Censabella v. Weare, NH, Town of et al

Filing 32

///ORDER granting in part and denying in part 13 Motion to Dismiss. So Ordered by Magistrate Judge Andrea K. Johnstone.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lisa Censabella
v.

Civil No. 16-cv-490-AJ
Opinion No. 2017 DNH 182

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.

Brandon

Montplaisir, a WPD officer, is named as a defendant in seven of
those counts: Counts I, IV, V, VI, VIII, IX, and X.

Montplaisir

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 him upon which relief may be granted.
Doc. no. 13.
exception.

Censabella objects, subject to one limited
Doc. no. 18.

For the reasons that follow,

Montplaisir’s motion is granted in part and denied in part.

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

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
Many of the general factual allegations relevant to
Censabella’s claims against Montplaisir are recited in narrative
form in the court’s companion order on defendant Shelia
Savaria’s motion to dismiss.
Memorandum (doc. no. 31).

See Sept. 6, 2017 Order and

The court incorporates that narrative

herein by reference, and limits its present discussion to a
recitation of the specific allegations Censabella makes against
2

Montplaisir.2

These allegations are drawn from Censabella’s

complaint and certain documents attached to Montplaisir’s motion
to dismiss.3

When viewed in the light most favorable to

Censabella, they are as follows:


Censabella surmised that Montplaisir was part of a
conspiracy against then-WPD lieutenant James Carney.



Montplaisir started to “target” Censabella due to the
perception that she was close to Carney and was “leaking”
information to him.



In or around December 2013, Montplaisir told a Police
Explorer that Censabella was a “shitty cop who did not
know what she was doing.”

Doc. no. 1-1 ¶ 8.

Montplaisir

later denied making this statement when Censabella
confronted him about it.


In summer 2014, then-WPD sergeant Kenneth Cox informed

This recitation will accordingly assume familiarity with
the factual narrative in the companion order.
2

These documents are: (1) a letter, signed by Censabella,
entitled “Personnel Entry, Order of Suspension and Conditions of
Continued Employment” (doc. no. 13-2), and (2) a redacted
version of a charge of discrimination Censabella filed with the
New Hampshire Commission for Human Rights (doc. no. 13-3).
Censabella contends that the court may not consider these
documents without converting Montplaisir’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).
3

3

Censabella that certain members of the WPD, including
Montplaisir, believed that Censabella was leaking
information to Carney.


In January 2015, Montplaisir informed a Weare animal
control officer that Censabella had been suspended and
would not be returning to the WPD.



In March 2015, Censabella started crying uncontrollably
when approached at a bar by Carney, telling Carney that
she could not speak with him because she had “become the
target” of several WPD officers, including Montplaisir,
for not filing a false report against Carney.



In early July 2015, several officers, including
Montplaisir, read aloud in front of Censabella from a
lawsuit that Carney had filed against them in state
court.

As they read the lawsuit, Montplaisir became

increasingly angry and “glared” at Censabella.
Montplaisir yelled, “Carney is a piece of shit and anyone
who talks to him is a piece of shit.”

Id. ¶ 115.

Later

in the day, Censabella started crying when speaking with
Cox about the incident.

When Censabella arrived at work

the following day, someone had placed a box of tissues in
her mailbox.


In late July and early August 2015, several WPD officers,
including Montplaisir, orchestrated “an onslaught of
4

false allegations, untrue statements, and . . . internal
affairs investigations” against Censabella.

Id. ¶ 121.

These actions resulted in Censabella being placed on
unpaid administrative leave.


In September 2015, Censabella filed charges of
discrimination against several WPD officers, including
Montplaisir, with the New Hampshire Commission for Human
Rights (“NHCHR”) and the United States Equal Employment
Opportunity Commission (“EEOC”).



See doc. no. 13-3.

At the October 5, 2015 hearing before the Board, WPD
chief Sean Kelly indicated that he based his
recommendation to terminate Censabella’s employment in
part on a finding that Censabella had failed to issue a
“be on the lookout” (“BOLO”) broadcast after a road rage
incident.

Censabella had already located, identified,

and interviewed the suspect of this incident, and
therefore did not believe the BOLO broadcast was
necessary.

Montplaisir ignored Censabella and issued the

BOLO broadcast anyway. Kelly relied upon Montplaisir’s
statements regarding this incident in reaching his
recommendation of termination.


After Censabella’s employment was terminated, her
personal belongings went missing.

These belongings were

in the possession of Montplaisir and another WPD officer.
5

An investigation was ultimately sustained in part against
Montplaisir and the other officer for failing to properly
secure Censabella’s personal property.4

Discussion
Censabella brings claims against Montplaisir 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).

Montplaisir moves to

dismiss each of these counts for failure to state a claim.
Censabella concedes that she has not stated a claim for
negligent infliction of emotional distress, see infra pp. 11,

Censabella makes two additional allegations against
Montplaisir: (1) that another WPD officer filed a sexual
harassment complaint against Montplaisir in early 2013 for
making inappropriate comments about Carney and (2) that the New
Hampshire Attorney General’s office expressed “grave concerns”
regarding Montplaisir’s credibility following an investigation
into a shooting death in which Montplaisir was involved. As
neither of these allegations appears to involve Censabella, the
court will not consider them in the context of this order.
4

6

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, 118 A.3d 253, 259
(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 New Hampshire, No. 10cv-500-PB, 2011 WL 4566111, at *5 (D.N.H. Sept. 30, 2011).
Censabella has failed to state a viable claim against
Montplaisir for tortious interference with contractual
relations.

The only of Censabella’s allegations against

Montplaisir approaching this type of claim is her contention
that Kelly relied upon Censabella’s failure to issue the BOLO
broadcast in recommending that Censabella be terminated.
7

But

beyond the assertion that Montplaisir ultimately issued the BOLO
broadcast himself, it is unclear how Montplaisir was otherwise
involved in this incident.

As such, Censbella’s contention that

Kelly relied upon Montplaisir’s statements regarding this
incident in reaching his recommendation does not support a
plausible inference that in making these statements, Montplaisir
intentionally and improperly interfered with Censabella’s
employment.
To the extent Censabella relies upon her more general
allegations that Montplaisir was part of the conspiracy, that he
believed Censabella was leaking information to Carney, and that
he targeted Censabella, this reliance, too, is misplaced.

These

allegations are little more than “labels and conclusions” and
“naked assertions devoid of further factual enhancement” that
are insufficient to defeat a motion to dismiss.

Iqbal, 556 U.S.

at 679 (brackets and quotation marks omitted).
For these reasons, Montplaisir’s motion 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
8

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 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’s general allegations against Montplaisir fail
to sustain a claim against him for civil conspiracy for the
reasons stated in the court’s order on Savaria’s motion to
dismiss.

See Sept. 6, 2017 Order (doc. no. 31) at *10.

None of

Censabella’s specific allegations against Montplaisir mentioned
above resurrect this claim, as they do not support a plausible
inference that Montplaisir entered into an agreement with anyone
else on some “object to be accomplished” with respect to
Censabella.

Simply put, Censabella’s civil conspiracy claim

against Montplaisir is based on nothing more than conclusory
statements and innuendo.

This is not enough to survive a Rule

12(b)(6) motion, and Count IV must accordingly be dismissed as
to Montplaisir.
9

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
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 alleges that Montplaisir told a Police Explorer
that Censabella was “a shitty cop who did not know what she was
doing.”

Censabella further alleges that while reading Carney’s

lawsuit aloud in front of Censabella, Montplaisir “glared” at
Censabella and told her that “Carney is a piece of shit and
anyone who talks to him is a piece of shit.”

Whether these

allegations are sufficient to sustain an IIED claim is a close
issue, and the court is not unpersuaded by Montplaisir’s
10

contention that they fail to rise to the level of extreme and
outrageous conduct necessary to support recovery on an IIED
theory.

The court nevertheless declines to dismiss this claim

now, concluding that that Censabella has minimally pleaded IIED
against Montplaisir such that this claim may proceed.
Montplaisir’s motion is accordingly denied as to Count V.
IV.

Count VI: Negligent Infliction of Emotional Distress
Censabella concedes that she has not stated a claim for

negligent infliction of emotional distress.

Montplaisir’s

motion is accordingly granted as to Censabella’s negligent
infliction of emotional distress claim for the reasons stated in
the order on Savaria’s motion to dismiss.

See Sept. 6, 2017

Order (doc. no. 31) at *11-12.
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
11

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
omitted).
Censabella’s substantive due process claim is based solely
on allegations of verbal harassment by Montplaisir.

Though the

First Circuit has left open the possibility that “verbal
harassment and intimidation might, under appropriate
circumstances, be found to violate due process,” Cruz-Erazo v.
Rivera-Montanez, 212 F.3d 617, 624 (1st Cir. 2000), Censabella
has failed to cite, and the court cannot identify, any case in
which a substantive due process claim was allowed to proceed on
allegations similar to those against Montplaisir in this case.
Indeed, the First Circuit has declined to find such a violation
when presented with facts far more egregious than those alleged
here.

See id. (finding no substantive due process violation

when an off duty police officer refused for months to vacate a
residence owned by the plaintiffs, threatened and harassed the
plaintiffs, destroyed the plaintiffs’ property, and physically
pushed the plaintiffs’ pregnant daughter, causing her to
miscarry).

Absent any authority to the contrary, the court is
12

compelled conclude that Censabella has failed to state a viable
substantive due process claim against Montplaisir.5
B.

Procedural Due Process and Freedom of Speech

Censabella’s procedural due process and freedom of speech
claims against Montplaisir are virtually identical to the claims
she brought against Savaria, and none of the Censabella’s
additional allegations against Montplaisir alter the court’s
analysis of these claims in its order on Savaria’s motion to
dismiss.

Both of these claims therefore fail for the reasons

stated in that order.

See Sept. 6, 2017 Order (doc. no. 31) at

*13–15.
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’s denial of Montplaisir’s motion with respect to
Censabella’s IIED claim does not save Censabella’s substantive
due process claim against Montplaisir. Indeed, there are
multiple examples in this circuit of trial courts dismissing
substantive due process claims while allowing IIED claims to go
forward. See, e.g., Thomas v. Town of Salisbury, 134 F. Supp.
3d 633, 648, 652 (D. Mass. 2015); Correia v. Town of Framingham,
969 F. Supp. 2d 89, 96–97, 99–100 (D. Mass. 2013).
5

13

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 Montplaisir for largely the same reasons she
failed to state a claim for civil conspiracy against Montplaisir
under New Hampshire common law: namely, that her assertions that
Montplaisir 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 Montplaisir ever
entered into an agreement with anyone else to inflict some wrong
against Censabella.

Censabella has therefore failed adequately

allege a civil rights conspiracy against Montplaisir under §
1983.
VII. Count X: RSA § 354-A
Montplaisir raises two arguments as to why the court should
dismiss Censabella’s RSA § 354-A claim.

First, he argues that

Censabella failed to exhaust her administrative remedies because
she did not name Montplaisir as an individual respondent in her
NHCHR charge of discrimination.

This argument is identical to

the argument raised by Savaria in her motion to dismiss, and the
court rejects it for the reasons stated in the order on that
14

motion.

See Sept. 6, 2017 Order (doc. no. 31) at *16–18.

Alternatively, Montplaisir contends that Censabella has failed
to state a claim against him under RSA § 354-A.

This argument,

which comprises just one paragraph and is summary in nature, is
insufficiently developed to warrant dismissal at this time.
Montplaisir’s motion is therefore denied as to Count X.6

Conclusion
For the foregoing reasons, Montplaisir’s motion to dismiss
(doc. no. 13) is granted as to Counts I, IV, VI, VIII, and IX,
but denied as to Count V and X.
SO ORDERED.

__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 7, 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 attached to Censabella’s
objection may be properly considered in the context of a Rule
12(b)(6) analysis. See doc. nos. 18-1, 18-2, 18-3, 18-4, 18-5,
18-6, 18-7, 18-8, 18-9, and 18-10.
6

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