Holm v. Town of Derry et al
Filing
16
///ORDER granting in part - as to all claims against the Town of Derry and denying in part as to all claims against Sienkiewicz, and granting to extent that the plaintiff is precluded from using any expert opinions and testimony during this case, including at trial re: 14 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Brandon Holm
v.
Civil No. 11-cv-32-JD
Opinion No. 2011 DNH 216
Town of Derry and
Dennis Sienkiewicz
O R D E R
Brandon Holm brought suit in state court against the Town of
Derry and Dennis Sienkiewicz, an emergency medical technician
with the Derry Fire Department, alleging state and federal claims
arising from an altercation between Holm and Sienkiewicz.1
defendants removed the case to this court.
The
The defendants now
move for summary judgment, contending that Holm’s claims are
barred by the defendants’ immunity, that Holm cannot prove his
federal claims against the town, and that Holm cannot prove his
claimed damages without an expert witness.
Holm objects to the
motion.
1
The defendants use two spellings, Sinkiewicz and
Sienkiewicz, while Holm uses only Sienkiewicz. Because the
pleadings use the spelling “Sienkiewicz,” the court also will use
that spelling.
Standard of Review
Summary judgment is appropriate if 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.”
P. 56(a).
Fed. R. Civ.
For purposes of moving for or opposing summary
judgment, facts must be supported by citations to the record.
Fed. R. Civ. P. 56(c)(1)(A); see also LR 7.2(b).
In deciding a
motion for summary judgment, the court resolves all reasonable
inferences in favor of the nonmoving party.
Barry v. Moran, ---
F.3d ---, 2011 WL 5840263, at *4 (1st Cir. Nov. 22, 2011).
Background2
On August 6, 2009, Brandon Holm took his girlfriend,
Kimberly Hartery, to a doctor’s appointment and waited for her in
the reception area.
the appointment.
Hartery was intoxicated when she arrived for
Her doctor, Dr. Alanso, was concerned that
Hartery might have alcohol poisoning and decided to send her to
the hospital.
The office administrator, Barbara Quealy, overheard
Hartery’s conversation with medical staff while Hartery was being
treated.
Quealy was aware of previous problems between Holm and
2
The background facts are taken from properly supported
facts provided by the parties.
2
Hartery and knew that in the past Holm had provided Hartery, an
alcoholic, with alcohol.
Hartery told the medical staff that she
was afraid of Holm and that he had threatened her.
The office
contacted the Derry Fire Department (“DFD”) to transport Hartery
to Parkland Medical Center because of her intoxication.
Quealy
and Dr. Alanso also devised a plan to get Hartery to the hospital
without Holm by moving her to the ambulance through a back door
of the office.
Dennis Sienkiewicz arrived in the ambulance with other EMTs.
Dr. Alanso told Sienkiewicz to keep Holm away from Hartery.
Hartery was then transported to Parkland Medical Center with
Sienkiewicz and other EMTs in the ambulance.
After the ambulance
left, the office staff told Holm that Hartery was being
transported to Parkland Medical Center and suggested that he
proceed slowly to the hospital.
Despite that advice, Holm caught
up with the ambulance and arrived at the emergency room entrance
hospital at the same time.
Holm parked his car and approached the ambulance.
Sienkiewicz intercepted Holm and told him to leave.
also called the Derry police.
Sienkiewicz
When Holm attempted to get into
his car to leave, Sienkiewicz told him he was making a citizen’s
arrest and put him on the ground.
Sienkiewicz held Holm in a
headlock until Holm was able to free himself.
3
Holm got into his
car and left.
Holm contends that he was injured in the
altercation.
Holm reported the incident to the Derry police the same day.
Sienkiewicz was charged with misdemeanor assault, and Holm was
not charged.
After making his police report, Holm went to the
hospital and was seen for complaints of neck and shoulder pain,
along with minor facial cuts or abrasions.
Holm returned to the
emergency room on August 11 and September 16, 2009.
He received
physical therapy for back pain from September until early
November of 2009.
The DFD has policies regarding how its employees handle
potentially dangerous situations.
The DFD conducts training on
its policies, and Sienkiewicz attended training.
The DFD has no
policy directly pertaining to its employees’ making citizen’s
arrests.
Discussion
In his complaint, Holm alleges state law claims that
Sienkiewicz, acting as an employee of the Town of Derry,
assaulted him, that Derry is vicariously liable for Sienkiewicz’s
actions, and that Derry was negligent in failing to train and
supervise Sienkiewicz.
Holm also brings a federal claim under 42
U.S.C. § 1983 in which he alleges that “the defendants” used
4
excessive force on him in violation of the Fifth, Eighth, Ninth,
and Fourteenth Amendments.
Derry and Sienkiewicz move for
summary judgment, asserting immunity under New Hampshire Revised
Statutes Annotated (“RSA”) § 507-B:5, § 507-B:2, and
§ 507-B:4, IV; Sienkiewicz’s qualified immunity as to the § 1983
claim; a lack of claims against Derry under § 1983 and a lack of
evidence to support any § 1983 claim against Derry; and Holm’s
inability to prove damages.
A.
State Law Claims
Derry and Sienkiewicz each claim immunity from liability on
Holm’s state law claims based on different provisions of RSA
chapter 507-B.
1.
Their defenses are addressed separately.
Derry
Derry asserts immunity from Holm’s claims based on RSA 507B:5, which provides in pertinent part:
“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:2 provides:
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
5
attributable to it, arising out of ownership,
occupation, maintenance or operation of all motor
vehicles, and all premises; provided, however, that the
liability of any governmental unit with respect to its
sidewalks, streets, and highways shall be limited as
provided in RSA 231 and the liability of any
governmental unit with respect to publicly owned
airport runways and taxiways shall be limited as set
forth in RSA 422.
Under RSA 507-B:7-a, however, a municipality cannot claim
immunity under RSA 507-B with respect to a liability for which it
has obtained insurance.
Derry contends that because Holm’s claims against it do not
arise out of the town’s ownership, maintenance, or operation of
motor vehicles or its premises, the claims are barred by RSA 507B:5.
Neither party addresses the exception provided by RSA 507-
B:7-a, and therefore for purposes of summary judgment, the
exception for insurance coverage is not considered.
In response to Derry’s motion, Holm ignores the requirements
of RSA 507-B:5 and 507-B:2 and instead argues that the
defendants, jointly, are not entitled to immunity due to a lack
of good faith.
Because good and bad faith are not pertinent to
Derry’s immunity under RSA 507-B:2, Holm fails to show any
dispute as to material facts with respect to Derry’s immunity
defense.
Therefore, Derry is entitled to summary judgment in its
favor on Holm’s state law claims alleged in Counts I and II.
6
2.
Sienkiewicz
When the incident with Holm occurred on August 6, 2009,
Sienkiewicz was an EMT with the DFD.
of Derry.3
As such, he was an employee
Immunity is provided to municipal employees as
follows:
If any claim is made or any civil action is commenced
against a present or former employee, trustee, or
official of a municipality . . . claiming damages, the
liability of said employee or official shall be
governed by the same principles and provisions of law
and shall be subject to the same limits as those which
govern municipal liability, so long as said employee or
official was acting within the scope of his office and
in good faith.
RSA 507-B:4, IV.
Holm contends that Sienkiewicz did not act with
good faith when the altercation occurred.4
The statute does not define “good faith,” and the New
Hampshire Supreme Court has not addressed the meaning of “good
faith” for purposes of RSA 507-B:4, IV, in a published decision.
In an unpublished order, the New Hampshire Supreme Court
concluded “that the legislature, in protecting municipal
employees under RSA 507-B, IV, intended to except from the
statute only ‘bad faith’ conduct rising to the level of
3
It appears to be undisputed that Sienkiewicz was an
employee of Derry.
4
Holm does not dispute that Sienkiewicz was acting within
the scope of his job as an EMT with the DFD when he grabbed
Holm’s arm and then held him in a headlock.
7
intentional misconduct.”
Charles J. Bowser, Jr., Special
Administrator of the Estate of Kenneth Countie v. Town of Epping,
Case No. 2010-0868, at *3 (N.H. Sept. 16, 2011).
Under the New
Hampshire Supreme Court Rules, however, “[a]n order disposing of
any case that has been briefed but in which no opinion is issued,
whether or not oral argument has been held, shall have no
precedential value and shall not be cited in any pleadings or
rulings in any court of this state” except for purposes that are
not applicable here.
Sup. Ct. R. 20(2).
Neither party addresses the effect of Supreme Court Rule
20(2) on the use of the Bowser order for purposes of this case.
Based on Rule 20(2), it appears that Bowser should not have been
cited here and lacks precedential value.
In Cannata v. Town of Deerfield, 132 N.H. 235 (1989), which
is cited by the parties, the court considered RSA 31:104, which
provides that no municipal executives, specified in the statute,
“shall be held liable for civil damages for any vote, resolution,
or decision made by said person acting in his or her official
capacity in good faith and within the scope of his or her
authority.”
The court concluded that the plaintiffs’ “conclusory
references to ‘wanton’ conduct by the selectmen” did not obviate
the protection provided under RSA 31:104.
8
Holm’s opposition to summary judgment is based on more than
conclusory references to wanton conduct.
The record shows that
Sienkiewicz physically prevented Holm from leaving the emergency
room area by throwing him to the ground and holding him in a
headlock.
Although Sienkiewicz attempts to excuse his conduct by
explaining that he thought Holm had committed a crime and that he
was trying to make a citizen’s arrest, his explanation depends on
his credibility and does not establish that he was acting in good
faith.
In contrast, resolving reasonable inferences in Holm’s
favor, a jury could conclude that Sienkiewicz intentionally
assaulted Holm, knowing that he had no lawful basis for doing so,
because of what Sienkiewicz had been told about Holm, because of
their verbal exchange, or for other reasons.5
Therefore, a factual dispute exists as to whether
Sienkiewicz acted in good faith, and, as a result, Sienkiewicz is
not entitled to summary judgment based on immunity under RSA 507B:4, IV.
5
As such, even if the court’s reasoning in Bowser were
applied here, Sienkiewicz would not succeed for purposes of
summary judgment.
9
B.
Federal Claims
For purposes of his § 1983 claim, Holm alleges that the
“defendants” used excessive force in violation of the Fifth,
Eighth, Ninth, and Fourteenth Amendments that caused harm to his
neck, shoulder, and other parts of his body.
Sienkiewicz moves
for summary judgment on the ground that he is entitled to
qualified immunity.
Derry moves for summary judgment on the
ground that because it has no policy or custom that caused the
altercation between Holm and Sienkiewicz, it is not liable under
§ 1983.
1.
Sienkiewicz
Sienkiewicz asserts that he is entitled to qualified
immunity from Holm’s § 1983 claim because the altercation
occurred when Sienkiewicz attempted to arrest Holm, based on his
reasonable belief that Holm had committed a crime and was a
threat to Hartery.
test.
“The qualified immunity inquiry is a two-part
A court must decide:
(1) whether the facts alleged or
shown by the plaintiff make out a violation of a constitutional
right; and (2) if so, whether the right was ‘clearly established’
at the time of the defendant’s alleged violation.”
Air Sunshine,
Inc. v. Carl, --- F.3d ---, 2011 WL 6004383, at *3 (1st Cir. Dec.
2, 2011).
10
As alleged in the complaint, Holm’s claim of excessive force
in violation of the constitution relies on the Fifth, Eighth,
Ninth, and Fourteenth Amendments.6
Ordinarily, excessive force
is raised as a violation of the Fourth Amendment’s prohibition
against unreasonable seizure.
30, 36 (1st Cir. 2010).
See Raiche v. Pietroski, 623 F.3d
The Eighth Amendment pertains to
treatment of convicted inmates, which is inapposite to the
circumstances presented in this case.
See Calderon-Ortiz v.
LaBoy-Alvarado, 300 F.3d 60, 63-64 (1st Cir. 2002).
The Ninth
Amendment provides only that “[t]he enumeration in the
Constitution of certain rights, shall not be construed to deny or
disparage others retained by the people,” and Holm has not
articulated an actionable claim under the Ninth Amendment.
See,
e.g., Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007); VegaRodriguez v. P.R. Tel. Co., 110 F.3d 174, 182 (1st Cir. 1997);
Cromer v. Bauman, 2011 WL 1167042, at *5 (W.D. Mich. Feb. 9,
2011).
To the extent Holm intended to allege a substantive due
process violation under the Fifth and Fourteenth Amendments, that
theory would not support a claim of excessive force in the
6
Holm is represented by counsel and, therefore, is not
entitled to any special treatment that might be afforded to a pro
se litigant.
11
context of law enforcement officers making an arrest, which must
be analyzed under the Fourth Amendment.
U.S. 386, 394-95 (1989).
Graham v. Connor, 490
Because Sienkiewicz was not a police
officer but instead was an EMT at the time of the altercation,
however, the prohibition in Graham may not apply.
In his
objection to summary judgment, Holm argues that his excessive
force claim is based on the Fourth Amendment.
That basis for his
claim is not included in the complaint, and it cannot be raised
by reference in his objection to summary judgment.
Therefore, the parties have not identified specifically the
constitutional right asserted in Holm’s claim nor addressed the
question of whether a right was violated by Sienkiewicz’s
actions.
Similarly, the parties do not address whether any right
asserted to support Holm’s claim was clearly established at the
time of the altercation.
As such, Sienkiewicz has not provided a
basis for considering qualified immunity under the applicable
standard.
Instead, Sienkiewicz argues that he had a right to make a
citizen’s arrest because he thought Holm had committed a crime
and was a threat to Hartery.
In support, Sienkiewicz cites RSA
627:5, IV, which states that a “private person acting on his own
is justified in using non-deadly force upon another when and to
the extent that he reasonably believes it necessary to arrest or
12
prevent the escape from custody of such other whom he reasonably
believes to have committed a felony and who in fact has committed
that felony.”
He cites the criminal threatening statute, RSA
631:4, as support for his belief that Holm had committed a crime.
RSA 631:4 lists misdemeanor offenses of criminal threatening
except for threats of criminal violence, threats of using
biological or chemical substances for certain purposes, and use
of a deadly weapon.
The record does not support Sienkiewicz’s defense based on a
theory that he acted reasonably because he intended to make a
citizen’s arrest.
Under the summary judgment standard, the
properly supported facts are taken in the light most favorable to
Holm.
Holm testified that when he arrived at the emergency room
area where the ambulance had transported Hartery, Sienkiewicz
approached him, Holm identified himself, and Holm said he wanted
Hartery to know that he was there.
Sienkiewicz grabbed Holm’s
shirt and told Holm that under doctor’s orders he was not to go
near Hartery.
Holm told Sienkiewicz that his actions were
assault and that he would report him to the Derry police.
Holm began to walk back to his car and heard Sienkiewicz on
the radio calling the Derry police.
When Holm got back to his
car, Sienkiewicz blocked the door and told him he was making a
13
citizen’s arrest.
Sienkiewicz grabbed Holm around the neck in a
choke hold and then slammed him to the ground, holding him around
the neck.
car.
Holm was able to struggle free and get back to his
Sienkiewicz blocked Holm from getting into the car, and
Holm again told Sienkiewicz that he was going to report the
incident to the police.
Holm then was able to get into his car
and drove to the police station to report the incident.
As Sienkiewicz admits, he had no reason to believe that Holm
had committed a felony, and the record shows that Holm was not
charged with a felony or any crime.
Sienkiewicz argues, however,
that he thought he had to stop Holm to protect Hartery from Holm.
Any subjective intent that Sienkiewicz may have held at the time,
that he believed justified his decision to make a citizen’s
arrest, does not establish that he is entitled to qualified
immunity.7
See, e.g., Lopera v. Town of Coventry, 640 F.3d 388,
396-97 (1st Cir. 2011) (explaining objective nature of inquiry).
Therefore, Sienkiewicz is not entitled to qualified immunity
based on his belief that he was conducting a citizen’s arrest.
7
Sienkiewicz does not show or even argue that a reasonable
EMT in his position could have believed his conduct was lawful.
Indeed, Sienkiewicz admitted, in colorful language, that his
conduct was wrong.
14
2.
Derry
Derry moves for summary judgment on Holm’s § 1983 claim,
arguing that Holm cannot prove municipal liability for purposes
of that claim.
For purposes of a § 1983 claim against a town,
“[l]iability only attaches where the municipality causes the
deprivation through an official policy or custom.”
Rodriguez v.
Municipality of San Juan, 659 F.3d 168, 181 (1st Cir. 2011).
“Thus, a plaintiff who brings a section 1983 action against a
municipality bears the burden of showing that, through its
deliberate conduct, the municipality was the ‘moving force’
behind the injury alleged.”
Haley v. City of Boston, 657 F.3d
39, 51 (1st Cir. 2011) (internal quotation marks omitted).
Holm argues in opposition to summary judgment that
Sienkiewicz’s actions were “due to a policy or custom of the Town
of Derry in the inadequate training of those acting under color
of state law and a complete lack of policy as to how [to] handle
citizen’s arrests and the protection of patients in the care of
EMT employees.”8
Doc. no. 15 at 6.
Derry provides evidence of
DFD’s policies and training and argues that based on the record,
8
As the defendants noted in their motion, Holm did not plead
municipal liability in his § 1983 claim and instead based the
claim on vicarious liability, which is not actionable under §
1983. See Haley, 657 F.3d at 51.
15
DFD’s policies did not cause the altercation and that Sienkiewicz
was properly trained.
Derry cites a written policy, DFD Standard Operating
Guideline 300.02 EMS-Incident Scene Safety, to show that its
policies did not cause the altercation between Sienkiewicz and
Holm.
Pertinent to this case, the Guideline provides that when a
scene is determined to be unsafe, personnel should not enter and
instead “should contact fire alarm and request assistance.”
In
addition, DFD personnel should allow the police to secure a scene
that involves a possible hostile environment.
DFD personnel also are trained in patient care protocols,
which include protocols for handling dangerous or crime scene
incidents.
Sienkiewicz attended training in April of 2009 which
addressed patient care protocols at a crime scene and in response
to domestic violence.
The patient care protocol for crime scene
incidents, addressed during training, taught EMTs, among other
things, to contact the police if they believe a crime has been
committed.
The protocol for domestic violence taught, among
other things, that EMTs should wait for the police to handle any
potentially dangerous individuals.
Holm argues that the lack of training with respect to
citizen’s arrests caused the altercation in his case.
policies and training, however, require EMTs to rely on
The DFD
16
protection and law enforcement by the police and do not suggest
circumstances when a citizen’s arrest would be appropriate.
Therefore, the policies and protocols operate against an EMT
conducting a citizen’s arrest.
Holm has not demonstrated
disputed facts with respect to the DFD policies and training.
The undisputed facts supported by the record in this case
show that the DFD policies and EMT training did not cause or play
any part in Sienkiewicz’s actions.
The Town of Derry is entitled
to summary judgment in its favor on Holm’s § 1983 claim.
C.
Damages
The defendants contend that they are entitled to summary
judgment as to damages related to certain claimed injuries
because Holm cannot prove those injuries are a result of the
altercation with Sienkiewicz.
The defendants note that the
deadline for expert witness disclosure has passed and that Holm
failed to disclose any expert witnesses.
The defendants argue
that Holm cannot support his claims for damages due to knee
injury, back injury, depression, medical bills, and lost wages
and earning capacity without expert testimony.
In response, Holm asserts that his treating physicians and
other medical personnel will testify as experts about his
treatment.
He represents that he provided a list of medical
17
personnel who might testify on his behalf.
He asserts that
because the medical personnel are not retained experts, he
complied with all disclosure requirements.
Parties are required to disclose to the opposing parties the
identity of any witness who is intended to testify as an expert
at trial.
Fed. R. Civ. P. 26(a)(2)(A).
If the witness is
retained by that party as an expert, the witness must also
provide a report that meets certain requirements.
P. 26(a)(2)(B).
Fed. R. Civ.
A witness who is not required to provide an
expert report under Rule 26(a)(2)(B) must provide the subject
matter on which the witness will testify and “a summary of the
facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C).
An unretained witness with specialized knowledge, such as a
treating physician, may give opinions based on the witness’s own
involvement in the circumstances of the case when “his opinion
testimony arises not from his enlistment as an expert but,
rather, from his ground-level involvement in the events giving
rise to the litigation.”
Downey v. Bob’s Discount Furn.
Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011).
Treating
physicians may not provide opinions, however, beyond those formed
during their treatment of their patient that are reflected in
their treatment notes.
Gomez v. Rivera Rodriguez, 344 F.3d 103,
18
113 (1st Cir. 2003); Talavera v. Municipality of San Sebastian, -- F. Supp. 2d ---, 2011 WL 4090902, at *1 (D.P.R. Sept. 15,
2011).
Under the discovery plan in this case, Holm was required to
disclose his expert witnesses and provide the information
required by Rule 26(a)(2) by July 1, 2011.
Holm represents that
he disclosed his treating medical sources but provides no
supporting evidence of his disclosure.
The record provided by
the defendants, however, shows that Holm did not identify any
expert witnesses and also failed to provide the disclosures
required by Rule 26(a)(2)(C).
On the other hand, Holm disclosed
as witnesses “Employees as set forth in produced medical records,
Elliot Hospital” and “Employees as set forth in produced medical
records, Granite State Therapy” with the names of the relevant
employees as witnesses who may have knowledge about the
circumstances of the case.
The defendants also contend that Holm’s medical records lack
any opinions or treatment notes that link his various complaints
to injuries caused by Sienkiewicz.
They argue that in the
absence of a link between treatment and the claimed injury, Holm
lacks evidence of the damages he claims.
Holm contends that he
can at least support damages based on the bruises and abrasions
he received during the altercation with Sienkiewicz.
19
Holm did not disclose any expert witness, retained or not.
He has not shown that his failure to comply with Rule 26(a)(2)
was substantially justified or harmless.
37(c)(1).
Fed. R. Civ. P.
Therefore, he will not be allowed to use any expert
opinion testimony.
Id.
Holm may call medical personnel who can
testify as fact witnesses about their treatment of him, which
testimony will be limited to the facts of their treatment as
supported by the contemporaneous medical records.
Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 14) is granted with respect to all
claims against the Town of Derry, is denied with respect to all
claims against Sienkiewicz, and is granted to the extent that the
plaintiff is precluded from using any expert opinions and
testimony during this case, including at trial.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 20, 2011
cc:
Corey M. Belobrow, Esquire
Andrew Michael Kennedy, Esquire
20
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