Belmore v. Nashua Police Department

Filing 16

///ORDER approving 10 Report and Recommendation as outlined. All federal constitutional claims against the Nashua Police Department (NPD) are dismissed. So Ordered by Judge Joseph A. DiClerico, Jr.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Maurice A. Belmore, Jr.
v.

Civil No. 17-cv-307-JD

Nashua Police Department, et al.
O R D E R
Maurice A. Belmore, Jr., who is proceeding pro se, filed a
complaint in which he alleges claims against the Nashua Police
Department, arising from Belmore’s encounter with police and
subsequent arrest in July of 2014.

On preliminary review

pursuant to 28 U.S.C. § 1915A(a) and Local Rule 4.3(d)(1), the
magistrate judge recommends that some of Belmore’s claims be
dismissed.

In the order directing service of the claims allowed

on preliminary review, the magistrate granted Belmore leave to
amend the complaint to identify the officers who allegedly
assaulted him and to describe their actions.
In response, Belmore filed an addendum to the complaint.
The magistrate judge reviewed the addendum and found that
Belmore named Ryan McDermott as one of the unnamed Nashua Police
Department officers referred to in some of his claims.

The

magistrate judge held that the original complaint (document no.
1) and the addendum (document no. 15), taken together, would
constitute the complaint in the case.

The magistrate judge recommends dismissal of the federal
constitutional claims against the Nashua Police Department, the
false arrest and imprisonment claims, the malicious prosecution
claim related to the criminal trespass charge, and the First
Amendment retaliatory arrest claim.

Belmore did not file an

objection to the report and recommendation.

Therefore, I

approve the report and recommendation (document no. 10).

See 28

U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2).
Claims 2, 7, and 9 are dismissed.

All federal

constitutional claims against the Nashua Police Department
(“NPD”) are dismissed.

The following claims remain in this

case:
1. NPD Officers Ryan McDermott, Steven Berry, Dennis
Pereira, and/or Jason Reinold violated Belmore’s Fourth
Amendment rights by using unreasonable and excessive force
July 12, 2014, in that:
a. McDermott pinned Belmore to the ground with his
knee against Belmore’s throat;
b. McDermott bent back Belmore’s thumb and twisted
his arm while handcuffing him;
c. McDermott, Berry, Pereira, and/or Reinold punched
Belmore and delivered knee strikes to his torso; and
d. McDermott, Berry, Pereira, and/or Reinold carried
Belmore facedown by his wrists and ankles to an NPD
cruiser.
3. NPD Sgt. Daniel Mederos, a supervisory officer, and NPD
Officers Berry, Pereira, and/or Reinold violated Belmore’s
Fourth Amendment rights, in that those officers witnessed
but failed to intervene to stop the other NPD officers from
using unreasonable and excessive force in arresting,
handcuffing, and assaulting Belmore on July 12, 2014.
4. NPD Officer Ryan McDermott and other unnamed NPD
officers used unreasonable and excessive force in an
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assault occurring at the NPD station on July 2, 2014, in
violation of:
a. Belmore’s Fourth Amendment rights; and
b. The state common law tort of battery.
5. NPD Officer McDermott threatened Belmore with mace, and
McDermott, Berry, Pereira, and/or Reinold punched and
delivered knee strikes to Belmore’s torso, in the manner
summarized in Claim 1, giving rise to the officers’
liability for the intentional torts of assault and battery
under New Hampshire law.
6. The NPD, an agency of the City of Nashua, is
vicariously liable, under state common law, for:
a. NPD Officers Berry’s, Pereira’s, Reinold’s, and
McDermott’s intentional assault and battery of Belmore,
summarized in Claim 5, and
b. NPD Officer McDemott’s and other NPD Officers’
battery of Belmore at the NPD station on July 12, 2014,
summarized in Claim 4(b).
8. Belmore was subjected to a malicious prosecution of
charges including disorderly conduct, resisting arrest, and
simple assault, unsupported by probable cause:
a. In violation of Belmore’s Fourth Amendment rights,
rendering McDermott liable under 42 U.S.C. § 1983; and
b. In a manner constituting an intentional tort:
(i) Rendering McDermott liable under state common
law, and
(ii) Rendering the NPD vicariously liable for
McDermott’s conduct under state tort law.
Conclusion
For the foregoing reasons, the magistrate judge’s report
and recommendation (document no. 10) is approved.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 20, 2017
cc: Maurice A. Belmore, Jr., pro se
Brian J.S. Cullen, Esq.
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