UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Kiernan, Plaintiff

v. Case No. 13-cv-480-SM Opinion No.

The Town of Hudson, New Hampshire, and Hudson Police Officer Dan Dolan, Defendants

O R D E R

Pro se plaintiff, John Kiernan, brings this action against

the Town of Hudson, New Hampshire, and Hudson Police Officer Dan

Dolan. In his amended complaint, Kiernan alleges that defendants

engaged in conduct that was so extreme and outrageous that it

violated his Fourteenth Amendment right to substantive due

process (count one). See generally

. See also

Report and Recommendation (document no. 20) (construing

plaintiff’s various claims). He also advances several state

common law claims over which he implicitly asks the court to

exercise supplemental jurisdiction: intentional infliction of

emotional distress (count two); negligence (count three); abuse

of process/malicious prosecution (count four); and defamation

(count five). In addition to an award of compensatory damages,

Kiernan also seeks an award of punitive damages (which he has

captioned as the sixth count in his amended complaint). Pending before the court is defendants’ motion for judgment

on the pleadings. For the reasons stated, that motion is granted

to the extent it seeks judgment on the sole federal claim in

Kiernan’s complaint. As to Kiernan’s state law claims, the court

declines to exercise supplemental jurisdiction and they are

dismissed without prejudice.

Standard of Review

A motion for judgment on the pleadings is subject to the

same standard of review applicable to a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). See Portugues–Santana

v. Rekomdiv Int'l, Inc.,

(1st Cir. 2013).

Accordingly, the court must accept as true all well-pleaded facts

in Kiernan’s complaint and indulge all reasonable inferences in

his favor. See SEC v. Tambone,

(1st Cir.

2010). To survive defendants’ motion, the complaint 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,

(2009) (citation and internal

punctuation omitted). Legal boilerplate and general conclusory

statements are insufficient to state a cognizable claim. See

Menard v. CSX Transp., Inc.,

(1st Cir. 2012).

2 Background

Accepting the factual allegations in Kiernan’s amended

complaint (document no. 3) as true, the relevant background is as

follows. Kiernan says there has been animosity between him and

Officer Dolan since March of 2008, when Dolan testified as a

witness in a civil dispute between Kiernan and his neighbors.

Kiernan speculates that because he cross-examined Dolan in that

proceeding (and apparently questioned the truthfulness of Dolan’s

testimony), Dolan began harboring ill feelings toward him. He

claims that the day after he cross-examined Officer Dolan, the

Hudson Police Department sent him a letter, instructing him not

to have any contact with either Dolan or his wife and threatening

to arrest Kiernan if he violated that directive.1

More than two years later - in October of 2010 - Kiernan

says defendants followed through on that “retaliatory promise

1 Parenthetically, the court notes that plaintiff attached a copy of that letter to his objection. See Document no. 29-3 at 2. That letter was written by Officer Dolan. It was not written on police department stationary, nor did it purport to be an official communication from the Hudson Police Department. In it, Dolan informed Kiernan that his repeated phone calls to Dolan’s home (unlisted) telephone number and personal contacts with Dolan’s wife were unwelcome. He instructed Kiernan to stop, failing which he said he would “file reports with the necessary police agency and seek criminal charges” against Kiernan. He concluded by asking Kiernan to “[p]lease respect my wishes by not contacting any member of my family again. Thank you for your time and anticipated cooperation.”

3 . . . to have plaintiff falsely arrested.” Amended Complaint at

para. 30. Specifically, Kiernan says he was the victim of a

“road rage” incident involving Officer Dolan’s wife. In the wake

of that incident, Dolan’s wife sought (and obtained) a judicial

restraining order against Kiernan. According to Kiernan, that

restraining order issued only because Dolan’s wife and, although

he was not present during the incident, Dolan himself “lied to

the police, filed blatantly false police reports, lied under oath

and committed perjury.”

at para. 38.

A few days later, says Kiernan, Dolan and his wife “filed an

additional false police report with the Nashua police in order to

arrange the false arrest of plaintiff,”

at para. 46, for

violating the restraining order (by following Dolan’s wife after

she had picked up the couple’s children at school). Kiernan was

arrested, arraigned the next day, and released. The following

day, Dolan’s wife allegedly filed another report with the Nashua

Police Department, claiming Kiernan had confronted her at her

children’s school and saying she feared for their safety.

Kiernan denies the factual allegations in that police report and

says it was merely another instance of Dolan’s wife (and/or Dolan

himself) trying to have him falsely arrested. But, according to

Kiernan, “Nashua police refused to do the bidding for them yet

again” and Nashua police officers neither contacted nor arrested

4 Kiernan. And, he says the initial charges against him were

eventually dropped.

The most recent event giving rise to this action occurred in

the summer of 2012. According to Kiernan, he encountered Officer

Dolan at the Nashua South High School outdoor track. He claims

that as he walked past Officer Dolan, Dolan “shook his head back

and forth with an angry, menacing look on his face.”

at

para. 67. Dolan then stopped near the track’s exit, and Kiernan

says he felt “trapped, with no way to exit the track safely,

because Dolan had the only exit blocked.”

Not long

thereafter, Kiernan sent a written request to the Hudson Police

Department, asking it to conduct an “internal affairs

investigation into [his] false arrest at the hands of Officer

Dolan and his wife.”

at para. 70. When he felt his

complaints were not receiving adequate attention, Kiernan

contacted the office of United States Senator Shaheen and,

eventually, the New Hampshire Attorney General’s Office. When he

failed to receive satisfactory responses (or action) from either,

he filed this suit.

5 Discussion

I. Plaintiff’s Substantive Due Process Claim.

The Fourteenth Amendment to the United States Constitution

provides that no state shall “deprive any person of life,

liberty, or property without due process of law.” U.S. Const.

amend. XIV. As the Supreme Court has repeatedly held, the

substantive component of the Due Process Clause is violated by

executive action only when it “can properly be characterized as

arbitrary, or conscience shocking, in a constitutional sense.”

County of Sacramento v. Lewis,

(1998) (quoting

Collins v. Harker Heights,

(1992)). See also

Elena v. Municipality of San Juan,

(1st Cir.

2012) (“State conduct violates an individual’s substantive-due-

process rights when it is ‘so brutal, demeaning, and harmful that

it is shocking to the conscience.’”) (quoting Maymi v. P.R. Ports

Auth.,

(1st Cir. 2008)). Moreover, as the court

of appeals for this circuit has observed, “[e]ven executive

action that does shock the conscience will still not infringe

substantive due process unless it also deprives an individual of

a protected interest in life, liberty, or property.” Gonzalez-

Fuentes v. Molina,

, 880 n.13 (1st Cir. 2010)

(citation and internal punctuation omitted) (emphasis supplied).

See generally Albright v. Oliver,

(1994)

(“As a general matter, the Court has always been reluctant to

6 expand the concept of substantive due process because the

guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended. The protections of substantive

due process have for the most part been accorded to matters

relating to marriage, family, procreation, and the right to

bodily integrity.”) (citation and internal punctuation omitted).

Consequently, the “hallmark of successful challenges is an

extreme lack of proportionality, as the test is primarily

concerned with violations of personal rights so severe, so

disproportionate to the need presented, and so inspired by malice

or sadism rather than a merely careless or unwise excess of zeal

that it amounted to a brutal and inhumane abuse of official power

literally shocking to the conscience.” Gonzalez-Fuentes,

(citation and internal punctuation omitted).

Necessarily, then, the threshold for stating a viable Fourteenth

Amendment substantive due process claim is a high one, “lest the

Constitution be demoted to what we have called a font of tort

law.” Lewis,

n. 8. See also

(“It

should not be surprising that the constitutional concept of

conscience-shocking duplicates no traditional category of common-

law fault, but rather points clearly away from liability, or

clearly toward it, only at the ends of the tort law’s spectrum of

culpability. Thus, we have made it clear that the due process

7 guarantee does not entail a body of constitutional law imposing

liability whenever someone cloaked with state authority causes

harm.”).

Viewing this body of law from a slightly different

perspective, the court of appeals has collected representative

cases in which the plaintiffs did state a viable substantive due

process claim:

Among the cases in which plaintiffs have prevailed [on substantive due process claims] are those involving a student blinded in one eye when a coach intentionally struck him in the head with a metal weight; a teacher’s fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years; rape by a police officer in connection with a car stop; a 57–day unlawful detention in the face of repeated requests for release; police officers aiding a third-party in shooting the plaintiff; an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened to kill him; and a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her.

Cummings v. McIntire,

(1st Cir. 2001) (footnote

and citations omitted).

While it is plain that the “shocks-the-conscience” test

imposes a heavy burden on plaintiffs seeking to vindicate

substantive due process rights, it is also somewhat vague. As

the court of appeals has noted:

8 The “shock the conscience” test has been labeled “admittedly imprecise,” “virtually standardless,” “somewhat amorphous,” and “laden with subjective assessments.” Descriptions of what actions qualify as “conscience-shocking” often descend into a morass of adjectives that are as nebulous as they are pejorative, including “truly irrational,” “extreme and egregious,” “truly outrageous, uncivilized, and intolerable,” and “stunning.” Meanwhile, actions that have not been found to shock the conscience have still been described as “despicable and wrongful.” It would seem that, at least at the margins, the shock-the-conscience test requires us to split the hairs of opprobrium.

Gonzalez-Fuentes,

(citations omitted). This

case, however, is not “at the margins” nor does it require the

court to “split the hairs of opprobrium.” The alleged conduct

described in Kiernan’s amended complaint falls far short of that

which is necessary to state a viable substantive due process

claim.

Even taking at face value the events Kiernan describes

involving Officer Dolan at the Nashua track (i.e., looking at him

in a menacing way and allegedly obstructing the exit), they are,

at best, examples of arguably uncivil or impolite behavior. Such

conduct plainly fails to give rise to a substantive due process

claim against Dolan (or the Hudson Police Department). And, even

assuming the truthfulness of Kiernan’s claim that Dolan supported

his wife’s reporting of false charges to both the police and the

state court, and even assuming Dolan himself lied to those

9 entities to help his wife secure the restraining order against

Kiernan and/or Kiernan’s subsequent arrest, that conduct also

fails to give rise to a viable substantive due process claim.

See, e.g., Cruz-Erazo v. Rivera-Montanez,

(1st Cir.

2000) (off-duty police officers’ harassment of plaintiffs,

destruction of their personal property, pushing of their pregnant

daughter (who subsequently miscarried), initiation of false

charges against plaintiffs, and lying to a court, while

presenting a “close” case, did not give rise to substantive due

process claims). See generally Albright,

(holding that asserted right to be free from prosecution without

probable cause is not actionable as a § 1983 Fourteenth Amendment

substantive due process claim). See also Freeman v. Town of

Hudson,

(1st Cir. 2013) (defendants’ alleged

pursuit of “unsupported criminal charges against [plaintiff] for

personal reasons” did not give rise to a substantive due process

claim); Michel v. Town of Hampden,

, *2 (D. Ma.

2012) (assertions that defendants “maliciously procured an arrest

warrant, exaggerated the situation to state police, illegally

searched Plaintiff’s home, prosecuted him based on false

evidence, and made defamatory statements to the media” failed to

“meet the high ‘shocks the conscience’ standard necessary to

state a substantive due process claim.”).

10 II. Plaintiff’s State Law Claims.

While defendants urge the court to exercise supplemental

jurisdiction over Kiernan’s state law claims and dismiss them for

failing to state viable causes of action, the court declines that

invitation. See generally

. Section 1367

provides that the court may decline to exercise supplemental

jurisdiction over a plaintiff’s state law claim when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(c) (emphasis supplied). To assist district

courts, the Court of Appeals for the First Circuit has identified

the following additional factors that should be considered when

considering whether to exercise supplemental jurisdiction over

state law claims: (1) the interests of fairness; (2) judicial

economy; (3) convenience; and (4) comity. See Camelio v.

American Fed’n,

(1st Cir. 1998). With regard

to principles of fairness and comity, the Supreme Court has

observed:

11 Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs,

(1966) (footnote

omitted). See also Camelio,

(noting that when

the “foundational federal claims have been dismissed at an early

stage in the litigation,” the “balance of competing factors

ordinarily will weigh strongly in favor of declining jurisdiction

over state law claims”); O'Connor v. Commonwealth Gas Co.,

(1st Cir. 2001) (same).

Given that the court has dismissed the sole federal claim in

Kiernan’s complaint “at an early stage in the litigation,”

Camelio,

, and in the interest of comity, the

court declines to exercise supplemental jurisdiction over the

state law claims in Kiernan’s amended complaint.

Conclusion

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

defendants’ memorandum (document no. 27-1), defendants’ motion

for judgment on the pleadings (document no. 27) is granted in

part and denied in part. Plaintiff’s substantive due process

claim (count one) fails to state the essential elements of a

12 viable cause of action and is, therefore, dismissed with

prejudice. The court declines to exercise supplemental

jurisdiction over plaintiff’s remaining (state law) claims, which

are dismissed without prejudice.

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

February 10, 2015

cc: John Kiernan, pro se Brian J. S. Cullen, Esq.

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