UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Janelle Sargent

v. Civil No. 14-cv-509-AJ Opinion No.

Town of Hudson, et al.

MEMORANDUM AND ORDER

Janelle Sargent alleges that her former employer, the Town

of Hudson Police Department (“HPD”), treated her reports of

domestic violence differently than those made by other women

solely because her abuser was a police officer in a neighboring

town. She initially brought this action in state court,

alleging two counts: (1) a state-law gross negligence claim

brought against the Town of Hudson (“Town”) and three HPD

officers1 under New Hampshire Revised Statutes Annotated (“RSA”)

§ 173-B:12 (Count I); and (2) a federal claim alleging an equal-

protection violation on a “class-of-one” theory, brought against

the three officers (the “individual defendants”) under

(Count II). Defendants removed the action to this court

on the basis of the federal claim, and the parties consented to

the jurisdiction of the undersigned magistrate judge.

1 Chief Jason Lavoie, Captain William Avery, and Lieutenant Charles Dyac. Defendants move for summary judgment on both counts. Doc.

no. 17. Plaintiff opposes summary judgment (doc. no. 33), but

also asks that this court certify two questions to the New

Hampshire Supreme Court with respect to her state-law claim

(doc. no. 24). Defendants object to certification (doc. no. 25)

and move to strike certain exhibits attached to plaintiff’s

objection to summary judgment (doc. no. 38).

For the reasons that follow, the court grants defendants’

motion for summary judgment as to the federal claim, finding

that the individual defendants are entitled to qualified

immunity. The court declines supplemental jurisdiction over the

state claim and remands the case to the superior court,

concluding that it is the appropriate forum to resolve this

claim in the first instance. The court therefore denies

plaintiff’s motion to certify. In light of these

determinations, the court denies as moot the motion to strike.

I. STANDARD OF REVIEW

Summary judgment is appropriate where the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “If a nonmovant bears the ultimate

burden of proof on a given issue, she must present ‘definite,

2 competent evidence’ sufficient to establish the elements of her

claim in order to survive a motion for summary judgment.” Pina

v. Children’s Place,

, 795–96 (1st Cir. 2014)

(quoting Mesnick v. Gen. Elec. Co.,

(1st Cir.

1991)). The court must “draw all reasonable inferences from the

record in the light most favorable to the nonmoving party,

disregarding any ‘conclusory allegations, improbable inferences,

or unsupported speculation.’” McGrath v. Tavares,

(1st Cir. 2014) (quoting Alicea v. Machete Music,

(1st Cir. 2014)). Where, as here, the moving party

raises a qualified immunity defense, the nonmoving party has the

burden of showing that qualified immunity does not apply. See

Mitchell v. Miller,

(1st Cir. 2015) (second

prong); cf. Lopera v. Town Of Coventry,

, 395–96

(1st Cir. 2011) (first prong); Ashcroft v. al-Kidd,

, 735 (2011).

II. BACKGROUND

Unless otherwise noted, the following facts are undisputed

in the record. Janelle Sargent began working for the HPD as a

fulltime dispatcher in July 2005. Doc. no. 33-3 ¶ 4. Janelle

3 married her ex-husband, Benjamin Sargent,2 two months later. Id.

¶ 3. Beginning in 2009 or 2010, Janelle was transitioned to the

HPD legal department due to a backlog, though she continued to

spend time working in dispatch. Doc. no. 17-4 at 2-3; doc. no.

33-7 at 19 (mentioning that Janelle worked in dispatch in 2011).

Janelle was a good employee, with HPD Captain William Avery

describing her as “probably the best dispatcher [he] ever worked

with.” Doc. no. 17-4 at 2-3.

In 2011, Ben was hired by the Litchfield Police Department

(“LPD”). Doc. no. 33-3 ¶ 5. The individual defendants all knew

that Ben worked for the LPD during the period relevant to this

case. See doc. no. 33-4 at 8; doc. no. 33-5 at 23; doc. no. 33-

12 at 16. It does not, however, appear that any individual

defendant interacted with Ben more than in passing during this

timeframe. See doc. no. 33-4 at 8; doc. no. 33-5 at 23.

A. Early Instances of Domestic Violence

At some point in 2011, Janelle told HPD Officer Kevin

Sullivan that Ben had pointed a gun at her head while she was

taking a shower. Doc. no. 33-7 at 19-20. Janelle did not ask

Sullivan to initiate a criminal complaint or investigation

because she was scared for her life. Id. at 21. There is no

Because Janelle Sargent and Benjamin Sargent shared a last 2

name during the period relevant to this case, the court will use their first names in this order so as to avoid confusion.

4 evidence in the record suggesting that Janelle or Sullivan ever

formally reported or otherwise mentioned this incident to anyone

else at the HPD.

In early April 2012, Ben assaulted Janelle, causing

bruising to her temple and her neck. Id. at 15. The following

day, Janelle went to work with her hair up and without wearing

makeup, hoping that one of her colleagues would notice the

bruising. Id. When no one did, Janelle sought out HPD Officer

Dan Conley, who took photographs of Janelle’s bruising on a

department camera. Id. at 15, 21, 33; doc. no. 33-8 at 5.

Janelle stated that she was going to send the photographs to her

attorney. Doc. no. 33-8 at 5. Though she secretly hoped that

Conley would disclose this interaction to a superior officer,

Janelle asked that Conley keep it a secret because she believed

doing so would provide an excuse if it ever got back to Ben that

she had spoken with Conley. Doc. no. 33-7 at 21, 34; doc. no.

33-8 at 6. Conley agreed not to mention it to anyone so long as

Janelle told her attorney about the incident. Doc. no. 33-8 at

5.

After Janelle left his office, Conley started to worry that

something bad might happen to Janelle and how he “would have

that on [him]” if he did not tell anyone. Id. Conley therefore

told Avery about his interaction with Janelle and about the

5 photographs he had taken. Id. at 5-6. Avery responded,

“[W]e’re dealing with stuff with Janelle, she’s got some

personal issues we’re working through,” and thanked Conley for

the information. Id. at 6. Avery did not ask to see the

photographs or prepare a report for the file regarding what

Conley had said. Id.; doc. no. 33-4 at 5. Neither Avery nor

Conley informed anyone else at the HPD about Conley’s

conversation with Sargent. Id. at 6.

B. June 2012 Incident

Shortly before 1:00 A.M. on June 30, 2012, Janelle called

HPD dispatch and reported that Ben had scratched her neck with a

key. Doc. no. 33-5 at 16; doc. no. 33-7 at 14; 33-6 at 1; 33-19

at 1. Lieutenant Charles Dyac and Officer Scott MacDonald

responded to the call. Doc. no. 33-5 at 2; 33-19 at 3. Dyac

was the first to arrive at the Sargents’ residence, followed by

MacDonald two-to-three minutes later. Id. at 2.

There is no dispute that that Dyac spoke with both Janelle

and Ben while at the scene. See, e.g., id. at 2, 4; doc. no.

33-19 at 3. Each provided Dyac with a significantly different

version of the events leading up to Janelle’s call. Dyac

memorialized these different versions, along with his own

observations, in both a police report and a subsequent e-mail to

several of his HPD supervisors. Doc. no. 33-10; doc. no. 33-19;

6 doc. no. 33-6. Janelle disputes both Ben’s version of events

and several portions of Dyac’s report and e-mail.

1. Dyac’s Report and E-mail

According to Dyac’s police report, when he arrived at the

scene, Janelle was “highly intoxicated and unsteady on her

feet.” Doc. no. 33-19 at 3. Janelle stated that she and Ben

had been at the Backstreet Bar and Grill (“Backstreet”), where

she had been “making out” with another woman. Id. She stated

that Ben became jealous, and that Ben scratched her on the side

of her neck with a key when they left the bar. Id. Janelle

stated that when she returned home, she tried to photograph the

scratch for a future divorce proceeding, but that Ben disabled

the camera. Id. Janelle stated that she then called the

police. Id.

Once MacDonald arrived, Dyac went inside to speak with Ben.

Id. Ben told Dyac that Janelle had been kissing another woman

at Backstreet, that Janelle and the woman had entered the

women’s bathroom together for long periods of time, and that

when they exited the bathroom, both women bragged about having

sexual contact with each other. Id. Ben noted that he did not

approve of this behavior and eventually told Janelle that he

wanted to leave, but Janelle initially refused. Id. Ben

reported that when he and Janelle finally did leave, Janelle

7 said that she was “going to call them,” which Ben interpreted to

mean the HPD. Id. Ben stated that he was confused by this, as

there had been no physical altercation. Id.

According to Dyac, Ben maintained that he did not assault

Janelle. Id. at 4. Rather, Ben believed that Janelle received

the scratch from the woman she had been kissing, as Janelle and

the woman were “groping each other’s face[s] . . . .” Id. at 4.

Ben told Dyac that Janelle was taking several different

medications, pain relievers, and antidepressants, and had been

drinking heavily. Id. at 3. Ben stated that he had started

hiding certain medications from Janelle when she was

intoxicated, so as to avoid an accidental overdose. Id. Dyac

reported that Ben tried to find a medication bottle he had

hidden in his drawer, but discovered that it was missing; Ben

surmised that Janelle had found the bottle. Id. at 3-4.

After speaking with Ben, Dyac concluded there was

“insufficient evidence to establish probable cause that an

assault had occurred . . . .” Id. at 4. At his deposition,

Dyac testified that he reached this conclusion because Ben’s

version of events made more sense to him than did Janelle’s.

Doc. no. 17-5 at 3, 5-6. Additionally, Dyac reported that

MacDonald later informed him that Janelle had recanted her

statement. Doc. no. 33-19 at 4; doc. no. 33-5 at 19–20. The

8 officers accordingly left without making an arrest. Doc. no.

33-19 at 4.

Dyac testified that following the incident, he concluded

that he alone should write a report, given “the sensitive nature

of this whole thing . . . .” Doc. no. 33-5 at 4. Upon

returning to the HPD, Dyac checked to see whether there were any

reports of other incidents involving Janelle and Ben, but did

not discover any. Id. at 14-15.

Dyac filed his report at 3:34 A.M. on June 30, 2012. Doc.

no. 33-19 at 1. There are two versions of this report in the

record, which differ in three respects. First, the reports

contain different dates in the upper-right-hand corner. Compare

doc. no. 33-10 at 1 with doc. no. 33-19 at 1. At his

deposition, Dyac explained that these were the dates the reports

were printed. Doc. no. 33-5 at 21. Second, one version of the

report states that the incident involved “domestic violence,”

while the other does not. Compare doc. no. 33-10 at 1 with doc.

no. 33-19 at 1. Dyac testified that he initially forgot to

check off the “domestic violence” box when writing his report,

and that Avery sent it back to him to make the adjustment. Doc.

no. 33-5 at 21. Finally, one version of the report includes a

section listing Ben as a suspect, which is absent from the other

version. Compare doc. no. 33-10 at 1 with doc. no. 33-19 at 1.

9 Dyac testified that he “d[idn’t] have an explanation” for this

difference, but theorized that it was due to a software update

between when each version of the report was printed. Doc. no.

33-5 at 22. The reports are otherwise identical: both list the

offense as “simple assault”; both contain a status of “Incident

Unfounded”; both include the same factual narrative; and both

conclude by noting that “[t]his is the first domestic related

incident reported to the [HPD].” Doc. no. 33-10 at 1, 3; doc.

no. 33-19 at 1, 4.

After filing his report, Dyac sent an e-mail to several of

his superiors at the HPD, including Avery and HPD Chief Jason

Lavoie. See doc. no. 33-6 at 1. This e-mail contained the

subject line “Janelle Sargent *SENSITIVE INFORMATION*” and

included a narrative that, for the most part, hews closely to

the narrative included in the report. Compare id. with doc.

nos. 33-10 and 33-19. There is, however, an added section at

the end of this e-mail, in which Dyac reported that Ben alleged

Janelle had previously accused Ben of threatening her with a gun

while she was intoxicated. Doc. no. 33-6 at 1. According to

the e-mail, Ben stated that Janelle thought she had an “in” with

the HPD because she was an HPD employee. Id. at 2. Dyac

testified at his deposition that he did not include any of this

information in his report because he did not feel it was

10 relevant to the incident and there was no evidence to conclude

that Ben had actually threatened Janelle with a gun. Id. at 24–

25.

2. Janelle’s Disputes

At her deposition, Janelle took issue with several aspects

of Dyac’s report. First, while conceding that she kissed a

woman in front of Ben at the Backstreet (a decision she

attributed to having “had a couple of drinks”), Janelle

testified that she did not “make out” or go into the bathroom

with the woman. Doc. no. 33-7 at 35, 36, 38. Next, Janelle

testified that Ben scratched her neck with the key after they

had returned home, not when they left the bar as stated in the

report. Id. at 36. Janelle also disputed the assertion that

she recanted, testifying that after reading the report, she

called MacDonald, who denied saying that she had recanted and

stated he had never seen Dyac’s report. Id. at 50–51. Janelle

also took issue with the statements in the report regarding Ben

hiding medications from Janelle. Id. at 51.

Janelle and Dyac’s deposition testimony also differs as to

whether Dyac or MacDonald was required to conduct a lethality

assessment protocol (“LAP”) screen, take photographs of

Janelle’s injuries, and/or provide Janelle with a so-called

11 “blue card” for victims of domestic violence.3 According to

Janelle, each of these actions was necessary because she

reported that Ben has assaulted her and she had a “visible mark

on [her] neck.” Id. at 41; doc. no. 33-3 ¶¶ 12, 13. Dyac

testified that a LAP screen was unnecessary because, in his

view, Janelle’s injuries were either self-induced or the result

of aggressively kissing the woman at the bar. Doc. no. 33-5 at

3-4. Dyac further testified that he declined to take

photographs of Janelle’s neck, despite her asking that he do so,

because Janelle stated she wanted to use the photographs in her

divorce proceedings, which Dyac did not believe was “the police

department’s business . . . .” Id. at 6–7; 13–14. Finally,

Dyac testified that he did not give Janelle a “blue card”

because he did not believe a crime had been committed. Id. at

16.

C. Aftermath

On the Monday following the June 30, 2012 incident, Avery

called Janelle to his office, where he reprimanded her for

drinking in Hudson on the night of the incident. Doc. no. 33-4

at 4; doc. no. 33-3 ¶¶ 6, 7, 9; doc. no. 33-7 at 18. Avery

The “blue card” is a card that officers provide victims of 3

domestic violence, informing them of the process for getting a protective order and providing contact information for various reporting lines, victim/witness assistance programs, and victim compensation programs. See doc. no. 33-28.

12 noted that he had heard about the incident from Dyac, and told

Janelle that “the chief is pretty pissed, and [Janelle] could

see paperwork.” Doc. no. 33-7 at 18; doc no. 33-3 ¶ 9. Avery

had his feet up on his desk during this conversation, and did

not ask Janelle about the incident or her safety. Doc. no. 33-3

¶¶ 10-11; doc. no. 33-4 at 4. Following this interaction,

Janelle feared that she might lose her job if she reported any

other incidents of domestic violence to the HPD. Doc. no. 33-7

at 22.

The HPD did not conduct any additional follow-up with

Janelle regarding the incident. Doc. no. 33-3 ¶ 15. Dyac

testified that it was typically the Town’s victim witness

advocate, not an HPD officer, who conducted such follow up.

Doc. no. 33-5 at 17. But here, the victim witness advocate was

not made aware of Dyac’s report and could not access it on the

HPD computer system.4 Doc. no. 33-11 ¶¶ 14–15.

After the June 30, 2012 incident, Janelle’s relationship

with Ben got “much worse.” Doc. no. 33-7 at 14. Janelle

testified that Ben “knew even if he left a mark on [her] and

4 Janelle speculates that HPD officers kept the victim witness advocate from viewing the report by deliberately failing to label it “domestic violence.” Doc. no. 33-7 at 43. Defendants contend that it was HPD policy to “shield[] fellow employees from personal data concerning their co-workers.” Doc. no. 37 at 2 n. 2.

13 [she] called the police that nothing [would happen].” Id. at

15. Ben made alarming comments to Janelle and physically and

sexually assaulted her. Doc. no. 33-3 ¶¶ 16–17. Janelle

reported the sexual assault to county authorities because she

did not trust the HPD to protect her. Id. ¶ 18. Janelle and

Ben divorced in November 2012. Id. ¶ 3; doc. no. 33-7 at 23-24.

At some point following the June 30, 2012 incident, Janelle

was diagnosed with posttraumatic stress disorder (“PTSD”) and

obsessive-compulsive personality disorder. Doc. no. 33-7 ¶ 20;

doc. no. 33-14. This required that Janelle take a leave of

absence from the HPD. Doc. no. 33-3 ¶ 20. When she was ready

to return, she requested that she not be assigned to dispatch

out of fear that Ben might call while she was on duty.5 Id. ¶

21; doc. no. 33-15 at 1. Janelle provided a doctor’s note

stating that the suggestion of returning to dispatch had caused

a spike in Janelle’s PTSD symptoms and that any contact with Ben

could cause Janelle to relapse. Doc. no. 33-15 at 2. She was

nonetheless assigned to dispatch, at times overlapping with

Ben’s shifts with the LPD.6 Doc. no. 33-16 at 2. Janelle

5Though the LPD uses the Hillsborough County dispatch, LPD calls could be routed through HPD dispatch by Hillsborough County or Ben could call HPD dispatch directly. Doc. no. 33-12 at 13-14.

6The HPD sought to accommodate Janelle by ensuring that there was always someone else in dispatch during her shifts who

14 remained in dispatch for two months, during which time she

fielded numerous calls from the LPD, though never from Ben. Id.

at 26–27. During this period, her PTSD worsened, manifesting in

physical and emotional symptoms. Id. at 28, 31–32.

In August 2013, the Town had Psychotherapy Associates, Inc.

conduct a psychological fitness evaluation of Janelle. Id. at

48; doc. no. 33-17 at 1. In a report issued September 4, 2013,

Janelle was deemed “NOT FIT for duty as a Dispatcher

and . . . psychologically incapable of performing the tasks

outlined in her description.” Doc. no. 33-17 at 4 (emphasis in

original); see also doc. no. 33-7 at 48. She was placed on paid

administrative leave and received short-term, and then long-

term, disability. Doc. no. 33-7 at 49.

In 2014, Janelle suffered a complete mental and emotional

breakdown, requiring hospitalization. Doc. no. 33-3 ¶ 25. She

is now disabled due to severe PTSD and receives social security

disability income benefits. Doc. no. 33-7 at 2. She continues

to receive regular mental health treatment and is prescribed

several medications. Id. at 3–7.

could screen calls from the LPD or Hillsborough County. Doc. no. 33-16 at 3; doc. no. 33-7 at 26. Janelle believed these accommodations were inadequate, as there were ample reasons why the other dispatcher on duty with her might not physically be in dispatch when such calls were received. Doc. no. 33-7 at 26–30.

15 III. DISCUSSION

Janelle brings a state-law claim against the Town, Lavoie,

Avery, and Dyac under a gross negligence theory, and a federal

claim against Lavoie, Avery, and Dyac under an equal-protection

“class-of-one” theory (“class-of-one claim”). Defendants move

for summary judgment on both claims. The court turns first to

the class-of-one claim.

A. Class-of-one Claim

Janelle’s class-of-one claim is premised upon a theory that

the individual defendants treated her differently than other

victims of domestic violence because Ben was a police officer

with the LPD. See doc. no. 1-1 ¶ 49; doc. no. 33-1 at 1. The

individual defendants do not dispute that the incident involving

Janelle and Ben was the only of the hundreds of domestic

violence cases they responded to in which the alleged abuser was

a police officer. They nevertheless argue, among other things,

that the class-of-one claim is barred by the doctrine of

qualified immunity. As noted above, when a movant raises

qualified immunity, the non-movant bears the burden of

demonstrating that qualified immunity does not apply. See

Mitchell,

; cf. Lopera, 640 F.3d at 395–96; al-

Kidd, 563 U.S. at 735.

To meet this burden, Janelle must show that the individual

16 defendants “violate[d] clearly established statutory or

constitutional rights of which a reasonable person would have

known.” See Mullenix v. Luna,

(2015)

(quoting Pearson v. Callahan,

(2009)). In

assessing whether qualified immunity applies, the court

considers two prongs: (1) “whether the facts alleged or shown by

the plaintiff make out a violation of a constitutional right”;

and (2) “whether the right was ‘clearly established’ at the time

of the defendant’s alleged violation.” Fernandez-Salicrup v.

Figueroa-Sancha,

(1st Cir. 2015) (quoting Glik

v. Cunniffe,

(1st Cir. 2011)). Though “it is

often beneficial” to consider the qualified immunity prongs in

order, it is no longer mandatory that courts do so. Pearson,

. This is especially true in cases where “it is

plain that a constitutional right is not clearly established but

far from obvious whether in fact there is such a right.”

. Thus, courts may “exercise their sound discretion in

deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances

of the particular case at hand.”

; see also

Fernandez-Salicrup,

(noting that a court “may

address these issues in any order”).

Here, there is little benefit in analyzing Janelle’s class-

17 of-one claim under both prongs. Analyzing this claim under the

first prong would require the court to grapple with several

complicated legal and factual questions, not least of which

whether a class-of-one theory is even a vehicle by which a

plaintiff may challenge the allegedly discriminatory application

of police protection. In contrast, Janelle’s claim is

relatively easily resolved under the second prong: as discussed

below, Janelle has failed to demonstrate that the individual

defendants’ conduct violated a clearly established

constitutional or statutory right. The court limits its

analysis accordingly.

When applying the second prong of qualified immunity, a

court must consider:

(a) whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he or she was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable officer would have understood that his or her conduct violated the right.

Fernandez-Salicrup, 790 F.3d at 325–26 (brackets omitted)

(quoting Mlodzinski v. Lewis,

, 32–33 (1st Cir.

2011)). Though this does not require a “case directly on

point, . . . existing precedent must have placed the statutory

or constitutional question beyond debate.” Mullenix,

(quoting al–Kidd, 563 U.S. at 741). Janelle therefore

must identify “controlling authority or a robust consensus of

18 cases of persuasive authority” demonstrating that the individual

defendants reasonably should have known that their conduct was

unlawful at the time it occurred. Plumhoff v. Rickard,

(2014) (internal quotation marks omitted)

(quoting al-Kidd, 563 U.S. at 741). Courts must not “define

clearly established law at a high level of generality.”

Mullenix,

(quoting al-Kidd, 563 U.S. at 742).

Rather, “[t]he dispositive question is whether the violative

nature of particular conduct is clearly established.” Id.

(internal quotation marks omitted) (quoting al-Kidd, 563 at

742).

As a general matter, it is clearly established that law

enforcement may not “selectively deny its protective services to

certain disfavored minorities without violating the Equal

Protection Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs.,

, 197 n. 3 (1989) (citation omitted). To

this end, the First Circuit has recognized that a victim of

domestic violence may bring an equal-protection claim alleging

“that law enforcement policies provide lesser protection to

victims of domestic violence and [thereby] discriminate on the

basis of gender.” Soto v. Flores,

(1st Cir.

19 1997) (emphasis added).7 These decisions do not control here for

two reasons. First, the proposition that law enforcement may

not apply its protection in a discriminatory manner operates at

the “high level of generality” insufficient to define a clearly

established right. See al-Kidd, 563 U.S. at 742 (citations

omitted) (noting that “[t]he general proposition . . . that an

unreasonable search or seizure violates the Fourth Amendment is

of little help” in determining whether a right is clearly

established). More fundamentally, however, Janelle does not

allege that the HPD had a policy of discriminating against

domestic violence victims due to some improper class-based

distinction, such as their gender. She instead contends that

she alone was treated differently than other domestic violence

victims because Ben was a police officer. Thus, Janelle cannot

rely on these broad equal-protection principles to defeat

qualified immunity.

Moving, then, from the general to the particular, Janelle

has failed to demonstrate that the individual defendants’

conduct here violated clearly established law. At the hearing,

Janelle’s counsel conceded that he was unaware of any Supreme

7 The First Circuit recognized the viability of such claims more than twenty years ago, adopting a widely-accepted framework first established by the Tenth Circuit in the case Watson v. City of Kansas City, KS,

(10th Cir. 1988). See Soto,

.

20 Court of First Circuit precedent on point, and Janelle’s papers

only cite one out-of-jurisdiction decision that addresses

whether a police officer’s differential treatment of a domestic

violence victim due to her abuser’s relationship with law

enforcement violates equal protection: Shipp v. McMahon,

(5th Cir. 2000) (“Shipp I”).8 Setting aside that a

single case cannot, by definition, constitute a “robust

consensus of cases of persuasive authority,” Shipp I does not

compel the conclusion that the individual defendants’ conduct

violated Janelle’s equal protection rights. Indeed, that

decision only posits that the conduct at issue here may violate

equal protection. See

at 916–17 (“If deputy Betty Shipp did

foster ill-will against her daughter-in-law that ultimately

influenced the level of protection Shipp received from the WPSO,

Shipp may be able to establish an unequal police protection

claim . . . .” (emphasis added)). Simply put, Shipp I is

insufficient, particularly in isolation, to clearly establish

the right Janelle seeks to invoke.9

8 Overruled in part on other grounds by McClendon v. City of Columbia,

(5th Cir. 2002).

9 The Sixth Circuit recently decided a case that, on its face, appears similar to the case at bar. See Ryan v. City of Detroit, MI, __ F. App’x __,

(6th Cir. June 30, 2017). To the extent that decision is not factually or legally distinguishable, but see id. at *5, 5 n. 3 (noting that on appeal, the right at issue was asserted on a class-based theory,

21 Janelle also points to RSA 173-B and the HPD domestic

violence policy to demonstrate that a reasonable officer would

have understood that the individual defendants’ conduct toward

her was unlawful. This argument is a nonstarter, however, as

the Supreme Court has made clear that in order to defeat

qualified immunity, the clearly established right must be the

federal right on which the claim for relief is based. See Elder

v. Holloway,

(1994) (citing Davis v. Scherer,

, 193–96, 196 n. 14 (1984)); see also Hill v.

Selsky,

(W.D.N.Y. 2007) (citations

omitted) (“[T]he existence of qualified immunity does not depend

on whether the right in question was clearly established under

state law, but on whether the federal right giving rise to the

claim was clearly established at the time of the alleged

violation.”). Thus, neither state law nor law enforcement

policy can be used to demonstrate a clearly established right;

that determination must be based on federal law alone.

Finally, Janelle cites Cordi-Allen v. Conlon,

(1st Cir. 2007), to argue that class-of-one equal-protection

claims have been well established in this circuit since at least

not a class-of-one theory), it cannot be used here to demonstrate a clearly established right because it was decided in 2017, years after the conduct at issue in this case occurred.

22 2007. This argument, which counters the defendants’ contention

in their motion that there is no clearly established right to

challenge police conduct under a class-of-one theory, reflects a

curious aspect of class-of-one jurisprudence. Whereas qualified

immunity analysis typically focuses on whether the underlying

right was clearly established during the relevant period, see,

e.g., Belsito Commc’ns, Inc. v. Decker,

, 24–27 (1st

Cir. 2016), in the context of class-of-one claims, several

courts have instead considered whether the right to challenge

certain conduct under a class-of-one theory was clearly

established at that time, see, e.g., Shipp v. McMahon,

,

at *2 (5th Cir. 2002) (“Shipp II”);

Grant v. Laufenberg, No. 12-C-668,

, at *9 (E.D.

Wis. Mar. 18, 2015); see also Griffin Indus., Inc. v. Irvin,

(11th Cir. 2007) (“Neither the state officials

nor the local officials had ‘fair warning’ that their actions

might subject them to legal liability.” (emphasis added)).10 As

10This focus is perhaps unsurprising. Class-of-one claims are a narrow subset of equal protection jurisprudence where the plaintiff “has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called ‘class of one.’” Engquist v. Or. Dep’t of Agr.,

(2008). Put differently, class-of-one actions are the recognized method for challenging individualized differential treatment by the government — that is, treatment based on some specific attribute of the individual rather than that individual’s membership in a class, particularly a suspect class. It follows, then, that if there is no clearly

23 both parties frame their arguments in this manner, and other

courts have employed this analysis, the court will address

whether there is a clearly established right to bring a class-

of-one claim challenging the individual defendants’ conduct

here.

There is a long line of Supreme Court and First Circuit

precedent recognizing class-of-one equal-protection claims

challenging certain types of governmental action. See, e.g.,

Bank Markazi v. Peterson,

, 1327 n. 27 (2016);

Vill. of Willowbrook v. Olech,

(2000); Najas

Realty, LLC v. Seekonk Water Dist.,

(1st Cir.

2016); Snyder v. Gaudet,

(1st Cir. 2014).

Moving beyond this “high level of generality,” however, things

become far less clear. Neither the Supreme Court nor the First

Circuit has addressed whether a plaintiff has a right to

challenge disparate treatment by law enforcement under a class-

of-one equal-protection theory. And while three circuits have

established right to bring a class-of-one action challenging a particular type of government conduct, then the violative nature of that particular conduct is, at least arguably, also not clearly established. Thus, while it may not be obvious in such cases whether an underlying right exists, there is at least some argument that the lack of a clearly established means of bringing a claim may indicate that the constitutional right itself was not clearly established. See Pearson,

.

24 seemingly countenanced such claims, see Mata v. City of

Kingsville, TX,

(5th Cir. 2008); Klimik v.

Kent Cty. Sheriff’s Dep’t,

(6th Cir. 2004);

Hilton v. City of Wheeling,

(7th Cir. 2000),

at least two have not revisited the issue since the Supreme

Court’s declaration in Engquist v. Oregon Department of

Agriculture that forms of state action “which by their nature

involve discretionary decisionmaking based on a vast array of

subjective, individualized assessments” are ill-suited for

class-of-one challenges,

.

The two circuits that have considered Engquist’s impact on

the right to bring a class-of-one claim against law enforcement

are split. On the one hand, the Seventh Circuit reaffirmed its

ruling in Hilton that such a right exists, concluding that

Engquist does not stand as a categorical bar to all class-of-one

claims against police officers. See Hanes v. Zurick,

, 495–96 (7th Cir. 2010). The Eighth Circuit reached the

opposite conclusion, holding that “a police officer’s decisions

regarding whom to investigate and how to investigate are matters

that necessarily involve discretion” which “may not be attacked

in a class-of-one equal protection claim.” Flowers v. City of

Minneapolis, Minn.,

, 799–800 (8th Cir. 2009). For

its part, the First Circuit has noted agreement “with those

25 federal courts that have found [Engquist] applicable beyond [its

facts],” citing the Eighth Circuit’s decision in Flowers as an

example. Caesars Mass. Mgmt. Co., LLC v. Crosby,

(1st Cir. 2015). But as noted, the First Circuit has been

silent on the viability of class-of-one claims challenging

police conduct.

In those cases that have allowed class-of-one challenges to

disparate police protection, either pre- or post-Engquist, the

standards applied have varied. In Hilton, the Seventh Circuit

stated that such claims required proof of “vindictive action”

where “the cause of the differential treatment of which the

plaintiff complains was a totally illegitimate animus toward the

plaintiff by the defendant.”

(citations

omitted). In Mata, the Fifth Circuit relied on Hilton to impose

the same requirement. See

(quoting Hilton

). Yet in Hanes, the Seventh Circuit called

into question the standard it established in Hilton, noting that

“some more recent cases have cast doubt on the animus

requirement . . . .”

. Finally, in Klimik, the

Sixth Circuit appeared to impose alternative requirements that a

plaintiff either “negative every conceivable basis which might

support the government action” or “demonstrate that the

challenged government action was motivated by animus or ill-

26 will.”

(citations and internal quotations

omitted). Thus, even in the context of those cases that have

recognized a class-of-one equal-protection right to challenge

law enforcement actions, there remains some question as to what

standard should apply.

Finally, the few cases that have addressed class-of-one

claims alleging disparate police protection of a victim of

domestic violence due to her abuser’s relationship with law

enforcement provide little additional guidance. The court can

identify only three such decisions — all from the Fifth Circuit

and all cited by the parties in their papers. See Mata,

; Shipp II,

; Shipp I,

.

These decisions are of limited utility for two distinct reasons.

First, the Fifth Circuit has wavered on whether there even is a

class-of-one equal-protection right in the police context, with

the earliest opinion suggesting that there might be, Shipp I,

234 F.3d at 916–17, a subsequent panel calling that conclusion

into question, Shipp II,

,

at

*1, and a third panel seemingly ignoring the intervening

decision and relying on the earlier decision to assume that such

a right does, in fact, exist, Mata

. More

fundamentally, however, none of these decisions post-dates

Engquist and, as noted above, it does not appear that the Fifth

27 Circuit has reconsidered the viability of this right (to the

extent it exists) in light of that decision. Thus, it is

unclear, especially in the wake of Engquist, whether the Fifth

Circuit recognizes a class-of-one equal-protection right in the

police context at all, let alone the particular class-of-one

theory presented here.

In sum, Janelle has failed to demonstrate that the

individual defendants’ conduct violated a clearly established

right under the Equal Protection Clause. The court cannot

fairly conclude, for all of the reasons stated above, that the

legal contours of the right in question were sufficiently clear

in 2011 and 2012 (the period when the incidents in this case

occurred) such that a reasonable officer would have known that

his or her conduct violated that right. This is especially true

when considering the particular factual context of this case, as

Janelle has failed to identify any binding precedent or a robust

consensus of persuasive authority addressing the alleged right

beyond a high level of generality. The court therefore

concludes that the individual defendants are entitled to

qualified immunity on Janelle’s class-of-one claim.

Accordingly, defendants’ motion for summary judgment is

granted as to Count II, the class-of-one claim.

28 B. State-law Claim

In her state-law claim, Janelle alleges gross negligence on

the part of all four defendants. She seeks to bring this claim

under RSA 173-B:12. Defendants argue that RSA 173-B:12 does not

confer a private right of action for gross negligence against a

municipality or its officers, and that they are accordingly

entitled to municipal immunity under RSA 507-B:5. Janelle

objects to defendants’ argument on its merits, but also requests

that the court certify two questions to the New Hampshire

Supreme Court (“NHSC”). Defendants oppose certification,

arguing that this court may enter summary judgment on the state-

law claim without the benefit of the NHSC’s view. At the

hearing, defendants raised an alternative argument that if the

court were to grant summary judgment on the federal claim, it

should remand the state claim to the superior court, where

Janelle’s arguments may be addressed in the first instance.

Janelle opposes remand.

The sole basis for this court’s jurisdiction over Janelle’s

state claim is supplemental jurisdiction under

.

But when, as here, all federal claims have been dismissed, “the

balance of factors to be considered under the pendant

jurisdiction doctrine — judicial economy, convenience, fairness,

and comity — will [usually] point toward declining to exercise

29 jurisdiction over the remaining state-law claims.” Wilbur v.

Curtis, __ F.3d __,

, at *6 (1st Cir. Sept. 20,

2017) (quoting Carnegie-Mellon Univ. v. Cohill,

,

350 n. 7 (1999) and citing

(c)(3)). The First

Circuit has held that “it is an abuse of discretion for a

district court to retain jurisdiction over the remaining pendent

state law claims unless doing so would serve the interests of

fairness, judicial economy, convenience, and comity.”

(citations and internal quotation marks omitted). To this end,

“it can be an abuse of discretion — if no federal claim remains

— for a district court to retain jurisdiction over a pendent

state law claim when that state law claim presents a substantial

question of state law that is better addressed by the state

courts.”

(citing Desjardins v. Willard,

(1st Cir. 2015)).

In the court’s view, at least one of the questions Janelle

wishes to have certified to the NHSC presents an issue of New

Hampshire law better left to the state court in the first

instance. Janelle asks whether “[i]t is unconstitutional

pursuant to the equal protection provision of Part I, Article 14

of the New Hampshire Constitution for [RSA] 507-B to bar the

plaintiff’s gross negligence claim when the plaintiff could

bring an identical claim against the State pursuant to RSA 541-

30 B:1, II-a(a)[.]” Doc. no. 24 at 1. In Huckins v. McSweeney,

(2014), the NHSC declined to resolve whether

“different treatment of individuals injured by municipal

employee negligence and those injured by State employee

negligence” violated the New Hampshire Constitution, noting that

the plaintiff in that case had “alleged no negligence claim.”

. As this issue has not been resolved,11 and the

question presented by Janelle here appears to be closely

related, the court concludes that the state court is the

appropriate forum for the state claim to be decided in the first

instance.

Accordingly, the court declines supplemental jurisdiction

over the state claim and remands this case to the Hillsborough

County Superior Court South.

IV. CONCLUSION

Based on the foregoing, defendants’ motion for summary

judgment (doc. no. 17) is granted as to Count II, the class-of-

one claim. The court declines supplemental jurisdiction over

11 Though subsequent decisions have touched on related topics, see, e.g., McCarthy v. Manchester Police Dep’t,

(2015) (holding that defamation actions are barred under both municipal and sovereign immunity because libel and slander fall within the definition of “intentional torts”), the NHSC has not yet addressed the issue left open in Huckins.

31 Count I, the state-law claim, and remands the case to

Hillsborough County Superior Court South. Janelle’s motion to

certify two questions to the NHSC (doc. no. 24) is accordingly

denied. Defendants’ motion to strike (doc. no. 38) is denied as

moot. The clerk of the court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

September 27, 2017

cc: Charles G. Douglas, III, Esq. Megan E. Douglass, Esq. John A. Curran, Esq.

32