Reppucci v. Winchester Police Department et al

Filing 28

///ORDER granting 9 and 12 defendants' Motions to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Reppucci,
Plaintiff
v.

Case No. 12-cv-316-SM
Opinion No. 2013 DNH 125

Kelvin Macie, Richard A. Foote,
Cheshire County Sheriff’s Office,
Cheshire County, Gary A. Phillips,
Christopher Roberts, Winchester Police
Department, Town of Winchester,
Defendants
O R D E R
David Reppucci was a full-time police officer for the Town
of Winchester, New Hampshire, from March of 2003 until July of
2009, when he was suspended from duty.

About a month later, the

Winchester Board of Selectmen terminated his employment.

He

brings this action seeking compensatory and punitive damages, as
well as costs and attorney’s fees, claiming he was the victim of
wrongful termination and retaliatory discharge.

Additionally, he

says defendants deprived him of various constitutionally
protected rights.

Defendants deny any wrongdoing and move to dismiss
Reppucci’s claims on grounds that they are barred by the doctrine

of collateral estoppel, fail to state viable causes of action,
and are time-barred.1

For the reasons discussed, those motions to dismiss are
granted.

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

1

After defendants filed their motions to dismiss, the
court granted Reppucci’s request for leave to file an amended
complaint. Although Reppucci is no longer pursuing a common law
defamation claim, the remaining causes of action are largely the
same. Accordingly, defendants have not supplemented their
original motions or supporting memoranda.
2

In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atl. Corp. v.

Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to
“nudge[] [plaintiff’s] claims across the line from conceivable to
plausible.”

Id. at 570.

If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”

Tambone, 597 F.3d at 442.

Here, in support of their motions to dismiss, defendants
rely upon a written decision issued by the New Hampshire Superior
Court (Cheshire County), in which the court addressed Reppucci’s
claims that his firing was unlawful.

They also rely upon the

written decision of the New Hampshire Employment Security Appeal
Tribunal, reversing Reppucci’s award of unemployment benefits.
Although a court must typically decide a motion to dismiss
exclusively upon the allegations set forth in the complaint (and
any documents attached to that complaint) or convert the motion
into one for summary judgment, see Fed. R. Civ. P. 12(d), there
is an exception to that general rule:

3

[C]ourts have made narrow exceptions for documents the
authenticity of which [is] not disputed by the parties;
for official public records; for documents central to
plaintiffs’ claim; or for documents sufficiently
referred to in the complaint.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations
omitted).

See also Trans-Spec Truck Serv. v. Caterpillar Inc.,

524 F.3d 315, 321 (1st Cir. 2008); Beddall v. State St. Bank &
Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).

Since Reppucci does

not dispute the authenticity of the state court’s written
decision or that of the NHES Appeal Tribunal, the court may
properly consider those documents without converting defendants’
motions to dismiss into ones for summary judgment.

Background
The relevant factual background is largely undisputed and
set forth in detail in the Superior Court’s order dated June 28,
2010.

See Reppucci v. Town of Winchester, No. 09-C-136 (N.H.

Sup. Ct. June 28, 2010) (document no. 9-3) (“Reppucci I”).

In

brief, they are as follows.

In March of 2003, Reppucci became a full-time police officer
for the Town of Winchester and, by 2006, he had been promoted to
Detective Sergeant.

In 2009, he applied for a vacant position as

Lieutenant, but he was not selected for the job.

In response, he

filed a grievance with the Chief of Police, outlining why he
4

believed he should have been selected for the position and
challenging the department’s promotion procedures.

In that

grievance, Reppucci made reference to a confidential, internal
investigation involving another officer who had also been a
candidate for the vacant Lieutenant position.

Town officials became concerned that Reppucci had disclosed
a copy of that grievance - including the confidential personnel
information about the other police officer - to a member of the
public.

Accordingly, the Town asked the Cheshire County

Sheriff’s Department to conduct an investigation.

As part of

that investigation, on July 9, 2009, Deputy Sheriff Kelvin Macie
attempted to interview Reppucci.

At the outset, Deputy Macie

issued an “Administrative Warning,” informing Reppucci that the
Sheriff’s Office was conducting an investigation into allegations
that Reppucci had engaged in misconduct.

Macie informed Reppucci

that, “You are required to answer all questions fully and
truthfully, and disciplinary action including dismissal may be
taken if you refuse to answer fully and truthfully.”
at 2 (citation omitted).

Reppucci I,

He also told Reppucci that, “You are

further advised that by law, any admission made by you cannot be
used against you in any subsequent criminal proceeding.”
2-3 (emphasis supplied).

5

Id. at

The “Administrative Warning” given to Reppucci is also known
as a “Garrity Warning,” which the New Hampshire Supreme Court has
described as follows:
Such a warning informs the accused that the purpose of
questioning is to assist in determining whether to
impose administrative discipline. Even if the accused
were to disclose during questioning information
indicating that he may be guilty of criminal conduct,
the warning explains that neither his selfincriminating statements, nor the fruits thereof will
be used against him in any criminal proceeding. The
warning further states that if the accused refuses to
answer questions or fails to give truthful answers, he
will be subject to disciplinary action, up to and
including dismissal.
In re Waterman, 154 N.H. 437, 442 (2006) (citation and quotation
marks omitted).

See generally Garrity v. New Jersey, 385 U.S.

493 (1967).

Reppucci signed the document, but refused to answer any of
Macie’s questions before he had the opportunity to speak with an
attorney.

Macie then summoned the Chief of Police, Gary

Phillips, who gave Reppucci a direct order to answer Deputy
Macie’s questions.

Reppucci refused.

Chief Phillips placed

Reppucci on administrative leave that day (July 9, 2009).

And,

although Reppucci consulted with an attorney shortly thereafter,
he never answered Deputy Macie’s questions.

During a subsequent

security check of Reppucci’s computer, the police department
discovered that he had sent, to his personal e-mail account,
6

confidential information about internal investigations involving
other police officers.

On August 4, 2009, Reppucci received written notice that
Chief Phillips was recommending that he be fired.

He was also

told that a hearing before the Board of Selectmen had been
scheduled for August 17, at which he would have an opportunity to
present any evidence relevant to the proposed termination of his
employment.

Finally, Reppucci was advised to contact the Town’s

attorney and let him know whether he would be represented by an
attorney, whether he wished to have a public hearing, whether he
needed any additional documents, and whether he had a list of
potential witnesses that he might call.

The hearing before the Board of Selectman occurred on August
17.

Reppucci revealed that he did not plan to testify and

informed the Board that his attorney was unable to attend.

He

claimed that he sought a continuance from the Town’s counsel, but
counsel denied that Reppucci made any such request.

The Police

Department objected to any continuance and the Board elected to
proceed with the hearing.

The Board then heard from several

witnesses about Reppucci’s disclosure of confidential information
to a member of the public (in violation of police department
regulations), his refusal to follow the Chief’s direct order to

7

answer Deputy Macie’s questions, and his having e-mailed
confidential police files to his personal e-mail account.

The Board issued its Notice of Decision on August 26,
concluding that the termination of Reppucci’s employment was
warranted.

Reppucci appealed that decision to the New Hampshire

Superior Court (Cheshire County), asserting that his discharge
was unlawful.

In his appeal, Reppucci advanced the following

claims:
1.

That the Town of Winchester (acting through its
police department) violated his federally
protected right to free speech when it initiated
an investigation into his disclosure of
confidential information to the public;

2.

That he was the victim of retaliatory discharge, when
his employment was terminated “as a result of
Plaintiff’s request to speak to counsel before
answering questions;”

3.

That the Town deprived him of his federally
protected right to the assistance of counsel
when he was “forced to appear at [the Board’s
meeting] without counsel and without the
ability to present a defense” - all of which
Reppucci claimed violated his
constitutionally protected right to due
process; and, finally,

4.

That the Town deprived him of “a significant
property right (continued employment under RSA
41:48) without Due Process or legal
justification.”

See Appeal of Termination (document no. 9-2) at 1-3.

See also

Reppucci I, at 7 (construing plaintiff’s claims on appeal).
8

In a lengthy and thorough opinion, the Superior Court
rejected each of Reppucci’s claims and affirmed the Board’s
decision to terminate Reppucci’s employment.

In summary, the

court concluded that:
1.

The Board did not abuse its discretion, nor
did it violate any of Reppucci’s statutory or
constitutional rights, in denying his request
for a continuance;

2.

Although Reppucci had a constitutionally
protected right to communicate with counsel,
the Board did not violate that right;

3.

The Board did not unlawfully terminate
Reppucci’s employment; and

4.

The Board had a number of lawful reasons for
terminating Reppucci’s employment, including:
Reppucci’s insubordinate refusal to follow a
direct order from the Chief; his transmission
of e-mails containing confidential personnel
information from his work computer to his
personal e-mail account, in violation of Town
and Police Department regulations; and his
disclosure of a confidential personnel record
to a member of the public.

See Reppucci I, at 9-15.

And, perhaps most importantly for

purposes of this litigation, the state court concluded that “the
Town did not terminate Mr. Reppucci because he engaged in a
protected activity.

Instead, the Town terminated him for

disclosing a confidential personnel record, in violation of town
and department rules which he was obligated to follow.”
13.

9

Id. at

In short, the court concluded that: Reppucci’s termination
was entirely consistent with state law; Reppucci was not deprived
of procedural due process, his right to counsel, or his right of
free speech; and he was not fired in retaliation for having
engaged in any protected activity.

Accordingly, the court

affirmed the Board’s decision terminating Reppucci’s employment
as a police officer for the Town.

Id. at 15.

Reppucci did not

appeal that decision to the New Hampshire Supreme Court.

Following his discharge, Reppucci applied for, and received,
unemployment benefits.

The Town appealed that award to the New

Hampshire Employment Security Appeal Tribunal.

After a hearing

on the matter, the NHES Appeal Tribunal reached essentially the
same conclusions as the Superior Court and held that, “the
claimant’s separation from employment is due to a discharge for
misconduct connected with his work.”

NHES Appeal Tribunal

Decision dated January 21, 2010 (document no. 9-4) at 4.
Accordingly, the NHES Appeal Tribunal reversed Reppucci’s award
of benefits and ordered him to make restitution to New Hampshire
Employment Security.

Id.

Reppucci did not appeal that decision.

On August 16, 2012 - slightly more than three years after
his suspension - Reppucci filed this action.

In his seven-count

amended complaint, he advances state common law and statutory

10

claims, as well as federal constitutional claims - all arising
out of the termination of his employment.

Discussion
I.

State Law Employment Claims.
In counts one and two of his amended complaint, Reppucci

alleges that the Town and its police department unlawfully
terminated his employment, in retaliation for his having engaged
in protected activity.

Those claims were “inextricably

intertwined” with those raised (and resolved) in Reppucci I and,
therefore, the Rooker-Feldman doctrine precludes this court from
reviewing them (even if it were persuaded that the state court’s
resolution of those issues was legally incorrect).

See Rooker v.

Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983).
See also Wang v. New Hampshire Bd. of Registration in Medicine,
55 F.3d 698, 703 (1st Cir. 1995).

Moreover, even if the Rooker-Feldman doctrine did not
preclude relitigation of Reppucci’s employment-related claims,
those claims would be barred by the doctrines of res judicata
(claim preclusion) and collateral estoppel (issue preclusion).
See generally Qualters v. Town of Winchester, 2005 DNH 14 (D.N.H.
Feb. 9, 2005) (discussing the concepts of res judicata and

11

collateral estoppel under New Hampshire law).

The preclusive

effect of the state court’s decision applies not only to the Town
of Winchester (which was a named defendant in Reppucci’s appeal),
but the remaining defendants in this case as well.

See generally

Aubert v. Aubert, 129 N.H. 422, 427 (1987) (“We note that, in New
Hampshire, it is not necessary for collateral estoppel that there
be mutuality of parties.

Thus a party who, after full

litigation, has lost on an issue is barred from litigating the
issue with new parties.

[Proper application of this principal]

turns on whether or not the party against whom preclusion is
sought had a full and fair opportunity to litigate the issue.”)
(citations and punctuation omitted).

Reppucci had a full and fair opportunity to litigate his
employment related claims (based on both state law and the United
States Constitution) in the state superior court.

To the extent

he was displeased with the superior court’s resolution of those
claims, his remedy was to appeal that decision to the New
Hampshire Supreme Court.

He did not.

He cannot relitigate those

claims in this forum.

Parenthetically, the court notes that Reppucci asserts that
the state superior court’s decision lacks preclusive effect in
this forum and, in support of that view, he relies upon Thomas v.

12

Contoocook Valley Sch. Dist., 150 F.3d 31 (1st Cir. 1998).
reliance is misplaced.

That

See Moron-Barradas v. Dep’t of Educ. of

Comm. of Puerto Rico, 488 F.3d 472, 479-80 (1st Cir. 2007)
(limiting the holding in Thomas to the “particularly unusual
circumstances” and unique facts presented in that case).

Here,

the state superior court directly addressed and resolved
Reppucci’s claims (under both state and federal law) that he was
wrongfully terminated.

Consequently, as in Moron-Barradas, the

factual findings and legal conclusions of the state court
preclude him from establishing the essential elements of the
state law employment claims he advances in this case.

Defendants

are, therefore, entitled to the dismissal of those claims (counts
one and two).

II.

Federal Constitutional Claims.
A.

Equal Protection.

In counts three and four of his amended complaint, Reppucci
alleges that various defendants deprived him of his
constitutionally protected right to equal protection.

As

defendants point out, however, Reppucci cannot (nor does he)
allege that he is a member of a protected class.

He is, then,

necessarily asserting “class-of-one” equal protection claims,
“alleging that [he] was fired not because [he] was a member of an
identified class . . . but simply for ‘arbitrary, vindictive, and

13

malicious reasons.’”

Engquist v. Oregon Dep’t of Agric., 553

U.S. 591, 595 (2008) (citation omitted).

But, the Supreme Court

has made clear that “the class-of-one theory of equal protection
has no application in the public employment context.”

Id. at

607.

We agree that, even if we accepted [plaintiff’s] claim,
it would be difficult for a plaintiff to show that an
employment decision is arbitrary. But this submission
is beside the point. The practical problem with
allowing class-of-one claims to go forward in this
context is not that it will be too easy for plaintiffs
to prevail, but that governments will be forced to
defend a multitude of such claims in the first place,
and courts will be obliged to sort through them in a
search for the proverbial needle in a haystack. The
Equal Protection Clause does not require “[t]his
displacement of managerial discretion by judicial
supervision.”
Id. at 608-609 (quoting Garcetti v. Ceballos, 547 U.S. 410, 423
(2006)).

See also Balsamo v. Univ. Sys. of N.H., 2011 WL 4566111

*7-8, 2011 DNH 150 at 21-22 (D.N.H. Sept. 30, 2011) (addressing
and rejecting the “class-of-one” equal protection claims advanced
by a former employee of the University of New Hampshire).

B.

Negligent Training and Supervision.

In counts five and six of his amended complaint, Reppucci
alleges that, as a result of failures by the Town and the County
to properly train and supervise their employees, those employees
violated Reppucci’s (unspecified) constitutional rights.
14

The

captions used to describe those counts are somewhat confusing,
and suggest that Reppucci might be bringing common law negligence
claims.2

Nevertheless, it is clear that, by invoking the provisions
of 42 U.S.C. § 1983, Reppucci intends to bring a Monell-type
claim against the two named municipal entities as well as the
individually named defendants in their official capacities.

2

That

A “negligent training and supervision” claim - as
Reppucci has captioned counts five and six of his amended
complaint - is a state common law claim. A Monell claim that his
constitutional rights were violated as a result of an
unconstitutional municipal custom or policy involves a higher
standard of proof. Rather than showing mere negligence, a
plaintiff must demonstrate that the municipal defendants were, in
essence, deliberately indifferent to the unconstitutional
behavior of municipal employees. See, e.g., Haley v. City of
Boston, 657 F.3d 39, 52 (1st Cir. 2011) (“Triggering municipal
liability on a claim of failure to train requires a showing that
municipal decisionmakers either knew or should have known that
training was inadequate but nonetheless exhibited deliberate
indifference to the unconstitutional effects of those
inadequacies.”). See generally Dye v. Wargo, 253 F.3d 296, 29899 (7th Cir. 2001) (“In litigation under § 1983 a municipality is
not vicariously liable for the constitutional torts of its
employees but is answerable only for the consequences of its
policies. . . . Although Dye contends that Elkhart did not
properly train either Wargo or Frei, shortcomings of this kind do
not establish direct liability, because the Constitution does not
require municipalities to conduct training programs. Poor
training is instead a means of showing intent for those
constitutional torts where intent matters . . . . Proof of
failure to train officers could be used to demonstrate that the
municipality approves (hence has a policy of) improper conduct
that training could extirpate. Such a claim in a case like this
would depend on establishing that the City’s policymakers knew
that the police were [violating the Constitution], yet did
nothing to solve the problem. ”) (citations omitted).
15

is, Reppucci asserts that his alleged injuries were the product
of unconstitutional municipal customs or policies.

See generally

Monell v. Dep’t of Soc. Services of City of New York, 436 U.S.
658 (1978).

For the reasons discussed above, it is plain that none of
the defendants violated any of Reppucci’s constitutional rights
(and, at a minimum, that he is precluded from relitigating his
claims to the contrary in this forum).

Consequently, his Monell

claims necessarily fail as a matter of law.

As the Supreme Court

has observed:
[N]either Monell . . . nor any other of our cases
authorizes the award of damages against a municipal
corporation based on the actions of one of its officers
when in fact the [court] has concluded that the officer
inflicted no constitutional harm. If a person has
suffered no constitutional injury at the hands of the
individual police officer, the fact that the
departmental regulations might have authorized
[unconstitutional behavior] is quite beside the point.
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (emphasis
in original).

See also Jarrett v. Town of Yarmouth, 331 F.3d

140, 151 (1st Cir. 2003) (“Our determination that [plaintiff]
suffered no constitutional injury is dispositive of his municipal
liability claim against the Town.”).

16

C. Conspiracy to Violate Constitutional Rights.
Finally, in count seven of his amended complaint, Reppucci
invokes the provisions of 42 U.S.C. § 1983 and alleges that
various individual defendants (both known and unknown to him)
conspired to “deny him his right to Counsel, his right to not
incriminate himself, and violate his Equal Protection Rights.”
Amended complaint at para. 89.

But, as the Court of Appeals for

the First Circuit has noted, “[w]hile conspiracies may be
actionable under section 1983, it is necessary that there have
been, besides the agreement among conspirators, an actual
deprivation of a right secured by the Constitution and laws.”
Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (quoting
Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980))
(emphasis supplied).3

Here, Reppucci cannot demonstrate an “actual deprivation” of
a constitutionally protected right.

As noted above, because he

was a government employee, his equal protection “class-of-one”
claim fails.

And, his assertion that defendants violated his

3

The Cheshire County Defendants (Foote, Macie, the
Sheriff’s Office and the County itself) attempt to cast
Reppucci’s conspiracy claims as being brought pursuant to 42
U.S.C. § 1985(3). The court disagrees. Reppucci’s complaint and
his various responsive pleadings make clear that those claims are
brought pursuant to 42 U.S.C. § 1983. Accordingly, the court has
treated them as such.
17

right to due process and/or counsel was fully and finally
resolved against him in Reppucci I.

Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ legal memoranda (documents no. 9-1, 12-1, 17, and
24), defendants’ motions to dismiss (documents no. 9 and 12) are
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
September 23, 2013
cc:

Brian J. S. Cullen, Esq.
Stephen T. Martin, Esq.
Daniel P. Schwarz, Esq.

18