Chalifoux v. Chalifoux

• Decision Date: 14 July 2014
• Docket Number: Civil No. 14-cv-136-SM
• Parties: Joseph W. Chalifoux v. Jennifer M. Chalifoux et al.
• Court: U.S. District Court — District of New Hampshire

Joseph W. Chalifoux v. Jennifer M. Chalifoux et al.¹

Civil No. 14-cv-136-SM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

July 14, 2014

REPORT AND RECOMMENDATION

Pro se plaintiff Joseph Chalifoux, proceeding in forma pauperis, has filed a Third Amended Complaint (doc. no. 7) ("Complaint"). The Complaint is before the Court for preliminary review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).

PRELIMINARY REVIEW STANDARD

This Court reviews pleadings filed by plaintiffs proceeding in forma pauperis, and may dismiss claims asserted therein if they seek monetary relief against a defendant who is immune fromsuch relief, are frivolous, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). In determining whether a pro se pleading states a claim, the Court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal conclusions, the Court considers whether the factual content in the pleading and inferences reasonably drawn therefrom, taken as true, state a plausible claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

BACKGROUND

Plaintiff Joseph Chalifoux, a New Hampshire resident, and his estranged second wife Jennifer Chalifoux, the mother of their two children, have been involved in contentious divorce and child custody proceedings for several years in Middlesex County Family and Probate Court in Massachusetts ("Family Court"). On July 1, 2013, Ms. Chalifoux filed an ex parte petition in the Lowell District Court seeking a temporary domestic abuse prevention order against plaintiff, under Mass. Gen. L. ("MGL") ch. 209A. Based on Ms. Chalifoux's assertions that her estranged husband had recently purchased a number of weapons and was volatile, the Lowell District Court issued atemporary abuse prevention order ("209A Order") and scheduled an evidentiary hearing for July 15, 2013. The temporary 209A Order, which was subsequently extended for a year after the July 15 hearing, restricted plaintiff's contacts with Ms. Chalifoux and their children and required plaintiff to surrender his weapons and firearms permit to the police. Later on the day of the temporary order's issuance, officers from the Tyngsborough, Massachusetts, Police Department ("TPD") stopped plaintiff as he arrived in Ms. Chalifoux's driveway to pick up his children, and told him to go with them in his own car to the Dracut Police Department ("DPD"), where they served him with the 209A Order.

En route to the DPD, plaintiff stopped his car in a driveway, to ask the officers why he had to go to the DPD. Plaintiff asserts that, in connection with that conversation, the officers pat-frisked him and told him that they planned to question him and search his residence in Tyngsborough. Plaintiff denied residing in Tyngsborough, and maintained that the officers needed his girlfriend Krystal Ayotte's consent before they searched her Tyngsborough home. The officers allowed plaintiff to call Ayotte on his cellphone to seek her permission for the search. The officers told Ayotte that they expected to be able to get a warrant if she did not consent.Ayotte eventually agreed to the search on the condition that her mother and plaintiff would be present and that her mother could revoke consent at any time. After the call with Ayotte ended, the officers "ordered" plaintiff back into his car, and continued their drive to the DPD.

Upon their arrival at the DPD, three officers (a federal agent, a DPD officer, and TPD Officer Borque) entered a room with plaintiff. Plaintiff asserts that Borque appeared to be in charge of questioning, and that Borque questioned plaintiff about whether he had guns in Massachusetts. The officers showed plaintiff a stack of records documenting multiple gun purchases in New Hampshire. Plaintiff denied having guns in Massachusetts and said that he had nothing further to say, and that he wanted to speak with his lawyer. Plaintiff alleges that the officers continued to question him, would not let him leave, and eventually served him with the 209A Order.

After the questioning at the DPD occurred, the officers searched Ayotte's residence. Plaintiff alleges that TPD Officer Woods spearheaded the search, and Borque was also present. Plaintiff alleges that Woods at that time was involved in an undisclosed intimate relationship with Ms. Chalifoux. Plaintiff, who was at Ayotte's residence during the search,alleges that, using "threat[s] of force," TPD officers induced plaintiff to consent to a search of his car. No guns were found in Ayotte's home or in plaintiff's car.

Sometime between July 1 and July 15, 2013, plaintiff contacted the Manchester, New Hampshire, Police Department ("MPD") to turn over his New Hampshire firearms license and weapons he had in storage in Manchester. In the meantime, on July 2, 2013, having received information from Ms. Chalifoux that plaintiff had recently purchased more than forty guns, TPD Officer Wagner filed a criminal complaint in the Lowell District Court, charging plaintiff with violating the 209A Order by failing to turn in his guns. The Lowell District Court dismissed that complaint in November 2013, after plaintiff had surrendered weapons and his firearms license to the MPD.

CLAIMS

Plaintiff's 100-page, 348-paragraph Third Amended Complaint asserts the following claims for money damages and for injunctive relief:

1. Four "undercover" officers, including TPD Officers Woods and Borque, unreasonably searched and seized plaintiff, in violation of his Fourth Amendment rights, on July 1, 2013, in that:

(a) when plaintiff arrived by car at Ms. Chalifoux's residence before service of the 209A order, theofficers approached him and told him to keep his hands visible;

(b) the officers told plaintiff he had to drive with them to the DPD for questioning, and positioned their cars in front of and behind plaintiff's car as they drove to the DPD, restricting his ability to decline to go with them; and

(c) the officers frisked plaintiff without his consent when plaintiff stopped his car en route to the DPD.

2. Police officers, including TPD Officers Woods and Borque, violated plaintiff's Fourth and Fifth Amendment rights at the DPD, in that, before serving him with the 209A order:

(a) the officers questioned plaintiff for an extended period of time at the DPD, would not let him leave, and stood in the doorway to the interrogation room, leading plaintiff to believe he could not leave, when the officers lacked probable cause to arrest him, in violation of plaintiff's Fourth Amendment rights; and

(b) the officers did not issue a Miranda warning to plaintiff, and continued to question him when plaintiff said he would not respond further without speaking to a lawyer, in violation of plaintiff's rights under the Fifth Amendment.

3. TPD officers, including Borque and Woods, violated plaintiff's Fourth Amendment rights by:

(a) searching plaintiff's girlfriend Ayotte's residence without valid consent or probable cause; and

(b) searching plaintiff's car, without valid consent or probable cause.

4. TPD Officer Wagner violated plaintiff's Fourth and Fourteenth Amendment rights by threatening to arrest plaintiff "on sight."

5. Plaintiff's voluntary surrender of guns and a gun permit to the MPD, on or after July 2, 2013, violated

plaintiff's Second Amendment rights.

6. TPD Officer Wagner violated plaintiff's Fourth and Fourteenth Amendment rights by seeking to charge plaintiff with violating the 209A Order in Lowell District Court, where Wagner's criminal complaint included false assertions of fact.

7. Defendants violated plaintiff's Fourteenth Amendment rights to substantive due process and equal protection by:

(a) giving preferential treatment to Ms. Chalifoux; and

(b) failing to disclose and lying about defendant Woods's involvement in an intimate relationship with Ms. Chalifoux before TPD officers obtained consent to search Ayotte's residence.

8. TPD officers violated plaintiff's Fourteenth Amendment rights by failing to pursue criminal charges against Ms. Chalifoux and a process server, despite having received complaints that those individuals had harassed and/or threatened plaintiff and Ayotte, and that the process server struck plaintiff's leg with "an object."

9. TPD supervisory officers are liable for the federal constitutional torts perpetrated by subordinate TPD officers.

10. The Town of Tyngsborough ("Town") is liable for the federal constitutional torts perpetrated by TPD officers: (a) under the doctrine of respondeat superior, (b) by negligently failing to have an adequate policy for complaining about TPD officers, and (c) for having a municipal custom or policy of depriving plaintiff of his rights.

11. Guardian ad Litem ("GAL") Richard Wolman, appointed by the Family Court, violated plaintiff's Fourteenth Amendment rights by: (a) refusing to investigate matters as directed by the Family Court; (b) refusing to comply with subpoenas; (c) making false claims in the Family Court proceedings; (d) fabricating evidence against plaintiff; (e) charging excessive fees; and (f) failing to comply with

Massachusetts GAL investigation standards.

12. Defendants engaged in joint action to deprive plaintiff of his civil rights, rendering them liable under 42 U.S.C. §§ 1983 and 1985.

13. All defendants are liable to plaintiff for predicate acts of racketeering, including perjury, mail fraud, and wire fraud, undertaken for the purpose of depriving plaintiff of his civil rights, rendering defendants liable under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO").

14. Defendants are liable under Massachusetts law for conduct alleged in the Third Amended Complaint, including the following:

(a) Woods, Borque, and the Town are liable to plaintiff for abuse of process, relating to the July 1 detention and questioning of plaintiff;

(b) Woods, Borque, and the Town are liable to plaintiff for...