Bleish v. Moriarty
| Decision Date | 09 December 2011 |
| Docket Number | Civil No. 11-cv-162-LM |
| Parties | Catherine Bleish v. Master Patrolman Todd M. Moriarty, Individually and Officially; Senior Patrolman Matthew J. DiFava, Individually and Officially; Senior Patrolman Timothy J. MacIssac, Individually and Officially, Officer Charles MacGregor, Individually and Officially; Officer Eric Walker, Individually and Officially; Chief Donald F. Conley, Individually and Officially; Nashua Police Department; and The City of Nashua |
| Court | U.S. District Court — District of New Hampshire |
Catherine Bleish has sued eight defendants in eighteen counts, asserting claims for damages under the Federal Constitution (Counts I-V), the New Hampshire Constitution (Counts VI-X), and the common law of New Hampshire (Counts XI-VII). Her claims arise from her arrest by officers of the Nashua Police Department which took place when she was photographing a protest rally and protesting the officers' response to it. Before the court is defendants' motion for judgment on the pleadings on Bleish's claims under the state constitution. Bleish objects. For the reasons that follow,defendants' motion is granted, but only to the extent that Counts VI-X are dismissed without prejudice to being brought in state court.
"The standard for evaluating a motion to dismiss is the same as that for a motion for judgment on the pleadings." Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 49 n.3 (1st Cir. 2009) (citing Citibank Global Mkts., Inc. v. Rodríquez Santana, 573 F.3d 17, 23 (1st Cir. 2009)).
A motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" United Auto., Aero., Agric. Impl. Workers of Am. Int'l Union v. Fortuño, 633 F.3d 37, 40 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)). On the other hand, a Rule 12(b)(6) motion should be granted if "the facts, evaluated in [a] plaintiff-friendly manner, [do not]contain enough meat to support a reasonable expectation that an actionable claim may exist." Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Morales-Tañón v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir. 2008)).
The following factual recitation is drawn from Bleish's complaint. See Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011) (citing SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)); Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009) (citation omitted).
On March 20, 2010, Bleish went to Library Hill in Nashua, New Hampshire, to document a peaceful protest. While Nashua police officers were arresting a protester, Bleish protested the officers' actions, vocally and otherwise. Then, at the request of the arrestee, Bleish leaned in and took a close-up photograph of the arrest. She backed away seconds later and was then confronted by a police dog that barked at her and bared its teeth. The police dog was under the control of Master Patrolman Todd Moriarty.
Bleish asked Moriarty not to sic the dog on her. Moriarty then ordered Bleish to "get on the curb" or face arrest. Seconds later, Moriarty directed other officers to arrest Bleish, which they did. Officers then took Bleish to the Nashua police station where they booked her. She was charged with disorderly conduct for "engag(ing) in conduct that substantially interfere[d] with a criminal investigation." Compl. (doc. no. 1) § 25. Bleish was subsequently acquitted of that charge in the Nashua District Court.
This action followed. As noted, Bleish has brought claims under the First and Fourth Amendments to the United States Constitution (pursuant to 42 U.S.C. §§ 1983 and 1988), the state constitution, and state common law. Bleish's common-law claims include intentional infliction of emotional distress, false imprisonment, assault, battery, and negligence (in the form of negligent training and supervision). At issue in the pending motion are Bleish's claims that defendants violated the New Hampshire Constitution by infringing her rights to: (1) free speech, as protected by Part I, Article 22 (Count VI); (2) freedom of the press, as protected by Part I, Article 22 (Count VII); (3) free assembly, as protected by Part I, Article 32 (Count VIII); (4) freedom from malicious prosecution, asprotected by Part I, Article 19 (Count IX); and (5) freedom from unreasonable seizure and/or excessive force, as protected by Part I, Article 19 (Count X).
Defendants move for judgment on the pleadings on Counts VI-X and ask the court to dismiss those claims. They argue that: (1) the New Hampshire Supreme Court has not recognized the causes of action on which Bleish bases her claims, and has announced that it is not inclined to create constitutional torts where adequate remedies already exist; and (2) the Court of Appeals for the First Circuit has directed district courts not to recognize state-law rights that have not been identified by the courts of the states in which they sit. In her objection, Bleish: (1) concedes that the New Hampshire Supreme Court has not recognized any of the constitutional claims she is asserting here; (2) explains why she thinks it might be inclined to do so; and (3) asks this court to seek guidance from the New Hampshire Supreme Court through the certification process, because "the State law is not sufficiently clear as to whether [she] has New Hampshire Constitutional claims," Pl.'s Obj. (doc. no. 17-1), at 5). In their reply, defendants contend that this court should not certify any questions to the state supreme court because:(1) it was Bleish's choice to pursue her novel state constitutional claims in this court; and (2) this court can dismiss Counts VI-X, on the merits, under the reasoning of Rockhouse Mountain Property Owners Ass'n v. Town of Conway, 127 N.H. 593 (1986), Marquay v. Eno, 139 N.H. 708 (1995), and Khater v. Sullivan, 160 N.H. 372 (2010).
The court begins with a point of agreement. Bleish, the defendants, and the court all agree that the New Hampshire Supreme Court has never recognized any constitutional torts that would serve as causes of action to vindicate the rights protected by Part I, Articles 19, 22, and 32 of the New Hampshire Constitution. Moreover, that court has never even been presented with the opportunity to decide whether to recognize such causes of action. The three opinions on which defendants rely for the proposition that the state supreme court is generally ill-disposed to recognizing new constitutional torts all rejected causes of action said to arise from the state constitution's equal-protection and due-process provisions. See Rockhouse, 127 N.H. at 597, 601; Marquay, 139 N.H. at 721-22; Khater, 160 N.H. at 373, 375. In any event, this court "must take state law as it exists: not as it might conceivably be, some day; nor even as it should be," Plummer v. Abbott Labs.,568 F. Supp. 920, 927 (D.R.I. 1983), and as the law of New Hampshire currently exists, there is no cause of action to remedy violations of the constitutional rights at issue in Counts VI-X. In the absence of a duly recognized cause of action, the court has two options: certification or dismissal.
Under the circumstances of this case, certification is not appropriate. Bleish has not moved to certify any questions of law to the state supreme court. Rather, she seeks that relief in her objection to defendants' motion for judgment on the pleadings. But, Local Rule 7.1(a)(1) provides that "[o]bjections to pending motions and affirmative motions for relief shall not be combined in one filing." Because it was made in her objection, rather than in a separate motion, Bleish's request for certification is not properly before the court.
Moreover, the court notes that even if Bleish's request had been properly presented, i.e., in a separate motion rather than tucked into an objection, any such request would have faced long odds, given her status as the plaintiff in this case. As Judge McAuliffe recently observed, "one who chooses the federal courts in [a] diversity action[ ] is in a particularly poor position toseek certification."1 Welcome v. Yezzi, No. 08-cv-429-SM, 2009 WL 1650469, at *3 (D.N.H. June 10, 2009) (quoting Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 95 (1st Cir. 2007)). In other words: "If plaintiff, fully chargeable with knowledge of the decided New Hampshire cases, nonetheless chose to reject a state-court forum in favor of a federal forum, [she] is in a perilously poor position to grumble when we follow existing state precedent." Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989) (citation omitted). Here, Bleish could have pursued her state claims in state court, but chose not to, despite knowing that "State law is not sufficiently clear as to whether [she had] New Hampshire Constitutional claims." Pl.'s Obj., at 5. If presented with an actual motion to certify, the court would be reluctant to put defendants to the trouble and expense of litigating through the certification process for the purpose of bailing Bleish out of what she now appears to see, in hindsight, as an ill-considered choice of forum.
With certification off the table, the question that remains is the type of dismissal to which defendants are entitled. Defendants urge the court to follow Rockhouse, Marquay, and Khater and dismiss Counts VI-X on the merits. The court declines to do so.
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