UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Becky Hewes, Plaintiff

v. Case No. 17-cv-394-SM Opinion No.

Belknap County and E. Justin Blanchette, Defendants

O R D E R

Becky Hewes filed suit against Belknap County and E. Justin

Blanchette, asserting both federal and state claims. Belknap

County has moved to dismiss the complaint.

STANDARD OF REVIEW

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

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

set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone,

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

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

each of the essential elements of a viable cause of action and

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

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

1 Iqbal,

(2009) (citation and internal

punctuation omitted).

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

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

labels and conclusions, and a formulaic recitation of the

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

Twombly,

(2007). Instead, the facts alleged

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

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

plausible.”

. If, however, the “factual allegations

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

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

complaint is open to dismissal.” Tambone,

.

BACKGROUND

Hewes is currently an inmate at the New Hampshire State

Prison for Women. Between September, 2014, through July, 2015,

and again from May 29, 2015, through July 2, 2015, Hewes was

housed at the Belknap County Jail in Laconia, New Hampshire. At

all times relevant to the complaint, Justin Blanchette worked as

a sergeant in the Belknap County Sheriff’s Department.

Taking the facts as pled in the complaint at face value,

the background can be described as follows. On September 18,

2 2014, Blanchette was charged with transporting Hewes from the

Belknap County Jail to a dentist appointment. Hewes and

Blanchette were alone in the department van, and, on the way to

the dental office, Blanchette let Hewes use his cell phone to

make personal calls. Blanchette also stopped the van and gave

Hewes a cigarette to smoke. On the return trip after the

appointment, Blanchette allowed Hewes to sit in the front seat

without handcuffs, and again let her use his cell phone. As

they drove back to the jail, Blanchette flirted with Hewes,

discussing personal relationships and sex.

At some point during the drive, Blanchette drove down a

dirt road. He told Hewes that, before they arrived back at the

jail, he needed to handcuff her and move her to the back of van.

Blanchette stopped the van, took off his belt, unzipped his

pants, and had Hewes perform oral sex on him. Blanchette then

instructed Hewes to take off her pants, and he had sexual

intercourse with her in the back of the Sheriff’s transport van.

On July 2, 2015, Hewes was sentenced in the Belknap County

Superior Court. Following sentencing, Hewes was to be

transported to the New Hampshire State Prison for Women in

Goffstown. Blanchette was tasked with driving Hewes from the

Belknap Superior Court to Goffstown in the Sheriff’s SUV.

During the ride to the Goffstown prison, Blanchette allowed

3 Hewes to use his cell phone while she rode in the back of the

car, and told Hewes that he had two cigarettes for her.

Blanchette stopped the car on a dirt road not far from the

Belknap County courthouse, and allowed Hewes to smoke a

cigarette. While Hewes smoked, Blanchette began talking to her

about sex and relationships, and, after Hewes finished her

cigarette, and Blanchette began driving again, he again allowed

Hewes to use his cell phone.

Hewes then suggested that Blanchette drive to her friend’s

abandoned house in Goffstown, so that she could smoke the second

cigarette. As they neared the Goffstown prison, Blanchette

asked Hewes for directions to her friend’s house. He drove to

the house, took off Hewes’s handcuffs and gave her the second

cigarette. Hewes and Blanchette entered the house, and

Blanchette took off his belt and unzipped his pants. Blanchette

and Hewes engaged in sexual intercourse.

In her complaint, Hewes asserts that Blanchette abused his

authority and coerced her into sexual activity, violating her

fourth, fifth and eighteenth amendment rights. As a result of

Blanchette’s actions, Hewes alleges that she has suffered

“serious and permanent physical and emotional damages.” Compl.

¶¶ 21, 33.

4 With respect to Belknap County, Hewes alleges that the

County had in effect “de facto policies, practices, customs and

usages that resulted in a failure to adequately hire, screen,

train, supervise and discipline its employees and agents,”

including Blanchette. Compl. ¶ 35. Those polices, practices

and conduct, Hewes says, were a direct and proximate cause of

Blanchette’s misconduct and the damages she suffered. Compl. ¶

39. Blanchette had a history of engaging in inappropriate and

illegal sexual conduct while transporting prisoners, Hewes

alleges. And, in support of that allegation, Hewes states that

Blanchette engaged in inappropriate sexual conduct with five

other female inmates on at least four other occasions.

Therefore, she says, Belknap County knew, or should have known,

of Blanchette’s misconduct, was deliberately indifferent to the

safety of those inmates with whom Blanchette came into contact

while employed by the County, and failed to take appropriate

action to protect those inmates.

Belknap County has moved to dismiss all of Hewes’s claims

against it. Hewes objects.

DISCUSSION

I. Section 1983 Claim

Belknap County argues that the complaint does not state a

cognizable claim under the provisions of

,

5 because it fails to identify or sufficiently plead that Hewes’s

injury arose from a County policy, custom or practice. Instead,

the County says, the complaint merely alleges that the County

“knew or should have known” of Blanchette’s inappropriate

activities with inmates, and fails to allege facts to support

the allegation. The County also notes that merely alleging that

the County “should have known” is insufficient to support

Section 1983 liability.

In Monell v. New York City Dept. of Social Servs.,

(1978), the Supreme Court held that “a municipality

cannot be held liable solely because it employs a tortfeasor –

or, in other words, a municipality cannot be held liable under §

1983 on a respondeat superior theory.” Instead, the government

“as an entity is responsible under § 1983,” “when execution of a

government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury.” Id. at 694. The Court

of Appeals for this circuit has added that, “[h]olding the city

liable only if the injury results from an officially sanctioned

policy or custom, exempts the municipality from responsibility

for the aberrant and unpredictable behavior of its employees

while making it liable for acts and conduct rightly attributable

6 to the city.” Bordanaro v. McLeod,

(1st

Cir. 1989) (citations omitted).

The complaint here generally alleges that the County should

be held liable for its practice of failing to adequately hire,

train and supervise employees like Blanchette. To succeed on

such a claim, Hewes must show: “1) that the municipal [practice]

actually ... caused the plaintiff's injury, and 2) that the

municipality possessed the requisite level of fault, which is

generally labeled in these sorts of cases as ‘deliberate

indifference.’” Young v. City of Providence,

(1st Cir. 2005) (citing Board of the County v. Brown,

(1997) and Bordanaro v. McLeod,

, 1161–63

(1st Cir. 1989)).

The court has previously noted that, “[t]he most common

means by which a plaintiff may demonstrate a municipality's

‘deliberate indifference’ is by: (1) identifying a pattern of

constitutional violations that has put the municipality on

notice that its training is deficient; and (2) showing that,

notwithstanding such notice, the municipality continued to

adhere to the same training regimen.” Pliakos v. City of

Manchester, No. 01-461-M,

, at *16 (D.N.H. July

15, 2003) (citing Board of the County Com'rs v. Brown,

(“If a program does not prevent constitutional

7 violations, municipal decisionmakers may eventually be put on

notice that a new program is called for. Their continued

adherence to an approach that they know or should know has

failed to prevent tortious conduct by employees may establish

the conscious disregard for the consequences of their action —

the ‘deliberate indifference’ — necessary to trigger municipal

liability.”)).

The complaint alleges multiple incidents of sexual

misconduct committed by Blanchette while on duty. As the County

points out, however, it does not allege facts to support the

allegation that the County had actual notice of any of those

incidents. The complaint does not allege, for example, that any

of Blanchette’s purported victims notified the County, nor does

it disclose how or when the County eventually learned of

Blanchette’s alleged misconduct, or what action, if any, the

County took upon learning of it. Instead, the complaint merely

suggests that, because Blanchette allegedly engaged in

misconduct on multiple occasions with different inmates, the

County should have known of his misconduct. The complaint also

fails to adequately support its conclusory allegation that the

County “should have known” of Blanchette’s misconduct.

With respect to the claim that the County failed to

properly train its officers, the complaint provides no details

8 regarding the County’s training program, or how that program

might be even arguably deficient. The complaint alleges no

facts from which a court might infer that the County disregarded

a known risk, or facts that could support a finding that the

County’s inadequate training of Blanchette caused plaintiff’s

injury. See, e.g., Whitfield v. Melendez-Rivera,

(1st Cir. 2005) (“[D]eliberate indifference will be found where

the municipality fails to provide adequate training

notwithstanding an obvious likelihood that inadequate training

will result in the violation of constitutional rights. The

plaintiff must also prove that ‘the deficiency in training

actually caused the police officers' indifference’ to the

public's constitutional rights. A generalized showing of a

deficient training program is not sufficient. The plaintiff

must establish that the particular officers who committed the

violation had been deprived of adequate training, and that this

specific failure in training was at least a partial cause of the

ultimate injury.”) (quoting City of Canton v. Harris,

(1989)) (citations omitted); Marrero-Rodriguez v.

Municipality of San Juan,

(1st Cir. 2012) (“to

state a claim for municipal liability, a plaintiff must plead

more than mere insufficiency of a municipality's training

program. ‘[A] training program must be quite deficient in order

for the deliberate indifference standard to be met: the fact

9 that training is imperfect or not in the precise form a

plaintiff would prefer is insufficient to make such a

showing.’”) (quoting Young,

).

Hewes fails to assert facts supporting her general

contention that the County was “deliberately indifferent” in its

hiring practices. “Only where adequate scrutiny of an

applicant's background would lead a reasonable policymaker to

conclude that the plainly obvious consequence of the decision to

hire the applicant would be the deprivation of a third party's

federally protected right can the official's failure to

adequately scrutinize the applicant's background constitute

‘deliberate indifference.’” Board of the County Com'rs v.

Brown,

. Facts that might support a finding that

something in Blanchette’s background would have alerted the

County that hiring him would likely result in a deprivation of

her or anyone else’s constitutional rights are not pled in the

complaint. Indeed, her complaint lacks any discussion

whatsoever of the County’s decision to hire Blanchette, or of

the County’s hiring process.

Finally, Hewes alleges that the County was “deliberately

indifferent” with respect to supervising Blanchette. Absent

direct participation in the challenged conduct, supervisory

liability under Section 1983 attaches only where: “(1) the

10 behavior of . . . subordinates results in a constitutional

violation and (2) the [supervisor's] action or inaction was

affirmatively linked to the behavior in the sense that it could

be characterized as supervisory encouragement, condonation or

acquiescence or gross negligence ... amounting to deliberate

indifference.” Whitfield,

(quoting Hegarty v.

Somerset County,

, 1379–80 (1st Cir. 1995)

(additional quotations omitted). Hewes fails to assert facts

sufficient to support her allegation that the County knew - or

even should have known - about Blanchette’s misconduct, much

less was “deliberately indifferent” to it. And, Hewes’s

complaint lacks factual allegations that would support an

affirmative link between any action (or inaction) taken by

Blanchette’s supervisors and Blanchette’s misconduct.

As our court of appeals has instructed,

[i]n order to survive dismissal, a complaint need not set forth “detailed factual allegations,” Bell Atl. Corp. v. Twombly,

(2007), but it must “contain sufficient factual matter ... to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal,

(2009) (citation omitted). If the facts articulated in the complaint are “too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture,” the complaint is vulnerable to a motion to dismiss. SEC v. Tambone,

(1st Cir. 2010) (en banc).

Privitera v. Curran (In re Curran),

(1st Cir.

2017). In support of her Section 1983 claim against the County,

11 Hewes’s allegations are largely conclusory, and, as described,

lack factual support. Accordingly, the County’s motion to

dismiss Hewes’s Section 1983 claim is granted, albeit without

prejudice. To the extent Hewes can plausibly assert factual

allegations that would support her Section 1983 claim, she may

timely file a motion to amend her complaint.

II. State Law Claims

Hewes asserts several state law claims against the County,

including: assault; battery; sex discrimination; and intentional

and negligent infliction of emotional distress. She further

asserts a claim for “violation of the rights otherwise

guaranteed to [her] under the laws and constitutions of the

State of New Hampshire, and the United States.” Compl. ¶ 43.

In support of those claims, Hewes alleges that Blanchette’s

conduct occurred during the “course and scope of his duties and

functions as an employee and agent” of the County. Accordingly,

she seeks to hold the County liable for Blanchette’s conduct

under the doctrine of respondeat superior. Compl. ¶ 41.

The County makes three arguments with respect to Hewes’s

state law claims. First, the County argues that, because it is

immune from liability under state law (N.H. Rev. Stat. Ann. Ch.

(“RSA”) 507-B), Hewes’s state claims against it necessarily

fail. The County further contends that Hewes has not

12 sufficiently alleged facts to support her state law claims.

Finally, the County argues that, because Blanchette’s alleged

conduct was not within the scope of his employment, the County

cannot be held liable under a theory of respondeat superior.

The County’s first argument is persuasive and dispositive.

RSA 507-B:5 provides that “No governmental unit shall be

held liable in any action to recover for bodily injury, personal

injury or property damage except as provided by this chapter or

as is provided or may be provided by other statute.” RSA 507-

B:5. Hewes says that another statute allows her claims. RSA

507-B:2 provides that ”A governmental unit may be held liable

for damages in an action to recover for bodily injury, personal

injury or property damage caused by its fault or by fault

attributable to it, arising out of ownership, occupation,

maintenance or operation of all motor vehicles, and all

premises.” Hewes says that RSA 507-B:2 applies here, because

her claims “arise out of the operation of a motor vehicle” as

“the use of the County’s vehicle was necessary for defendant

Blanchette to do what he did.” Obj. to Mot. to Dismiss at 2.

New Hampshire’s Supreme Court has authoritatively construed

the motor vehicle exception to sovereign immunity described in

RSA 507-B:2. That exception extends to personal injury claims

“only when there is a nexus between the claim and the

13 governmental unit’s ownership, occupation, maintenance, or

operation of a motor vehicle or premises.” Tompson v.

Rockingham County Sheriff’s Office, Case No. 2015-0182,

, at *1 (N.H. Sept. 18, 2015) (quoting Dichiara v.

Sanborn Reg’l Sch. Dist.,

(2013)). That is

to say, “‘the injury must originate from, grow out of, or flow

from’ the operation or use of the vehicle,” or, “a causal

connection must exist between the resulting harm and the

[operation or] use of the vehicle.” Chatman v. Strafford

County,

(2012) (quoting Concord Gen. Mut. Ins.

Co. v. Doe,

(2010)). “[A]lthough proximate

causation is not required, ‘a tenuous connection with an

automobile is not sufficient.’” Concord Gen. Mut. Ins. Co.,

. Finally, in the comparable insurance coverage

context, “when a vehicle acts as merely the situs of an injury,

the causal connection between the injury and the use of the

vehicle is too tenuous to support coverage.”

(citing

Akerley v. Hartford Ins. Group,

(1992)).

Accordingly, for the exception to apply, the injuries

complained of must be causally connected to the operation of the

vehicle; that causal connection must be more than a tenuous one;

and, when the vehicle acts as merely the site where an injury

14 took place, the causal connection is too tenuous to trigger the

sovereign immunity exception. Chatman,

.

Hewes alleges that she was injured when Blanchette, abusing

his custodial authority over her, coerced her into sexual

activity. Those injuries did not arise out of “an act that is

part of using a motor vehicle,” Chatman,

, but,

rather, were occasioned by Blanchette’s intentional misconduct.

The county vehicle was used for transportation to a house - a

site of improper conduct - and the vehicle was itself a “site”

in which improper conduct occurred. And, it might be said that,

but for Blanchette’s use of the vehicle to transport Hewes, the

conduct complained of would not have occurred.

Even so, Blanchette’s operation of the vehicle plainly bore

only a tenuous connection to the alleged injuries, and no

apparent “causal” connection. At most, the vehicle indirectly

facilitated Blanchette’s alleged misconduct or facilitated his

opportunity to engage in intentional misconduct. But it cannot

be said that “operation” of the vehicle was causally linked to

the injuries Hewes describes. At most, the vehicle served as

the site where the alleged misconduct took place, which is

insufficient to trigger the exception. Otherwise it merely

facilitated the misconduct, in a tenuous and indirect manner.

15 That tenuous connection is also insufficient to trigger the

motor vehicle exception to sovereign immunity.

Accordingly, the County is entitled to immunity from

liability with respect to plaintiff’s state law claims.

CONCLUSION

For the foregoing reasons, and for those given in

defendant’s memorandum in support of its motion, defendant’s

motion to dismiss (document no. 4) is GRANTED, albeit without

prejudice to plaintiff’s filing an amended complaint within

thirty (30) days of the date of this order, asserting claims

under

, if she can do so in good faith based

upon adequate factual support.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

February 15, 2018

cc: Lawrence A. Vogelman, Esq. Corey M. Belobrow, Esq.

16