UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Dia Fredyma, Plaintiff

v. Case No. 17-cv-311-SM Opinion No.

Daniel J. Hurley, Defendant

O R D E R

Plaintiff, Dia Fredyma, brings this action against Daniel

Hurley, a former officer in the Keene, New Hampshire Police

Department. 1 By prior order, the court dismissed Fredyma’s First

Amendment retaliation claim. See Order dated February 16, 2018

(document no. 8). And, more recently, Fredyma has notified the

court that “she does not object to the entry of judgment on the

pendent state law claims.” Plaintiff’s Opposition Memorandum

(document no. 14) at 1. So, at this point, Fredyma advances a

single claim: that Officer Hurley violated her constitutionally

protected right to be free from unreasonable seizures when

Hurley deemed her to be “intoxicated” and took her into

“protective custody” under the provisions of state law, N.H.

Rev. Stat. Ann. (“RSA”) ch. 172-B.

1 Hurley is currently an officer with the Seabrook, New Hampshire Police Department. Pending before the court is Hurley’s motion for summary

judgment. Fredyma objects. For the reasons discussed, that

motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “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). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

Consequently, “[a]s to issues on which the party opposing

summary judgment would bear the burden of proof at trial, that

party may not simply rely on the absence of evidence but,

rather, must point to definite and competent evidence showing

the existence of a genuine issue of material fact.” Perez v.

Lorraine Enters.,

, 29–30 (1st Cir. 2014). In other

2 words, “a laundry list of possibilities and hypotheticals” and

“[s]peculation about mere possibilities, without more, is not

enough to stave off summary judgment.” Tobin v. Fed. Express

Corp.,

, 451–52 (1st Cir. 2014). See generally

Anderson v. Liberty Lobby, Inc.,

(1986).

Background

On Saturday afternoon, July 19, 2014, Ms. Fredyma and her

husband attended a wedding at the Keene Country Club, in Keene,

New Hampshire. After the ceremony, they joined the wedding

party and a number of guests at a reception at the same

facility. While there, Fredyma says she ate dinner and drank

“maybe two” Samuel Adams beers. Fredyma Deposition (document

no. 11-6) at 23. She estimates the reception ended around 6 pm,

id. at 25, at which point she, her husband, and several other

guests drove to Waxy O’Connor’s, a bar immediately adjacent to

(but apparently unaffiliated with) the Best Western Hotel. They

remained there for roughly seven and one-half hours, until the

bar closed, at approximately 1:30 am. Id. at 28. Fredyma did

not eat anything at the bar, but acknowledges that she did

consume more beer - “I probably had another two or three more

drinks.” Id.

3 After the bar closed, Fredyma and her husband decided that,

because they had been drinking, neither should drive home. See

Id. at 29 (“Q: Do you think you could have operated a motor

vehicle safely? A: No. That’s why I was not driving.”). See

also Id. at 66 (“We chose not to drive. It’s not - it would be

illegal for us to drive. . . . It would have been illegal. So I

should not have driven, and that’s why I was where I was at.”).

Accordingly, they walked to the Best Western, where Fredyma

spoke to the clerk at the front desk and asked whether there

were any rooms available for the night. The clerk informed her

that there were none. And, he told her that he had already

contacted all the other local hotels, inquiring on behalf of

other people, to see if any rooms were available. There were

not. See Fredyma Deposition at 43 (“He told me that he spoke to

every hotel nearby, including all the way over to Brattleboro,

and there was no vacancies anywhere that could be found. And he

already knew this because he called earlier.”).

Fredyma described the front desk area as “hectic” and noted

that the clerk was busy fielding calls from guests (there were,

apparently, several complaints about noisy guests in another

area of the hotel). The clerk was also dealing with another

person who had come to the front desk. See Fredyma deposition

at 41. The clerk told Fredyma that because he had already

4 checked with the area hotels about vacancies he was unwilling to

do so again. He did, however, print out a list of those local

hotels, with their phone numbers, and handed it to her. Id. at

42. Fredyma testified that she was “angry” and “frustrated” at

that point, and “snatched” the paper from the clerk’s hand. Id.

at 44, 46, and 48. She doubted that he had actually called all

of those hotels, id. at 43, and, because the battery in her cell

phone was dead, she asked to use the front desk phone so she

could personally verify the information he had shared with her.

Id. at 45. The clerk told her that he was not permitted to

allow guests to use the front desk phone, per company policy.

According to the clerk, Fredyma “was being vulgar and

started calling [him] names,” and told him “she was going to

come across that counter and beat [him] down.” Trial Transcript

of State v. Joshua Fredyma (document no. 11-7) at 7. 2 Fredyma

denies threatening the clerk. Nevertheless, given Fredyma’s

agitated state, the clerk warned her that he was going to call

2 As a result of his own conduct during this early-morning encounter, Joshua Fredyma was arrested. Following a bench trial, he was found guilty of resisting arrest. See Trial Transcript (document no. 11-7) at 45. He appealed that conviction and, immediately prior to a de novo jury trial in the New Hampshire Superior Court, the parties negotiated a settlement: in exchange for his agreement not to pursue civil claims against the officers involved, the charge against him was dismissed. See Complaint at 3, n.1.

5 the police. Id. at 50. Around that time, Fredyma’s husband,

Joshua, arrived at the front counter. The desk clerk described

his interaction with the couple as follows:

But she then mentioned something about not having a phone, and could she use a phone. And I said, “Well, we don’t have any public phone here.” And that time the hotel was in renovation, and while normally we would have had several phones, one of which I guess I could have let her use, at this particular time we had only one phone, the hotel console. Which I’m not able - I cannot make available for public use.

And I said this to her, and she wasn’t satisfied with that. It was apparent to me that this was just a guest who wasn’t going to take no for an answer. And she - I felt at the time she was probably intoxicated, so I was patient with her. Then she told me, “I want you to call every, you know, hotel around the town, and find out,” and so on. And I said, “Look, I know there aren’t any rooms available and I’m not going to do that. And I have, you know, quite enough to do here. I’m sorry, I can’t help you. I just can’t help you.” And then she started - she was being vulgar and started calling me names, and so on. And I guess at some point she said - she referred to some military training, and how she was going to come across that counter and beat me down. Anyway, it was about this time when Mr. Fredyma came into the lobby. And I realized then that they were in fact together, though I had suspected that with her having come in so soon after he had been in.

And then it began. He walked up to the office at the end of the counter. So one - they were at opposite ends of the counter where I was working. And he started asking the same questions that she had just asked. And then, “Well, why can’t she use the phone?” And you know, I had to - again, I explained to them that there are no rooms, and I don’t have any phone

6 available, and that I can’t help them. You know, I’m sorry.

The situation went from hounding to just harassment, to out and out threatening. And I was very concerned. I was all alone. You know, a large hotel full of guests, many of whom were complaining, calling me on the phone as I was trying to have this conversation with these two people. And it was simply - I was putting myself in danger. (Tr. 8).

Trial Transcript at 6-8.

At that point, Fredyma admits she was getting “more and

more frustrated” and concedes that it was “very possible” that

she was swearing at the clerk. Although she denies “yelling,”

she admits she was “very animated” and “speaking in a raised

voice.” She also began to cry. Fredyma Deposition at 55-57 and

59. She also admits that she smelled of beer, and agrees that

it was “possible” that she had red, bloodshot, glassy eyes. Id.

at 58. At 1:52 am, the front desk clerk called the Keene Police

Department to report a disturbance at the hotel.

The first officer to arrive at the scene was the defendant,

Officer Hurley. Fredyma says she explained the situation to

him. During that interaction, she admits that she continued to

be “excited,” was “still animated,” spoke in a “raised voice,”

was crying, and may have been swearing. Id. at 63. Her

husband, Joshua, joined the conversation and both addressed

7 Hurley in what Fredyma describes as an “animated” manner. Id.

at 64. See also Exhibit C to Defendant’s Memorandum (document

no. 11-1), Video from Hotel Lobby. Officer Hurley testified

that Joshua told him that “this fucking place over-served me”

and now won’t give me a room. Trial Transcript at 21. 3 See also

Police Narrative (document no. 11-3) at 1. Ms. Fredyma was

plainly agitated and described herself as “bawling” and being

“just beside myself.” Fredyma Deposition at 65. Officer Hurley

testified that both Mr. and Ms. Fredyma were “very aggravated

with what was going on” and the couple repeatedly talked over

him as he was trying to converse with them. Trial Transcript,

at 22.

Officer Hurley testified that he told Joshua several times

to calm down, but he kept “escalating and escalating.” Id.

Hurley testified that he informed Joshua that if he didn’t calm

down, he was going to be arrested. “And, at that point, he

said, ‘Fuck You.’ Clinched his fists, and that’s when I told

him he was under arrest. I was going to place him into

protective custody.” Id. As Officer Hurley attempted to

3 Ms. Fredyma denies hearing that statement but another of the responding officers, Officer Lamoureux, testified that Mr. Fredyma complained that the bar had “over-served” him. Trial Transcript at 41. The hotel clerk also testified that Mr. Fredyma complained to the police that “we were over-served” at the bar. Id. at 10-11.

8 handcuff Joshua, he resisted and a struggle ensued. Ms. Fredyma

turned to the clerk and called him an “asshole” - apparently

because she blamed him, at least in part, for the couple’s

current predicament. Fredyma Deposition at 67.

As Officer Hurley and the other responding officers

attempted to take Joshua into custody, they took him to the

ground in the hotel lobby. Ms. Fredyma stood over the

struggling group, calling out to her husband. Id. at 68. Once

the officers secured Joshua, Officer Hurley approached Ms.

Fredyma, “who was still yelling,” Police Narrative (document no.

11-3) at 2. He told her that he was taking her into protective

custody and instructed her to put her hands behind her back.

She complied. Officer Hurley secured her in handcuffs, and she

was transported to the Cheshire County House of Corrections

without incident. She was processed, detained, and released

about four hours later, at 6 am.

Discussion

In the sole remaining count of her complaint, Ms. Fredyma

asserts that Officer Hurley, while acting under color of state

law, violated her constitutionally protected right to be free

from unreasonable seizures. See generally

.

Specifically, she claims Hurley took her into protective custody

9 pursuant to RSA 172-B without probable cause to believe that she

was “intoxicated,” as that term is defined in the statute.

Consequently, the questions presented by Officer Hurley’s motion

for summary judgment are: (1) whether the undisputed material

facts of record establish that, as a matter of law, Hurley’s

conduct did not violate Fredyma’s constitutional rights; or, if

it did, (2) whether Hurley is nonetheless entitled to qualified

immunity.

Chapter 172-B of New Hampshire’s Revised Statutes

Annotated, the statute pursuant to which Officer Hurley seized

Ms. Fredyma, provides that:

When a peace officer encounters a person who, in the judgment of the officer, is intoxicated as defined in RSA 172-B:1, X, the officer may take such person into protective custody and shall take whichever of the following actions is, in the judgment of the officer, the most appropriate to ensure the safety and welfare of the public, the individual, or both:

(a) Assist the person, if he consents, to his home, an approved alcohol treatment program, or some other appropriate location; or

(b) Release the person to some other person assuming responsibility for the intoxicated person; or

(c) Lodge the person in a local jail or county correctional facility for said person’s protection, for up to 24 hours or until the keeper of said jail or facility judges the person to be no longer intoxicated.

10 RSA 172-B:3, I. That statute defines the term “intoxicated” to

mean “a condition in which the mental or physical functioning of

an individual is substantially impaired as a result of the

presence of alcohol in his system.” RSA 172-B:1, X. 4

I. The Fourth Amendment and Probable Cause.

The Fourth Amendment (made applicable to the states and

state actors through the Fourteenth Amendment) provides that

citizens shall not be subjected to “unreasonable” seizures.

And, it is well established that “the Fourth Amendment requires

officers acting under a civil protection statute to have

probable cause before taking an individual into custody of a

kind that resembles an arrest.” Alfano v. Lynch,

(1st Cir. 2017). Based upon the evidence of record, it is

plain that Officer Hurley had probable cause to believe that

Fredyma was “intoxicated,” as that term is defined by state law,

when he took her into protective custody.

4 Although not relevant to Fredyma’s federal claim, that statute provides both civil and criminal immunity to officers acting under its authority, except for “gross negligence or willful or wanton injury.” RSA 172-B:3, VIII.

11 As this court has noted, “probable cause” to arrest an

individual (or to detain her under the protective custody

statute) exists when:

the facts and circumstances within an officer’s knowledge and of which he or she had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. Probable cause does not require evidence to prove guilt beyond a reasonable doubt. Probability is the touchstone. The probable cause standard does not require the officers’ conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable.

Belsito Commc’ns, Inc. v. Decker,

,

,

at *6 (D.N.H. Jan. 12, 2016) (citations and internal punctuation

omitted). Here, the facts and circumstances of which Officer

Hurley was aware included the following:

1. Shortly before 2 o’clock in the morning, he was dispatched to the Best Western Hotel to respond to a disturbance in the hotel lobby.

2. When he arrived, Hurley “immediately observed a male and a female who appeared extremely agitated.” Police Narrative (document no. 11-3) at 1.

3. While Fredyma denies that she was “intoxicated,” as that term is defined in RSA 172-B, she admits that she was under the influence of alcohol and her blood alcohol level was above the legal limit for operating a motor vehicle.

4. Fredyma was “excited and animated,” “angry,” and “frustrated;” she was alternating between “speaking in a raised voice” and “bawling;” and she was swearing at both the hotel clerk and Officer Hurley.

12 5. Fredyma had been drinking since earlier the prior afternoon, she admits she smelled of beer, and does not dispute Officer Hurley’s report that she had red, bloodshot, glassy eyes.

Given those undisputed facts of record, a reasonable and prudent

officer in Hurley’s position, could have reasonably concluded

that not only was Fredyma under the influence of alcohol (as she

admits), but she was also “intoxicated,” as defined in RSA 172-

B. 5 Consequently, Officer Hurley had probable cause to take

Fredyma into protective custody. The Fourth Amendment demands

nothing more.

But, says Fredyma, Officer Hurley failed to give sufficient

consideration to less intrusive, non-custodial options that were

available to him under state law. See Plaintiff’s Memorandum at

10 and 12. Specifically, Fredyma asserts that Officer Hurley

failed to adequately consider whether, in his judgment, it would

5 Indeed, based upon his observations of Fredyma, the desk clerk believed she was “probably intoxicated.” Trial Transcript at 7. See also Deposition of Dale Delino (document no. 14-2) at 52 (“I have to make assumptions about people I’m dealing with at night when there’s a problem like this, and my assumption was this is pretty irrational, and I’m wondering if she isn’t maybe in a blackout or intoxicated. There’s something - you know - something is not right with this woman and I may be in trouble here.”).

13 have been more appropriate to assist Fredyma to her home by

calling her a cab. See generally RSA 172-B:3, I(a). 6

Fredyma has, however, pointed to no authority for the

proposition that the Fourth Amendment requires an officer - once

he or she has probable cause to seize a person - to consider

whether, under the circumstances, options less intrusive than an

arrest are available and/or viable. At most, one might

plausibly argue that once Officer Hurley had probable cause to

take Fredyma into protective custody, the Fourth Amendment

imposed some sort of temporal restriction on the duration of her

custody. See Ringuette v. City of Fall River,

(1st Cir. 1998) (holding that detention beyond the 12 hours

permitted by Massachusetts’ protective custody statute “likely”

would have violated the Fourth Amendment). But, Fredyma does

not challenge the comparatively short period of her detention.

Instead, she asserts that the failure to adequately consider

non-custodial options specified in the New Hampshire statute

violated the Fourth Amendment. It did not.

6 Officer Hurley testified that he did consider the non- custodial options set forth in RSA 172-B:3, but determined that taking Fredyma to the house of corrections was, under the circumstances, the most appropriate course of action. See Affidavit of Officer Daniel J. Hurley (document no. 11-2) at para. 10.

14 The Fourth Amendment demands that “seizures” be supported

by probable cause. If probable cause to arrest exists, the

Fourth Amendment is satisfied. It does not compel officers to

explore or even consider whether there are options less

intrusive than a seizure available to them. This is true even

if state law does require such an inquiry. See generally Lucia

v. City of Peabody,

, 164–65 (D. Mass. 2013)

(concluding that Massachusetts’ statutory requirement that

officers detaining someone under the protective custody statute

contact a treatment facility did not amount to a constitutional

prerequisite to protective custody detention). See generally,

Virginia v. Moore,

(2008) (“A State is free to

prefer one search-and-seizure policy among the range of

constitutionally permissible options, but its choice of a more

restrictive option does not render the less restrictive ones

unreasonable, and hence unconstitutional.”); Bd. of Educ. v.

Earls,

(2002) (“[T]his Court has repeatedly

stated that reasonableness under the Fourth Amendment does not

require employing the least intrusive means, because the logic

of such elaborate less-restrictive-alternative arguments could

raise insuperable barriers to the exercise of virtually all

search-and-seizure powers.”) (citation and internal punctuation

omitted). See also Holder v. Town of Sandown,

,

507-08 and n.6 (1st Cir. 2009) (discussing this concept in

15 detail and noting that, “linking Fourth Amendment protections to

state law would cause them to vary from place to place and from

time to time”) (quoting Virginia v. Moore,

)).

To be sure, Fredyma may have stated a claim that Officer

Hurley violated the provisions of New Hampshire’s protective

custody statute (whether that alleged statutory violation would

have given rise to a viable private cause of action -

particularly given the statutory immunity afforded to officers

under RSA 172-B - is unclear). But, she has voluntarily

relinquished all of her state law claims. All that remains is

her Fourth Amendment claim. And, on the record before the

court, that Fourth Amendment claim fails as a matter of law.

II. Qualified Immunity.

Even if the court had concluded that Officer Hurley

violated Fredyma’s Fourth Amendment right to be free from

unreasonable seizures, he would still be entitled to the

protections afforded by qualified immunity. “Qualified immunity

shields government officials from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known. The doctrine’s prophylactic sweep is broad:

it leaves unprotected only those officials who, from an

16 objective standpoint, should have known that their conduct was

unlawful.” Alfano v. Lynch,

(1st Cir. 2017)

(citations and internal punctuation omitted). Consequently, as

the Supreme Court has observed, qualified immunity protects “all

but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs,

(1986). And, as this

court has noted:

When, as here, a seizure is challenged on grounds that the officers lacked reasonable suspicion (or probable cause), the qualified immunity inquiry does not require the court to decide whether probable cause actually existed, but rather, whether a reasonable officer could have believed that it did. Put another way, defendants are protected by qualified immunity so long as the presence of probable cause is at least arguable. Accordingly, for purposes of the qualified immunity inquiry in this case, the dispositive question is whether it was at least arguable that probable cause existed to believe Manders engaged in disorderly conduct within the meaning of RSA 644:2, II(b).

Byrnes v. City of Manchester,

(D.N.H.

2012) (citation and internal punctuation omitted) (emphasis

supplied). See also Cox v. Hainey,

(1st Cir.

2004) (“[I]n the case of a warrantless arrest, if the presence

of probable cause is arguable or subject to legitimate question,

qualified immunity will attach.”).

17 So, in the context of this case, the relevant inquiry is

whether it was “at least arguable” that probable cause existed

to believe that Fredyma was “intoxicated” under RSA 172-B. It

was. Consequently, even if Officer Hurley had violated

Fredyma’s constitutionally protected right to be free from

unreasonable seizures (he did not), he would, nonetheless, be

entitled to the protections afforded by qualified immunity.

See, e.g., McCue v. City of Bangor, No. 1:14-CV-00098-GZS,

, at *11 (D. Me. Sept. 22, 2015) (discussing officer’s

probable cause to detain plaintiff under Maine’s protective

custody statute and noting that, given the presence of probable

cause, officer was shielded by qualified immunity). See also

Wheeler v. Gidley,

,

, at *6 (D.N.H.

Aug. 29, 2005) (concluding that while plaintiff’s arrest “was

likely not supported by probable cause,” arresting officer was,

nonetheless, entitled to qualified immunity because a reasonable

officer could have believed that probable cause to arrest

existed).

Conclusion

For the foregoing reasons, the defendant, Officer Daniel J.

Hurley, is entitled to judgment as a matter of law with regard

to Ms. Fredyma’s sole remaining claim against him: that he

violated her Fourth Amendment right to be free from unreasonable

18 seizures when he concluded that she was “intoxicated” and took

her into protective custody under RSA 172-B. And, because

Fredyma “does not object to the entry of judgment on [her]

pendent state law claims,” Plaintiff’s Memorandum at 1, judgment

shall be entered in favor of Officer Hurley with regard to those

claims as well.

Defendant’s motion for summary judgment (document no. 11)

is granted. 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

March 13, 2019

cc: Brian R. Marsicovetere, Esq. Samantha D. Elliott, Esq.

19