Runyon v. Lee et al

Filing 26

ORDER RE 1 Complaint and doc. nos. 7-9, 13 and 15-22. The court grants Runyon leave to file an amended complaint, within fourteen days of the date of this order. So Ordered by Magistrate Judge Landya B. McCafferty. (vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Fred Runyon
v.

Civil No. 12-cv-290-PB

FNU Lee, Nashua Police
Detective, et al.1

O R D E R
Before the court is the initial complaint and addenda to
the complaint (doc. nos. 1, 7-9, 13 and 15-22), filed by Fred
Runyon, a pretrial detainee, asserting violations of his federal
constitutional rights by the Nashua Police Department (“NPD”)
and other government agents.2

The initial complaint, together

with the addenda thereto, are construed to be the complaint in
this action for all purposes.

The matter is before the court

for preliminary review, pursuant to 28 U.S.C. § 1915A, and

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Runyon lists as defendants: the Mayor of Nashua, New
Hampshire; the Nashua Police Department (“NPD”); the NPD Chief;
NPD Detective Lee, whose first name is unknown (“FNU”); NPD
Officer FNU McGuire; unnamed NPD officers, a sergeant, and a
detective; a “Jane Doe” prosecutor; the Hillsborough County
Attorney’s Office (identified by Runyon as the “Nashua District
Attorney’s Office”); the Hillsborough County Sheriff; and
unnamed grand jurors.
Runyon has asserted that this is a class action, but, as a
pro se party, he cannot file a class action. See 28 U.S.C.
§ 1654; LR 83.2(d).
2

United States District Court District of New Hampshire Local
Rule (“LR”) 4.3(d)(2).
Background
Runyon claims that Nashua police officers and detectives
engaged in “police brutality,” and that police officers and the
prosecutor in his pending criminal case have invaded his privacy
and are pursuing a malicious prosecution against him.

The

police brutality allegedly occurred on November 11, 2011, and
January 23-24 and February 24 and 27, 2012.
Upon initially reviewing the complaint (doc. nos. 1, 7-9,
13, and 15-22), and applying both the appropriate standard of
review and a liberal construction in light of Runyon’s pro se
status, the court finds that Runyon has asserted the following
claims:
1.
Unnamed NPD officers violated Runyon’s rights
under the Fourth Amendment on November 11, 2011, by using
unreasonable force in arresting him, in that they shocked
him with stun guns repeatedly, while kicking and striking
him multiple times.
2.
NPD Detective Lee, Officer McGuire, and/or three
“John Doe” NPD officers violated Runyon’s rights under the
Fourth Amendment on February 24, 2012, by using
unreasonable force while transporting Runyon to the NPD, in
that, after they had searched and handcuffed him, they: (a)
deliberately rammed Runyon’s head into a wire cage as they
put him into a police cruiser, injuring his head; and (b)
repeatedly slammed him against a door, injuring his ribs.

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3.
Detective Lee violated Runyon’s Fourth Amendment
rights by using unreasonable force upon him, in that: (a)
on January 23-24, 2012, Lee shocked Runyon with his Taser
multiple times during an interrogation, causing Runyon
pain, for no reason; (b) on February 24, 2012, Lee struck
Runyon’s back and ribs while he was handcuffed, causing him
to fall, then stepped on Runyon’s head, driving it into the
floor repeatedly; and (c) on February 24, 2012, Lee choked
and threatened Runyon, to get him to sign a Miranda waiver.
4.
Detective Lee violated Runyon’s Fourteenth
Amendment substantive due process rights by subjecting
Runyon to coercion, amounting to torture, in that: (a) on
January 23-24, 2012, Lee shocked Runyon multiple times with
his Taser during an interrogation, causing Runyon pain, for
no reason; (b) on February 24, 2012, while escorting Runyon
from an NPD holding cell to be interrogated, Lee struck
Runyon’s back and ribs while he was handcuffed, causing him
to fall, then stepped on Runyon’s head repeatedly, driving
it into the floor, and, during the ensuing interrogation,
choked and threatened him, to get him to sign a Miranda
waiver.
5.
An unnamed NPD sergeant and an unnamed booking
officer violated Runyon’s rights as a pretrial detainee,
under the Fourteenth Amendment, on February 27, 2012, by
using excessive force in transporting him while he was
handcuffed, in that: (a) the sergeant and booking officer
struck him in the back and ribs and slammed him against a
door multiple times, injuring his ribs; (b) the sergeant
rammed Runyon’s head into the cell bars, injuring his head;
and (c) the booking officer pushed him into a cell door,
slamming it against his ribcage several times, injuring his
ribs.
6.
The incidents of police brutality violated
Runyon’s right to equal protection under the Fourteenth
Amendment.
7.
The defendant supervisors and municipalities are
liable to Runyon for the unconstitutional acts of their
subordinates and employees.
8.

Defendants are liable for a hate crime.

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9.
Defendants are liable for violating Runyon’s
privacy rights, in that, at the prosecutor’s direction,
Hillsborough County Department of Corrections (“HCDOC”)
officers searched Runyon’s belongings.
10. Defendants are liable for a malicious prosecution
of Runyon, with respect to his pending criminal case.
11. Defendants are liable because they forced
Runyon’s girlfriend to provide evidence against him,
without first reading a Miranda warning to her.
Discussion
Pursuant to LR 4.3(d)(2)(B), this court has discretion to
grant an inmate leave to file an amended complaint.
should be granted liberally, as justice requires.

Such leave
See Fed. R.

Civ. P. 15(a)(2).
The court finds, at this time, that Claims 1, 2, and 5, as
numbered above, must be amended before this case may proceed.
Accordingly, this court grants Runyon fourteen days in which to
file an amended complaint, stating additional facts supporting
Runyon’s claims for relief, as discussed below:
I.

November 11, 2011, Stun Gun Incident (Claim 1)
Runyon has alleged that unnamed officers on November 11,

2011, repeatedly shocked, kicked, and struck him.

The complaint

lacks any details regarding the circumstances leading up to the
alleged assault, and there are no officers named as responsible

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parties.

Before the court can direct service of this claim,

Runyon must amend the complaint to cure those deficiencies.
II.

February 24, 2012, Arrest and Transport of Runyon (Claim 2)
In the complaint in Claim 2, Runyon asserts that John Does

I-III, Detective Lee, and Officer McGuire deliberately rammed
his head into a wire cage as they put him into a cruiser on
February 24, 2012.

Runyon further alleges that those defendants

injured him by repeatedly slamming him against a door, at a time
when Runyon was handcuffed.
In a complaint addendum (doc. no. 22), Runyon names ten
officers and detectives (including McGuire), who, he asserts,
are the “John Does I, II, III” in the complaint.3

Runyon does

not explain, however, why the number of officers rose from three
to ten; nor does he account for the inclusion of McGuire in the
John Doe list.

Without specific allegations regarding what each

of those officers and detectives did on February 24, 2012, the
court is unable to discern who Runyon alleges is liable for the
“brutality” in connection with his arrest and transport on that

The ten NPD officers and detectives, named as the three
“John Does,” are: NPD Officer R. Rooney #70; NPD Officer S.
Seero #65; NPD Officer Murray #142; NPD Officer M. Allen #104;
NPD Officer K. Landry #48; NPD Officer S. Thomas #123; NPD
Officer R. Jones #59; NPD Officer McGuire #39; NPD Detective M.
Welch #D25; and NPD Detective Gephardt.
3

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date.

Before this claim may proceed, Runyon must allege facts

showing that Detective Lee, Officer McGuire, and each of the ten
officers and detectives are responsible for the use of an
unreasonable amount of force against him on February 24, 2012,
in light of all of the facts and circumstances known to each of
those officers and detectives.

See Jennings v. Jones, 499 F.3d

2, 11 (1st Cir. 2007).
III. February 27, 2012, Incident (Claim 5)
Runyon has alleged that an unnamed sergeant and an unnamed
booking officer used substantial force against him on February
27, 2012, in violation of his Fourteenth Amendment due process
rights.

Runyon is granted leave to file an amendment to the

complaint naming the responsible officers and stating, with
specificity, what he alleges each officer did to render that
officer liable for using excessive force against him.
IV.

Remaining Claims
After receipt of an amended complaint, or the expiration of

the time granted Runyon to file an amendment, the court will
complete preliminary review of all claims in this action,
pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(2).

Thereafter, the

court will determine whether to order service or recommend

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dismissal of the claims in the complaint (doc. nos. 1, 7-9, 13
and 15-22), in addition to any new or modified claims asserted
in the amendment.
Conclusion
The court grants Runyon leave to file an amended complaint,
within fourteen days of the date of this order, specifying:
1.
With respect to incidents of “police brutality”
on November 11, 2011, and February 24, 2012, the names of
the officers responsible, the conduct of each officer on
that date, and all of the facts and circumstances that
Runyon believes show that each officer’s use of force
against him on those dates was excessive.
2.
With respect to the incident of “police
brutality” occurring on February 27, 2012, the names of the
sergeant and the booking officer, who, while transporting
Runyon between Runyon’s cell and booking, allegedly used
excessive force against him, and all of the facts and
circumstances that Runyon believes show that each officer’s
use of force against him on those dates was excessive.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
December 14, 2012
cc:

Fred Runyon, pro se

LBM:nmd

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