human v. Colarusso et al

Filing 5

ORDER Directing US Marshal to Make Service on Claims 1 and 2, official-capacity federal claims. Plaintiff to show cause why Claims 3-5 should not be dismissed for reasons set forth in this order. Clerk's office shall forward to U.S. Marshal's this order, the complaint and the summons prepared for DPD Chief Anthony Colarusso, Jr. for service. ( Notice of Compliance Deadline set for 1/31/2014.) So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
human
v.

Case No. 13-cv-296-SM
Opinion No. 2014 DNH 006

Anthony F. Colarusso, Jr.,
and Thomas P. Velardi
O R D E R
Plaintiff, named “human,” has filed a complaint in forma
pauperis, pursuant to 42 U.S.C. § 1983 and state law, alleging
that Dover Police Department (“DPD”) Chief Anthony Colarusso,
Jr., and Strafford County Attorney Thomas P. Velardi, are liable
in their official capacities for violations of plaintiff’s
federal and state constitutional rights.

The matter is before

this court for preliminary review, pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2).

Background
Plaintiff asserts that he has engaged in lawful public
protests against the DPD on public sidewalks in downtown Dover,
New Hampshire, and that DPD officers have harassed and
intimidated him because of his speech and protests.

Plaintiff

further asserts that DPD officers arrested him and falsely
charged him with disorderly conduct, and that a jury acquitted
him of that charge on June 30, 2010.

In this lawsuit, plaintiff asserts the following claims for
damages and declaratory relief:
1.

DPD officers, at the direction of Chief Colarusso,
violated plaintiff’s First Amendment rights, by
(a) harassing and intimidating plaintiff, (b)
falsely arresting plaintiff, and (c) prosecuting
plaintiff on a false charge of disorderly conduct,
in retaliation for his exercise of his First
Amendment rights to free speech, peaceful
assembly, and to petition the government for the
redress of grievances.

2.

DPD officers, at the direction of Chief Colarusso,
(a) falsely arrested plaintiff, and (b)
maliciously prosecuted plaintiff, without probable
cause, in violation of plaintiff’s Fourth
Amendment right to be free from unreasonable
searches and seizures.

3.

The Office of the Strafford County Attorney
violated plaintiff’s federal constitutional
rights, by prosecuting plaintiff on a trumped-up
charge of disorderly conduct, maliciously, and in
retaliation for his exercise of First Amendment
rights.

4.

Defendants violated plaintiff’s rights under the
Tenth Amendment.

5.

Defendants violated Part I, Articles 19, 22, and
32 of the New Hampshire Constitution.
Discussion

I.

Standard
In determining whether a pro se complaint states a claim,

the court construes the complaint liberally.
Pardus, 551 U.S. 89, 94 (2007).

See Erickson v.

Disregarding any legal

conclusions, the court considers whether the factual content in
the complaint and inferences reasonably drawn therefrom, taken as
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true, state a facially plausible claim to relief.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

II.

Police Retaliation (Claim 1)
Plaintiff alleges that DPD officers arrested and prosecuted

him on a trumped-up charge, with a wilful, retaliatory animus,
because he had engaged in a lawful protest against the DPD.
Plaintiff has stated a plausible First Amendment retaliation
claim.

See generally Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.

2011) (elements); see also Hartman v. Moore, 547 U.S. 250, 265-66
(2006) (retaliatory prosecution claim requires proof of no
probable cause); cf. Reichle v. Howards, 132 S. Ct. 2088, 2095
(2012) (discussing retaliatory arrests and prosecutions).
Moreover, plaintiff has alleged that DPD officers, on
numerous specific dates, attended his protests, viewed and
photographed his displays, parked cruisers near his home, and
stopped horses near his protests, all for the purpose of
threatening and intimidating plaintiff.

At this stage of the

case, the court cannot characterize such repeated displays of
police power, taken together, as merely de minimis acts,
incapable of deterring a citizen of ordinary firmness from
engaging in First Amendment activities.

Accordingly, a claim

based on all of those allegations of retaliation may proceed.

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Plaintiff has named only Chief Colarusso as a defendant to
Claim 1, above.

To establish supervisory liability, plaintiff

must show supervisory encouragement, condonation, or “‘gross
negligence . . . amounting to deliberate indifference’” to his
federal rights.

Grajales v. P.R. Ports Auth., 682 F.3d 40, 47

(1st Cir. 2012) (citation omitted).

Similarly, to state an

official capacity claim against a police chief, for the purpose
of holding the municipality liable, the plaintiff “bears the
burden of showing that, through its deliberate conduct, the
municipality was the moving force” behind the constitutional
violation.

Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir.

2011) (emphasis in original) (citations and internal quotation
marks omitted).

Plaintiff has alleged sufficient facts to

warrant service of an official capacity claim against Chief
Colarusso, with respect to the allegations of police harassment
and intimidation, retaliatory arrest, and retaliatory
prosecution.

III.

Fourth Amendment (Claim 2)
A Fourth Amendment claim may be based on allegations of a

false arrest without probable cause, see Wallace v. Kato, 549
U.S. 384, 386 (2007).

Moreover, a defendant who causes a person

to be seized pursuant to legal process without probable cause may
be found liable for a Fourth Amendment malicious prosecution

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claim if the legal proceedings have terminated in the person’s
favor.

See Hernandez-Cuevas, 723 F.3d at 101.

The facts alleged

by plaintiff with respect to the alleged false arrest and
prosecution are sufficient to warrant service of Claim 2, above,
against Chief Colarusso in his official capacity.

See Grajales,

682 F.3d at 47; see also Haley, 657 F.3d at 51.

IV.

Prosecutorial Immunity (Claim 3)
Plaintiff claims that, at the direction of Strafford County

Attorney Thomas Velardi, the Strafford County Attorney’s Office
prosecuted him maliciously, and in retaliation for his exercise
of free speech, in violation of his federal and state
constitutional rights.

Such claims are barred by the

prosecutor’s absolute immunity from claims challenging actions
intimately associated with the judicial phase of the criminal
process.

See Imbler v. Pachtman, 424 U.S. 409, 438 (1976);

Belcher v. Paine, 136 N.H. 137, 147, 612 A.2d 1318, 1325 (1992).

V.

Tenth Amendment (Claim 4)
The nature of plaintiff’s Tenth Amendment claim is unclear,

as there is no issue in this case regarding the allocation of
power between the federal and state governments.

The complaint

thus fails to state a plausible claim for relief for a Tenth
Amendment violation.

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VI.

State Constitutional Claims (Claim 5)
Plaintiff has alleged violations of his rights under the New

Hampshire Constitution.

As the law of New Hampshire currently

exists, there is no cause of action to remedy the alleged state
constitutional violations.

Bleish v. Moriarty, No. 11-cv-162-LM,

2011 WL 6141271, at *2 (D.N.H. Dec. 9, 2011).

Moreover, no

federal claim can arise under 42 U.S.C. § 1983 based on such
alleged violations of state law.

See Holder v. Town of Newton,

No. 09-cv-341-JD, 2010 WL 3211068, at *2 (D.N.H. Aug. 11, 2010).
Accordingly, Claim 5 above fails to state a claim upon which
relief can be granted in this case.

Conclusion
Plaintiff is granted fourteen days from the date of this
order to show cause why Claims 3-5, identified above, should not
be dismissed for reasons set forth above.

The remaining,

official-capacity federal claims (Claims 1 and 2 above),
asserting false arrest, police retaliation, and retaliatory and
malicious prosecution, may proceed against DPD Chief Anthony
Colarusso in his official capacity.
The clerk’s office shall forward to the United States
Marshal for the District of New Hampshire (the “U.S. Marshal’s
office”): the summons prepared by plaintiff for DPD Chief Anthony
Colarusso, Jr.; the complaint (document no. 1); and this order.

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Upon receipt of the necessary documentation, the U.S. Marshal’s
office shall serve Chief Colarusso, see Fed. R. Civ. P. 4(c)(3)
and 4(e).
Defendant is instructed to answer or otherwise plead within
twenty-one days of service.

See Fed. R. Civ. P. 12(a)(1)(A).

Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
defendant by delivering or mailing the materials to him or his
attorneys, pursuant to Fed. R. Civ. P. 5(b).

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
January 16, 2014
cc:

human, pro se

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