Drew v. NH Drug Task Force et al

Filing 45

///ORDER granting 32 Motion for Summary Judgment as to Adam Fanjoy. So Ordered by Judge Joseph A. DiClerico, Jr.(gla) Modified on 7/27/2015 to add: Adam Fanjoy (dae).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Willard Drew d/b/a
Kelsey's at the Grant
v.

Civil No. 14-cv-462-JD
Opinion No. 2015 DNH 147

New Hampshire Drug
Task Force, et al.
O R D E R
Willard Drew brings federal and state claims against the
New Hampshire Drug Task Force (“NHDTF”); the former commander of
the NHDTF, James Norris; Concord Police Officer Adam Fanjoy; the
Town of Gilford; and several town officials.

The claims arose

from an investigation of a restaurant and dance club, then
called Mardi Gras North, from June through October of 2011,
which culminated in a search of the restaurant for violations of
the Controlled Drug Act, arrests of restaurant employees, and
notices to Drew of violations of the state liquor laws.
Fanjoy moves for summary judgment.

Adam

Drew objects, primarily

seeking time under Federal Rule of Civil Procedure 56(d) to
conduct additional discovery.
Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a); Santangelo v. New York Life Ins. Co., 785 F.3d
65, 68 (1st Cir. 2015).

“A genuine issue is one that can be

resolved in favor of either party, and a material fact is one
which has the potential of affecting the outcome of the case.”
Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st
Cir. 2013) (internal quotation marks omitted).

In deciding a

motion for summary judgment, the court draws all reasonable
factual inferences in favor of the nonmovant.

Kenney v. Floyd,

700 F.3d 604, 608 (1st Cir. 2012).
Discussion
Drew alleges a single claim under § 1983 against Fanjoy in
Count I that Fanjoy violated Drew’s Fourth Amendment rights by
conducting a search of the restaurant that was beyond the scope
of the warrant.

Specifically, Drew alleges that Fanjoy allowed

members of the New Hampshire Liquor Commission and Gilford town
officials “to conduct what was in reality an administrative
inspection of the premises unrelated to the purposes for which
the Warrant was issued.”

Fanjoy moves for summary judgment,

supported by his affidavit and attached evidence, on the grounds
that he did not allow or permit anyone not authorized by the
warrant to enter the restaurant and, specifically, did not allow
members of the Liquor Commission or officials from Gilford to
conduct an administrative inspection.

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Fanjoy also contends that

he is protected by RSA 541-B:9-a, which he asserts makes the
state responsible for his actions.
A.

Discovery
Drew objects to the motion for summary judgment on the

ground that he is entitled under Federal Rule of Civil Procedure
56(d) to take discovery before responding to the motion.

Fanjoy

filed a reply in which he argues that Drew has not properly
invoked the protection of Rule 56(d).
Federal Rule of Civil Procedure 56(d) provides a means for
the nonmoving party to avoid summary judgment when that party
“cannot present facts essential to justify its opposition.”

As

such, Rule 56(d), “provides a safety valve for claimants
genuinely in need of further time to marshal facts, essential to
justify their opposition to a summary judgment motion.”

In re

PHC, Inc. Shareholder Litig., 762 F.3d 138, 143 (1st Cir. 2104).
To be entitled to relief under Rule 56(d), however, the
party must show by affidavit or declaration the reasons that he
cannot present facts essential to summary judgment.
Civ. P. 56(d).

Fed. R.

That requirement cannot be satisfied by general

or speculative assertions “that future discovery would influence
the outcome of the pending summary judgment motion.”

Williams

v. Techtronic Indus. of N. Am., Inc., 600 F. App’x 1, 2 (1st

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Cir. 2015) (internal quotation marks omitted).

Instead, a party

seeking the protection of Rule 56(d)
must act diligently and proffer to the trial court an
affidavit or other authoritative submission that (i)
explains his or her current inability to adduce the facts
essential to filing an opposition, (ii) provides a
plausible basis for believing that the sought-after facts
can be assembled within a reasonable time, and (iii)
indicates how those facts would influence the outcome of
the pending summary judgment motion.
Jones v. Secord, 684 F.3d 1, 6 (1st Cir. 2012) (internal
quotation marks omitted).
The affidavits submitted by Drew and his counsel in support
of relief under Rule 56(d) state only that more time is
necessary to conduct discovery in order to address adequately
the motion for summary judgment.

In his objection, Drew states

that he needs time to pursue interrogatories to Fanjoy and other
defendants and to depose Fanjoy and other defendants “regarding
the details of the raid on October 18, 2011.”

He provides no

other information about what discovery he needs, what topics he
intends to investigate, or a proffer that facts gleaned through
discovery would influence the outcome of the pending summary
judgment motion.
In his reply, Fanjoy objects to delaying summary judgment
to allow discovery because Drew has not met the requirements of

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Rule 56(d).1

Fanjoy represents that he has not received any

requests for discovery of any kind from Drew.

Despite the

specificity of Fanjoy’s affidavit submitted in support of
summary judgment, Drew has not indicated what facts he intends
to pursue through discovery to contest Fanjoy’s version of
events.
Discovery will not close in this case until February 1,
2016.

Ordinarily, that schedule would support providing time

under Rule 56(d) to pursue discovery before addressing summary
judgment.

In this case, however, neither the affidavits nor the

objection to summary judgment show what facts Drew would seek
through discovery to oppose summary judgment or how those facts,
in light of Fanjoy’s affidavit, would influence the outcome.
Cf. In re PHC, 762 F.3d at 142 (Plaintiffs filed a fourteen-page
Rule 56(d) affidavit that “chronicles plaintiffs’ attempts to
obtain discovery and defendants’ failure to provide it.

It

delineates the categories of information about which the
identified witnesses are likely to have information and
specifies the essential information, in the defendants’ hands,
that would support plaintiffs’ opposition to the motion for
summary judgment.”).

Drew did not seek leave to file a surreply to address the
shortcomings identified by Fanjoy.
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Therefore, Drew has not shown that he is entitled to relief
under Rule 56(d).
B.

Merits
In support of his Fourth Amendment claim in Count I, Drew

alleges that Fanjoy’s “conduct . . . in executing the Search
Warrant . . . far exceeded the scope or authority of the
Warrant.”

He further alleges that Fanjoy “allowed members of

the NH Liquor Commission and members of the Town of Gilford . .
. into the premises to conduct what was in reality an
administrative inspection of the premises unrelated to the
purposes for which the Warrant was issued.”
The Fourth Amendment protects against unreasonable
searches.

U.S. Const. amend. IV.

search warrant is lawful.
43 (1st Cir. 2014).

A search pursuant to a valid

United States v. Adams, 740 F.3d 40,

A warrant authorizes the named officer or

officers to conduct the search but does not authorize others to
participate “except in aid of the officer or on his requiring
it, he being present and acting in its execution.”
3105.

18 U.S.C. §

It is a violation of the Fourth Amendment for an

authorized officer to include unauthorized third-parties in a
search who are not participating in aid of the officer.
v. Layne, 526 U.S. 603, 614 (1999).

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Wilson

In this case, Drew does not dispute that the search of the
restaurant was conducted pursuant to a warrant and does not
challenge the validity of the warrant.

He alleges that Fanjoy

violated his Fourth Amendment rights by allowing third parties,
members of the Liquor Commission and town officials, to
participate in the search.
Fanjoy supported his motion for summary judgment with his
affidavit that states:

“I did not allow, authorize, invite or

otherwise permit, directly or indirectly, any one to enter the
premises who was not lawfully authorized by the search warrant’s
authority.

Specifically, I did not allow the NH Liquor

Commission and members of the Town of Gilford to conduct ‘an
administrative inspection’ as alleged in Paragraph 71 of the
First Amended Complaint.”

Drew provides no evidence to support

his claim and makes no argument to counter Fanjoy’s affidavit.2

Drew did provide his own affidavit and an affidavit of his
counsel to support his request under Rule 56(d). Drew’s
affidavit also states: “I, Willard Drew have read the Objection
to Motion for Summary Judgment dated June 26, 2015 and the facts
contained there are true to the best of my knowledge and
belief.” Drew’s counsel’s affidavit similarly states that
counsel prepared the objection and that the facts are true “to
the best of my knowledge and belief.”
To the extent Drew intended those affidavits to verify
statements in the objection to counter Fanjoy’s affidavit, they
are not competent for that purpose. Neither Drew nor his
counsel have provided any basis to show that they have personal
knowledge about Fanjoy’s participation in the search or about
what Fanjoy was aware of at the time of the search. See Fed. R.
Civ. P. 56(c)(4). An affidavit or verified filing based on
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Based on that record, Drew cannot show a factual dispute as to
whether Fanjoy violated the Fourth Amendment in the course of
the search of the restaurant.
Therefore, Fanjoy is entitled to summary judgment in his
favor.

Because summary judgment is granted on the merits, it is

not necessary to consider the application of RSA 541-B:9-a to
the claim against Fanjoy in this case.3
Conclusion
For the foregoing reasons, Adam Fanjoy’s motion for summary
judgment (document no. 32) is granted.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
July 27, 2015
cc: Charles P. Bauer, Esq.
David H. Bownes, Esq.
Francis Charles Fredericks, Esq.
Richard W. Head, Esq.
Andrew B. Livernois, Esq.

hearsay or belief, rather than personal knowledge, does not
satisfy the requirements of Rule 56(c). Kenney, 700 F.3d at
609; Sheinkopf v. Stone, 927 F.2d 1259, 1271 (1st Cir. 1991);
Fin. Res. Network, Inc. v. Brown & Brown, Inc., 867 F. Supp. 2d
153, 171 (D. Mass. 2012).
In any case, RSA 541-B:9-a applies to claims “filed pursuant
to this chapter” and appears to have no effect on the § 1983
claim brought against Fanjoy here.
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