Farrelly v. City of Concord, Civil No. 10–cv–583–LM.

Citation902 F.Supp.2d 178
Decision Date02 October 2012
Docket NumberCivil No. 10–cv–583–LM.
PartiesJohn FARRELLY v. CITY OF CONCORD, N.H.; Eric J. Pichler; and Walter Carroll.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire

OPINION TEXT STARTS HERE

Recognized as Unconstitutional

N.H.RSA 644:4

H. Jonathan Meyer, Manchester, NH, for John Farrelly.

Charles P. Bauer, Erik Graham Moskowitz, Gallagher Callahan & Gartrell, PC, Concord, NH, for City of Concord, N.H.; Eric J. Pichler; and Walter Carroll.

AMENDED ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

John Farrelly has sued in eight counts, asserting both federal and state claims arising out of his arrest by Officer Eric Pichler of the Concord Police Department, and his prosecution, in 2009, for violating N.H. Rev. Stat. (“RSA”) § 644:4, I(f), which had been ruled unconstitutional by the New Hampshire Supreme Court in 2005. Before the court are Farrelly's motion to amend his amended complaint and defendants' motion for summary judgment. Each motion is duly opposed. The court heard oral argument on defendants' motion for summary judgment on July 27, 2012. For the reasons that follow, Farrelly's motion to amend is granted, and defendants' motion for summary judgment is granted in part and denied in part.

Motion to Amend

Farrelly moves, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, to amend his complaint. He seeks to correct three typographical errors in his factual narrative and to bring his claims into conformance with the evidence of record and certain arguments that have already been joined by the defendants in their motion for summary judgment. Specifically, he seeks to amend Counts III, VII, and VIII. Defendants object, arguing that the relevant rule of procedure is 16(b) rather than 15(b), and that Farrelly has not established the “good cause” required by Rule 16(b). Farrelly does not acknowledge the standard established in Rule 16(b), or attempt to meet it. Strictly speaking, he is probably not entitled to amend his complaint. However, defendants have addressed the relevant issues raised by Farrelly's proposed amendments in their motion for summary judgment and so, would not be prejudiced if the court were to allow Farrelly to amend his complaint again. 1 For that reason, Farrelly's motion to amend is granted. That said, while the proposed amended complaint, document no. 40–1, bears the caption “Amended Complaint,” the court will refer to that document as “Second Amended Complaint,” to distinguish it from document no. 32, which is Farrelly's first amended complaint.

Summary Judgment Standard

“To prevail on summary judgment, the moving party must show that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ Markel Am. Ins. Co. v. Diaz–Santiago, 674 F.3d 21, 29 (1st Cir.2012) (quoting Fed.R.Civ.P. 56(a)). “The object of summary judgment is to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.’ Dávila v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12 (1st Cir.2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004)). [T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009) (citations and internal quotation marks omitted).

Background

Unless otherwise indicated, the following facts are undisputed.2

For approximately three years, Farrelly lived with Kerri Corliss and her young daughter, Hanah. Farrelly and Corliss broke up in November of 2008. The events giving rise to this case began with e-mails Farrelly sent to Corliss about three months later, on February 16, February 18 (three e-mails), and February 21 of 2009.

In response to Farrelly's February 16 e-mail, titled “WHY ARE YOU SO MEAN TO HANAH?”, Corliss e-mailed the following response:

[S]top contacting me or I will go to the police for blackmail and harassment. My father has already warned you, and has begged me to go to the police!!! Hanah is not your child, and I will [be] and am doing everything to keep you away from her.

Answer, Ex. B (doc. no. 34–2), at 4. Farrelly responded with three e-mails on February 18 (sent at 6:06, 7:29, and 8:35 p.m.) in which he expressed his disapproval of Corliss's new nipple piercings and his concern over what Hanah would think of them. The full text of the first e-mail is as follows:

HAPPY 30TH BIRTHDAY A DAY EARLY. I hope you like your new piercings, just wait until Hanah sees them. What were you thinking of? ? ? You are a Mother for God's sakes.

Id. at 3. The full text of the second e-mail is as follows:

WHAT EVER KERRI. SO I HEAR EVERYONE AT THE HOSPITAL SAW YOUR NEW NIPPLES PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? S[sic] WHAT IS HANAH GOING TO THINK OF THEM?

Id. at 4. The full text of the third e-mail is as follows:

WHY CONTACT GEORGE WITH REGARDS TO YOUR NIPPLE PIERCINGS? HE JUST CALLED ME TO ASK WHERE I HEARD ALL ABOUT THIS AND I SAID WHAT DIFFERENCE DOES IT MAKE. IT WASN'T GEORGE. WHEN YOU SHOW IT TO AS MANY PEOPLE THAT YOU SHOWED THE PICTURES TO DON'T YOU THINK THAT IT WOULD GET BACK TO ME.

SO NOW I KNOW WHERE THE TAX RETURN IS GOING. DON'T SAVE A DIME. SPEND IT ON CRAZY SHIT. WHAT'S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.

NO WONDER YOU MOVED OUT WHEN YOU DID. YOU DIDN'T WANT ANY OF THE TAX MONEY TO BE SPENT ON PAYING YOUR DEBT OFF. DON'T WORRY THOUGH AS I AM STILL THINKING ABOUT A CIVIL CASE TO GET MY MONEY BACK FROM YOU. I HAVE ALL THE CHECKS AND ALL THE CREDIT CARD RECEIPTS. I BET A JUDGE WON'T SEE IT ALL YOUR WAY. AFTER ALL IT ALL BEING A GIFT AS YOU SAY JUST DOESN'T MAKE SENSE. WHO EVER HEARD OF A GIFT FOR A CROWN FOR YOUR TOOTH.

HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN'T GROW UP TO BE LIKE YOU.

Id. at 5.

In the early morning hours of February 21, Farrelly sent Corliss a relatively long e-mail, titled HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL. Answer, Ex. B (doc. no. 34–2), at 1. In the Jezebel e-mail, Farrelly: (1) called Corliss a “little slut”; (2) threatened to show up at her birthday party and announce that she had given him herpes and had stolen $100,000 from him; and (3) described two incidents of a sexual nature involving Corliss. See id. at 1–2. In one of those descriptions, Farrelly wrote about Corliss: “stripp[ing] off [her] top,” id. at 1; “rubb[ing] [her] $6000.00 TITS” in a man's face, id.; and then “invit[ing] him to play and suck on them,” id. In the other, he mentioned a man he referred to as “the love of [Corliss's] life where [she] told him in front of everyone” that she wanted to perform an act of oral sex on him. Id. at 2.

On the morning of February 21, shortly after she received the Jezebel e-mail, Corliss went to the Concord Police Department to complain about Farrelly. She initially spoke with Lieutenant Walter Carroll, a shift superintendent. Lt. Carroll had Corliss meet with Officer Eric Pichler, who wrote, in his narrative report: She told me that she was scared he was going to show up at her [birthday] party and hurt her or her daughter. She was very emotional and had tears in her eyes while talking with me.” Answer, Ex. A (doc. no. 34–1), at 2. At his deposition, Officer Pichler described his interview with Corliss:

Q. Now, you said that Ms. Corliss didn't necessarily want you to arrest Mr. Farrelly. Did she tell you what she wanted you to do?

A. She told me that she was scared that he, Mr. Farrelly, kept contacting her, that his communications were upsetting her and she felt harassed and wanted the communication to stop. She wanted him out of her life.

Q. Did she say when she was scared what she [was] afraid of? Did she tell you?

A. She told me that there were several instances where Mr. Farrelly's anger, where he got out of control, as she described it, and she felt that her, that she was in danger of being injured or being hurt. She had mentioned several times that they did get physical, not all the times that that happened were the police involved, but as far as this specific instance her main concern was that she didn't want it to arise to that level. She felt that if he kept communicating with her and showed up at her party that something might happen and she feared for her safety and the safety of her daughter.

....

Q. But did Ms. Corliss ever verbalize to you any specific concern that she had for Mr. Farrelly that he was going to do something specific to her?

A. Not at this time. She didn't know. She was afraid that something might happen, but she didn't say that he made any specific threats or else I would have pursued criminal threatening.

Defs.' Mot. Summ. J., Moskowitz Aff., Ex. 1, Pichler Dep. (doc. no. 36–3), at 53–54, 57. Officer Pichler also took a written statement from Corliss that says, in its entirety:

I lived w/ John Farrelly for three years. [O]n Thanksgiving I had to call the police for his aggressive behavior. I moved out the next day. [H]is phone calls and emails to my friends and family have been ongoing. I have asked him to stop several times, he has failed to do so.

His emails are harassing, and say inappropriate things about me, my friends and family.

Id. at 4. In addition to giving a statement, Corliss provided Officer Pichler with both the e-mails she had received from Farrelly and e-mails exchanged between Farrelly and her father, James Cross. It is undisputed that Cross is a retired Concord police officer.

After speaking with Corliss, Officer Pichler consulted with Lt. Carroll. Among other things, the two officers compared Farrelly's conduct, as reported by Corliss, to the conduct prohibited by New Hampshire's harassment statute, RSA 644:4, as reported in the 20082009 edition of the New Hampshire Criminal Code Annotated published by LexisNexis. In particular, they discussed the applicability of RSA 644:4, I(b) and (f). In the version of the criminal code they were using,...

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