UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lisa Censabella

v. Civil No. 16-cv-490-AJ Opinion No.

Town of Weare, et al.1

ORDER AND MEMORANDUM

The plaintiff, Lisa Censabella, alleges that various

employees of the Town of Weare Police Department (“WPD”) and

members Board of Selectmen (“Board”) were complicit in a

conspiracy that ultimately resulted in Censabella’s termination

as a WPD employee. She brings a ten-count complaint alleging

various violations of federal and state law. Sheila Savaria, an

officer with the WPD, is named as a defendant in seven of those

counts: Counts I, IV, V, VI, VIII, IX, and X. Savaria moves to

dismiss each count pursuant to Federal Rule of Civil Procedure

12(b)(6) on the basis that Censabella has failed to state a

claim against her upon which relief may be granted. Doc. no.

12. Censabella objects, subject to one limited exception. Doc.

1The Town of Weare, Sean Kelly, Frank Hebert, Kimberly McSweeney, Brandon Montplaisir, Kenneth Cox, Shelia Savaria, Naomi Bolton, Thomas Clow, Keith Lacasse, James Leary, Jennifer Bohl, and Frederick W. Hippler. The individual defendants have all been sued in both their official and personal capacities. no. 19. For the reasons that follow, Savaria’s motion is

granted as to all counts except Count X.

Standard of Review

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, construe reasonable

inferences in the plaintiff’s favor, and “determine whether the

factual allegations . . . set forth a plausible claim upon which

relief may be granted.” Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (citation and quotation marks

omitted). A claim is facially plausible “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,

(2009). Analyzing plausibility is “a context-specific task” in

which the court relies on its “judicial experience and common

sense.”

.

Background

The facts recited in this section are drawn from

Censabella’s complaint and certain documents attached to

Savaria’s motion to dismiss.2 When viewed in the light most

2 These documents are: (1) a letter, signed by Censabella, entitled “Personnel Entry, Order of Suspension and Conditions of 2 favorable to Censabella, the relevant facts are as follows.3

Censabella was a police officer with the WPD. She was

hired by the WPD as a part-time officer in August 2009,

transitioning to full time in August 2010. Beginning in late-

February 2013, Kenneth Cox, then a sergeant with the WPD, and

Kimberly McSweeney, then the WPD’s union steward, separately

approached Censabella and requested that she draft a statement

of misconduct against then-WPD lieutenant James Carney. Carney

had previously been Censabella’s supervisor. Censabella stated

that she had not observed any misconduct by Carney and refused

both requests. Soon after these conversations, Carney was

placed on administrative leave, and the Town of Weare (“Town”)

issued a “no contact” order prohibiting any WPD officer from

communicating with Carney. Carney ultimately left the WPD on or

Continued Employment” (doc. no. 12-2); (2) a memorandum Savaria wrote regarding an investigation of a traffic incident (doc. no. 12-3); and (3) a redacted version of a charge of discrimination Censabella filed with the New Hampshire Commission for Human Rights (doc. no. 12-4). Censabella contends that the court may not consider these documents without converting Savaria’s motion into one for summary judgment. The court disagrees, as each of these documents is explicitly referenced in Censabella’s complaint and is central to one or more of her claims for relief. See Brennan v. Zafgen, Inc.,

(1st Cir. 2017) (original bracketing omitted) (citation omitted).

3 Though Censabella’s complaint is expansive, her allegations against Savaria are discrete. The court will focus its recitation of the facts accordingly, providing additional factual context only to the extent necessary.

3 about July 1, 2013.

Censabella viewed Cox and McSweeney’s actions to be part of

a conspiracy against Carney. She surmised that Savaria was part

of this conspiracy. Over the course of the next several years,

members of this conspiracy targeted Censabella due to the

perception that she remained close to and was communicating with

Carney. At one point, Cox informed Censabella that Savaria,

among others, believed that Censabella was “leaking” information

to Carney. On another occasion, Carney approached Censabella at

a bar and Censabella started crying uncontrollably, telling

Carney that she could not speak with him because she had “become

the target” of several WPD officers, including Savaria, for not

filing a false report against Carney. The behavior of the

members of the conspiracy caused Censabella emotional and

psychological distress.

On December 29, 2014, Censabella was placed on

administrative leave. The Board held a hearing the following

week, after which Censabella was suspended for thirty days and

required to sign a “second chance agreement.” See doc. no. 12-

2. Censabella attributes this series of events to the

conspiracy against her.

Following her suspension, Censabella took a medical leave

of absence for hip replacement surgery. When she returned to

work in May 2015, several WPD officers, including Savaria,

4 orchestrated “an onslaught of false allegations, untrue

statements, and . . . internal affairs investigations” against

her. Doc. no. 1-1 ¶ 121. As a result of these actions,

Censabella was again placed on administrative leave.4 Censabella

requested a hearing before the Board and, in September 2015,

filed charges of discrimination against several WPD officers,

including Savaria, with the New Hampshire Commission for Human

Rights (“NHCHR”) and the United States Equal Employment

Opportunity Commission (“EEOC”). See doc. no. 12-4.

The Board held a hearing on October 5, 2015. At this

hearing, Sean Kelly, then chief of the WPD, recommended that

Censabella be terminated. Kelly based this recommendation in

part upon a finding that Censabella had gone to the hospital to

arrest the driver of a motor vehicle involved in a collision

without proper authorization to make the arrest. Though

Censabella recalls McSweeney ordering her to make the arrest

while they were both at the scene of the collision, McSweeney

later prepared a written statement claiming that no such order

In her complaint, Censabella initially states that she was 4

placed on “paid administrative leave” on August 5, 2015. See doc. no. 1-1 ¶ 122. Two paragraphs later, she states that she was on “unpaid administrative leave” as of August 10, 2015. Id. ¶ 124. She does not explain how her leave shifted from “paid” to “unpaid” in a matter of five days. For the purposes of this order, the court will assume that the initial reference to “paid” leave is a typographical error, and that Censabella was in fact placed on unpaid leave as of August 5, 2015. 5 had been made. Savaria was also at the scene, but not within

earshot of Censabella and McSweeney. Savaria nevertheless

prepared a memorandum stating that she observed McSweeney “ask[]

Officer Censabella to meet Weare Rescue at the Concord Hospital

to investigate further, and make an arrest if she felt she had

probable cause to do so” but that “[a]t no point did [Savaria]

hear Sergeant McSweeney tell Officer Censabella to go to the

hospital specifically to arrest [the driver].” Doc. no. 12-3

(hereinafter the “memorandum”).

Censabella’s employment with the WPD was terminated

following the hearing. This action followed.

Discussion

Censabella brings claims against Savaria for: (1)

interference with contractual relationships (Count I); (2) civil

conspiracy (Count IV); (3) intentional infliction of emotional

distress (Count V); (4) negligent infliction of emotional

distress (Count VI); (5) violations of substantive and

procedural due process and freedom of speech (Count VIII); (6)

conspiracy to violate substantive and procedural due process and

freedom of speech (Count IX); and (7) aiding and abetting and

retaliation in violation of New Hampshire Revised Statutes

Annotated (“RSA”) § 354-A (Count X). Savaria moves to dismiss

each of these counts for failure to state a claim. Censabella

6 concedes that she has not stated a claim for negligent

infliction of emotional distress, see infra p. 12, but otherwise

objects. The court considers each count in turn.

I. Count I: Tortious Interference with Contractual Relations

To succeed on a claim for tortious interference with

contractual relations, a plaintiff must demonstrate that “(1)

the plaintiff had an economic relationship with a third party;

(2) the defendant knew of this relationship; (3) the defendant

intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.” City

of Keene v. Cleaveland,

(2015) (citation and

quotation marks omitted). When, as here, the plaintiff alleges

interference by a fellow employee with her employment contract,

“[the] employer may be a third party only if the fellow employee

was acting outside of the scope of his employment.” O'Neill v.

Valley Reg'l Health Care, Inc., No. 00-cv-441-JD,

, at *3 (D.N.H. Mar. 21, 2001) (citing, e.g., Preyer v.

Dartmouth Coll.,

(D.N.H. 1997)); see also

Balsamo v. Univ. Sys. of N.H., No. 10-cv-500-PB,

, at *5 (D.N.H. Sept. 30, 2011).

Censabella raises three basic categories of allegations

against Savaria. First, she alleges that Savaria was, at least

in part, responsible for the “onslaught of false alelgations,

untrue statements, and . . . internal affairs investigations”

7 brought against Censabella. Doc. no. 1-1 ¶ 121. This

allegation is insufficient to establish a claim of tortious

interference with contractual relations, however, because

Censabella has not elaborated upon the nature of the purported

allegations, untrue statements, and internal investigations, let

alone Savaria’s involvement in them. See Iqbal,

(noting that “naked assertions devoid of any further factual

enhancement” are insufficient to defeat a motion to dismiss

(brackets and quotation marks omitted)).

Next, Censabella’s suggests that Savaria interfered with

Censabella’s employment through her statements in the

memorandum. This argument, too, is unavailing because

Censabella has failed to allege any facts that would support a

reasonable inference was Savaria was operating outside of the

scope of here employment with the WPD when she wrote the

memorandum. See Aversa v. United States,

(1st Cir. 1996) (“An act is within the scope of employment under

New Hampshire law if it was authorized by the employer or

incidental to authorized duties; if it was done within the time

and space limits of the employment; and if it was actuated at

least in part by a purpose to serve an objective of the

employer.”). Indeed, there is every indication here that the

opposite was true: the memorandum is written on WPD letterhead

and plainly relates to an investigation by the WPD in which

8 Savaria was an investigating officer. See doc. no. 12-3.

Finally, Censabella generally contends that Savaria was

part of a conspiracy, that Savaria believed Censabella was

leaking information to Carney, and that Savaria was “targeting”

Censabella. These arguments do not move the ball, as they are

little more than “labels and conclusions” unadorned by the sort

of factual backing sufficient to sustain a claim for relief.

See Iqbal, 56 U.S. at 678. Thus, without more, these statements

are insufficient to defeat a motion to dismiss.

In sum, Censabella has failed to state a claim against

Savaria for tortious interference with contract relations.

Savaria’s motion to dismiss is granted as to Count I.

II. Count IV: Civil Conspiracy

The court construes Count IV of Censabella’s complaint to

allege conspiracy under New Hampshire common law. In New

Hampshire, a civil conspiracy is “a combination of two or more

persons by concerted action to accomplish an unlawful purpose,

or to accomplish some purpose not in itself unlawful by unlawful

means.” Sykes v. RBS Citizens, N.A.,

(D.N.H. 2014) (internal quotation marks omitted) (quoting Jay

Edwards, Inc. v. Baker,

(1987)). A claim for

civil conspiracy has the following elements:

(1) two or more persons (including corporations); (2) an object to be accomplished (i.e. an unlawful object to be achieved by lawful or unlawful means or a lawful object to

9 be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.

(internal quotation marks omitted) (quoting Jay Edwards,

).

Censabella alleges, without further elaboration, that she

surmised that Savaria was part of the conspiracy, that Savaria

“targeted” Censabella, and that Savaria was in part responsible

for the “an onslaught of false allegations, untrue statements,

and . . . internal affairs investigations” made or brought

against Censabella. “Such conclusory statements are not

entitled to the assumption of truth,” Maldonado v. Fontanes,

(1st Cir. 2009) (internal quotation marks omitted)

(quoting Iqbal,

), and accordingly cannot

themselves sustain a civil conspiracy claim against Savaria.

Beyond these statements, there are no factual allegations in the

complaint supporting a plausible inference that Savaria ever

reached an agreement with another member of the WPD or anyone

else to achieve some goal (either unlawful itself or achieved

though unlawful means) that proximately resulted in damage to

Censabella. Censabella has therefore not stated a claim against

Savaria in Count IV.

III. Count V: Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional

distress (“IIED”), a plaintiff must allege that a defendant “by

10 extreme and outrageous conduct, intentionally or recklessly

caused severe emotional distress to another.” Tessier v.

Rockefeller,

(2011) (citation omitted). “In

determining whether conduct is extreme and outrageous, it is not

enough that a person has acted with an intent which is tortious

or even criminal, or that he has intended to inflict emotional

distress, or even that his conduct has been characterized by

malice.”

(citation omitted). “Rather, liability has been

found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.”

(brackets,

quotation marks, and citation omitted).

Censabella has plainly failed to allege any facts in her

complaint which, when assumed true, support a plausible

inference that Savaria intentionally or recklessly caused

Censabella severe emotional distress by engaging in extreme and

outrageous conduct. Indeed, there is no allegation against

Savaria in her complaint even approaching the sort of extreme

and outrageous conduct that, if proven, would allow recovery

under an IIED theory. For this reason, Count V is dismissed as

brought against Savaria.

IV. Count VI: Negligent Infliction of Emotional Distress

In her objection, Censabella concedes that her count for

11 negligent infliction of emotional distress “should be dismissed

against all defendants.” Doc. no. 19 at 6. Savaria’s motion is

accordingly granted as to this count.5

V. Count VIII: Due Process and Freedom of Speech

Censabella alleges claims under

for

violations of substantive due process, procedural due process,

and freedom of speech. The court considers each in turn.

A. Substantive Due Process

“In order to assert a viable substantive due process claim,

a plaintiff has to prove that [she] suffered the deprivation of

an established life, liberty, or property interest, and that

such deprivation occurred through governmental action that

shocks the conscience.” Najas Realty, LLC v. Seekonk Water

Dist.,

(1st Cir. 2016) (citation and quotation

marks omitted). “The burden to show state conduct that shocks

the conscience is extremely high, requiring stunning evidence of

arbitrariness and caprice that extends beyond mere violations of

state law, even violations resulting from bad faith to something

more egregious and more extreme.” J.R. v. Gloria,

(1st Cir. 2010) (brackets, quotation marks, and citation

5 As this order is limited to Savaria’s motion, and Censabella has neither filed a stipulation of dismissal under Rule 41(a)(1)(ii) nor requested that the court enter an order dismissing Count VI as to the remaining defendants under Rule 41(a)(2), the court declines to dismiss this count against the remaining defendants at this time. 12 omitted).

Here, there is nothing in Censabella’s allegations against

Savaria that can fairly viewed to “shock the conscience” as that

phrase is understood under First Circuit precedent. Cf. Cruz-

Erazo v. Rivera-Montanez,

(1st Cir. 2000)

(finding no substantive due process violation as a matter of law

when an off duty police officer threatened and harassed the

plaintiffs, destroyed their property, and physically pushed the

plaintiffs’ pregnant daughter, causing her to miscarry).

Censabella has therefore failed to plausibly allege a

substantive due process violation by Savaria.

B. Procedural Due Process

To state a claim for procedural due process, a plaintiff

“must allege facts which, if true, establish that [she] (1) had

a property interest of constitutional magnitude and (2) was

deprived of that property interest without due process of law.”

Miller v. Town of Wenham Massachusetts,

(1st

Cir. 2016) (citation omitted). Even assuming that Censabella

had a property interest of constitutional magnitude in her

employment with the WPD and did not receive adequate process

from the WPD and/or the Board, she has nonetheless failed to

allege any facts from which the court can infer that Savaria was

in any way involved in that deprivation. For instance, there is

no suggestion in the complaint that Savaria was Censabella’s

13 supervisor or that she had any direct role in the proceedings

that ultimately resulted in Censabella’s termination.

Censabella has accordingly failed to state a procedural due

process claim against Savaria.

C. Freedom of Speech

Savaria assumes in her motion to dismiss that Censabella’s

free speech claim is premised solely upon the “no contact” order

imposed by the Town. Though Censabella does not directly refute

this in her objection, she does appear to suggest that she was

retaliated against for “refusing to say something” – presumably

her refusal to file misconduct reports against Carney. The

court will therefore consider both the “no contact” order and

Censabella’s allegation of retaliation.

As with Censabella’s procedural due process claim, there

are simply no allegations of fact in Censabella’s complaint that

support a plausible inference that Savaria had anything to do

with the “no contact” order. Censabella does not allege, for

example, that Savaria had the authority to institute or enforce

this order, or indeed how, if at all, Savaria was connected to

the “no contact” order in the first place. Censabella therefore

cannot sustain a free speech claim against Savaria based on the

“no contact” order.

Censabella’s retaliation claim is similarly deficient. To

succeed on a First Amendment retaliation claim under § 1983, a

14 plaintiff must establish that:

(1) [s]he was speaking as a citizen on a matter of public concern; (2) [her] interests, as a citizen, in commenting upon matters of public concern outweighed [her] employer's interest in promoting the efficiency of the public services it performs through its employees; and (3) the protected expression was a substantial or motivating factor in the adverse employment decision.

McGunigle v. City of Quincy,

(1st Cir. 2016)

(citation and internal quotation marks omitted).6 Even assuming

Censabella can generally establish these elements in this case,

she has failed to explain how Savaria is liable under this

theory, as she has not alleged that Savaria had any authority

over Censabella’s employment with the WPD. Thus, Censabella has

failed to state a First Amendment retaliation claim against

Savaria.

VI. Count IX: Civil Rights Conspiracy

A civil rights conspiracy is a “combination of two or more

persons acting in concert to commit an unlawful act, or to

commit a lawful act by unlawful means . . . .” Earle v. Benoit,

(1st Cir. 1988) (citation omitted). The

principal element of such a conspiracy “is an agreement between

the parties to inflict a wrong against or injury upon another,

and an overt act that results in damages.”

(internal

6The court assumes for the purposes of this order that these elements equally apply when a plaintiff is retaliated against for refusing to speak. 15 quotations omitted) (citation omitted). To assert a civil

rights conspiracy under § 1983, a plaintiff must prove that

“there has been, besides the agreement, an actual deprivation of

a right secured by the Constitution and laws.” Id. (brackets

omitted) (citation omitted).

Censabella has failed to state a civil rights conspiracy

claim against Savaria for largely the same reasons she failed to

state a claim for civil conspiracy against Savaria under New

Hampshire common law: namely, that her assertions that Savaria

was part of a conspiracy rest on nothing more than unsupported

conclusions. There is, quite simply, nothing in the complaint

to support a plausible inference that Savaria ever entered into

an agreement with anyone else to inflict some wrong against

Censabella. She has therefore failed adequately allege a civil

rights conspiracy under § 1983.

VII. Count X: RSA § 354-A

Savaria moves to dismiss Censabella’s RSA § 354-A claim on

the basis that Censabella failed to exhaust her administrative

remedies because she did not name Savaria as an individual

respondent in her NHCHR charge of discrimination. Censabella

does not dispute this contention,7 but argues that it is not

grounds for dismissal this claim.

7 It is plain from the charge of discrimination itself that Savaria is not individually named. See doc. no. 12-4. 16 Though the New Hampshire Supreme Court has not considered

whether the failure to name an individual as a respondent in an

administrative complaint bars a later cause of action against

that individual under RSA § 354-A, this issue has recently been

before at least two other judges in this district. In February

2017, Judge McCafferty concluded, relying on authority

interpreting similar charging requirements under Title VII of

the Civil Rights Act, that the failure to identify an individual

defendant in the charge did not categorically bar a subsequent

claim against that defendant under RSA § 354-A. See Carney v.

Town of Weare, No. 15-cv-291-LM,

at *7–8 (D.N.H.

Feb. 21, 2017). Presented with a similar issue in a motion to

remand, Judge Barbadoro recently cited Carney approvingly,

concluding that “there is at least a reasonable possibility that

the New Hampshire Supreme Court would find [a] claim against [an

individual] is not barred by the administrative exhaustion

requirement” simply because that individual was not named in the

administrative complaint. See Soderman v. Shaw's Supermarkets,

Inc., No. 17-cv-076-PB,

, at *3 (D.N.H. Aug. 30,

2017). The court is persuaded by the analysis in both of these

decisions, and accordingly declines to dismiss Censabella’s RSA

§ 354-A claim against Savaria on this basis. Savaria’s motion

17 is therefore denied as to Count X.8

Conclusion

For the foregoing reasons, Savaria’s motion to dismiss

(doc. no. 12) is granted as to all counts except Count X.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

September 6, 2017

cc: Wendy L. Spillane, Esq. Tony F. Soltani, Esq. Daniel P. Schwarz, Esq. Brian J. S. Cullen, Esq.

8In light of this determination, the court need not consider whether certain documents that Censabella attaches to her objection to a related motion to dismiss may be properly considered in the context of a Rule 12(b)(6) analysis. See doc. nos. 18-1 through 18-10. 18