Lath v. Manchester Police Department et al
///ORDER granting 137 Motion to Dismiss for Failure to State a Claim. The § 1983 claim that Lath asserts against the City in Cause 1 is dismissed. Dismissal, however, is without prejudice to Lath's filing a motion f or leave to amend his FAC, within 20 days of the date of this order, to assert a Monell claim against the City. In asserting such a claim, Lath must clearly identify (1) the alleged unconstitutional conduct of the [City]'s employees; and (2) how the employees' conduct was the result of a policy or custom of the [City]. If Lath does not file a motion for leave to amend within 20 days of the date of this order, or if he files such a motion but fails to adequately state a Monell claim, the court will dismiss Cause 1 with prejudice. So Ordered by Judge Landya B. McCafferty.(de) Modified on 10/20/2017 to add: /// (de).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-534-LM
Opinion No. 2017 DNH 225
Manchester Police Department,
Gerard Dufresne, BMS CAT, and
Amica Mutual Insurance Company
O R D E R
This case now consists of one federal claim against the
Manchester Police Department (“MPD”) and/or the City of
Manchester (“City”), brought through 42 U.S.C. § 1983, and state
law claims against all four defendants.
motion to dismiss filed by the MPD.
Before the court is a
reasons that follow, the motion to dismiss is granted.
Before turning to the merits of the pending motion, the
court notes that the docket entries in this case illustrate some
confusion over the identity of the municipal defendant.1
The heading of Lath’s First Amended Complaint (“FAC”)
lists “City of Manchester NH” as a defendant. Paragraph 2
refers to “Defendant, City of Manchester, New Hampshire, Police
Department,” while paragraph 3 refers to “Defendant City of
Manchester.” The heading of Cause 1 indicates that the claim
described therein is being asserted against the City, while two
paragraphs later, the FAC refers to “Defendant Manchester Police
Department,” FAC ¶ 120. Beyond that, the docket shows that Lath
served his original complaint on the City, see doc. no. 12,
which answered it, see doc. no. 20. However, the same
defendant’s answer to Lath’s FAC bears this caption: “Defendant
However, the court need not resolve that confusion because even
under the resolution most favorable to Lath, i.e., a
determination that the municipal defendant is the City rather
than the MPD,2 Lath’s § 1983 claim must be dismissed.
and notwithstanding its prior practice to the contrary, in the
balance of this order, the court will refer to the municipal
defendant as “the City.”
In Cause 1 of his First Amended Complaint (“FAC”), Lath
claims that the City violated his right to equal protection,
under the Fourteenth Amendment to the U.S. Constitution because:
(1) the MPD took 30 minutes to respond to a burglar alarm from
his unit at the Oak Brook Condominium (“Oak Brook”), but
responded more quickly to calls from other residents of Oak
Brook; (2) MPD officers refused to take information from him
when he reported three incidents, but responded promptly to
complaints from other Oak Brook residents; and (3) various MPD
records characterize him as a “mental subject.”
City of Manchester’s (Manchester Police Department) Answer to
Plaintiff’s First Amended Complaint.” Doc. no. 46, at 1. Then,
in document no. 111, Attorney Kevin Buchholz appeared as counsel
for the “City of Manchester,” while in document no. 139, he
withdrew as counsel for the “Manchester Police Department.”
Such a determination is more favorable to Lath because “a
municipality is subject to suit pursuant to 42 U.S.C. § 1983
[while] a municipal police department is not.” Petaway v. City
of New Haven Police Dep’t, 541 F. Supp. 2d 504, 510 (D. Conn.
2008) (citation omitted).
The City moves to dismiss, arguing that Lath has not stated
a claim for municipal liability under § 1983, and that even if
he has, he has not stated a cognizable equal protection claim.
The City’s first argument carries the day.
Section 1983 provides, in pertinent part, that “[e]very
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any citizen
of the United States . . . to the deprivation of any rights. . .
secured by the Constitution and laws, shall be liable to the
party injured in an action at law . . . .”
42 U.S.C. § 1983.
Moreover, despite the statute’s reference to “[e]very person
. . .” (emphasis added), it is well established that “a
municipality is subject to suit pursuant to 42 U.S.C. § 1983.”
Petaway v. City of New Haven Police Dept., 541 F. Supp. 2d 504,
510 (D. Conn. 2008).
However, the scope of municipal liability
under § 1983 is circumscribed by Monell v. Department of Social
Services, 436 U.S. 658 (1978).
As Judge Underhill explained in
[A] municipality may be liable for allegedly
unconstitutional acts of a municipal employee if [the
plaintiff] was subjected to the denial of his
constitutional rights as a result of an official
policy or custom. See Zahra v. Town of Southold, 48
F.3d 674, 685 (2d Cir. 1995). A municipality cannot
be held liable under 42 U.S.C. § 1983 solely on a
theory of respondeat superior. See Monell, 436 U.S.
at 694–95. There must be “a direct causal link
between a municipal policy or custom, and the alleged
constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989).
541 F. Supp. 2d at 514 (parallel citations omitted); see also
Burnham v. Dudley Dist. Court, Civ. Nos. 15-40031-DHH & 1540032-DHH, 2015 WL 5698418, at *2 (D. Mass. Sept. 28, 2015)
(“pleading a § 1983 claim against a municipality requires more
than enumerating the alleged wrong-doings of its employees . . .
[w]here the defendant is a municipality . . . the plaintiff must
show that the ‘execution of a government’s policy or custom
. . . inflict[ed] the injury’”) (quoting Monell, 436 U.S. at
Lath’s FAC does not state a Monell claim against the City.
He makes no allegations about any official policy or custom that
was the cause of the constitutional violations he claims.
Rather, he merely asserts that the City is liable for the
actions of various MPD officers on a theory of respondeat
superior, which is “[t]he doctrine holding an employer or
principal liable for the employee’s or agent’s wrongful acts
committed within the scope of the employment or agency,” Black’s
Law Dictionary 1505 (10th ed. 2014).
That, however, falls short
of stating a § 1983 claim against the City.
See Petaway, 541 F.
Supp. 2d at 514; Burnham, 2015 WL 5698418, at *2.
the § 1983 claim that Lath asserts against the City in Cause 1
Dismissal, however, is without prejudice to Lath’s filing a
motion for leave to amend his FAC, within 20 days of the date of
this order, to assert a Monell claim against the City.
asserting such a claim, Lath “must clearly identify (1) the
alleged unconstitutional conduct of the [City]’s employees; and
(2) how the employees’ conduct was the result of a policy or
custom of the [City].”
Burnham, 2015 WL 5698418, at *3
If Lath does not file a motion for leave to
amend within 20 days of the date of this order, or if he files
such a motion but fails to adequately state a Monell claim, the
court will dismiss Cause 1 with prejudice.
In addition, in the event that the court dismisses Cause 1
with prejudice, the court will decline to exercise supplemental
jurisdiction over any state law claims that Lath asserts against
That is because those claims are not
sufficiently related to Lath’s claims against the two defendants
that would remain in the case (BMS CAT and Amica Mutual
Insurance Company) to provide a basis for supplemental
jurisdiction over them.
See 28 U.S.C. § 1367(a) (extending
supplemental jurisdiction to “claims that are so related to
claims in the action within [the court’s] original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution”).
that if Cause 1 is dismissed with prejudice, the claims against
Dufresne will also be dismissed.
United States District Judge
October 19, 2017
Kevin E. Buchholz, Esq.
Gary M. Burt, Esq.
Samantha Dowd Elliott, Esq.
Sanjeev Lath, pro se
Bruce Joseph Marshall, Esq.
Sabin R. Maxell, Esq.
Richard C. Nelson, Esq.
Brendan D. O’Brien, Esq.
James G. Walker, Esq.
Gerard Dufresne, pro se
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