Martineau v. Antilus et al
///ORDER granting in part and denying in part 9 Motion to Dismiss. Hillsborough County's motion is granted as to Count VII and denied as to Counts III and VI. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-541-LM
Opinion No. 2017 DNH 127
George Antilus, et al.
O R D E R
Plaintiff Joshua Martineau alleges that, while he was
awaiting trial, three corrections officers assaulted him in his
cell at the Hillsborough County Department of Corrections
Martineau brings suit against the officers and
Hillsborough County, alleging various state and federal claims.
Hillsborough County moves for judgment on the pleadings on all
claims asserted against it.
On May 8, 2017,
the court heard oral argument on Hillsborough County’s motion.
For the reasons that follow, Hillsborough County’s motion is
granted in part and denied in part.
STANDARD OF REVIEW
“The standard of review of a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) is the
same as that for a motion to dismiss under Rule 12(b)(6).”
Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st
Cir. 2014) (quoting Marrero-Gutierrez v. Molina, 491 F.3d 1, 5
(1st Cir. 2007)).
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 in the plaintiff’s complaint 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)
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
Ashcroft v. Iqbal, 556 U.S. 662, 678
“Judgment on the pleadings is proper ‘only if the
uncontested and properly considered facts conclusively establish
the movant’s entitlement to a favorable judgment.’”
Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007) (quoting AponteTorres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006)).
Defendant Hillsborough County owns and operates the Jail in
Manchester, New Hampshire.
In November 2013, Martineau was a
pretrial detainee at the Jail.
At that time, defendants
Sergeant George Antilus, Corrections Officer Joshua Caisse, and
Corrections Officer Spencer Vrouhas (collectively, “Officers”)
These facts are drawn from the allegations in Martineau’s
complaint. See doc. no. 1-1.
worked at the Jail and, as such, were employed by Hillsborough
On November 3, 2013, the Officers approached Martineau’s
cell and claimed that he was yelling and banging.
alleges that he was not yelling and banging and did not pose a
threat to anyone when the Officers assaulted him.
sprayed mace in Martineau’s face several times; Caisse and
Vrouhas then held Martineau down while Antilus pulled down
Martineau’s underwear and sprayed his genitals and rectum with
After that, Caisse and Vrouhas placed Martineau in arm
and leg restraints and kicked, punched, and kneed him and
slammed his head against the cement floor.
The Officers did not clean Martineau or get him medical
treatment, but instead moved him to a “safety cell” to wait in
Doc. no. 1-1 at ¶ 16.
Later that night, a nurse
examined Martineau and noted that he had a bloody nose, an
abrasion on his nose, a cut above his eye, and a lump on the
back of his head.
The nurse placed Martineau on “neurological
watch” from November 3 through November 4.
See id. at ¶ 19.
After the medical examination, the Officers removed
Martineau’s mace-soaked clothes and conducted a nude contraband
The Officers told Martineau that “they had to teach all
of [the inmates] a lesson that they were not messing around with
[the inmates],” and Vrouhas asked Martineau how his “balls and
ass were feeling.”
Id. at ¶ 22.
Martineau remained in
restraints until November 5 and was not allowed to shower or
clean the mace off his body during that time.
later taunted Martineau about the November 3 incident, and one
of the Officers bragged to Martineau that he had received a
promotion for “beating [his] ass.”
Id. at ¶ 30.
On October 6, 2016, Martineau filed a complaint in state
court against the Officers and Hillsborough County.
removed the case to this court and Hillsborough County now moves
for judgment on the pleadings on the three claims asserted
See doc. no. 9.
Martineau alleges that Hillsborough County is liable under
42 U.S.C. § 1983 because it maintained a policy or custom that
caused the deprivation of his constitutional rights (Count III).
He also asserts two state law claims against the county, one
based on respondeat superior (Count VI) and the other for
negligent supervision, training, and retention (Count VII).
court analyzes Martineau’s § 1983 claim before turning to his
state law claims.
Section 1983 Claim
In Count III of his complaint, Martineau brings a claim
against Hillsborough County under 42 U.S.C. § 1983, alleging
that a county policy or custom caused the deprivation of his
Hillsborough County argues that
Martineau has not alleged sufficient facts to state a policy or
custom claim under § 1983.
Municipalities cannot be held liable under § 1983 on a
theory of respondeat superior.
436 U.S. 658, 691 (1978).
Monell v. Dep’t of Soc. Servs.,
Rather, a plaintiff who brings a §
1983 action against a municipality must “identify a municipal
‘policy’ or ‘custom’” that was the cause of and “‘moving force’
behind the injury alleged.”
Haley v. City of Boston, 657 F.3d
39, 51 (1st Cir. 2011) (quoting Bd. of Comm’rs of Bryan Cty. v.
Brown, 520 U.S. 397, 403-04 (1997)).
“[U]nlike a policy, which
comes into existence because of the top-down affirmative
decision of a policymaker, a custom develops from the bottomup.”
Baron v. Suffolk Cty. Sheriff’s Dep’t, 402 F.3d 225, 236
(1st Cir. 2005) (internal quotation marks omitted).
actionable, the custom or practice must “be so well-settled and
widespread that the policy making officials of the municipality
can be said to have either actual or constructive knowledge of
it yet did nothing to end it.”
Walden v. City of Providence,
596 F.3d 38, 57-58 (1st Cir. 2010) (internal quotation marks
Martineau’s complaint is not a model of artful pleading, as
Count III itself contains conclusory statements and merely
recites the elements of a Monell claim.
See doc. no. 1-1 at
However, Martineau alleges that one of the Officers
bragged about being promoted for “beating [his] ass.”
1-1 at ¶ 30.
Construed generously, this allegation permits a
reasonable inference that Hillsborough County decisionmakers
knew about the alleged assault and ratified it by promoting one
of the Officers because of it.
Cf. St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988) (recognizing that where “the authorized
policymakers approve a subordinate’s decision and the basis for
it, their ratification would be chargeable to the municipality
because their decision is final”).
At this early stage, the court finds that the complaint
contains sufficient facts to allege a plausible Monell claim
against Hillsborough County.
See Iqbal, 556 U.S. at 678 (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”).
will be in a better position to address the ultimate viability
of Martineau’s Monell claim on a more complete record at the
summary judgment stage.2
Accordingly, Hillsborough County’s
motion for judgment on the pleadings is denied as to Count III.3
State Law Claims
Martineau asserts two state common law claims against
Hillsborough County under theories of respondeat superior (Count
VI) and negligent supervision, training, and retention (Count
Hillsborough County argues that it is entitled to
municipal immunity on both claims under RSA 507-B:5.
RSA 507-B:5 provides: “No governmental unit shall be held
liable in any action to recover for bodily injury, personal
injury or property damage except as provided by this chapter or
as is provided or may be provided by other statute.”
Hillsborough County is therefore immune from liability on
The court denies Martineau’s request for judicial notice
of unsubstantiated allegations in several lawsuits filed against
Hillsborough County in the past five years, which were all
dismissed before disposition on the merits, as well as a number
of news articles discussing lawsuits against Hillsborough
County. The facts contained in those documents are subject to
reasonable dispute and are not, therefore, appropriate matters
for judicial notice. See Fed. R. Evid. 201(b); see also
Greenspan v. Random House, Inc., No. 12-1594, 2012 WL 5188792,
at *1 (1st Cir. Oct. 16, 2012) (“That a statement of fact
appears in a daily newspaper does not of itself establish that
the stated fact is ‘capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned.’” (quoting Cofield v. Alabama Pub. Serv. Comm’n, 936
F.2d 512, 517 (11th Cir. 1991))).
The court denies Hillsborough County’s request to
bifurcate discovery in this case and stay discovery on
Martineau’s Monell claim.
Martineau’s state law claims unless a specific statutory
Martineau contends that his claims fall
within two such exceptions.
First, Martineau argues that his
claims invoke RSA 507-B:2 because they arise out of Hillsborough
County’s operation of the Jail.
Second, Martineau argues that,
under RSA 507–B:7–a, Hillsborough County cannot raise an
immunity defense because it insures against liability for the
tortious conduct at issue in this case.
A. RSA 507-B:2
Martineau first argues that RSA 507-B:2 applies to his
Under RSA 507-B:2:
A governmental unit may be held liable for damages in
an action to recover for bodily injury, personal
injury or property damage caused by its fault or by
fault attributable to it, arising out of ownership,
occupation, maintenance or operation of all motor
vehicles, and all premises.
In Lamb v. Shaker Regional School District, 168 N.H. 47, 51
(2015), the New Hampshire Supreme Court (“NHSC”) held that “the
RSA 507-B:2 exception to municipal immunity requires a nexus
between the claim and the [municipality’s] ownership,
occupation, or operation of its physical premises.” (emphasis in
The NHSC expressly rejected the plaintiff’s argument
that the phrase “operation of . . . all premises” in RSA 507-B:2
included the “operation of a business or enterprises located on
Lamb, 168 N.H. at 50.
Despite the “physical premises” language in Lamb, Martineau
argues that a nexus exists between his injuries, which were
caused by corrections officers, and Hillsborough County’s
operation of the Jail.
This court previously rejected a similar
See Maryea v. Baggs, No. 13-cv-318-LM, 2016 WL
1060226, at *5 (D.N.H. Mar. 15, 2016).
In Maryea, the victim of
an inmate-on-inmate assault at the Strafford County House of
Corrections sued Strafford County for its failure to prevent the
See 2016 WL 1060226, at *4.
Strafford County moved
for summary judgment on Maryea’s state law claims on the ground
that it was entitled to immunity under RSA 507-B:5.
argued that her claims fell within the RSA 507-B:2 exception to
Id. at *5.
The court, citing Lamb, rejected Maryea’s
argument because her claims were not related to the physical
premises of the Jail.
In holding that Strafford County was
entitled to immunity under RSA 507-B:5, the court explained:
Maryea provides no evidence of a nexus between her
claim and Strafford County’s operation of the physical
[Strafford County House of Corrections] premises. To
the contrary, the evidence that Maryea has submitted
demonstrates that her injuries, just like those in
Lamb, were caused by independent actors and unrelated
to the physical premises. Thus, Maryea’s claim is
barred by RSA 507-B:5.
The court’s reasoning in Maryea is equally applicable to
the instant case.
Like the assault in Maryea, Martineau’s
injuries were caused by independent actors (here, the Officers),
and he has not alleged that his injuries were in any way related
to Hillsborough County’s operation of the physical premises of
Martineau attempts to distinguish this case from
Maryea by noting that his injuries were caused by corrections
officers who worked at the Jail, not other inmates.
distinction is one without a difference.
In Lamb, the NHSC made
clear that RSA 507-B:2 is limited to claims that have a nexus to
the county’s operation of its physical premises.
See 168 N.H.
Although county employees caused Martineau’s injuries in
a county-operated facility, his injuries were wholly unrelated
to the physical premises of the Jail.
Thus, Martineau’s state
law claims do not fall within the RSA 507-B:2 exception to
B. RSA 507-B:7-a
Martineau next contends that Hillsborough County has waived
immunity as a defense under RSA 507-B:7-a.
In relevant part,
RSA 507-B:7-a states:
It shall be lawful for the state or any municipal
subdivision thereof, including any county, city, town,
school district, school administrative unit or other
district, to procure the policies of insurance
described in RSA 412. In any action against the state
or any municipal subdivision thereof to enforce
liability on account of a risk so insured against, the
insuring company or state or municipal subdivision
thereof shall not be allowed to plead as a defense
immunity from liability for damages resulting from the
performance of governmental functions . . . .
See also Holm v. Town of Derry, No. 11-cv-32-
JD, 2011 WL 6371792, at *2 (D.N.H. Dec. 20, 2011) (“Under RSA
507–B:7–a . . . a municipality cannot claim immunity under RSA
507–B with respect to a liability for which it has obtained
Martineau claims that Hillsborough County cannot
plead immunity as a defense because it “maintains an insurance
policy through Primex.”
Doc. no. 13-1 at 10.
County argues that Primex is a pooled risk management program
(“PRMP”) authorized under RSA 5-B, not an insurance policy
described in RSA 412, such that RSA 507-B:7-a does not apply.
At oral argument, the court requested supplemental briefing
on Hillsborough County’s alleged membership in Primex.
court ordered the parties to brief the following issues:
whether membership in Primex constitutes a liability
insurance policy for purposes of RSA 507-B:7-a, in light
of RSA 5-B:6 and the First Circuit’s opinion in Stratford
School District, S.A.U. # 58 v. Employers Reinsurance
Corporation, 162 F.3d 718 (1st Cir. 1998);
whether discovery is needed to determine if Primex is a
pooled risk management program as outlined in RSA 5-B;
if discovery is needed, whether the parties think it
feasible to propose expedited discovery on that limited
The parties agree that Hillsborough County is a member of
Primex (i.e., the New Hampshire Public Risk Management
Exchange), which provides liability coverage to municipalities.
See doc. no. 21 at 2.
Further, the parties agree, without the
need for discovery, that Primex constitutes a PRMP pursuant to
See id. at 1-2.
However, the parties dispute whether
liability coverage provided by a PRMP constitutes a liability
insurance policy for purposes of RSA 507-B:7-a, such that
Hillsborough County cannot claim immunity as a defense.
Under RSA 507-B:7-a, a municipality “shall not be allowed
to plead as a defense immunity from liability for damages
resulting from the performance of governmental functions” to the
extent that the municipality has “procure[d] [a] polic[y] of
insurance described in RSA 412” to insure against that risk.
RSA 412 regulates certain types of insurance policies.
Here, Hillsborough County is a member of a PRMP
organized under RSA 5-B.
RSA 5-B:6, I states:
Any pooled risk management program meeting the
standards required under this chapter is not an
insurance company, reciprocal insurer, or insurer
under the laws of this state, and administration of
any activities of the plan shall not constitute doing
an insurance business for purposes of regulation or
Martineau states that “discovery is not needed to
determine if Primex is a pooled risk management program because
Plaintiff concedes that Primex is a pooled risk management
program.” Doc. no. 21 at 1. Thus, the court does not consider
the affidavit of Michael A. Ricker, General Counsel for Primex
(doc. no. 22-3; doc. no. 23), which would convert the motion for
judgment on the pleadings to one for summary judgment under Rule
56. See Fed. R. Civ. P. 12(d).
Although PRMPs may provide liability coverage that is comparable
to traditional insurance, see RSA 5-B:3, the New Hampshire
legislature has chosen to treat PRMPs organized under RSA 5-B
differently from providers of insurance policies regulated under
[T]he legislature sought to facilitate risk protection
coverage for political subdivisions by granting PRMPs
special status, and treating them differently from
providers of traditional insurance. . . . [W]hile the
[PRMP] may have some insurer-like aspects . . . the
legislature has expressly removed it from the category
Stratford Sch. Dist., 162 F.3d at 722-23.
County’s membership in Primex, a PRMP, does not constitute a
policy of insurance described in RSA 412.
See id. at 723
(holding that a PRMP “did not constitute ‘insurance’ as that
term is usually understood under New Hampshire law”); see also
Bowser v. Town of Epping, No. 2010-0868, at *3-4 (N.H. Sept. 16,
2011) (unreported decision without precedential value) (holding
that liability coverage obtained through a PRMP is not a policy
of insurance described in RSA 412 for purposes of RSA 507-B:7a).5
Pursuant to New Hampshire Supreme Court Rule 20(2):
An order disposing of any case that has been briefed
but in which no opinion is issued, whether or not oral
argument has been held, shall have no precedential
value, but it may, nevertheless, be cited or
Although RSA 507-B:7-a states that it applies only to
insurance policies described in RSA 412, Martineau argues that
this section should be read to apply regardless of whether a
municipality obtains an insurance policy described in RSA 412 or
is a member of a PRMP pursuant to RSA 5-B.
interpretation ignores the plain language of RSA 507-B:7-a, as
well as the legislature’s clear intent that PRMPs be treated
differently than traditional insurance.
Dist., 162 F.3d at 722-23.
See Stratford Sch.
Therefore, because Hillsborough
County, as a member of Primex, did not procure a liability
insurance policy described in RSA 412, RSA 507-B:7-a does not
apply and Hillsborough County may claim immunity as a defense.
C. Respondeat Superior Claim
With respect to Count VI, Martineau’s respondeat superior
claim, the court does not have sufficient information to
conclude that Hillsborough County is entitled to immunity on
Count VI alleges that Hillsborough County is
vicariously liable for the Officers’ intentional torts, i.e.
The NHSC has explained that RSA 507-B:5 provides
immunity to municipalities for any intentional torts committed
by municipal employees to the same extent that RSA 541-B:19
referenced in pleadings or rulings in any court in
this state, so long as it is identified as a nonprecedential order.
provides sovereign immunity to the State of New Hampshire for
any intentional torts committed by State employees.
v. McSweeney, 166 N.H. 176, 182 (2014).
RSA 541-B:19, in turn,
provides the State with immunity from intentional tort claims,
provided that the employee whose conduct gives rise to
the claim reasonably believes, at the time of the acts
or omissions complained of, that his conduct was
lawful, and provided further that the acts complained
of were within the scope of official duties of the
employee for the state.
RSA 541-B:19, I(d).
Cf. Huckins, 166 N.H. at 182 (“[I]t is
unconstitutional for the State to immunize itself or its
municipalities from liability for intentional torts committed by
government employees when those torts are not grounded on a
reasonable belief in the lawfulness of the disputed act.”);
McCarthy v. Manchester Police Dep’t, 168 N.H. 202, 208 (2015)
(RSA 507-B “must be construed to permit intentional tort claims
against municipal actors who do not have a reasonable belief in
the lawfulness of their conduct, regardless of whether the
claims have a nexus to motor vehicles or premises”).
if the Officers acted within the scope of their official duties
and reasonably believed that their conduct toward Martineau was
lawful, then Hillsborough County is immune from liability on
Count VI under RSA 507-B:5.
There is nothing in this record that suggests the Officers
believed their actions, as alleged in the complaint, were
On the contrary, it seems unlikely that any corrections
officer would reasonably believe the alleged treatment of
Martineau was lawful.
As such, Hillsborough County has not
established that it is immune from liability on Count VI.
In sum, while Hillsborough County is immune from liability
on Martineau’s negligent supervision, training, and retention
claim, it has not shown that it is entitled to municipal
immunity on the respondeat superior claim.
Hillsborough County’s motion for judgment on the pleadings is
granted as to Count VII and denied as to Count VI.
For the foregoing reasons, Hillsborough County’s motion for
judgment on the pleadings (doc. no. 9) is granted as to Count
VII and denied as to Counts III and VI.
United States District Judge
June 22, 2017
John A. Curran, Esq.
Stephen T. Martin, Esq.
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