Rosaura Bldg. Corp. v. Municipality of Mayaguez,

(1st Cir. 2015).

7 To support his unconstitutional arrest claim under § 1983,

Levine proposes to add allegations about the town’s policies and

procedures. The new allegations are that “[t]he policies and

procedures of the Town of Pelham Police Department did not

require any detective, investigator or other employee to obtain

Internet Protocol (“IP”) address information from Facebook

related to the communication in question” and that “the policies

and procedures [did not] require, prior to seeking charges

against the Defendant, that the IP address of the communication

somehow be associated with one controlled or associated with the

Plaintiff.” Levine also adds that “no such investigation was

undertaken.”

Levine’s new allegations are that the town lacked policies

and procedures that he contends were necessary to investigate

the accusation that he had inappropriately communicated with a

student through Facebook. As such, he is not alleging that his

arrest was caused by a custom, policy, or practice of the town.

To the extent Levine’s new allegations are intended to claim a

lack of training for town police officers, he fails to include

allegations that would show the town’s deliberate indifference

to constitutional rights that could be violated by the lack of

training.

As a result, Levine’s proposed amendment does not

adequately allege municipal liability under § 1983.

8 Count II, even with the proposed amendments, is time barred

and does not state an actionable claim against the town under §

1983. As a result, the proposed amendment would be futile and

the motion to amend is denied.

II. Motions for Judgment on the Pleadings

Both the town and the Pelham School District moved for

judgment on the pleadings on all claims in the original

complaint. Jurisdiction for removal of this case from state

court was premised on the existence of a federal question as

required by

. The only claim that presents a

federal question is the § 1983 claim in Count II.

For the reasons explained in Part I, the complaint, even

with the proposed amendments, does not state a claim under

§ 1983. Therefore, that claim is dismissed.

When the court has dismissed all claims over which it had

original jurisdiction, the court may decline to exercise

supplemental jurisdiction over the other claims in the case.

(c)(3). In making the decision whether to retain

or decline supplemental jurisdiction, the court should consider

“the interests of fairness, judicial economy, convenience, and

comity.” Desjardins v. Willard,

(1st Cir. 2015)

(internal quotation marks omitted). “[T]he balance of competing

9 factors ordinarily will weigh strongly in favor of declining

jurisdiction over state law claims where the foundational

federal claims have been dismissed at an early stage in the

litigation.” Camelio v. Am. Federation,

(1st

Cir. 1998).

This case was removed from state court and has not

proceeded beyond preliminary motion practice. The remaining

state claims involve, among other things, issues of immunity

under state law and the breadth of negligence under state law.

Therefore, the relevant considerations support a decision to

decline supplemental jurisdiction over the remaining state law

claims.

Conclusion

For the foregoing reasons, the plaintiff’s motion to amend

(document no. 18) is denied.

The town defendants’ motion for judgment on the pleadings

(document no. 11) is granted as to Count II and is otherwise

terminated due to lack of subject matter jurisdiction.

The Pelham School District’s motion to dismiss (document

no. 10) and motion to strike (document no. 17) are terminated

due to a lack of subject matter jurisdiction.

10 The case is remanded to Hillsborough County Superior Court,

Southern District.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 15, 2015

cc: Brian J.S. Cullen, Esq. Donna Feeney, Esq. Diane M. Gorrow, Esq. Mark L. Stevens, Esq.

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