Bleish v. Moriarty
Filing
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///ORDER granting 16 Motion for Judgment on the Pleadings on Counts VI-X. Defendants' motion is granted, but only to the extent that those claims are dismissed without prejudice to their being brought in state court. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine Bleish
v.
Civil No. 11-cv-162-LM
Master Patrolman Todd M. Moriarty,
Individually and Officially; Senior
Patrolman Matthew J. DiFava,
Individually and Officially; Senior
Patrolman Timothy J. MacIssac,
Individually and Officially, Officer
Charles MacGregor, Individually and
Officially; Officer Eric Walker,
Individually and Officially; Chief
Donald F. Conley, Individually and
Officially; Nashua Police Department;
and The City of Nashua
O R D E R
Catherine Bleish has sued eight defendants in eighteen
counts, asserting claims for damages under the Federal
Constitution (Counts I-V), the New Hampshire Constitution
(Counts VI-X), and the common law of New Hampshire (Counts XIVII).
Her claims arise from her arrest by officers of the
Nashua Police Department which took place when she was
photographing a protest rally and protesting the officers’
response to it.
Before the court is defendants’ motion for
judgment on the pleadings on Bleish’s claims under the state
constitution.
Bleish objects.
For the reasons that follow,
defendants’ motion is granted, but only to the extent that
Counts VI-X are dismissed without prejudice to being brought in
state court.
The Legal Standard
“The standard for evaluating a motion to dismiss is the
same as that for a motion for judgment on the pleadings.”
Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45,
49 n.3 (1st Cir. 2009) (citing Citibank Global Mkts., Inc. v.
Rodríquez Santana, 573 F.3d 17, 23 (1st Cir. 2009)).
A motion to dismiss for “failure to state a claim upon
which relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires
the court to conduct a limited inquiry, focusing not on “whether
a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.”
Rhodes, 416 U.S. 232, 236 (1974).
Scheuer v.
“To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
United Auto., Aero., Agric. Impl. Workers of Am.
Int’l Union v. Fortuño, 633 F.3d 37, 40 (1st Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)).
On the other hand, a Rule 12(b)(6) motion should be granted if
“the facts, evaluated in [a] plaintiff-friendly manner, [do not]
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contain enough meat to support a reasonable expectation that an
actionable claim may exist.”
Andrew Robinson Int’l, Inc. v.
Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); MoralesTañón v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir.
2008)).
Background
The following factual recitation is drawn from Bleish’s
complaint.
See Plumbers’ Union Local No. 12 Pension Fund v.
Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011)
(citing SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010));
Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009)
(citation omitted).
On March 20, 2010, Bleish went to Library Hill in Nashua,
New Hampshire, to document a peaceful protest.
While Nashua
police officers were arresting a protester, Bleish protested the
officers’ actions, vocally and otherwise.
Then, at the request
of the arrestee, Bleish leaned in and took a close-up photograph
of the arrest.
She backed away seconds later and was then
confronted by a police dog that barked at her and bared its
teeth.
The police dog was under the control of Master Patrolman
Todd Moriarty.
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Bleish asked Moriarty not to sic the dog on her.
Moriarty
then ordered Bleish to “get on the curb” or face arrest.
Seconds later, Moriarty directed other officers to arrest
Bleish, which they did.
Officers then took Bleish to the Nashua
police station where they booked her.
She was charged with
disorderly conduct for “engag(ing) in conduct that substantially
interfere[d] with a criminal investigation.”
1) § 25.
Compl. (doc. no.
Bleish was subsequently acquitted of that charge in
the Nashua District Court.
This action followed.
As noted, Bleish has brought claims
under the First and Fourth Amendments to the United States
Constitution (pursuant to 42 U.S.C. §§ 1983 and 1988), the state
constitution, and state common law.
Bleish’s common-law claims
include intentional infliction of emotional distress, false
imprisonment, assault, battery, and negligence (in the form of
negligent training and supervision).
At issue in the pending
motion are Bleish’s claims that defendants violated the New
Hampshire Constitution by infringing her rights to: (1) free
speech, as protected by Part I, Article 22 (Count VI); (2)
freedom of the press, as protected by Part I, Article 22 (Count
VII); (3) free assembly, as protected by Part I, Article 32
(Count VIII); (4) freedom from malicious prosecution, as
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protected by Part I, Article 19 (Count IX); and (5) freedom from
unreasonable seizure and/or excessive force, as protected by
Part I, Article 19 (Count X).
Discussion
Defendants move for judgment on the pleadings on Counts VIX and ask the court to dismiss those claims.
They argue that:
(1) the New Hampshire Supreme Court has not recognized the
causes of action on which Bleish bases her claims, and has
announced that it is not inclined to create constitutional torts
where adequate remedies already exist; and (2) the Court of
Appeals for the First Circuit has directed district courts not
to recognize state-law rights that have not been identified by
the courts of the states in which they sit.
In her objection,
Bleish: (1) concedes that the New Hampshire Supreme Court has
not recognized any of the constitutional claims she is asserting
here; (2) explains why she thinks it might be inclined to do so;
and (3) asks this court to seek guidance from the New Hampshire
Supreme Court through the certification process, because “the
State law is not sufficiently clear as to whether [she] has New
Hampshire Constitutional claims,” Pl.’s Obj. (doc. no. 17-1), at
5).
In their reply, defendants contend that this court should
not certify any questions to the state supreme court because:
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(1) it was Bleish’s choice to pursue her novel state
constitutional claims in this court; and (2) this court can
dismiss Counts VI-X, on the merits, under the reasoning of
Rockhouse Mountain Property Owners Ass’n v. Town of Conway, 127
N.H. 593 (1986), Marquay v. Eno, 139 N.H. 708 (1995), and Khater
v. Sullivan, 160 N.H. 372 (2010).
The court begins with a point of agreement.
Bleish, the
defendants, and the court all agree that the New Hampshire
Supreme Court has never recognized any constitutional torts that
would serve as causes of action to vindicate the rights
protected by Part I, Articles 19, 22, and 32 of the New
Hampshire Constitution.
Moreover, that court has never even
been presented with the opportunity to decide whether to
recognize such causes of action.
The three opinions on which
defendants rely for the proposition that the state supreme court
is generally ill-disposed to recognizing new constitutional
torts all rejected causes of action said to arise from the state
constitution’s equal-protection and due-process provisions.
Rockhouse, 127 N.H. at 597, 601; Marquay, 139 N.H. at 721-22;
See
Khater, 160 N.H. at 373, 375.
In any event, this court “must
take state law as it exists: not as it might conceivably be,
some day; nor even as it should be,” Plummer v. Abbott Labs.,
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568 F. Supp. 920, 927 (D.R.I. 1983), and as the law of New
Hampshire currently exists, there is no cause of action to
remedy violations of the constitutional rights at issue in
Counts VI-X.
In the absence of a duly recognized cause of
action, the court has two options: certification or dismissal.
Under the circumstances of this case, certification is not
appropriate.
Bleish has not moved to certify any questions of
law to the state supreme court.
Rather, she seeks that relief
in her objection to defendants’ motion for judgment on the
pleadings.
But, Local Rule 7.1(a)(1) provides that
“[o]bjections to pending motions and affirmative motions for
relief shall not be combined in one filing.”
Because it was
made in her objection, rather than in a separate motion,
Bleish’s request for certification is not properly before the
court.
Moreover, the court notes that even if Bleish’s request had
been properly presented, i.e., in a separate motion rather than
tucked into an objection, any such request would have faced long
odds, given her status as the plaintiff in this case.
As Judge
McAuliffe recently observed, “one who chooses the federal courts
in [a] diversity action[ ] is in a particularly poor position to
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seek certification.”1
Welcome v. Yezzi, No. 08-cv-429-SM, 2009
WL 1650469, at *3 (D.N.H. June 10, 2009) (quoting Phoung Luc v.
Wyndham Mgmt. Corp., 496 F.3d 85, 95 (1st Cir. 2007)).
In other
words: “If plaintiff, fully chargeable with knowledge of the
decided New Hampshire cases, nonetheless chose to reject a
state-court forum in favor of a federal forum, [she] is in a
perilously poor position to grumble when we follow existing
state precedent.”
Kassel v. Gannett Co., 875 F.2d 935, 950 (1st
Cir. 1989) (citation omitted).
Here, Bleish could have pursued
her state claims in state court, but chose not to, despite
knowing that “State law is not sufficiently clear as to whether
[she had] New Hampshire Constitutional claims.”
5.
Pl.’s Obj., at
If presented with an actual motion to certify, the court
would be reluctant to put defendants to the trouble and expense
of litigating through the certification process for the purpose
of bailing Bleish out of what she now appears to see, in
hindsight, as an ill-considered choice of forum.
1
While Bleish’s state constitutional claims are here under
the court’s supplemental jurisdiction, see 28 U.S.C. § 1367,
rather than diversity jurisdiction, see 28 U.S.C. § 1332, the
principle is the same; as the plaintiff, Bleish was free to file
her claims in either state court or federal court. Cf. Penney
v. Town of Middleton, 888 F. Supp. 332, 336 (D.N.H. 1994)
(dismissing novel state constitutional claim over which court
had pendent jurisdiction rather than diversity jurisdiction).
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With certification off the table, the question that remains
is the type of dismissal to which defendants are entitled.
Defendants urge the court to follow Rockhouse, Marquay, and
Khater and dismiss Counts VI-X on the merits.
The court
declines to do so.
In Penney v. Town of Middleton, the plaintiffs asserted a
variety of federal and state claims, including one for “damages
. . . based on a violation of the New Hampshire Constitution’s
equal protection clause.”
888 F. Supp. 332, 342 (D.N.H. 1994).
In partially granting the defendants’ motion to dismiss, Judge
Barbadoro ruled on the state constitutional claim in the
following way:
The law in this circuit is that a plaintiff who
chooses the federal forum cannot expect a federal
court to break new ground in recognizing rights under
state law that have not yet been identified by the
state’s own courts. DCPB, Inc. v. City of Lebanon,
957 F.2d 913, 916 (1st Cir. 1992). Since the New
Hampshire Supreme Court has so far declined to
recognize an implied right to damages for violations
of . . . Pt. 1, Article 14 of the state’s
constitution, Rockhouse Mountain Property Owners Ass’n
v. Town of Conway, 127 N.H. 593, 597–602 (1986), I
grant defendants’ motion to dismiss this claim.
Penney, 888 F. Supp. at 342 (parallel citation omitted).
Presented with a similar situation in Bourne v. Town of Madison,
i.e., the assertion of state constitutional torts premised on
violations of the plaintiff’s rights to due process and equal
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protection, see 494 F. Supp. 2d 80, 94 (D.N.H. 2007), Judge
DiClerico ruled: “As the New Hampshire Supreme Court has not yet
recognized an implied right to damages for violations of Part 1,
Articles 1 and 12 of the state constitution, the court will not
entertain an action for damages on such grounds here,” id.
In both Penney and Bourne, the plaintiffs asserted
constitutional torts based on violations of their rights, under
the state constitution, to due process and equal protection.
Those claims were dismissed, presumably with prejudice, because
the New Hampshire Supreme Court had expressly declined to
recognize constitutional torts based on alleged violations of
the plaintiffs’ rights to due process and equal protection.
If
Bleish had asserted claims based on constitutional torts arising
from the state constitution’s due-process and equal-protection
provisions, then Penney, Bourne, Rockhouse, Marquay, and Khater
would all counsel in favor of the result defendants seek, i.e.,
dismissal on the merits.
But, as noted above, the legal status of the claims Bleish
asserts is different; the New Hampshire Supreme Court has not
recognized the constitutional torts on which she bases her
claims at least in part because it has never been asked to do
so.
Thus, this is not a case in which the court can simply
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apply established precedent and dismiss Counts VI-X for failure
to state a claim.
See Kassel, 875 F.2d at 950 (“[W]hen state
law has been authoritatively declared, the federal tribunal
should apply that law according to its tenor.”).
Rather, dismissing Bleish’s claims on the merits, just like
allowing them to proceed, would require the court to predict
whether, and if so how, the New Hampshire Supreme court would
extend its holdings in Rockhouse, Marquay, and Khater to cover
the factual and legal circumstances presented by Bleish’s
claims.
Any legal pathway from those opinions to this case
would be a long one.
In Rockhouse, the New Hampshire Supreme Court declined to
recognize a cause of action for damages arising from violation
of the equal-protection and due-process components of Part I,
Article 12, of the New Hampshire Constitution.
597.
See 127 N.H. at
The factual basis for the damages claim in Rockhouse was
the Town of Conway’s “refusal to lay out certain roads.”
594.
Id. at
The court’s decision hinged on the availability of an
adequate statutory remedy, see id. at 599, along with the
court’s interest in preserving limited municipal and official
immunity, see id. at 599-601.
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In Marquay, the New Hampshire Supreme Court declined to
recognize a cause of action for damages arising from violation
of Part I, Article 2 of the New Hampshire Constitution.
N.H. at 721.
See 139
The factual basis for the damages claim in Marquay
was a school’s failure to protect several of its students from
being sexually abused by teachers and coaches at the school.
See id. at 711.
The court’s decision hinged on the availability
of an adequate common-law remedy.
See id. at 722.
Finally, in Khater, the New Hampshire Supreme Court
declined to recognize a cause of action for damages arising from
violation of the equal-protection provision of Part I, Article
12 of the New Hampshire Constitution.
See 160 N.H. at 375.
The
factual basis for the damages claim in Khater was the Town of
Hudson’s decision to deny the plaintiffs’ applications for “two
retail vehicle permits to display and sell vehicles.”
373.
Id. at
The court’s decision rested on the same reasons that
supported its previous decision in Rockhouse.
See 160 N.H. at
374-75.
Here, by contrast, Bleish bases her claims on
constitutional provisions protecting freedom of speech, freedom
of the press, freedom of assembly, and freedom from malicious
prosecution, unreasonable seizure, and excessive force.
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And,
while Rockhouse, Marquay, and Khater involved town officials or
school employees as state actors, this case involves police
officers.
Finally, there is little overlap between the
statutory and common-law remedies that were available in
Rockhouse, Marquay, and Khater and those that are potentially
available in this case.
The conduct at issue, the constitutional rights asserted,
and the other remedies available in Rockhouse, Marquay, and
Khater are substantially different from the conduct, rights, and
remedies at issue in this case.
Any trail that might lead from
those opinions to this case should be blazed in the state courts
of New Hampshire, not in this forum.
See Pimental v. Dartmouth-
Hitchcock Clinic, 236 F. Supp. 2d 177, 188 (D.N.H. 2002) (“This
court is and should be hesitant to blaze new, previously
uncharted state-law trails.”) (quoting Dennis v. Husqvarna
Forest & Garden Co., Civ. No. 94-309-M, 1994 WL 759187, at *7
(D.N.H. Dec. 27, 1994)); see also Gill v. Gulfstream Park Racing
Ass’n, Inc., 399 F.3d 391, 402 (1st Cir. 2005) (“A federal court
sitting in diversity cannot be expected to create new doctrines
expanding state law.”) (citing A. Johnson & Co. v. Aetna Cas. &
Sur. Co., 933 F.2d 66, 73 n.10 (1st Cir. 1991)).
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To be sure, “[w]hen the signposts [indicating how a state’s
highest court might rule] are somewhat blurred, the federal
court may assume that the state court would adopt an
interpretation of state law that is consistent with logic and
supported by reasoned authority.”
Moore v. Rockwood, No. 09-cv-
329-SM, 2010 WL 1417653, at *4 (D.N.H. Apr. 5, 2010) (citing
Moores v. Greenberg, 834 F.2d 1105, 1107 n.3 (1st Cir. 1987)).
But here, to determine whether the New Hampshire Supreme Court
would recognize the claims asserted in Counts VI-X would require
much more than applying logic and reasoned authority.
As
Justice Souter explained in Rockhouse: “[I]n any case in which
we are asked to recognize a new cause of action, it is a
question of policy whether it would be wise to provide the
relief that the plaintiffs seek.”
127 N.H. at 597 (citing
Siciliano v. Capitol City Shows, Inc., 124 N.H. 719, 725
(1984)).
There can be no reasonable argument that this court is
the proper place to hash out the policy concerns that would
underpin a determination that the New Hampshire Supreme Court
would, or would not, recognize the causes of action on which
Counts VI-X are based.
Because this court is not the proper forum in which to
address the policy questions that would necessarily have to be
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answered along the way toward determining that the New Hampshire
Supreme Court would not recognize the claims Bleish asserts in
Counts VI-X, dismissal without prejudice is the only suitable
disposition of those claims.
Conclusion
For the reasons described above, defendants’ motion for
judgment on the pleadings on Counts VI-X, document no. 16, is
granted, but only to the extent that those claims are dismissed
without prejudice to their being brought in state court.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
December 9, 2011
cc:
Brian J.S. Cullen, Esq.
Seth J. Hipple, Esq.
Stephen T. Martin, Esq.
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