Sargent v. Hudson, NH, Town of, et al

Filing 46

///ORDER granting 17 Motion for Summary Judgment; denying 24 Motion Requesting This Court to Certify Two Questions to the NH Supreme Court; denying as moot 38 Motion to Strike. So Ordered by Magistrate Judge Andrea K. Johnstone.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Janelle Sargent
v.

Civil No. 14-cv-509-AJ
Opinion No. 2017 DNH 210

Town of Hudson, et al.

MEMORANDUM AND ORDER
Janelle Sargent alleges that her former employer, the Town
of Hudson Police Department (“HPD”), treated her reports of
domestic violence differently than those made by other women
solely because her abuser was a police officer in a neighboring
town.

She initially brought this action in state court,

alleging two counts: (1) a state-law gross negligence claim
brought against the Town of Hudson (“Town”) and three HPD
officers1 under New Hampshire Revised Statutes Annotated (“RSA”)
§ 173-B:12 (Count I); and (2) a federal claim alleging an equalprotection violation on a “class-of-one” theory, brought against
the three officers (the “individual defendants”) under 42 U.S.C.
§ 1983 (Count II).

Defendants removed the action to this court

on the basis of the federal claim, and the parties consented to
the jurisdiction of the undersigned magistrate judge.

Chief Jason Lavoie, Captain William Avery, and Lieutenant
Charles Dyac.
1

Defendants move for summary judgment on both counts.
no. 17.

Doc.

Plaintiff opposes summary judgment (doc. no. 33), but

also asks that this court certify two questions to the New
Hampshire Supreme Court with respect to her state-law claim
(doc. no. 24).

Defendants object to certification (doc. no. 25)

and move to strike certain exhibits attached to plaintiff’s
objection to summary judgment (doc. no. 38).
For the reasons that follow, the court grants defendants’
motion for summary judgment as to the federal claim, finding
that the individual defendants are entitled to qualified
immunity.

The court declines supplemental jurisdiction over the

state claim and remands the case to the superior court,
concluding that it is the appropriate forum to resolve this
claim in the first instance.
plaintiff’s motion to certify.

The court therefore denies
In light of these

determinations, the court denies as moot the motion to strike.

I.

STANDARD OF REVIEW

Summary judgment is appropriate where the moving party
“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).

“If a nonmovant bears the ultimate

burden of proof on a given issue, she must present ‘definite,

2

competent evidence’ sufficient to establish the elements of her
claim in order to survive a motion for summary judgment.”

Pina

v. Children’s Place, 740 F.3d 785, 795–96 (1st Cir. 2014)
(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991)).

The court must “draw all reasonable inferences from the

record in the light most favorable to the nonmoving party,
disregarding any ‘conclusory allegations, improbable inferences,
or unsupported speculation.’”

McGrath v. Tavares, 757 F.3d 20,

25 (1st Cir. 2014) (quoting Alicea v. Machete Music, 744 F.3d
773, 778 (1st Cir. 2014)).

Where, as here, the moving party

raises a qualified immunity defense, the nonmoving party has the
burden of showing that qualified immunity does not apply.

See

Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015) (second
prong); cf. Lopera v. Town Of Coventry, 640 F.3d 388, 395–96
(1st Cir. 2011) (first prong); Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011).

II.

BACKGROUND

Unless otherwise noted, the following facts are undisputed
in the record.

Janelle Sargent began working for the HPD as a

fulltime dispatcher in July 2005.

3

Doc. no. 33-3 ¶ 4.

Janelle

married her ex-husband, Benjamin Sargent,2 two months later.
¶ 3.

Id.

Beginning in 2009 or 2010, Janelle was transitioned to the

HPD legal department due to a backlog, though she continued to
spend time working in dispatch.

Doc. no. 17-4 at 2-3; doc. no.

33-7 at 19 (mentioning that Janelle worked in dispatch in 2011).
Janelle was a good employee, with HPD Captain William Avery
describing her as “probably the best dispatcher [he] ever worked
with.”

Doc. no. 17-4 at 2-3.

In 2011, Ben was hired by the Litchfield Police Department
(“LPD”).

Doc. no. 33-3 ¶ 5.

The individual defendants all knew

that Ben worked for the LPD during the period relevant to this
case.

See doc. no. 33-4 at 8; doc. no. 33-5 at 23; doc. no. 33-

12 at 16.

It does not, however, appear that any individual

defendant interacted with Ben more than in passing during this
timeframe.
A.

See doc. no. 33-4 at 8; doc. no. 33-5 at 23.

Early Instances of Domestic Violence
At some point in 2011, Janelle told HPD Officer Kevin

Sullivan that Ben had pointed a gun at her head while she was
taking a shower.

Doc. no. 33-7 at 19-20.

Janelle did not ask

Sullivan to initiate a criminal complaint or investigation
because she was scared for her life.

Id. at 21.

There is no

Because Janelle Sargent and Benjamin Sargent shared a last
name during the period relevant to this case, the court will use
their first names in this order so as to avoid confusion.
2

4

evidence in the record suggesting that Janelle or Sullivan ever
formally reported or otherwise mentioned this incident to anyone
else at the HPD.
In early April 2012, Ben assaulted Janelle, causing
bruising to her temple and her neck.

Id. at 15.

The following

day, Janelle went to work with her hair up and without wearing
makeup, hoping that one of her colleagues would notice the
bruising.

Id.

When no one did, Janelle sought out HPD Officer

Dan Conley, who took photographs of Janelle’s bruising on a
department camera.

Id. at 15, 21, 33; doc. no. 33-8 at 5.

Janelle stated that she was going to send the photographs to her
attorney.

Doc. no. 33-8 at 5.

Though she secretly hoped that

Conley would disclose this interaction to a superior officer,
Janelle asked that Conley keep it a secret because she believed
doing so would provide an excuse if it ever got back to Ben that
she had spoken with Conley.
33-8 at 6.

Doc. no. 33-7 at 21, 34; doc. no.

Conley agreed not to mention it to anyone so long as

Janelle told her attorney about the incident.

Doc. no. 33-8 at

5.
After Janelle left his office, Conley started to worry that
something bad might happen to Janelle and how he “would have
that on [him]” if he did not tell anyone.

Id.

Conley therefore

told Avery about his interaction with Janelle and about the

5

photographs he had taken.

Id. at 5-6.

Avery responded,

“[W]e’re dealing with stuff with Janelle, she’s got some
personal issues we’re working through,” and thanked Conley for
the information.

Id. at 6.

Avery did not ask to see the

photographs or prepare a report for the file regarding what
Conley had said.

Id.; doc. no. 33-4 at 5.

Neither Avery nor

Conley informed anyone else at the HPD about Conley’s
conversation with Sargent.
B.

Id. at 6.

June 2012 Incident
Shortly before 1:00 A.M. on June 30, 2012, Janelle called

HPD dispatch and reported that Ben had scratched her neck with a
key.
at 1.

Doc. no. 33-5 at 16; doc. no. 33-7 at 14; 33-6 at 1; 33-19
Lieutenant Charles Dyac and Officer Scott MacDonald

responded to the call.

Doc. no. 33-5 at 2; 33-19 at 3.

Dyac

was the first to arrive at the Sargents’ residence, followed by
MacDonald two-to-three minutes later.

Id. at 2.

There is no dispute that that Dyac spoke with both Janelle
and Ben while at the scene.
33-19 at 3.

See, e.g., id. at 2, 4; doc. no.

Each provided Dyac with a significantly different

version of the events leading up to Janelle’s call.

Dyac

memorialized these different versions, along with his own
observations, in both a police report and a subsequent e-mail to
several of his HPD supervisors.

Doc. no. 33-10; doc. no. 33-19;

6

doc. no. 33-6.

Janelle disputes both Ben’s version of events

and several portions of Dyac’s report and e-mail.
1.

Dyac’s Report and E-mail

According to Dyac’s police report, when he arrived at the
scene, Janelle was “highly intoxicated and unsteady on her
feet.”

Doc. no. 33-19 at 3.

Janelle stated that she and Ben

had been at the Backstreet Bar and Grill (“Backstreet”), where
she had been “making out” with another woman.

Id.

She stated

that Ben became jealous, and that Ben scratched her on the side
of her neck with a key when they left the bar.

Id.

Janelle

stated that when she returned home, she tried to photograph the
scratch for a future divorce proceeding, but that Ben disabled
the camera.
police.

Id.

Janelle stated that she then called the

Id.

Once MacDonald arrived, Dyac went inside to speak with Ben.
Id.

Ben told Dyac that Janelle had been kissing another woman

at Backstreet, that Janelle and the woman had entered the
women’s bathroom together for long periods of time, and that
when they exited the bathroom, both women bragged about having
sexual contact with each other.

Id.

Ben noted that he did not

approve of this behavior and eventually told Janelle that he
wanted to leave, but Janelle initially refused.

Id.

Ben

reported that when he and Janelle finally did leave, Janelle

7

said that she was “going to call them,” which Ben interpreted to
mean the HPD.

Id.

Ben stated that he was confused by this, as

there had been no physical altercation.

Id.

According to Dyac, Ben maintained that he did not assault
Janelle.

Id. at 4.

Rather, Ben believed that Janelle received

the scratch from the woman she had been kissing, as Janelle and
the woman were “groping each other’s face[s] . . . .”

Id. at 4.

Ben told Dyac that Janelle was taking several different
medications, pain relievers, and antidepressants, and had been
drinking heavily.

Id. at 3.

Ben stated that he had started

hiding certain medications from Janelle when she was
intoxicated, so as to avoid an accidental overdose.

Id.

Dyac

reported that Ben tried to find a medication bottle he had
hidden in his drawer, but discovered that it was missing; Ben
surmised that Janelle had found the bottle.

Id. at 3-4.

After speaking with Ben, Dyac concluded there was
“insufficient evidence to establish probable cause that an
assault had occurred . . . .”

Id. at 4.

At his deposition,

Dyac testified that he reached this conclusion because Ben’s
version of events made more sense to him than did Janelle’s.
Doc. no. 17-5 at 3, 5-6.

Additionally, Dyac reported that

MacDonald later informed him that Janelle had recanted her
statement.

Doc. no. 33-19 at 4; doc. no. 33-5 at 19–20.

8

The

officers accordingly left without making an arrest.

Doc. no.

33-19 at 4.
Dyac testified that following the incident, he concluded
that he alone should write a report, given “the sensitive nature
of this whole thing . . . .”

Doc. no. 33-5 at 4.

Upon

returning to the HPD, Dyac checked to see whether there were any
reports of other incidents involving Janelle and Ben, but did
not discover any.

Id. at 14-15.

Dyac filed his report at 3:34 A.M. on June 30, 2012.
no. 33-19 at 1.

Doc.

There are two versions of this report in the

record, which differ in three respects.

First, the reports

contain different dates in the upper-right-hand corner.
doc. no. 33-10 at 1 with doc. no. 33-19 at 1.

Compare

At his

deposition, Dyac explained that these were the dates the reports
were printed.

Doc. no. 33-5 at 21.

Second, one version of the

report states that the incident involved “domestic violence,”
while the other does not.
no. 33-19 at 1.

Compare doc. no. 33-10 at 1 with doc.

Dyac testified that he initially forgot to

check off the “domestic violence” box when writing his report,
and that Avery sent it back to him to make the adjustment.
no. 33-5 at 21.

Doc.

Finally, one version of the report includes a

section listing Ben as a suspect, which is absent from the other
version.

Compare doc. no. 33-10 at 1 with doc. no. 33-19 at 1.

9

Dyac testified that he “d[idn’t] have an explanation” for this
difference, but theorized that it was due to a software update
between when each version of the report was printed.
33-5 at 22.

Doc. no.

The reports are otherwise identical: both list the

offense as “simple assault”; both contain a status of “Incident
Unfounded”; both include the same factual narrative; and both
conclude by noting that “[t]his is the first domestic related
incident reported to the [HPD].”

Doc. no. 33-10 at 1, 3; doc.

no. 33-19 at 1, 4.
After filing his report, Dyac sent an e-mail to several of
his superiors at the HPD, including Avery and HPD Chief Jason
Lavoie.

See doc. no. 33-6 at 1.

This e-mail contained the

subject line “Janelle Sargent *SENSITIVE INFORMATION*” and
included a narrative that, for the most part, hews closely to
the narrative included in the report.
nos. 33-10 and 33-19.

Compare id. with doc.

There is, however, an added section at

the end of this e-mail, in which Dyac reported that Ben alleged
Janelle had previously accused Ben of threatening her with a gun
while she was intoxicated.

Doc. no. 33-6 at 1.

According to

the e-mail, Ben stated that Janelle thought she had an “in” with
the HPD because she was an HPD employee.

Id. at 2.

Dyac

testified at his deposition that he did not include any of this
information in his report because he did not feel it was

10

relevant to the incident and there was no evidence to conclude
that Ben had actually threatened Janelle with a gun.

Id. at 24–

25.
2.

Janelle’s Disputes

At her deposition, Janelle took issue with several aspects
of Dyac’s report.

First, while conceding that she kissed a

woman in front of Ben at the Backstreet (a decision she
attributed to having “had a couple of drinks”), Janelle
testified that she did not “make out” or go into the bathroom
with the woman.

Doc. no. 33-7 at 35, 36, 38.

Next, Janelle

testified that Ben scratched her neck with the key after they
had returned home, not when they left the bar as stated in the
report.

Id. at 36.

Janelle also disputed the assertion that

she recanted, testifying that after reading the report, she
called MacDonald, who denied saying that she had recanted and
stated he had never seen Dyac’s report.

Id. at 50–51.

Janelle

also took issue with the statements in the report regarding Ben
hiding medications from Janelle.

Id. at 51.

Janelle and Dyac’s deposition testimony also differs as to
whether Dyac or MacDonald was required to conduct a lethality
assessment protocol (“LAP”) screen, take photographs of
Janelle’s injuries, and/or provide Janelle with a so-called

11

“blue card” for victims of domestic violence.3

According to

Janelle, each of these actions was necessary because she
reported that Ben has assaulted her and she had a “visible mark
on [her] neck.”

Id. at 41; doc. no. 33-3 ¶¶ 12, 13.

Dyac

testified that a LAP screen was unnecessary because, in his
view, Janelle’s injuries were either self-induced or the result
of aggressively kissing the woman at the bar.
3-4.

Doc. no. 33-5 at

Dyac further testified that he declined to take

photographs of Janelle’s neck, despite her asking that he do so,
because Janelle stated she wanted to use the photographs in her
divorce proceedings, which Dyac did not believe was “the police
department’s business . . . .”

Id. at 6–7; 13–14.

Finally,

Dyac testified that he did not give Janelle a “blue card”
because he did not believe a crime had been committed.

Id. at

16.
C.

Aftermath
On the Monday following the June 30, 2012 incident, Avery

called Janelle to his office, where he reprimanded her for
drinking in Hudson on the night of the incident.

Doc. no. 33-4

at 4; doc. no. 33-3 ¶¶ 6, 7, 9; doc. no. 33-7 at 18.

Avery

The “blue card” is a card that officers provide victims of
domestic violence, informing them of the process for getting a
protective order and providing contact information for various
reporting lines, victim/witness assistance programs, and victim
compensation programs. See doc. no. 33-28.
3

12

noted that he had heard about the incident from Dyac, and told
Janelle that “the chief is pretty pissed, and [Janelle] could
see paperwork.”

Doc. no. 33-7 at 18; doc no. 33-3 ¶ 9.

Avery

had his feet up on his desk during this conversation, and did
not ask Janelle about the incident or her safety.
¶¶ 10-11; doc. no. 33-4 at 4.

Doc. no. 33-3

Following this interaction,

Janelle feared that she might lose her job if she reported any
other incidents of domestic violence to the HPD.

Doc. no. 33-7

at 22.
The HPD did not conduct any additional follow-up with
Janelle regarding the incident.

Doc. no. 33-3 ¶ 15.

Dyac

testified that it was typically the Town’s victim witness
advocate, not an HPD officer, who conducted such follow up.
Doc. no. 33-5 at 17.

But here, the victim witness advocate was

not made aware of Dyac’s report and could not access it on the
HPD computer system.4

Doc. no. 33-11 ¶¶ 14–15.

After the June 30, 2012 incident, Janelle’s relationship
with Ben got “much worse.”

Doc. no. 33-7 at 14.

Janelle

testified that Ben “knew even if he left a mark on [her] and

Janelle speculates that HPD officers kept the victim
witness advocate from viewing the report by deliberately failing
to label it “domestic violence.” Doc. no. 33-7 at 43.
Defendants contend that it was HPD policy to “shield[] fellow
employees from personal data concerning their co-workers.” Doc.
no. 37 at 2 n. 2.
4

13

[she] called the police that nothing [would happen].”
15.

Id. at

Ben made alarming comments to Janelle and physically and

sexually assaulted her.

Doc. no. 33-3 ¶¶ 16–17.

Janelle

reported the sexual assault to county authorities because she
did not trust the HPD to protect her.
Ben divorced in November 2012.

Id. ¶ 18.

Janelle and

Id. ¶ 3; doc. no. 33-7 at 23-24.

At some point following the June 30, 2012 incident, Janelle
was diagnosed with posttraumatic stress disorder (“PTSD”) and
obsessive-compulsive personality disorder.
doc. no. 33-14.

Doc. no. 33-7 ¶ 20;

This required that Janelle take a leave of

absence from the HPD.

Doc. no. 33-3 ¶ 20.

When she was ready

to return, she requested that she not be assigned to dispatch
out of fear that Ben might call while she was on duty.5
21; doc. no. 33-15 at 1.

Id. ¶

Janelle provided a doctor’s note

stating that the suggestion of returning to dispatch had caused
a spike in Janelle’s PTSD symptoms and that any contact with Ben
could cause Janelle to relapse.

Doc. no. 33-15 at 2.

She was

nonetheless assigned to dispatch, at times overlapping with
Ben’s shifts with the LPD.6

Doc. no. 33-16 at 2.

Janelle

Though the LPD uses the Hillsborough County dispatch, LPD
calls could be routed through HPD dispatch by Hillsborough
County or Ben could call HPD dispatch directly. Doc. no. 33-12
at 13-14.
5

The HPD sought to accommodate Janelle by ensuring that
there was always someone else in dispatch during her shifts who
6

14

remained in dispatch for two months, during which time she
fielded numerous calls from the LPD, though never from Ben.
at 26–27.

Id.

During this period, her PTSD worsened, manifesting in

physical and emotional symptoms.

Id. at 28, 31–32.

In August 2013, the Town had Psychotherapy Associates, Inc.
conduct a psychological fitness evaluation of Janelle.
48; doc. no. 33-17 at 1.

Id. at

In a report issued September 4, 2013,

Janelle was deemed “NOT FIT for duty as a Dispatcher
and . . . psychologically incapable of performing the tasks
outlined in her description.”

Doc. no. 33-17 at 4 (emphasis in

original); see also doc. no. 33-7 at 48.

She was placed on paid

administrative leave and received short-term, and then longterm, disability.

Doc. no. 33-7 at 49.

In 2014, Janelle suffered a complete mental and emotional
breakdown, requiring hospitalization.

Doc. no. 33-3 ¶ 25.

She

is now disabled due to severe PTSD and receives social security
disability income benefits.

Doc. no. 33-7 at 2.

She continues

to receive regular mental health treatment and is prescribed
several medications.

Id. at 3–7.

could screen calls from the LPD or Hillsborough County. Doc.
no. 33-16 at 3; doc. no. 33-7 at 26. Janelle believed these
accommodations were inadequate, as there were ample reasons why
the other dispatcher on duty with her might not physically be in
dispatch when such calls were received. Doc. no. 33-7 at 26–30.
15

III.

DISCUSSION

Janelle brings a state-law claim against the Town, Lavoie,
Avery, and Dyac under a gross negligence theory, and a federal
claim against Lavoie, Avery, and Dyac under an equal-protection
“class-of-one” theory (“class-of-one claim”).
for summary judgment on both claims.

Defendants move

The court turns first to

the class-of-one claim.
A.

Class-of-one Claim
Janelle’s class-of-one claim is premised upon a theory that

the individual defendants treated her differently than other
victims of domestic violence because Ben was a police officer
with the LPD.

See doc. no. 1-1 ¶ 49; doc. no. 33-1 at 1.

The

individual defendants do not dispute that the incident involving
Janelle and Ben was the only of the hundreds of domestic
violence cases they responded to in which the alleged abuser was
a police officer.

They nevertheless argue, among other things,

that the class-of-one claim is barred by the doctrine of
qualified immunity.

As noted above, when a movant raises

qualified immunity, the non-movant bears the burden of
demonstrating that qualified immunity does not apply.

See

Mitchell, 790 F.3d at 77; cf. Lopera, 640 F.3d at 395–96; alKidd, 563 U.S. at 735.
To meet this burden, Janelle must show that the individual

16

defendants “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

In

assessing whether qualified immunity applies, the court
considers two prongs: (1) “whether the facts alleged or shown by
the plaintiff make out a violation of a constitutional right”;
and (2) “whether the right was ‘clearly established’ at the time
of the defendant’s alleged violation.”

Fernandez-Salicrup v.

Figueroa-Sancha, 790 F.3d 312, 325 (1st Cir. 2015) (quoting Glik
v. Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011)).

Though “it is

often beneficial” to consider the qualified immunity prongs in
order, it is no longer mandatory that courts do so.
555 U.S. at 236.

Pearson,

This is especially true in cases where “it is

plain that a constitutional right is not clearly established but
far from obvious whether in fact there is such a right.”
237.

Id. at

Thus, courts may “exercise their sound discretion in

deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
of the particular case at hand.”

Id. at 236; see also

Fernandez-Salicrup, 790 F.3d at 326 (noting that a court “may
address these issues in any order”).
Here, there is little benefit in analyzing Janelle’s class-

17

of-one claim under both prongs.

Analyzing this claim under the

first prong would require the court to grapple with several
complicated legal and factual questions, not least of which
whether a class-of-one theory is even a vehicle by which a
plaintiff may challenge the allegedly discriminatory application
of police protection.

In contrast, Janelle’s claim is

relatively easily resolved under the second prong: as discussed
below, Janelle has failed to demonstrate that the individual
defendants’ conduct violated a clearly established
constitutional or statutory right.

The court limits its

analysis accordingly.
When applying the second prong of qualified immunity, a
court must consider:
(a) whether the legal contours of the right in question
were sufficiently clear that a reasonable officer would
have understood that what he or she was doing violated the
right, and (b) whether in the particular factual context of
the case, a reasonable officer would have understood that
his or her conduct violated the right.
Fernandez-Salicrup, 790 F.3d at 325–26 (brackets omitted)
(quoting Mlodzinski v. Lewis, 648 F.3d 24, 32–33 (1st Cir.
2011)).

Though this does not require a “case directly on

point, . . . existing precedent must have placed the statutory
or constitutional question beyond debate.”

Mullenix, 136 S. Ct.

at 308 (quoting al–Kidd, 563 U.S. at 741).

Janelle therefore

must identify “controlling authority or a robust consensus of
18

cases of persuasive authority” demonstrating that the individual
defendants reasonably should have known that their conduct was
unlawful at the time it occurred.

Plumhoff v. Rickard, 134 S.

Ct. 2012, 2023 (2014) (internal quotation marks omitted)
(quoting al-Kidd, 563 U.S. at 741).

Courts must not “define

clearly established law at a high level of generality.”
Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742).
Rather, “[t]he dispositive question is whether the violative
nature of particular conduct is clearly established.”

Id.

(internal quotation marks omitted) (quoting al-Kidd, 563 at
742).
As a general matter, it is clearly established that law
enforcement may not “selectively deny its protective services to
certain disfavored minorities without violating the Equal
Protection Clause.”

DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 197 n. 3 (1989) (citation omitted).

To

this end, the First Circuit has recognized that a victim of
domestic violence may bring an equal-protection claim alleging
“that law enforcement policies provide lesser protection to
victims of domestic violence and [thereby] discriminate on the
basis of gender.”

Soto v. Flores, 103 F.3d 1056, 1066 (1st Cir.

19

1997) (emphasis added).7
two reasons.

These decisions do not control here for

First, the proposition that law enforcement may

not apply its protection in a discriminatory manner operates at
the “high level of generality” insufficient to define a clearly
established right.

See al-Kidd, 563 U.S. at 742 (citations

omitted) (noting that “[t]he general proposition . . . that an
unreasonable search or seizure violates the Fourth Amendment is
of little help” in determining whether a right is clearly
established).

More fundamentally, however, Janelle does not

allege that the HPD had a policy of discriminating against
domestic violence victims due to some improper class-based
distinction, such as their gender.

She instead contends that

she alone was treated differently than other domestic violence
victims because Ben was a police officer.

Thus, Janelle cannot

rely on these broad equal-protection principles to defeat
qualified immunity.
Moving, then, from the general to the particular, Janelle
has failed to demonstrate that the individual defendants’
conduct here violated clearly established law.

At the hearing,

Janelle’s counsel conceded that he was unaware of any Supreme

The First Circuit recognized the viability of such claims
more than twenty years ago, adopting a widely-accepted framework
first established by the Tenth Circuit in the case Watson v.
City of Kansas City, KS, 857 F.2d 690 (10th Cir. 1988). See
Soto, 103 F.3d at 1066.
7

20

Court of First Circuit precedent on point, and Janelle’s papers
only cite one out-of-jurisdiction decision that addresses
whether a police officer’s differential treatment of a domestic
violence victim due to her abuser’s relationship with law
enforcement violates equal protection: Shipp v. McMahon, 234
F.3d 907 (5th Cir. 2000) (“Shipp I”).8

Setting aside that a

single case cannot, by definition, constitute a “robust
consensus of cases of persuasive authority,” Shipp I does not
compel the conclusion that the individual defendants’ conduct
violated Janelle’s equal protection rights.

Indeed, that

decision only posits that the conduct at issue here may violate
equal protection.

See id. at 916–17 (“If deputy Betty Shipp did

foster ill-will against her daughter-in-law that ultimately
influenced the level of protection Shipp received from the WPSO,
Shipp may be able to establish an unequal police protection
claim . . . .” (emphasis added)).

Simply put, Shipp I is

insufficient, particularly in isolation, to clearly establish
the right Janelle seeks to invoke.9

Overruled in part on other grounds by McClendon v. City of
Columbia, 305 F.3d 314, 328-29 (5th Cir. 2002).
8

The Sixth Circuit recently decided a case that, on its
face, appears similar to the case at bar. See Ryan v. City of
Detroit, MI, __ F. App’x __, 2017 WL 2829521 (6th Cir. June 30,
2017). To the extent that decision is not factually or legally
distinguishable, but see id. at *5, 5 n. 3 (noting that on
appeal, the right at issue was asserted on a class-based theory,
9

21

Janelle also points to RSA 173-B and the HPD domestic
violence policy to demonstrate that a reasonable officer would
have understood that the individual defendants’ conduct toward
her was unlawful.

This argument is a nonstarter, however, as

the Supreme Court has made clear that in order to defeat
qualified immunity, the clearly established right must be the
federal right on which the claim for relief is based.

See Elder

v. Holloway, 510 U.S. 510, 515 (1994) (citing Davis v. Scherer,
468 U.S. 183, 193–96, 196 n. 14 (1984)); see also Hill v.
Selsky, 487 F. Supp. 2d 340, 343 (W.D.N.Y. 2007) (citations
omitted) (“[T]he existence of qualified immunity does not depend
on whether the right in question was clearly established under
state law, but on whether the federal right giving rise to the
claim was clearly established at the time of the alleged
violation.”).

Thus, neither state law nor law enforcement

policy can be used to demonstrate a clearly established right;
that determination must be based on federal law alone.
Finally, Janelle cites Cordi-Allen v. Conlon, 494 F.3d 245
(1st Cir. 2007), to argue that class-of-one equal-protection
claims have been well established in this circuit since at least

not a class-of-one theory), it cannot be used here to
demonstrate a clearly established right because it was decided
in 2017, years after the conduct at issue in this case occurred.
22

2007.

This argument, which counters the defendants’ contention

in their motion that there is no clearly established right to
challenge police conduct under a class-of-one theory, reflects a
curious aspect of class-of-one jurisprudence.

Whereas qualified

immunity analysis typically focuses on whether the underlying
right was clearly established during the relevant period, see,
e.g., Belsito Commc’ns, Inc. v. Decker, 845 F.3d 12, 24–27 (1st
Cir. 2016), in the context of class-of-one claims, several
courts have instead considered whether the right to challenge
certain conduct under a class-of-one theory was clearly
established at that time, see, e.g., Shipp v. McMahon, 54 F.
App’x 413, 2002 WL 31718085 at *2 (5th Cir. 2002) (“Shipp II”);
Grant v. Laufenberg, No. 12-C-668, 2015 WL 1246065, at *9 (E.D.
Wis. Mar. 18, 2015); see also Griffin Indus., Inc. v. Irvin, 496
F.3d 1189, 1210 (11th Cir. 2007) (“Neither the state officials
nor the local officials had ‘fair warning’ that their actions
might subject them to legal liability.” (emphasis added)).10

As

This focus is perhaps unsurprising. Class-of-one claims
are a narrow subset of equal protection jurisprudence where the
plaintiff “has not alleged class-based discrimination, but
instead claims that she has been irrationally singled out as a
so-called ‘class of one.’” Engquist v. Or. Dep’t of Agr., 553
U.S. 591, 601 (2008). Put differently, class-of-one actions are
the recognized method for challenging individualized
differential treatment by the government — that is, treatment
based on some specific attribute of the individual rather than
that individual’s membership in a class, particularly a suspect
class.
It follows, then, that if there is no clearly
10

23

both parties frame their arguments in this manner, and other
courts have employed this analysis, the court will address
whether there is a clearly established right to bring a classof-one claim challenging the individual defendants’ conduct
here.
There is a long line of Supreme Court and First Circuit
precedent recognizing class-of-one equal-protection claims
challenging certain types of governmental action.

See, e.g.,

Bank Markazi v. Peterson, 136 S. Ct. 1310, 1327 n. 27 (2016);
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Najas
Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 144 (1st Cir.
2016); Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014).
Moving beyond this “high level of generality,” however, things
become far less clear.

Neither the Supreme Court nor the First

Circuit has addressed whether a plaintiff has a right to
challenge disparate treatment by law enforcement under a classof-one equal-protection theory.

And while three circuits have

established right to bring a class-of-one action challenging a
particular type of government conduct, then the violative nature
of that particular conduct is, at least arguably, also not
clearly established. Thus, while it may not be obvious in such
cases whether an underlying right exists, there is at least some
argument that the lack of a clearly established means of
bringing a claim may indicate that the constitutional right
itself was not clearly established. See Pearson, 555 U.S. at
237.

24

seemingly countenanced such claims, see Mata v. City of
Kingsville, TX, 275 F. App’x 412, 415 (5th Cir. 2008); Klimik v.
Kent Cty. Sheriff’s Dep’t, 91 F. App’x 396, 399 (6th Cir. 2004);
Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000),
at least two have not revisited the issue since the Supreme
Court’s declaration in Engquist v. Oregon Department of
Agriculture that forms of state action “which by their nature
involve discretionary decisionmaking based on a vast array of
subjective, individualized assessments” are ill-suited for
class-of-one challenges, 553 U.S. at 603.
The two circuits that have considered Engquist’s impact on
the right to bring a class-of-one claim against law enforcement
are split.

On the one hand, the Seventh Circuit reaffirmed its

ruling in Hilton that such a right exists, concluding that
Engquist does not stand as a categorical bar to all class-of-one
claims against police officers.
491, 495–96 (7th Cir. 2010).

See Hanes v. Zurick, 578 F.3d

The Eighth Circuit reached the

opposite conclusion, holding that “a police officer’s decisions
regarding whom to investigate and how to investigate are matters
that necessarily involve discretion” which “may not be attacked
in a class-of-one equal protection claim.”

Flowers v. City of

Minneapolis, Minn., 558 F.3d 794, 799–800 (8th Cir. 2009).
its part, the First Circuit has noted agreement “with those

25

For

federal courts that have found [Engquist] applicable beyond [its
facts],” citing the Eighth Circuit’s decision in Flowers as an
example.

Caesars Mass. Mgmt. Co., LLC v. Crosby, 778 F.3d 327,

336 (1st Cir. 2015).

But as noted, the First Circuit has been

silent on the viability of class-of-one claims challenging
police conduct.
In those cases that have allowed class-of-one challenges to
disparate police protection, either pre- or post-Engquist, the
standards applied have varied.

In Hilton, the Seventh Circuit

stated that such claims required proof of “vindictive action”
where “the cause of the differential treatment of which the
plaintiff complains was a totally illegitimate animus toward the
plaintiff by the defendant.”
omitted).

209 F.3d at 1008 (citations

In Mata, the Fifth Circuit relied on Hilton to impose

the same requirement.
209 F.3d at 1008).

See 275 F. App’x at 415 (quoting Hilton

Yet in Hanes, the Seventh Circuit called

into question the standard it established in Hilton, noting that
“some more recent cases have cast doubt on the animus
requirement . . . .”

578 F.3d at 494.

Finally, in Klimik, the

Sixth Circuit appeared to impose alternative requirements that a
plaintiff either “negative every conceivable basis which might
support the government action” or “demonstrate that the
challenged government action was motivated by animus or ill-

26

will.”

91 F. App’x at 400 (citations and internal quotations

omitted).

Thus, even in the context of those cases that have

recognized a class-of-one equal-protection right to challenge
law enforcement actions, there remains some question as to what
standard should apply.
Finally, the few cases that have addressed class-of-one
claims alleging disparate police protection of a victim of
domestic violence due to her abuser’s relationship with law
enforcement provide little additional guidance.

The court can

identify only three such decisions — all from the Fifth Circuit
and all cited by the parties in their papers.

See Mata, 275 F.

App’x 412; Shipp II, 54 F. App'x 413; Shipp I, 234 F.3d 907.
These decisions are of limited utility for two distinct reasons.
First, the Fifth Circuit has wavered on whether there even is a
class-of-one equal-protection right in the police context, with
the earliest opinion suggesting that there might be, Shipp I,
234 F.3d at 916–17, a subsequent panel calling that conclusion
into question, Shipp II, 54 F. App’x 413, 2002 WL 31718085 at
*1, and a third panel seemingly ignoring the intervening
decision and relying on the earlier decision to assume that such
a right does, in fact, exist, Mata 275 F. App’x at 415.

More

fundamentally, however, none of these decisions post-dates
Engquist and, as noted above, it does not appear that the Fifth

27

Circuit has reconsidered the viability of this right (to the
extent it exists) in light of that decision.

Thus, it is

unclear, especially in the wake of Engquist, whether the Fifth
Circuit recognizes a class-of-one equal-protection right in the
police context at all, let alone the particular class-of-one
theory presented here.
In sum, Janelle has failed to demonstrate that the
individual defendants’ conduct violated a clearly established
right under the Equal Protection Clause.

The court cannot

fairly conclude, for all of the reasons stated above, that the
legal contours of the right in question were sufficiently clear
in 2011 and 2012 (the period when the incidents in this case
occurred) such that a reasonable officer would have known that
his or her conduct violated that right.

This is especially true

when considering the particular factual context of this case, as
Janelle has failed to identify any binding precedent or a robust
consensus of persuasive authority addressing the alleged right
beyond a high level of generality.

The court therefore

concludes that the individual defendants are entitled to
qualified immunity on Janelle’s class-of-one claim.
Accordingly, defendants’ motion for summary judgment is
granted as to Count II, the class-of-one claim.

28

B.

State-law Claim
In her state-law claim, Janelle alleges gross negligence on

the part of all four defendants.
under RSA 173-B:12.

She seeks to bring this claim

Defendants argue that RSA 173-B:12 does not

confer a private right of action for gross negligence against a
municipality or its officers, and that they are accordingly
entitled to municipal immunity under RSA 507-B:5.

Janelle

objects to defendants’ argument on its merits, but also requests
that the court certify two questions to the New Hampshire
Supreme Court (“NHSC”).

Defendants oppose certification,

arguing that this court may enter summary judgment on the statelaw claim without the benefit of the NHSC’s view.

At the

hearing, defendants raised an alternative argument that if the
court were to grant summary judgment on the federal claim, it
should remand the state claim to the superior court, where
Janelle’s arguments may be addressed in the first instance.
Janelle opposes remand.
The sole basis for this court’s jurisdiction over Janelle’s
state claim is supplemental jurisdiction under 28 U.S.C. § 1367.
But when, as here, all federal claims have been dismissed, “the
balance of factors to be considered under the pendant
jurisdiction doctrine — judicial economy, convenience, fairness,
and comity — will [usually] point toward declining to exercise

29

jurisdiction over the remaining state-law claims.”

Wilbur v.

Curtis, __ F.3d __, 2017 WL 4159603, at *6 (1st Cir. Sept. 20,
2017) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n. 7 (1999) and citing 28 U.S.C. § 1367(c)(3)).

The First

Circuit has held that “it is an abuse of discretion for a
district court to retain jurisdiction over the remaining pendent
state law claims unless doing so would serve the interests of
fairness, judicial economy, convenience, and comity.”
(citations and internal quotation marks omitted).

Id.

To this end,

“it can be an abuse of discretion — if no federal claim remains
— for a district court to retain jurisdiction over a pendent
state law claim when that state law claim presents a substantial
question of state law that is better addressed by the state
courts.”

Id. (citing Desjardins v. Willard, 77 F.3d 43, 45-46

(1st Cir. 2015)).
In the court’s view, at least one of the questions Janelle
wishes to have certified to the NHSC presents an issue of New
Hampshire law better left to the state court in the first
instance.

Janelle asks whether “[i]t is unconstitutional

pursuant to the equal protection provision of Part I, Article 14
of the New Hampshire Constitution for [RSA] 507-B to bar the
plaintiff’s gross negligence claim when the plaintiff could
bring an identical claim against the State pursuant to RSA 541-

30

B:1, II-a(a)[.]”

Doc. no. 24 at 1.

In Huckins v. McSweeney,

166 N.H. 176 (2014), the NHSC declined to resolve whether
“different treatment of individuals injured by municipal
employee negligence and those injured by State employee
negligence” violated the New Hampshire Constitution, noting that
the plaintiff in that case had “alleged no negligence claim.”
Id. at 182.

As this issue has not been resolved,11 and the

question presented by Janelle here appears to be closely
related, the court concludes that the state court is the
appropriate forum for the state claim to be decided in the first
instance.
Accordingly, the court declines supplemental jurisdiction
over the state claim and remands this case to the Hillsborough
County Superior Court South.

IV.

CONCLUSION

Based on the foregoing, defendants’ motion for summary
judgment (doc. no. 17) is granted as to Count II, the class-ofone claim.

The court declines supplemental jurisdiction over

Though subsequent decisions have touched on related
topics, see, e.g., McCarthy v. Manchester Police Dep’t, 168 N.H.
202, 211 (2015) (holding that defamation actions are barred
under both municipal and sovereign immunity because libel and
slander fall within the definition of “intentional torts”), the
NHSC has not yet addressed the issue left open in Huckins.
11

31

Count I, the state-law claim, and remands the case to
Hillsborough County Superior Court South.

Janelle’s motion to

certify two questions to the NHSC (doc. no. 24) is accordingly
denied.
moot.

Defendants’ motion to strike (doc. no. 38) is denied as
The clerk of the court shall enter judgment in accordance

with this order and close the case.
SO ORDERED.

__________________________
Andrea K. Johnstone
United States Magistrate Judge

September 27, 2017
cc:

Charles G. Douglas, III, Esq.
Megan E. Douglass, Esq.
John A. Curran, Esq.

32