UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tirar Tortorello

v. Case No. 19-cv-250-PB Laconia Police Dep’t, et al. Opinion No.

MEMORANDUM AND ORDER

This case arises from what plaintiff Tirar Tortorello

claims was an unlawful “drug sweep” by the Laconia Police

Department (“LPD”). He asserts that police officers illegally

searched his apartment during the drug sweep and later issued a

defamatory press release falsely stating that a warrant on drug-

related charges had issued for his arrest. The bulk of

Tortorello’s claims are based in state law and are focused on

the issuance of the press release and its republication by

several news organizations. He does, however, assert a single

federal claim against the city seeking to hold it liable for the

allegedly unconstitutional search of his apartment. 1

The city has responded with a motion to dismiss, arguing,

among other things, that Tortorello’s illegal search claim fails

1 Tortorello also brought a Fourteenth Amendment due process claim against the LPD and Lieutenant Butler (Count I), but he voluntarily dismissed that claim with prejudice. See Pl.’s Notice of Voluntary Dismissal, Doc. No. 51. to assert a viable claim for relief. Because I am persuaded by

the city’s argument on this point, I dismiss the municipal

liability claim with prejudice and decline to exercise

supplemental jurisdiction over Tortorello’s remaining state law

claims.

I. BACKGROUND

On March 9, 2016, “the [LPD] conducted a drug warrant

sweep” in Laconia, New Hampshire. Am. Compl., Doc. No. 36 at 4

¶¶ 16, 17 (internal quotation marks omitted) (quoting the press

release issued by the LPD on the drug sweep, attached as exhibit

A to the amended complaint). According to Tortorello, the LPD

raided his apartment while he was on vacation. Doc. No. 36 at 5

¶ 22. When Tortorello returned, he found “all of his property

confiscated (including his dog), and his maid kicked off the

premises.” Doc. No. 36 at 5 ¶ 22. He asserts that “[t]he [LPD]

officers who conducted the raid, upon information and belief,

acted without good faith and without reasonable belief that

probable cause existed for the search and seizure[,]” thereby

violating his Fourth Amendment rights. Doc. No. 36 at 10 ¶ 50.

Following the raid, the LPD issued a press release, drafted

by Lieutenant Kevin Butler, listing individuals with outstanding

arrest warrants for drug-related offenses whom the LPD did not

find during the raid. Doc. No. 36 at 4–5 ¶¶ 17–20. Tortorello’s

2 name erroneously appeared on the list. See Doc. No. 36 at 4 ¶

17, 5 ¶ 23. The media companies named as defendants then

republished the LPD’s press release. Doc. No. 36 at 6 ¶ 25.

Tortorello alleges that he lost his job and became homeless as a

result of the republication or the press release. Doc. No. 36 at

7–8 ¶¶ 30–34.

II. STANDARD OF REVIEW

To overcome a motion to dismiss under Rule 12(b)(6), the

plaintiff must make sufficient factual allegations to “state a

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

Iqbal,

,

,

(2009) (quoting Bell Atl. Corp. v. Twombly,

,

,

(2007)). This “plausibility

standard ‘asks for more than a sheer possibility that a

defendant has acted unlawfully.’” Gilbert v. City of Chicopee,

(1st Cir. 2019) (quoting Iqbal,

). Although the complaint need not set forth detailed factual

allegations, it must provide “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal,

. I need not consider, therefore, “statements in the

complaint that merely offer legal conclusions couched as facts

or are threadbare or conclusory.” Air Sunshine, Inc. v. Carl,

(1st Cir. 2011) (internal quotation marks

3 omitted) (quoting Soto-Torres v. Fraticelli,

(1st Cir. 2011)).

In evaluating the complaint, I excise any conclusory legal

statements and credit as true all non-conclusory factual

allegations and reasonable inferences drawn from those

allegations. Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011). I “may also consider ‘facts subject to judicial

notice, implications from documents incorporated into the

complaint, and concessions in the complainant’s response to the

motion to dismiss.’” Breiding v. Eversource Energy,

,

49 (1st Cir. 2019) (quoting Arturet-Vélez v. R.J. Reynolds

Tobacco Co.,

, 13 n.2 (1st Cir. 2005)).

III. ANALYSIS

Tortorello’s sole federal claim is that the city is liable

pursuant to

for the allegedly unconstitutional

search of his apartment. The city has responded by arguing that

Tortorello has failed to plead a viable § 1983 municipal

liability claim. I begin by explaining why the city’s argument

is correct and then justify my decision to decline to exercise

supplemental jurisdiction over Tortorello’s remaining claims.

A. The Municipal Liability Claim

Municipalities cannot be held vicariously liable for the

unconstitutional acts of their employees. Monell v. Dep’t of

4 Soc. Servs.,

,

,

(1978). Instead, “a municipality can be found liable under §

1983 only where the municipality itself causes the

constitutional violation at issue.” Jordan v. Town of Waldoboro,

, 547 (1st Cir. 2019) (alteration omitted) (quoting

City of Canton v. Harris,

,

,

(1989)). The Supreme Court and the First

Circuit Court of Appeals have identified several ways in which

this requirement can be satisfied. First and foremost, a

municipality can be liable if the plaintiff’s injuries are

caused by an unconstitutional municipal policy. See Haley v.

City of Boston,

(1st Cir. 2011). Such a policy

either must be facially unconstitutional or direct employees to

engage in unconstitutional conduct. See AFL-CIO v. City of

Miami,

(11th Cir. 2011) (citing Bd. of Cty.

Comm’rs v. Brown,

,

,

(1997)); see also Haley,

, 51–52 (1st Cir.

2011) (dictum). Second, an unconstitutional and informal custom

may be derived from practices “so permanent and well settled as

to constitute a custom or usage with the force of law.” Monell,

(internal quotation marks omitted); see Silva v.

Worden,

(1st Cir. 1997). Third, municipal

liability may be premised on the unconstitutional act of a

decisionmaker who “possesses final authority to establish

5 municipal policy.” Pembaur v. City of Cincinnati,

,

,

(1986); accord Rosaura

Bldg. Corp. v. Municipality of Mayaguez,

(1st

Cir. 2015). Fourth, a final policymaker’s ratification of

unconstitutional decisions by lower-level employees may

constitute official policy attributable to the municipality.

City of St. Louis v. Praprotnik,

,

,

(1988). Fifth and finally, municipal

liability may be premised on a failure to properly hire, train,

or supervise employees who violate a plaintiff’s constitutional

rights but only if the municipality was “deliberately

indifferent” to the constitutional rights of its citizens. Cf.

Connick v. Thompson,

, 61,

,

(2011) (discussing training); Bd. of Cty. Comm’rs,

(discussing hiring); Amnesty Am. v. Town of West

Hartford,

(2d Cir. 2004) (discussing

supervision). When evaluating a municipal liability claim that

requires proof of deliberate indifference, the plaintiff must

plead more than a “mere insufficiency” of the municipality’s

actions. Marrero-Rodríguez v. Municipality of San Juan,

(1st Cir. 2012). Instead, “a training program must be

quite deficient in order for the deliberate indifference

standard to be met: the fact that training is imperfect or not

in the precise form a plaintiff would prefer is insufficient to

6 make such a showing.”

(alteration omitted) (internal

quotation marks omitted) (quoting Young v. City of Providence ex

rel. Napolitano,

(1st Cir. 2005)).

Tortorello did not come close to pleading a viable

municipal liability claim in his complaint. Instead, he appears

to have based his claim on the discredited theory that a

municipality can be held vicariously liable for the

unconstitutional actions of its employees. Although he later

made a half-hearted attempt to save his claim by using terms

such as “policy,” “custom,” and “deliberate indifference” in his

objection to the city’s motion to dismiss, see Pl.’s Obj. to

Defs.’ City of Laconia, LPD, and Kevin Butler’s Mot. to Dismiss

& Inc. Mem. of Law, Doc. No. 44 at 4, his attempt would fail

even if I were to treat his objection as a constructive

amendment of his complaint.

Although Tortorello complains that the city has a policy or

custom of conducting broad drug sweeps, he does not contend that

the alleged policy or custom is itself unconstitutional. Nor has

he alleged that it directs officers to engage in

unconstitutional acts. Accordingly, his allegations are

insufficient to support a municipal liability claim based on an

unconstitutional policy or custom. See AFL-CIO,

; see also Haley, 657 F.3d at 51–52 (dictum).

7 Tortorello also asserts that the city acted with deliberate

indifference to its duty to properly supervise the officers who

searched his apartment. Doc. No. 44 at 4, 6. Again, however, he

has utterly failed to identify any facts to support this

contention. Such conclusory assertions simply cannot sustain a

municipal liability claim based on an alleged failure to

supervise. See Marrero-Rodríguez,

(discussing

identical standard in the First Circuit for a failure to train

claim).

For these reasons, Tortorello has failed to sufficiently

plead a municipal liability claim under § 1983. I, therefore,

grant in part the city’s motion and dismiss Count II with

prejudice.

B. State Law Claims

My jurisdiction to consider Tortorello’s state law claims

rests on

, which gives a federal court

supplemental jurisdiction to consider claims that are related to

a claim that the court has original jurisdiction to consider. A

federal “court may decline to exercise supplemental

jurisdiction[,]” however, if it dismisses all of the plaintiff’s

original jurisdiction claims. González-De-Blasini v. Family

Dep’t,

(1st Cir. 2004) (internal quotation marks

omitted) (quoting

(c)). “As a general principle,

the unfavorable disposition of a plaintiff’s federal claims at

8 the early stages of a suit will trigger the dismissal without

prejudice of any supplemental state-law claims.”

(alteration

omitted) (internal quotation marks omitted) (quoting Rodriguez

v. Doral Mortg. Corp.,

(1st Cir. 1995));

accord Massó-Torrellas v. Municipality of Toa Alta,

(1st Cir. 2017) (affirming the First Circuit’s view of

supplemental jurisdiction as articulated in González-De-Blasini

and Rodriguez).

Because I am dismissing with prejudice the sole claim over

which I have original jurisdiction, I decline to exercise

supplemental jurisdiction over Tortorello’s remaining state-law

claims. See González-De-Blasini,

.

IV. CONCLUSION

For the foregoing reasons, I grant the City of Laconia’s

motion to dismiss (Doc. No. 42) as to Count II and deny as moot

its motion as to Counts III and IV. I dismiss the state-law tort

claims (Counts III–VI) without prejudice to Tortorello’s right

to assert them in a new complaint filed in state court. All

remaining motions (Doc. Nos. 39, 40, 41) are denied as moot.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

May 12, 2020

9 cc: Robert M. Fojo, Esq. Charles P. Bauer, Esq. Matthew Vernon Burrows, Esq. William L. Chapman, Esq. Gregory V. Sullivan, Esq.

10