Labonte v. Epsom, NH, Town of et al

Filing 18

///ORDER granting Defendants' 13 Motion to Dismiss for Failure to State a Claim, and those claims (counts 6 and 7) are dismissed. The court declines to exercise supplemental jurisdiction over plaintiff's state common law claims (counts 1 through five), which are remanded to the New Hampshire Superior Court (Merrimack County). So Ordered by Judge Steven J. McAuliffe.(jbw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Lorraine J. LaBonte, Individually
and as the Administratrix of
the Estate of Allen Field,
Plaintiff
v.

Case No. 14-cv-529-SM
Opinion No. 2015 DNH 221

Town of Epsom, New Hampshire;
Dana Flanders; and Wayne Preve,
Defendants
O R D E R
On July 7, 2013, Allen Field died from injuries sustained in
an automobile accident after he lost control of his car, which
then struck a tree at a high rate of speed.

At the time, Field

was attempting to evade Officer Dana Flanders, an Epsom, New
Hampshire, police officer.

The administratrix of Field’s estate

brings this suit against Officer Flanders, the Town of Epsom, and
its Chief of Police, Wayne Preve.

In her second amended

complaint, plaintiff advances two constitutional claims, over
which this court has federal question jurisdiction.
U.S.C. § 1331.

See 28

She also advances five common law claims, over

which she asks the court to exercise supplemental jurisdiction.
See 28 U.S.C. § 1367.

Pending before the court is defendants’ motion to dismiss
the two federal claims advanced against them, asserting that

neither states a viable cause of action.
12(b)(6).

See Fed. R. Civ. P.

Defendants also move the court to remand plaintiff’s

remaining common law claims to state court.

For the reasons

discussed, defendants’ motion is granted.

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).

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Bell Atl. Corp. v.

Instead, the facts alleged in

the complaint must, if credited as true, be sufficient to
“nudge[] [plaintiff’s] claims across the line from conceivable to
plausible.”

Id. at 570.

If, however, the “factual allegations

in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”

Tambone, 597 F.3d at 442.

Background
Accepting the second amended complaint’s factual allegations
as true — as the court must at this juncture — the relevant
background is a follows.

In the early morning of July 7, 2013,

Officer Flanders was on patrol in the Town of Epsom.

He was

driving a marked Ford Crown Victoria police cruiser.

At

approximately 12:55 AM, he observed “more than usual” light
behind the Epsom Central School and went to investigate.
Amended Complaint (document no. 12) at para. 13.

Second

As he proceeded

down the driveway to the school, Officer Flanders saw a vehicle
traveling at a high rate of speed in an easterly direction on
Water Street.

He did not recognize the driver, nor could he

identify the make or model of the vehicle.

The only

distinguishing feature he was able to discern was the vehicle’s
“blue headlights.”

See Id. at paras. 15, 41.

being driven by the decedent, Allen Field.

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That vehicle was

Officer Flanders activated his emergency lights and began
pursuing the vehicle.

Field refused to stop.1

Officer Flanders

followed the vehicle onto Black Hall Road, which had a posted
speed limit of thirty-five miles per hour (35 mph).

At one point

during his pursuit of Field, Officer Flanders passed a slowermoving vehicle, at which time he was traveling at least sixty
miles per hour (60 mph).

Id. at para. 34.

Field then turned

onto New Rye Road, at which point Flanders says he “stopped
trying catch up to the vehicle.”

Id. at para. 43 (citing

Flanders’ deposition testimony).

Nevertheless, the complaint

alleges that Officer Flanders continued his high-speed pursuit of
the vehicle until he reached the area near 241 New Rye Road.
at para. 44.

Id.

There, Officer Flanders discovered that Field had

lost control of his vehicle and collided with a tree.
bleeding and unresponsive.

Field was

Officer Flanders checked Field for a

pulse, but was unable to detect any.

He then contacted the

dispatch officer, reported the accident, and asked that emergency
responders be sent to the scene.

Shortly thereafter, Field was

pronounced dead.

1

According to the complaint, Field had a “history of
driving infractions” and had received “several motor vehicle
warnings and/or citations” from various Epsom police officers.
Id. at paras. 19-20. The complaint implies that Field may have
been concerned that if he stopped and if he had been ticketed for
speeding by Officer Flanders, his driver’s license may have been
suspended. Id.
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Discussion
As noted above, the second amended complaint advances two
federal constitutional claims.

In the first, plaintiff alleges

that Officer Flanders violated Field’s constitutionally protected
right to substantive due process by engaging in conscienceshocking behavior that proximately caused Field’s death.

Next,

plaintiff asserts that the Town of Epsom had a “practice or
custom of failing to adequately ensure proper training” of its
police officers — a failure that amounted to deliberate
indifference to the health, safety, and welfare of Epsom
residents, including Field.

I.

Officer Flanders - Substantive Due Process.
The complaint alleges that Officer Flanders violated town

policy by initiating (and maintaining) an “unwarranted” pursuit
of Field, and violated various state laws during the course of
that pursuit.

Id. at paras. 86, 124.

It goes on to assert that

Officer Flanders’ “decision to conduct a dangerous, reckless,
high-speed pursuit absent justification was made with callous
indifference to Field’s constitutional rights.”
128.

Id. at para.

And, finally, it alleges that “it was foreseeable that

Flanders’ unauthorized, high-speed pursuit would likely result in
the deprivation of Field’s constitutional right to life, and thus

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constituted conscious [sic] shocking behavior.”

Id. at para.

129.

As troubling as those allegations may be, they fail to state
a viable claim that Officer Flanders deprived Field of his
constitutionally protected right to substantive due process.

As

the Supreme Court has made clear — at least in the unusual
circumstances presented by police pursuits — allegations of
“deliberate indifference to [the suspect’s] survival,” or
“conscious disregard for [the suspect’s] safety,” or even
“reckless disregard for life” are, without more, insufficient to
state a viable substantive due process claim under the Fourteenth
Amendment.

County of Sacramento v. Lewis, 523 U.S. 833, 854

(1998) (Souter, J.).

In Lewis, the Court was presented with a case involving a
police officer’s high-speed pursuit of the operator of a
motorcycle.

That pursuit ended when the operator attempted to

take a sharp turn, his passenger fell off the back, and the
pursuing officer then collided with the fallen passenger,
inflicting massive injuries that caused the passenger’s death.
In addressing the plaintiff’s claim that the officer violated the
decedent’s constitutionally protected right to substantive due
process, the Court reiterated its longstanding admonition that

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the Fourteenth Amendment’s Due Process Clause is not a “font of
tort law to be superimposed upon whatever systems may already be
administered by the States.”

Id. at 848 (citation omitted).

The

Court explained that:
We have emphasized time and again that the touchstone
of due process is protection of the individual against
arbitrary action of government.
* * *
To this end, for half a century now we have spoken of
the cognizable level of executive abuse of power as
that which shocks the conscience.
Id. at 845-46.

It then noted that it is only behavior at the far

end of “the culpability spectrum that would most probably support
a substantive due process claim; conduct intended to injure in
some way unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking
level.”

Id. at 849.

Turning to the facts of the case before it, the Court
concluded that they failed to support the conclusion that the
police officer’s conduct “shocked the conscience” in the
constitutional sense.
[The Officer] was faced with a course of lawless
behavior for which the police were not to blame. They
had done nothing to cause Willard’s high-speed driving
in the first place, nothing to excuse his flouting of
the commonly understood law enforcement authority to
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control traffic, and nothing (beyond a refusal to call
off the chase) to encourage him to race through traffic
at breakneck speed forcing other drivers out of their
travel lanes. Willard’s outrageous behavior was
practically instantaneous, and so was [the officer’s]
instinctive response. While prudence would have
repressed the reaction, the officer’s instinct was to
do his job as a law enforcement officer, not to induce
Willard’s lawlessness, or to terrorize, cause harm, or
kill. Prudence, that is, was subject to countervailing
enforcement considerations, and while [the officer]
exaggerated their demands, there is no reason to
believe that they were tainted by an improper or
malicious motive on his part.
Lewis, 523 U.S. at 855.

Consequently, the Court concluded that

allegations that a police officer caused another’s “death through
deliberate or reckless indifference to life in a high-speed
automobile chase aimed at apprehending a suspected offender” are,
without more, insufficient to state a claim under the Fourteenth
Amendment.

Id. at 836.

Instead, “only a purpose to cause harm

unrelated to the legitimate object of arrest will satisfy the
element of arbitrary conduct shocking to the conscience,
necessary for a due process violation.”

Id.

See also Id. at 854

(“Accordingly, we hold that high-speed chases with no intent to
harm suspects physically or to worsen their legal plight do not
give rise to liability under the Fourteenth Amendment,
redressible by an action under § 1983.”).

Here, the complaint lacks any allegation that Officer
Flanders acted with “an intent to harm” Field “unrelated to the

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legitimate object of arrest.”

Indeed, given the facts alleged,

it is hard to imagine how plaintiff could plausibly (and in good
faith) make such a claim.

While the complaint asserts that Field

was well-known to officers in the Epsom Police Department (and
implicitly suggests that Officer Flanders recognized Field,
understood his motivation to flee, and sought somehow to “worsen
his legal plight”), it also plainly states Officer Flanders did
not know Field was operating the vehicle he was pursuing.

Until

he came upon the accident scene, Officer Flanders did not know
who was operating the vehicle, nor could he even describe the
vehicle (beyond the fact that it had “blue headlights”).

See

Second Amended Complaint at paras. 15 and 41.2

Given the absence of factual allegations that would
plausibly support the assertion that Officer Flanders intended to
harm Field unrelated to the legitimate object of arrest, the
second amended complaint fails to state a viable claim that he

2

Plaintiff places substantial weight on her claim that
Officer Flanders violated Town policy in pursuing Field and may
have also violated various state laws applicable to police
pursuits (e.g., the requirement that officers activate both
emergency lights and a siren during a pursuit). But, even
assuming the truth of those allegations, and even assuming they
might support a claim of “deliberate indifference,” they do not
rise to the requisite level of “conscience-shocking” behavior.
See Lewis, 523 U.S. at 855. See also Boveri v. Town of Saugus,
113 F.3d 4, 7 (1st Cir. 1997); Steen v. Myers, 486 F.3d 1017,
1023-24 (7th Cir. 2007); Ward v. City of Bos., 367 F. Supp. 2d 7,
13-14 (D. Mass. 2005) (collecting cases).
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violated Field’s Fourteenth Amendment right to substantive due
process.

II.

Consequently, that count is subject to dismissal.

The Town of Epsom - Unconstitutional Custom or Policy.
Next, plaintiff alleges that the Town of Epsom “had a

practice or custom of failing to adequately ensure proper
training regarding compliance with its Policy regarding police
pursuits.”

Second Amended Complaint, at para. 118.

Plaintiff

then asserts that, as a proximate result of the Town’s failure to
properly train its police officers, Officer Flanders, “while
acting under color of state law, initiated a reckless, high speed
pursuit of Allen Field.”

Id. at para. 120.

And, finally,

plaintiff alleges that Officer Flanders’ wrongful pursuit of
Field “ultimately resulted in Field’s death and a deprivation of
his constitutional right to life.”

Id. at para. 122.

Plaintiff

seeks to impose liability on the Town for its (allegedly)
constitutionally deficient custom or policy of inadequate police
training pursuant to 42 U.S.C. § 1983.

See also Monell v. New

York City Dept. of Social Services, 436 U.S. 658, 694 (1978)
(“[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.

Instead, it is when

execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.”).

Plaintiff’s constitutional claim against the Town of Epsom
can be resolved fairly quickly.

Because the second amended

complaint does not plausibly allege that Officer Flanders
violated Field’s constitutional rights, the Town cannot be liable
for having maintained an allegedly unconstitutional custom or
policy regarding officer training.

As the Supreme Court has

observed:
[N]either Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978), nor any other of our
cases authorizes the award of damages against a
municipal corporation based on the actions of one of
its officers when in fact the jury has concluded that
the officer inflicted no constitutional harm. If a
person has suffered no constitutional injury at the
hands of the individual police officer, the fact that
the departmental regulations might have authorized the
use of constitutionally excessive force is quite beside
the point.
Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (emphasis in
original).

See also Calvi v. Knox County, 470 F.3d 422, 429 (1st

Cir. 2006) (“We need not probe this point too deeply for —
regardless of the training afforded or the lack of training — it
is only when a governmental unit’s employee inflicts a
constitutional injury that the governmental unit can be held
liable under section 1983.

It follows that the inadequate

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training of a police officer cannot be a basis for municipal
liability under section 1983 unless a constitutional injury has
been inflicted by the officer or officers whose training was
allegedly inferior. “) (citations omitted).

Because the second amended complaint fails to state a viable
claim that Officer Flanders violated Field’s constitutional
rights, plaintiff’s claim against the Town for having maintained
a constitutionally deficient custom or policy necessarily fails.

III. Plaintiff’s State Common Law Claims.
There is no suggestion in the pleadings that the court may
properly exercise subject matter jurisdiction over plaintiff’s
state law claims pursuant to 28 U.S.C. § 1332 (diversity of
citizenship).

Consequently, having concluded that defendants are

entitled to dismissal of the two federal claims advanced in the
second amended complaint, the court must next determine whether
it is appropriate to exercise supplemental jurisdiction (formerly
known as “pendent jurisdiction”) over plaintiff’s claims of
negligence and wrongful death.

See generally 28 U.S.C. § 1367.

Section 1367 provides that the court may decline to exercise
supplemental jurisdiction over a plaintiff’s state law claim
when:

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(1)

the claim raises a novel or complex issue of State
law,

(2)

the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,

(3)

the district court has dismissed all claims over
which it has original jurisdiction, or

(4)

in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c) (emphasis supplied).

To assist district

courts, the Court of Appeals for the First Circuit has identified
the following additional factors that should be considered when
determining whether to exercise supplemental jurisdiction over
state law claims: (1) the interests of fairness; (2) judicial
economy; (3) convenience; and (4) comity.

See Camelio v.

American Fed’n, 137 F.3d 666, 672 (1st Cir. 1998).

And, with

regard to principles of fairness and comity, the Supreme Court
has observed:
Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal
claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote
omitted).

See also Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 350 n. 7 (1988) (“[I]n the usual case in which all federal-

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law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine — judicial
economy, convenience, fairness, and comity — will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”); Rivera-Diaz v. Humana Ins. of P.R., 748 F.3d 387, 392
(1st Cir. 2014) (upholding district court’s decision declining to
exercise supplemental jurisdiction).

Because the court has dismissed all federal claims in
plaintiff’s second amended complaint, and given that this case is
at an early stage in the litigation, and taking into
consideration the remaining factors identified in Camelio, the
court declines to exercise supplemental jurisdiction over
plaintiff’s state law claims.

Conclusion
For the foregoing reasons, plaintiff’s second amended
complaint fails to plausibly allege the essential elements of
viable federal claims against Officer Flanders or the Town of
Epsom.

Accordingly, defendants’ motion to dismiss (document no.

13) is granted and those claims (counts six and seven) are
dismissed.

The court declines to exercise supplemental

jurisdiction over plaintiff’s state common law claims (counts one

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through five), which are remanded to the New Hampshire Superior
Court (Merrimack County).

The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
December 3, 2015
cc:

John J. Cronin, III, Esq.
Peter M. Durney, Esq.
Andrew B. Livernois, Esq.

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