Gorsuch v. Maloney et al

Filing 45

ORDER denying 25 Motion to Dismiss Counts IX and X of the Amended Complaint filed by John C. Fisher, Jeffrey Maher, and James J. Maloney. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Michael Gorsuch
v.

Civil No. 10-cv-495-JD
Opinion No. 2011 DNH 100

James Maloney, et al.
O R D E R
Michael Gorsuch brought federal and state claims against two
New Hampshire state troopers, the City of Nashua, and several
Nashua police officers arising out of the defendants’ responses
to a car accident in which Gorsuch was involved.

Lieutenant John

Fisher, Sergeant James Maloney, and Officer Jeffrey Maher of the
Nashua Police Department now move to dismiss two conspiracy
claims against them in Counts IX and X of the Amended Complaint.
Gorsuch objects to the motion.

Background
The following summary of the pertinent facts is taken from
Gorsuch’s amended complaint.
Michael Gorsuch and his friend, Daniel Rodriguez, celebrated
the Red Sox World Series win on October 28, 2007, at the Sky
Lounge in Nashua, New Hampshire.

Gorsuch and Rodriguez then left

in a car that Rodriguez had taken home from the Toyota Scion

dealership, where he worked.
the passenger seat.

Rodriguez drove, and Gorsuch was in

Neither wore seatbelts.

During the drive

home on Thornton Street in Nashua, at about 12:30 a.m. on October
29, Rodriguez lost control of the car.

The car spun several

times and hit a large tree.
Rodriguez was killed in the accident.

Gorsuch was protected

by the passenger side air bag and was not seriously injured.
Nashua Fire and Rescue and Nashua Police Department officers
responded to the scene of the accident and determined that a
collision reconstruction would be necessary.

Lieutenant John

Fisher, head of the reconstruction team, was contacted and told
to mobilize his unit.
At about 1 a.m., Fisher called Sergeant James Maloney at
home and advised him of the collision.

Maloney responded to the

scene, then called Fisher and told him that the accident appeared
to be a potential negligent homicide.

At about 2:30 a.m.,

Fisher, Maloney, and Officer Jeff Maher met at the Nashua Police
Department Headquarters to discuss the investigation.

Maloney

noted in his police report that “[i]t was determined after our
meeting that this is a negligent homicide case.”

(Amended

Complaint, Doc. No. 20, p. 6).
The collision reconstruction team, which included Maloney
and Fisher, then conducted the technical collision analysis that
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formed the basis of its report.

The team issued a report

concluding that Gorsuch had been driving the car when the
accident occurred.

Gorsuch was charged with negligent homicide.

In his Amended Complaint, Gorsuch alleges that the report
was deficient, in that it did not analyze passenger kinematics,
nor consider certain evidence suggesting that Rodriguez was
driving.

That evidence, Gorsuch alleges, was as follows:

(1) A Red Sox hat was found lodged between the
passenger-side airbag and the door. Mr. Gorsuch was a
Red Sox fan, and Mr. Rodriguez was a Yankees fan;
(2) Mr. Rodriguez’s shoe was found in the driver-side
footwell;
(3) The Scion belonged to Mr. [Rodriguez’s] employer,
and Mr. Rodriguez was the only person authorized to
drive the Scion. . . .; and
(4) In a collision involving impacts to both the rightside and rear of the vehicle, it can be assumed that
unrestrained passengers would be thrown to the right
and to the rear. This type of impact would naturally
cause the driver to land in the right rear seat, and
the passenger to be pushed into the back of the
passenger seat and the right side airbag. This is
exactly what happened.
(Doc. 20, p. 7).
The County Attorney’s Office did not forward the officers’
collision analysis to Gorsuch’s attorney until January 19, 2009,
days before his trial was scheduled to begin.

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By that time,

Gorsuch’s attorney had obtained a second technical accident
reconstruction, which determined that Gorsuch was a passenger and
that Rodriguez was driving the car.

The County Attorney asked

former New Hampshire State Trooper Gordon “Chip” Johnson, an
accident reconstruction expert, to review both accident
reconstruction analyses.

Johnson agreed with Gorsuch’s

reconstruction report that Rodriguez was the driver.

The County

Attorney then ordered that the case be “nolle prossed” just
before trial, over the vehement objections of various Nashua
police officers.
The Nashua Telegraph wrote a series of articles about the
criminal case against Gorsuch.

To assist in his reporting, a

reporter at The Telegraph obtained a third technical accident
reconstruction report of the accident from Bruce McNally of
McNally & Associates in Rochester, New Hampshire.
concluded that Rodriguez was the driver.

McNally also

In his report, McNally

stated that police investigators had not employed any “recognized
accident reconstruction methodologies” in concluding that Gorsuch
was driving the Scion at the time of the crash.

In particular,

he stated that the police had not conducted an analysis of the
occupants’ movements during the crash, and that they had
neglected to describe in their report an airbag-related abrasion

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on the right side of Gorsuch’s face that suggested that he was
seated in the front passenger seat at the time of the accident.
After the criminal case against Gorsuch was “nolle prossed,”
Fisher, Maloney, and the Nashua Police Department asked New
Hampshire State Troopers Carleen Bowman and Mark Nash to
prosecute Gorsuch in an administrative proceeding to terminate
Gorsuch’s driver’s license.

Bowman prosecuted Gorsuch in

administrative hearings on May 20, 2009, and June 30, 2009,
presenting evidence provided to her by the Nashua police. Nash
prosecuted the case and presented evidence, also from the Nashua
police, at a hearing on December 4, 2009.

The hearings examiner

determined that the state had not shown that Gorsuch was driving
the car.

Standard of Review
When a defendant moves to dismiss the plaintiff’s claim or
claims under Federal Rule of Civil Procedure 12(b)(6), the court
“accept[s] as true all well-pleaded facts in the complaint and
draw[s] all reasonable inferences in favor of the
plaintiff. . . .”

Decotiis v. Whittemore, 635 F.3d 22, 27 (1st

Cir. 2011) (internal quotation marks omitted).

To state a claim,

the plaintiff must allege "a plausible entitlement to relief"
meaning "a claim to relief that is plausible on its face."
5

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 559 (2007).

The Rule

12(b)(6) standard requires more than labels, conclusions, or a
mere recitation of the elements of a cause action.
Iqbal, 129 S. Ct. 1937, 1949 (2009).

Ashcroft v.

Plausibility does not

require allegations amounting to a probability but needs more
than a mere possibility.

Id.

Discussion
In Count IX, Gorsuch alleges that Fisher, Maloney, and Maher
conspired to deprive him of his right to substantive due process
under the Fourteenth Amendment by fabricating their technical
collision reconstruction report to support the negligent homicide
charge against him.

He seeks punitive damages pursuant to 42

U.S.C. § 1983 and attorneys’ fees and costs pursuant to 42 U.S.C.
§ 1988.

In Count X, Gorsuch claims that Fisher, Maloney, and

Maher, along with Troopers Bowman and Nash, conspired to deprive
Gorsuch of his driver’s license, which Gorsuch claims violated
his Fourth, Fifth, and Fourteenth Amendment rights.

He seeks

compensatory damages and punitive damages under § 1983.

Fisher,

Maloney, and Maher move to dismiss both counts on the ground that
Gorsuch has not pled sufficient facts, pursuant to Federal Rule
of Civil Procedure 8(a), to plausibly suggest a conspiratorial
agreement.
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A civil rights conspiracy under § 1983 is “a combination of
two or more persons acting in concert to commit an unlawful act,
or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict a
wrong against or injury upon another, and an overt act that
results in damages.”

Estate of Bennett v. Wainwright, 548 F.3d

155, 178 (1st Cir. 2008), abrogated in part on other grounds by
Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).

“‘The

agreement that rests at the heart of a conspiracy is seldom
susceptible of direct proof: more often than not such an
agreement must be inferred from all the circumstances.’”
Williams v. City of Boston, --- F. Supp. 2d. at ---, 2011 WL
1087686 at *12 (quoting Earle v. Benoit, 850 F.2d 836, 843 (1st
Cir. 1988))(internal brackets omitted).

A.

Conspiracy to Falsify Evidence
The defendants move to dismiss Count IX on the ground that

Gorsuch has failed to allege any facts to show that they entered
into an agreement to falsify evidence against him.

In response,

Gorsuch argues that the following factual allegations in the
amended complaint are sufficient to infer such an agreement: (1)
Fisher, Maloney, and Maher met at the police station in the
middle of the night and identified the accident as a negligent
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homicide case prior to conducting a technical analysis of the
scene;1 (2) their subsequent report, which concluded that Gorsuch
was the driver, did not employ recognized accident reconstruction
methodologies or consider contradictory evidence; and (3) two
accident reconstruction experts conducted independent
investigations of the crash and criticized the police report as
deficient.2
Gorsuch alleges that the defendants determined that they
would charge him with negligent homicide, then fabricated
evidence by preparing a sham investigation indicating that he was
the driver.

He alleges that the defendants purposefully ignored

key evidence and failed to incorporate recognized accident
reconstruction methodologies in their report.

The circumstances

as Gorsuch has alleged them support an inference that defendants
were acting pursuant to an agreement.

See, e.g., Williams, ---

F. Supp. 2d. at ---, 2011 WL 1087686 at *12.

Although the

1

In his objection to the defendants’ motion to dismiss,
Gorsuch misstates his Amended Complaint as alleging that none of
the defendants had viewed the crime scene at the time of their
meeting. (Doc. 34, p. 3). In fact, the Amended Complaint
alleges that Maloney responded to the scene prior to meeting with
Fisher and Maher. (Doc. 20, p. 5).
2

Gorsuch also argues in his objection that the defendants
wrongly withheld their report from Gorsuch’s attorney until days
before trial. (Doc. 20, p. 21; Doc. 34, p. 4). The Amended
Complaint, however, alleges that the prosecutors, not the
defendants, withheld the report. (Doc. 20, p. 9).
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defendants offer reasons other than a conspiracy for their
actions, the standard of review for a motion under Rule 12(b)(6)
favors the plaintiff.

Gorsuch has alleged sufficient facts that,

if true and taken in the light most favorable to him, support his
claim that the defendants conspired to deprive him of his
substantive due process rights.

B.

Conspiracy to Deprive Gorsuch of his Driver’s License
Gorsuch alleges in Count X that Fisher, Maloney, and Maher,

along with Troopers Bowman and Nash, conspired to deprive him of
his driver’s license, initiating the administrative proceeding
“primarily by reason of ill will or hostility.”
Complaint, Doc. 20, p. 22).

(Amended

The defendants argue that Gorsuch

has failed to plead any facts from which an agreement could be
inferred.
As discussed above, Gorsuch has alleged sufficient facts,
when taken as true, to allow an inference that Fisher, Maloney,
and Maher agreed to fabricate an accident report to support the
negligent homicide charge against Gorsuch.

For purposes of his

conspiracy claim against Fisher, Maloney, Maher, and Troopers
Bowman and Nash, Gorsuch further alleges that Fisher, Maloney,
and Maher prevailed on Bowman and Nash to initiate and prosecute
Gorsuch in administrative proceedings for the purpose of taking
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away Gorsuch’s right to drive in New Hampshire.

Gorsuch alleges

that Fisher, Maloney, and Maher made that effort through Bowman
and Nash in order to “get” him.
Gorsuch states that Bowman and Nash presented evidence
provided to them by the Nashua police at hearings held over a
span of several months.

He contends that when they presented the

evidence, Bowman and Nash knew or should have known that Gorsuch
was not driving the car at the time of the accident.

Further,

Gorsuch states that because Bowman and Nash knew or should have
known that Gorsuch was not driving the car, they used the
administrative proceeding to provide “cover” for the actions of
the Nashua police and not for a legitimate purpose.
Under the circumstances that Gorsuch alleges, if taken as
true, it is reasonable to infer that Fisher, Maloney, and Maher
agreed with Troopers Bowman and Nash to pursue administrative
proceedings for the purpose of depriving Gorsuch of his right to
drive in New Hampshire despite a lack of evidence to support the
proceedings.

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Conclusion
For the foregoing reasons, Fisher, Maloney, and Maher’s
motion to dismiss (doc. 25) is DENIED.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 21, 2011
cc:

Brian J.S. Cullen, Esquire
Richard J. Lehmann, Esquire
Kevin H. O’Neill, Esquire

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