Barton v. Favreau

Filing 18

ORDER granting in part and denying in part 15 Favreau's Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Joseph Barton,
Plaintiff
v.

Case No. 17-cv-547-SM
Opinion No. 2018 DNH 125

Peter Favreau,
Defendant

O R D E R

Joseph Barton brings this action against Peter Favreau, an
investigator in the Office of the New Hampshire Attorney
General, seeking to recover damages for injuries he claims to
have sustained when Favreau arrested him.

Specifically, Barton

claims Favreau violated his constitutionally protected rights to
be free from both unreasonable seizures and excessive force.
See generally 42 U.S.C. § 1983.

Barton also advances state

common law claims for assault/battery, false imprisonment, and
“negligent administration of justice.”

Favreau moves to dismiss

all of Barton’s claims, asserting that the first three are
barred by the rule articulated in Heck v. Humphrey, 512 U.S. 477
(1994).

As for Barton’s final claim, Favreau says it fails to

state a viable cause of action.

For the reasons discussed, Favreau’s motion to dismiss is
granted in part, and denied in part.

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.”
(1st Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441

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).

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
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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 factual allegations of Barton’s complaint as
true - as the court must at this juncture - the relevant
background is as follows.

During the midterm elections in 2014,

Barton acted as a “poll challenger” at the Newmarket town hall,
having been appointed to that position by the New Hampshire
Republican Party.

As he saw it, his job was to ensure

compliance with a new state law that required voters to verify
their residency by producing identity documents such as a
driver’s license or residency affidavit.

According to Barton,

he witnessed several new voter registrants who did not present
appropriate documentation of their residence.

Barton raised an

objection with the supervisor of the checklist and the Town
Clerk.

In response, the Town Clerk told Barton that she would

contact the Attorney General’s office to resolve Barton’s
concerns.

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Later, the Town Clerk reported to Barton that she had
spoken with a representative of the Attorney General’s office
who concluded that the procedures being employed at the polling
place were consistent with New Hampshire law.
unsatisfied.

Barton remained

Accordingly, the Town Clerk again contacted the

Attorney General’s office.

An investigator, defendant Peter

Favreau, was sent to look into the matter.

After he arrived,

Favreau spoke privately with Barton, in a room above the polling
place.

Their conversation was calm at first, but became heated

(for which each blames the other).

It culminated in Favreau

arresting Barton for disorderly conduct.

And, because Barton

did not submit, but struggled with Favreau, he was also charged
with simple assault, in violation of N.H. Rev. Stat. Ann.
(“RSA”) 231-2-A, and resisting arrest, in violation RSA 642:2.
Following a bench trial, Barton was acquitted of both disorderly
conduct and simple assault, but convicted of resisting arrest.

Barton appealed his conviction to the New Hampshire Supreme
Court, which described Barton’s interaction with Favreau as
follows:

After the investigator introduced himself to the
defendant, the defendant asked the town clerk if he
and the investigator could use the town council
chambers to discuss the voting laws. The clerk led
them upstairs to the council chambers on the third
floor and left.
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The investigator testified that when he and the
defendant sat down in the council chambers, he again
identified himself, gave the defendant his business
card, and put his investigator’s badge from the
Attorney General’s Office on the table. The
investigator testified that he and the defendant “had
a cordial conversation” initially, but that the
defendant became angry because he did not agree with
the investigator’s position regarding the voting laws.
The defendant testified that the investigator became
“agitated because I asked him to . . . review the
statutes.” The defendant testified that he told the
investigator that he was “done with the conversation”
. . . “put [his] jacket on and proceeded to leave the
town council chambers,” and that the investigator told
him that “if I went back to poll challenging . . . he
would have me arrested for disorderly conduct.”
The investigator testified that when the defendant
questioned his authority to order him not to return to
the voting area, he told the defendant that he had
such authority “as a police officer.” The
investigator testified that as the defendant left the
room and started walking toward the stairs, he
followed him, and “told him again that if he went
downstairs, he was going to be arrested.” . . ..
The investigator testified that, when the defendant
ignored his order not to return to the voting area and
continued walking down the stairs, he “grabbed onto
[the defendant’s] jacket.” The defendant “immediately
turned, tried to knock [the investigator’s] hand away
with his hand,” and said “keep your hands off me.”
The investigator then “grabbed [the defendant] with
both hands on his jacket” and pushed him outside
through a stairwell door. The investigator further
testified that, “I told him twice while we were
outside, once as we were standing against the building
wrestling toward the ground, and once on the ground[,]
that he was under arrest.” The investigator
testified, “I know when somebody’s fighting back,” and
that the defendant “was clearly fighting back.” The
investigator testified that, once the defendant was on
the ground, he tucked his hands under his body to
prevent the investigator from being able to handcuff
him.
5

Officer Jordan of the Newmarket Police Department, who
was off duty and not in uniform, tried to help the
investigator restrain the defendant by “grabb[ing]
ahold of one of [the defendant’s] arms” and
“straddling his legs.” Chief Walsh of the Rye Police
Department, who was also off duty, testified that he
heard the investigator tell the defendant that he was
under arrest. Walsh testified that he arrived after
Jordan and tried to get the defendant to calm down,
but that it took several attempts before the defendant
complied. Officer Stevens of the Newmarket Police
Department, who was on duty and in uniform, arrived
after Walsh and was able to handcuff the defendant.
Jordan testified that it took all four officers to
subdue the defendant sufficiently to be able to place
the handcuffs on him.

State v. Barton, No. 2017-0321 (April 10, 2018) (document no.
13-1) (citations omitted).

The New Hampshire Supreme Court

affirmed Barton’s conviction for resisting arrest.

According to Barton, there are a few details missing from
the Supreme Court’s recitation of the facts.

His complaint

alleges that after Favreau grabbed him by the collar on the
stairwell landing, he “ran Barton through the exit door - which
was about six or eight feet away - down two concrete steps, and
into the parking lot, breaking Barton’s ribs.”
(document no. 1) at para. 42.

Complaint

Next, says Barton, Favreau “put

[him] up against a brick wall and punched him in the face,
knocking him to the ground.”

Id. at para. 43.

Barton claims he

“assumed the fetal position and called for help as Favreau

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wantonly kicked and punched him about the body.”

Id. at para.

44.

Discussion
I.

Counts One through Three
Citing the rule articulated in Heck v. Humphrey, 512 U.S.

477 (1994), Favreau says Barton’s conviction for resisting
arrest precludes him from pursuing his constitutional claims of
unlawful arrest and excessive force (count one), as well as his
related common law claims of assault/battery (count two) and
false imprisonment (count three).

In Heck v. Humphrey, the

Supreme Court held that a plaintiff cannot pursue a section 1983
civil action if a judgment in his or her favor would
“necessarily imply the invalidity of his conviction or
sentence.”

Id. at 487.

Consequently, “the district court must

consider the relationship between the § 1983 claim and the
conviction, including asking whether the plaintiff could prevail
only by ‘negating an element of the offense of which he was
convicted.’”

Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006).

It is, then, probably appropriate to note the precise
language of the statute under which Barton was convicted.

RSA

642:2 provides, in pertinent part, that “A person is guilty of a
misdemeanor when the person knowingly or purposely physically
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interferes with a person recognized to be a law enforcement
official, including a probation or parole officer, seeking to
effect an arrest or detention of the person or another
regardless of whether there is a legal basis for the arrest.”
(emphasis supplied).

At his juncture - accepting the factual allegations in
Barton’s complaint as true - the court cannot conclude as a
matter of law, that his section 1983 unlawful arrest and
excessive force claims are barred by Heck v. Humphrey.

As the

court of appeals has noted, “A § 1983 excessive force claim
brought against a police officer that arises out of the
officer’s use of force during an arrest does not necessarily
call into question the validity of an underlying state
conviction and so is not barred by Heck.

Even the fact that

defendant was convicted of assault on a police officer does not,
under Heck, as a matter of law necessarily bar a § 1983 claim of
excessive force.”

Thore, 466 F.3d at 180 (citations omitted)

(emphasis in original).

As for Barton’s Fourth Amendment claim that he was
unlawfully arrested, it is unclear on this record precisely when
(or why) he was placed under arrest.

Based upon the allegations

of the complaint, it appears that Favreau sought to arrest
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Barton (and prevented him from proceeding in the direction he
had planned) when he grabbed Barton by the collar and forcibly
ran him out the doorway.

That Barton was convicted of

subsequently resisting arrest - an arrest which, under New
Hampshire law, could have been entirely unjustified and unlawful
- says nothing about whether Favreau’s initial decision to
arrest Barton in the stairwell was consistent with
constitutional requirements (i.e., supported by probable cause
to believe that Barton was engaged in, or about to engage in,
criminal activity).

Viewed slightly differently, Barton could

not have resisted arrest until after Favreau tried to arrest
him.

And, it would not appear that Barton would have to

undermine his conviction for resisting arrest or call into
question any of the essential elements of that crime in order to
demonstrate that Favreau’s initial decision to arrest him was
unconstitutional.

It is possible, for example, that Barton

(unlawfully) resisted an entirely unconstitutional arrest,
during which he was subjected to excessive force.

Here, as in Thore, the factual record is insufficiently
developed to determine whether Heck operates to bar the
plaintiff’s constitutional claims.

See Thore, 466 F.3d at 180

(“While we conclude that Heck does not automatically bar
consideration of an excessive force claim by an individual who
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has been convicted of assault, the record before us does not
permit a determination of the requisite relatedness.”).

In

short, the bare fact that Barton was convicted of resisting
arrest says nothing about whether the decision to arrest him was
supported by probable cause (since, under RSA 642:2, one can
unlawfully resist even an unconstitutional arrest), nor does
Barton’s conviction resolve whether the force used to effectuate
his arrest was reasonable.

See, e.g., VanGilder v. Baker, 435

F.3d 689, 692 (7th Cir. 2006).

Similarly, Barton’s conviction for resisting arrest would
not seem to preclude him from advancing his common law claims of
assault/battery and false arrest.

Because RSA 642:2

specifically provides that one can be convicted of resisting
even an unlawful arrest, and because the record does not appear
to contain any reference to a judicial determination that
Favreau had probable cause to arrest Barton for disorderly
conduct (indeed, Favreau was acquitted of that charge), it would
not appear that Heck v. Humphrey bars Barton’s false arrest
claim.

See generally Ojo v. Lorenzo, 164 N.H. 717, 726–27

(2013) (describing the elements of a claim for false
arrest/false imprisonment).

Nor, for the reasons discussed

above, would it appear that Heck v. Humphrey bars Barton’s claim
for assault/battery.
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II.

Count Four
Finally, Favreau moves to dismiss Barton’s common law claim

of “negligent administration of justice,” asserting that it
fails to state a cognizable cause of action.

The court agrees.

Barton has not identified a single New Hampshire judicial
decision that even discusses such a cause of action, nor one
that recognizes that law enforcement officers can be sued for
negligently breaching their “duty to administer justice and law
enforcement pursuant to Federal and State law.”
para. 75.

Complaint at

See generally Farrelly v. City of Concord, 168 N.H.

430 (2015); Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007).

Conclusion
Barton does not collaterally attack his conviction for
resisting arrest, nor does he deny that he resisted Favreau’s
efforts to take him into custody.

Instead, he claims Favreau’s

initial decision to effectuate that arrest was unsupported by
probable cause and that, prior to any resistance on Barton’s
part, Favreau used unreasonable force against him (i.e.,
forcibly rushing Barton out the door, breaking his ribs in the
process, and then punching him in the face).

Again, accepting

the allegations of Barton’s complaint as true, the court cannot
conclude that, as a matter of law, Barton’s various claims

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arising out of Favreau’s decision to arrest him and Favreau’s
subsequent use of force are barred by Heck v. Humphrey.

For the foregoing reasons, Favreau’s motion to dismiss
(document no. 15) is granted in part and denied in part.

It is

granted to the extent that count four of plaintiff’s complaint
(“Negligent Administration of Justice”) is dismissed for failure
to state a viable cause of action under New Hampshire law.

In

all other respects, however, Favreau’s motion it is denied.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
June 20, 2018
cc:

Jared J. Bedrick, Esq.
Heather D. Neville, Esq.
Matthew T. Broadhead, Esq.

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