Levine v. Town of Pelham et al
Filing
20
///ORDER denying 18 Motion to Amend; granting 11 Motion for Judgment on the Pleadings as to Count II and is otherwise terminated due to lack of subject matter jurisdiction; terminating due to subject matter jurisdiction 17 Motion to Strike; terminating due to subject matter jurisdiction 10 Motion to Dismiss. Case is remanded to Hillsborough County Superior Court Southern District. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Matthew Levine
v.
Civil No. 14-cv-474-JD
Opinion No. 2015 DNH 082
Town of Pelham, et al.
O R D E R
Matthew Levine brought suit in state court, alleging state
law claims against the Town of Pelham, the Pelham Police
Department, and the Pelham School District, and alleging a claim
under 42 U.S.C. § 1983 against the town and the police
department.1
The town removed the case to this court.
After
filing their answers, the school district and the town filed
motions for judgment on the pleadings.2
Levine then moved to
amend his complaint.
Background
Levine alleges that in 2011, during the events that gave
rise to his claims, he was an educator in the Pelham School
1The
town and the
police department is a
entity for purposes of
will be referred to as
2The
police department represent that the
department of the town and not a separate
this suit. Therefore, those defendants
the town.
school district had filed its answer when it filed its
motion to dismiss and also purported to move to dismiss pursuant
to Federal Rule of Civil Procedure 12(c). Therefore, the school
district’s motion is construed to seek judgment on the pleadings
under Rule 12(c) rather than dismissal under Rule 12(b)(6).
District.
He states that he was arrested in August of 2011 when
it was discovered that a Facebook account in his name was being
used to communicate inappropriately with a student in the Pelham
School District.
communications.
Levine denies that he engaged in those
Levine alleges that the police department wrote
in a report that he had agreed that he had communicated with the
student.
After his arrest, Levine was indicted by a grand jury.
The
charges against him were ultimately dismissed in the superior
court.
Levine alleges that he lost his job in the school district
because of the arrest and the charges brought against him.
He
also alleges that he lost a subsequent job in the Gloucester,
Massachusetts school system because of the arrest and charges.
He further alleges that his application for a license with the
Massachusetts Department of Education was put on hold because of
his arrest.
I.
Motion to Amend
Levine moves to amend his complaint to add a statement to
paragraph 9 that he did not agree that he had communicated with
a student, as stated in the police report.
He also proposes to
add a paragraph which alleges that the town lacked policies and
procedures to require its detectives to obtain Internet Protocol
2
addresses from Facebook.
He further alleges in the new
paragraph that the town’s policies and procedures failed to
require the police to investigate whether the address associated
with the communications with the student was controlled by him.
The town objects to the motion to amend on the grounds that the
amendment is futile.
A.
Standard of Review
Under Federal Rule of Civil Procedure 15(a)(2), a party may
move to amend his complaint, and “(t)he court should freely give
leave when justice so requires.”
A motion for leave to amend
may be denied, however, if the amendment would be futile.
Todisco v. Verizon Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir.
2007).
An amendment would be futile if it fails to make a
plausible claim for relief as tested under the Rule 12(b)(6)
standard.
HSBC Realty Credit Corp. (USA) v. O’Neill, 745 F.3d
564, 570 & 578 (1st Cir. 2014).
Under the Rule 12(b)(6) standard, a plaintiff must allege
“enough facts to state a claim to relief that is plausible on
its face.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
3
(2009).
The court accepts all well-pleaded factual allegations
as true and draws reasonable inferences in the plaintiff’s favor
but does not accept legal conclusions or mere recitation of the
elements of a cause of action.
San Geronimo Caribe Project,
Inc. v. Acevedo-Vila, 687 F.3d 465, 471 (1st Cir. 2012).
B.
Discussion
The town contends that Levine’s proposed amended complaint
is futile because it fails to allege facts to support municipal
liability under § 1983, because the state law claims are barred
by RSA 507-B, and because the claims are barred by the statute
of limitations.
of futility.
Levine did not respond to the town’s assertion
The town raised the same issues in its motion for
judgment on the pleadings, however, and in his objection Levine
ignored the statute of limitations issue and argued that he had
adequately alleged facts to support his claims.
1.
Section 1983 Claim - Count II
In the proposed amended complaint, Levine alleges that he
was “arrested and charged with a crime without cause.”
He
states that Pelham police officers arrested him and “sought
prosecution” under their “official authority” and that “their
use of this authority violated [his] rights under the Fourth
Amendment of the United States Constitution.”
4
Levine further
alleges that the town “is vicariously liable for actions of the
Pelham Police Department.”
The town contends that the § 1983 claim is barred by the
statute of limitations and also fails on the merits.
Specifically, the town asserts that it cannot be liable under a
theory of vicarious liability and that Levine has not alleged
facts to support municipal liability.
a.
Statute of Limitations
Claims brought under § 1983 are governed by the appropriate
state law governing limitations periods.
Vistamar, Inc. v.
Fagundo-Fagundo-Fagundo, 430 F.3d 66, 69 (1st Cir. 2005).
For
§ 1983 claims brought in New Hampshire, the applicable statute
of limitations is three years, as provided by RSA 508:4.
Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010).
Federal
law, however, governs the date when a § 1983 claim accrues.
Id.
For purposes of § 1983 claims for false arrest, when the charges
were later dropped or dismissed, the limitations period begins
to run “at the time the claimant becomes detained pursuant to
legal process.”
Wallace v. Kato, 549 U.S. 384, 397 (2007).
Under New Hampshire Superior Court Rule 2, the limitation period
imposed by RSA 508:4 begins when the writ is filed or served,
whichever occurs first.
See Bentley v. City of Lebanon, 2011 WL
1085663, at *1 (Mar. 22, 2011).
5
In this case, Levine alleges that he was arrested in August
of 2011.
The town asserts, supported by the affidavit of the
officer who arrested Levine, that Levine was arrested on August
24, 2011, and was released on bail the next day.
Levine does
not dispute the dates of his arrest and release or contest the
officer’s statements in his affidavit.
Levine’s original
complaint is dated August 28, 2011, and the state court record
shows that the complaint was filed on August 28, 2011.
Service
on the defendants was completed on October 2, 2011.
Based on that chronology, Levine’s § 1983 claim, which
alleges that his arrest violated the Fourth Amendment, was filed
four days too late.
As a result, absent other considerations
that have not been raised here, his § 1983 claim is time barred.
b.
Merits
In addition, although the § 1983 claim is barred by the
statute of limitations, the claim would also fail on the merits.
The town cannot be vicariously liable under § 1983 for
actions taken by its police officers.
See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694-95 (1978).
When a plaintiff
brings a § 1983 claim against a town, he must allege that “the
municipality itself cause[d] the constitutional violation at
issue.”
City of Canton v. Harris, 489 U.S. 378, 387 (1989).
do that, the plaintiff must allege facts that demonstrate the
6
To
existence of municipal custom, policy, or practice and a “direct
causal link” between the municipal custom, policy, or practice
and the constitutional violation.
Id. at 385.
A single instance of misconduct by a police officer,
standing alone, is insufficient to show a municipal custom,
policy, or practice.3
Cir. 2003).
Fabiano v. Hopkins, 352 F.3d 447, 452 (1st
To be actionable under § 1983, an unwritten or
informal custom, policy, or practice must “be so well-settled
and widespread that the policy-making officials of the
municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end it.”
Walden v. City of
Providence, 596 F.3d 38, 57-8 (1st Cir. 2010) (internal
quotation marks omitted).
When a plaintiff asserts that the
municipality’s failure to train its employees was a custom,
policy, or practice that resulted in a constitutional violation,
he must allege facts that the municipality’s failure to train
showed a deliberate indifference to the constitutional rights
allegedly violated.
Haley v. City of Boston, 657 F.3d 39, 52
(1st Cir. 2011); Estate of Bennett v. Wainwright, 548 F.3d 155,
177 (1st Cir. 2008).
3In
contrast, a single act by a final policy maker may
establish an official custom, practice, or policy. Rosaura
Bldg. Corp. v. Municipality of Mayaguez, 778 F.3d 55, 62 (1st
Cir. 2015).
7
To support his unconstitutional arrest claim under § 1983,
Levine proposes to add allegations about the town’s policies and
procedures.
The new allegations are that “[t]he policies and
procedures of the Town of Pelham Police Department did not
require any detective, investigator or other employee to obtain
Internet Protocol (“IP”) address information from Facebook
related to the communication in question” and that “the policies
and procedures [did not] require, prior to seeking charges
against the Defendant, that the IP address of the communication
somehow be associated with one controlled or associated with the
Plaintiff.”
Levine also adds that “no such investigation was
undertaken.”
Levine’s new allegations are that the town lacked policies
and procedures that he contends were necessary to investigate
the accusation that he had inappropriately communicated with a
student through Facebook.
As such, he is not alleging that his
arrest was caused by a custom, policy, or practice of the town.
To the extent Levine’s new allegations are intended to claim a
lack of training for town police officers, he fails to include
allegations that would show the town’s deliberate indifference
to constitutional rights that could be violated by the lack of
training.
As a result, Levine’s proposed amendment does not
adequately allege municipal liability under § 1983.
8
Count II, even with the proposed amendments, is time barred
and does not state an actionable claim against the town under §
1983.
As a result, the proposed amendment would be futile and
the motion to amend is denied.
II.
Motions for Judgment on the Pleadings
Both the town and the Pelham School District moved for
judgment on the pleadings on all claims in the original
complaint.
Jurisdiction for removal of this case from state
court was premised on the existence of a federal question as
required by 28 U.S.C. § 1331.
The only claim that presents a
federal question is the § 1983 claim in Count II.
For the reasons explained in Part I, the complaint, even
with the proposed amendments, does not state a claim under
§ 1983.
Therefore, that claim is dismissed.
When the court has dismissed all claims over which it had
original jurisdiction, the court may decline to exercise
supplemental jurisdiction over the other claims in the case.
U.S.C. § 1367(c)(3).
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In making the decision whether to retain
or decline supplemental jurisdiction, the court should consider
“the interests of fairness, judicial economy, convenience, and
comity.”
Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir. 2015)
(internal quotation marks omitted).
9
“[T]he balance of competing
factors ordinarily will weigh strongly in favor of declining
jurisdiction over state law claims where the foundational
federal claims have been dismissed at an early stage in the
litigation.”
Camelio v. Am. Federation, 137 F.3d 666, 672 (1st
Cir. 1998).
This case was removed from state court and has not
proceeded beyond preliminary motion practice.
The remaining
state claims involve, among other things, issues of immunity
under state law and the breadth of negligence under state law.
Therefore, the relevant considerations support a decision to
decline supplemental jurisdiction over the remaining state law
claims.
Conclusion
For the foregoing reasons, the plaintiff’s motion to amend
(document no. 18) is denied.
The town defendants’ motion for judgment on the pleadings
(document no. 11) is granted as to Count II and is otherwise
terminated due to lack of subject matter jurisdiction.
The Pelham School District’s motion to dismiss (document
no. 10) and motion to strike (document no. 17) are terminated
due to a lack of subject matter jurisdiction.
10
The case is remanded to Hillsborough County Superior Court,
Southern District.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
April 15, 2015
cc:
Brian J.S. Cullen, Esq.
Donna Feeney, Esq.
Diane M. Gorrow, Esq.
Mark L. Stevens, Esq.
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