Censabella v. Weare, NH, Town of et al

Filing 31

///ORDER granting in part and denying in part 12 Motion to Dismiss. Savaria's motion to dismiss is granted as to all counts except Count X. So Ordered by Magistrate Judge Andrea K. Johnstone.(vln) Modified on 9/6/2017 to add: "denying in part" (vln).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Lisa Censabella
v.

Civil No. 16-cv-490-AJ
Opinion No. 2017 DNH 181

Town of Weare, et al.1

ORDER AND MEMORANDUM
The plaintiff, Lisa Censabella, alleges that various
employees of the Town of Weare Police Department (“WPD”) and
members Board of Selectmen (“Board”) were complicit in a
conspiracy that ultimately resulted in Censabella’s termination
as a WPD employee.

She brings a ten-count complaint alleging

various violations of federal and state law.

Sheila Savaria, an

officer with the WPD, is named as a defendant in seven of those
counts: Counts I, IV, V, VI, VIII, IX, and X. Savaria moves to
dismiss each count pursuant to Federal Rule of Civil Procedure
12(b)(6) on the basis that Censabella has failed to state a
claim against her upon which relief may be granted.
12.

Doc. no.

Censabella objects, subject to one limited exception.

Doc.

The Town of Weare, Sean Kelly, Frank Hebert, Kimberly
McSweeney, Brandon Montplaisir, Kenneth Cox, Shelia Savaria,
Naomi Bolton, Thomas Clow, Keith Lacasse, James Leary, Jennifer
Bohl, and Frederick W. Hippler. The individual defendants have
all been sued in both their official and personal capacities.
1

no. 19.

For the reasons that follow, Savaria’s motion is

granted as to all counts except Count X.

Standard of Review
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations . . . set forth a plausible claim upon which
relief may be granted.”

Foley v. Wells Fargo Bank, N.A., 772

F.3d 63, 71 (1st Cir. 2014) (citation and quotation marks
omitted).

A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

Analyzing plausibility is “a context-specific task” in

which the court relies on its “judicial experience and common
sense.”

Id. at 679.

Background
The facts recited in this section are drawn from
Censabella’s complaint and certain documents attached to
Savaria’s motion to dismiss.2

When viewed in the light most

These documents are: (1) a letter, signed by Censabella,
entitled “Personnel Entry, Order of Suspension and Conditions of
2

2

favorable to Censabella, the relevant facts are as follows.3
Censabella was a police officer with the WPD.

She was

hired by the WPD as a part-time officer in August 2009,
transitioning to full time in August 2010.

Beginning in late-

February 2013, Kenneth Cox, then a sergeant with the WPD, and
Kimberly McSweeney, then the WPD’s union steward, separately
approached Censabella and requested that she draft a statement
of misconduct against then-WPD lieutenant James Carney.
had previously been Censabella’s supervisor.

Carney

Censabella stated

that she had not observed any misconduct by Carney and refused
both requests.

Soon after these conversations, Carney was

placed on administrative leave, and the Town of Weare (“Town”)
issued a “no contact” order prohibiting any WPD officer from
communicating with Carney.

Carney ultimately left the WPD on or

Continued Employment” (doc. no. 12-2); (2) a memorandum Savaria
wrote regarding an investigation of a traffic incident (doc. no.
12-3); and (3) a redacted version of a charge of discrimination
Censabella filed with the New Hampshire Commission for Human
Rights (doc. no. 12-4). Censabella contends that the court may
not consider these documents without converting Savaria’s motion
into one for summary judgment. The court disagrees, as each of
these documents is explicitly referenced in Censabella’s
complaint and is central to one or more of her claims for
relief. See Brennan v. Zafgen, Inc., 853 F.3d 606, 610 (1st
Cir. 2017) (original bracketing omitted) (citation omitted).
Though Censabella’s complaint is expansive, her
allegations against Savaria are discrete. The court will focus
its recitation of the facts accordingly, providing additional
factual context only to the extent necessary.
3

3

about July 1, 2013.
Censabella viewed Cox and McSweeney’s actions to be part of
a conspiracy against Carney.
of this conspiracy.

She surmised that Savaria was part

Over the course of the next several years,

members of this conspiracy targeted Censabella due to the
perception that she remained close to and was communicating with
Carney.

At one point, Cox informed Censabella that Savaria,

among others, believed that Censabella was “leaking” information
to Carney.

On another occasion, Carney approached Censabella at

a bar and Censabella started crying uncontrollably, telling
Carney that she could not speak with him because she had “become
the target” of several WPD officers, including Savaria, for not
filing a false report against Carney.

The behavior of the

members of the conspiracy caused Censabella emotional and
psychological distress.
On December 29, 2014, Censabella was placed on
administrative leave.

The Board held a hearing the following

week, after which Censabella was suspended for thirty days and
required to sign a “second chance agreement.”
2.

See doc. no. 12-

Censabella attributes this series of events to the

conspiracy against her.
Following her suspension, Censabella took a medical leave
of absence for hip replacement surgery.

When she returned to

work in May 2015, several WPD officers, including Savaria,
4

orchestrated “an onslaught of false allegations, untrue
statements, and . . . internal affairs investigations” against
her.

Doc. no. 1-1 ¶ 121.

As a result of these actions,

Censabella was again placed on administrative leave.4

Censabella

requested a hearing before the Board and, in September 2015,
filed charges of discrimination against several WPD officers,
including Savaria, with the New Hampshire Commission for Human
Rights (“NHCHR”) and the United States Equal Employment
Opportunity Commission (“EEOC”).

See doc. no. 12-4.

The Board held a hearing on October 5, 2015.

At this

hearing, Sean Kelly, then chief of the WPD, recommended that
Censabella be terminated.

Kelly based this recommendation in

part upon a finding that Censabella had gone to the hospital to
arrest the driver of a motor vehicle involved in a collision
without proper authorization to make the arrest.

Though

Censabella recalls McSweeney ordering her to make the arrest
while they were both at the scene of the collision, McSweeney
later prepared a written statement claiming that no such order

In her complaint, Censabella initially states that she was
placed on “paid administrative leave” on August 5, 2015. See
doc. no. 1-1 ¶ 122. Two paragraphs later, she states that she
was on “unpaid administrative leave” as of August 10, 2015. Id.
¶ 124. She does not explain how her leave shifted from “paid”
to “unpaid” in a matter of five days. For the purposes of this
order, the court will assume that the initial reference to
“paid” leave is a typographical error, and that Censabella was
in fact placed on unpaid leave as of August 5, 2015.
4

5

had been made.

Savaria was also at the scene, but not within

earshot of Censabella and McSweeney.

Savaria nevertheless

prepared a memorandum stating that she observed McSweeney “ask[]
Officer Censabella to meet Weare Rescue at the Concord Hospital
to investigate further, and make an arrest if she felt she had
probable cause to do so” but that “[a]t no point did [Savaria]
hear Sergeant McSweeney tell Officer Censabella to go to the
hospital specifically to arrest [the driver].” Doc. no. 12-3
(hereinafter the “memorandum”).
Censabella’s employment with the WPD was terminated
following the hearing.

This action followed.

Discussion
Censabella brings claims against Savaria for: (1)
interference with contractual relationships (Count I); (2) civil
conspiracy (Count IV); (3) intentional infliction of emotional
distress (Count V); (4) negligent infliction of emotional
distress (Count VI); (5) violations of substantive and
procedural due process and freedom of speech (Count VIII); (6)
conspiracy to violate substantive and procedural due process and
freedom of speech (Count IX); and (7) aiding and abetting and
retaliation in violation of New Hampshire Revised Statutes
Annotated (“RSA”) § 354-A (Count X).

Savaria moves to dismiss

each of these counts for failure to state a claim.
6

Censabella

concedes that she has not stated a claim for negligent
infliction of emotional distress, see infra p. 12, but otherwise
objects.
I.

The court considers each count in turn.

Count I: Tortious Interference with Contractual Relations
To succeed on a claim for tortious interference with

contractual relations, a plaintiff must demonstrate that “(1)
the plaintiff had an economic relationship with a third party;
(2) the defendant knew of this relationship; (3) the defendant
intentionally and improperly interfered with this relationship;
and (4) the plaintiff was damaged by such interference.”

City

of Keene v. Cleaveland, 167 N.H. 731, 738 (2015) (citation and
quotation marks omitted).

When, as here, the plaintiff alleges

interference by a fellow employee with her employment contract,
“[the] employer may be a third party only if the fellow employee
was acting outside of the scope of his employment.”

O'Neill v.

Valley Reg'l Health Care, Inc., No. 00-cv-441-JD, 2001 WL
276968, at *3 (D.N.H. Mar. 21, 2001) (citing, e.g., Preyer v.
Dartmouth Coll., 968 F.Supp. 20, 26 (D.N.H. 1997)); see also
Balsamo v. Univ. Sys. of N.H., No. 10-cv-500-PB, 2011 WL
4566111, at *5 (D.N.H. Sept. 30, 2011).
Censabella raises three basic categories of allegations
against Savaria.

First, she alleges that Savaria was, at least

in part, responsible for the “onslaught of false alelgations,
untrue statements, and . . . internal affairs investigations”
7

brought against Censabella.

Doc. no. 1-1 ¶ 121.

This

allegation is insufficient to establish a claim of tortious
interference with contractual relations, however, because
Censabella has not elaborated upon the nature of the purported
allegations, untrue statements, and internal investigations, let
alone Savaria’s involvement in them.

See Iqbal, 556 U.S. at 679

(noting that “naked assertions devoid of any further factual
enhancement” are insufficient to defeat a motion to dismiss
(brackets and quotation marks omitted)).
Next, Censabella’s suggests that Savaria interfered with
Censabella’s employment through her statements in the
memorandum.

This argument, too, is unavailing because

Censabella has failed to allege any facts that would support a
reasonable inference was Savaria was operating outside of the
scope of here employment with the WPD when she wrote the
memorandum.

See Aversa v. United States, 99 F.3d 1200, 1210

(1st Cir. 1996) (“An act is within the scope of employment under
New Hampshire law if it was authorized by the employer or
incidental to authorized duties; if it was done within the time
and space limits of the employment; and if it was actuated at
least in part by a purpose to serve an objective of the
employer.”).

Indeed, there is every indication here that the

opposite was true: the memorandum is written on WPD letterhead
and plainly relates to an investigation by the WPD in which
8

Savaria was an investigating officer.

See doc. no. 12-3.

Finally, Censabella generally contends that Savaria was
part of a conspiracy, that Savaria believed Censabella was
leaking information to Carney, and that Savaria was “targeting”
Censabella.

These arguments do not move the ball, as they are

little more than “labels and conclusions” unadorned by the sort
of factual backing sufficient to sustain a claim for relief.
See Iqbal, 56 U.S. at 678.

Thus, without more, these statements

are insufficient to defeat a motion to dismiss.
In sum, Censabella has failed to state a claim against
Savaria for tortious interference with contract relations.
Savaria’s motion to dismiss is granted as to Count I.
II.

Count IV: Civil Conspiracy
The court construes Count IV of Censabella’s complaint to

allege conspiracy under New Hampshire common law.

In New

Hampshire, a civil conspiracy is “a combination of two or more
persons by concerted action to accomplish an unlawful purpose,
or to accomplish some purpose not in itself unlawful by unlawful
means.”

Sykes v. RBS Citizens, N.A., 2 F. Supp. 3d 128, 138

(D.N.H. 2014) (internal quotation marks omitted) (quoting Jay
Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987)).

A claim for

civil conspiracy has the following elements:
(1) two or more persons (including corporations); (2) an
object to be accomplished (i.e. an unlawful object to be
achieved by lawful or unlawful means or a lawful object to
9

be achieved by unlawful means); (3) an agreement on the
object or course of action; (4) one or more unlawful overt
acts; and (5) damages as the proximate result thereof.
Id. (internal quotation marks omitted) (quoting Jay Edwards, 130
N.H. at 47).
Censabella alleges, without further elaboration, that she
surmised that Savaria was part of the conspiracy, that Savaria
“targeted” Censabella, and that Savaria was in part responsible
for the “an onslaught of false allegations, untrue statements,
and . . . internal affairs investigations” made or brought
against Censabella.

“Such conclusory statements are not

entitled to the assumption of truth,” Maldonado v. Fontanes, 568
F.3d 263, 268 (1st Cir. 2009) (internal quotation marks omitted)
(quoting Iqbal, 556 U.S. at 679), and accordingly cannot
themselves sustain a civil conspiracy claim against Savaria.
Beyond these statements, there are no factual allegations in the
complaint supporting a plausible inference that Savaria ever
reached an agreement with another member of the WPD or anyone
else to achieve some goal (either unlawful itself or achieved
though unlawful means) that proximately resulted in damage to
Censabella.

Censabella has therefore not stated a claim against

Savaria in Count IV.
III. Count V: Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional
distress (“IIED”), a plaintiff must allege that a defendant “by
10

extreme and outrageous conduct, intentionally or recklessly
caused severe emotional distress to another.”

Tessier v.

Rockefeller, 162 N.H. 324, 341 (2011) (citation omitted).

“In

determining whether conduct is extreme and outrageous, it is not
enough that a person has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by
malice.”

Id. (citation omitted).

“Rather, liability has been

found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.”

Id.

(brackets,

quotation marks, and citation omitted).
Censabella has plainly failed to allege any facts in her
complaint which, when assumed true, support a plausible
inference that Savaria intentionally or recklessly caused
Censabella severe emotional distress by engaging in extreme and
outrageous conduct.

Indeed, there is no allegation against

Savaria in her complaint even approaching the sort of extreme
and outrageous conduct that, if proven, would allow recovery
under an IIED theory.

For this reason, Count V is dismissed as

brought against Savaria.
IV.

Count VI: Negligent Infliction of Emotional Distress
In her objection, Censabella concedes that her count for
11

negligent infliction of emotional distress “should be dismissed
against all defendants.”

Doc. no. 19 at 6.

Savaria’s motion is

accordingly granted as to this count.5
V.

Count VIII: Due Process and Freedom of Speech
Censabella alleges claims under 42 U.S.C. § 1983 for

violations of substantive due process, procedural due process,
and freedom of speech.
A.

The court considers each in turn.

Substantive Due Process

“In order to assert a viable substantive due process claim,
a plaintiff has to prove that [she] suffered the deprivation of
an established life, liberty, or property interest, and that
such deprivation occurred through governmental action that
shocks the conscience.”

Najas Realty, LLC v. Seekonk Water

Dist., 821 F.3d 134, 145 (1st Cir. 2016) (citation and quotation
marks omitted).

“The burden to show state conduct that shocks

the conscience is extremely high, requiring stunning evidence of
arbitrariness and caprice that extends beyond mere violations of
state law, even violations resulting from bad faith to something
more egregious and more extreme.”

J.R. v. Gloria, 593 F.3d 73,

80 (1st Cir. 2010) (brackets, quotation marks, and citation

As this order is limited to Savaria’s motion, and
Censabella has neither filed a stipulation of dismissal under
Rule 41(a)(1)(ii) nor requested that the court enter an order
dismissing Count VI as to the remaining defendants under Rule
41(a)(2), the court declines to dismiss this count against the
remaining defendants at this time.
5

12

omitted).
Here, there is nothing in Censabella’s allegations against
Savaria that can fairly viewed to “shock the conscience” as that
phrase is understood under First Circuit precedent.

Cf. Cruz-

Erazo v. Rivera-Montanez, 212 F.3d 617, 624 (1st Cir. 2000)
(finding no substantive due process violation as a matter of law
when an off duty police officer threatened and harassed the
plaintiffs, destroyed their property, and physically pushed the
plaintiffs’ pregnant daughter, causing her to miscarry).
Censabella has therefore failed to plausibly allege a
substantive due process violation by Savaria.
B.

Procedural Due Process

To state a claim for procedural due process, a plaintiff
“must allege facts which, if true, establish that [she] (1) had
a property interest of constitutional magnitude and (2) was
deprived of that property interest without due process of law.”
Miller v. Town of Wenham Massachusetts, 833 F.3d 46, 52 (1st
Cir. 2016) (citation omitted).

Even assuming that Censabella

had a property interest of constitutional magnitude in her
employment with the WPD and did not receive adequate process
from the WPD and/or the Board, she has nonetheless failed to
allege any facts from which the court can infer that Savaria was
in any way involved in that deprivation.

For instance, there is

no suggestion in the complaint that Savaria was Censabella’s
13

supervisor or that she had any direct role in the proceedings
that ultimately resulted in Censabella’s termination.
Censabella has accordingly failed to state a procedural due
process claim against Savaria.
C.

Freedom of Speech

Savaria assumes in her motion to dismiss that Censabella’s
free speech claim is premised solely upon the “no contact” order
imposed by the Town.

Though Censabella does not directly refute

this in her objection, she does appear to suggest that she was
retaliated against for “refusing to say something” – presumably
her refusal to file misconduct reports against Carney.

The

court will therefore consider both the “no contact” order and
Censabella’s allegation of retaliation.
As with Censabella’s procedural due process claim, there
are simply no allegations of fact in Censabella’s complaint that
support a plausible inference that Savaria had anything to do
with the “no contact” order.

Censabella does not allege, for

example, that Savaria had the authority to institute or enforce
this order, or indeed how, if at all, Savaria was connected to
the “no contact” order in the first place.

Censabella therefore

cannot sustain a free speech claim against Savaria based on the
“no contact” order.
Censabella’s retaliation claim is similarly deficient.

To

succeed on a First Amendment retaliation claim under § 1983, a
14

plaintiff must establish that:
(1) [s]he was speaking as a citizen on a matter of public
concern; (2) [her] interests, as a citizen, in commenting
upon matters of public concern outweighed [her] employer's
interest in promoting the efficiency of the public services
it performs through its employees; and (3) the protected
expression was a substantial or motivating factor in the
adverse employment decision.
McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016)
(citation and internal quotation marks omitted).6

Even assuming

Censabella can generally establish these elements in this case,
she has failed to explain how Savaria is liable under this
theory, as she has not alleged that Savaria had any authority
over Censabella’s employment with the WPD.

Thus, Censabella has

failed to state a First Amendment retaliation claim against
Savaria.
VI.

Count IX: Civil Rights Conspiracy
A civil rights conspiracy is a “combination of two or more

persons acting in concert to commit an unlawful act, or to
commit a lawful act by unlawful means . . . .”

Earle v. Benoit,

850 F.2d 836, 844 (1st Cir. 1988) (citation omitted).

The

principal element of such a conspiracy “is an agreement between
the parties to inflict a wrong against or injury upon another,
and an overt act that results in damages.”

Id. (internal

The court assumes for the purposes of this order that
these elements equally apply when a plaintiff is retaliated
against for refusing to speak.
6

15

quotations omitted) (citation omitted).

To assert a civil

rights conspiracy under § 1983, a plaintiff must prove that
“there has been, besides the agreement, an actual deprivation of
a right secured by the Constitution and laws.”

Id. (brackets

omitted) (citation omitted).
Censabella has failed to state a civil rights conspiracy
claim against Savaria for largely the same reasons she failed to
state a claim for civil conspiracy against Savaria under New
Hampshire common law: namely, that her assertions that Savaria
was part of a conspiracy rest on nothing more than unsupported
conclusions.

There is, quite simply, nothing in the complaint

to support a plausible inference that Savaria ever entered into
an agreement with anyone else to inflict some wrong against
Censabella.

She has therefore failed adequately allege a civil

rights conspiracy under § 1983.
VII. Count X: RSA § 354-A
Savaria moves to dismiss Censabella’s RSA § 354-A claim on
the basis that Censabella failed to exhaust her administrative
remedies because she did not name Savaria as an individual
respondent in her NHCHR charge of discrimination.

Censabella

does not dispute this contention,7 but argues that it is not
grounds for dismissal this claim.

It is plain from the charge of discrimination itself that
Savaria is not individually named. See doc. no. 12-4.
7

16

Though the New Hampshire Supreme Court has not considered
whether the failure to name an individual as a respondent in an
administrative complaint bars a later cause of action against
that individual under RSA § 354-A, this issue has recently been
before at least two other judges in this district.

In February

2017, Judge McCafferty concluded, relying on authority
interpreting similar charging requirements under Title VII of
the Civil Rights Act, that the failure to identify an individual
defendant in the charge did not categorically bar a subsequent
claim against that defendant under RSA § 354-A. See Carney v.
Town of Weare, No. 15-cv-291-LM, 2017 WL 680384 at *7–8 (D.N.H.
Feb. 21, 2017).

Presented with a similar issue in a motion to

remand, Judge Barbadoro recently cited Carney approvingly,
concluding that “there is at least a reasonable possibility that
the New Hampshire Supreme Court would find [a] claim against [an
individual] is not barred by the administrative exhaustion
requirement” simply because that individual was not named in the
administrative complaint.

See Soderman v. Shaw's Supermarkets,

Inc., No. 17-cv-076-PB, 2017 WL 3738460, at *3 (D.N.H. Aug. 30,
2017).

The court is persuaded by the analysis in both of these

decisions, and accordingly declines to dismiss Censabella’s RSA
§ 354-A claim against Savaria on this basis.

17

Savaria’s motion

is therefore denied as to Count X.8

Conclusion
For the foregoing reasons, Savaria’s motion to dismiss
(doc. no. 12) is granted as to all counts except Count X.
SO ORDERED.

__________________________
Andrea K. Johnstone
United States Magistrate Judge

September 6, 2017
cc:

Wendy L. Spillane, Esq.
Tony F. Soltani, Esq.
Daniel P. Schwarz, Esq.
Brian J. S. Cullen, Esq.

In light of this determination, the court need not
consider whether certain documents that Censabella attaches to
her objection to a related motion to dismiss may be properly
considered in the context of a Rule 12(b)(6) analysis. See doc.
nos. 18-1 through 18-10.
8

18