Belmore v. Nashua Police Department

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Maurice A. Belmore, Jr.
v. Civil No. 17-cv-307-JD
Nashua Police Department, Ryan McDermott,
Steven Berry, Dennis Pereira, Jason Reinold,
and Daniel Mederos1
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1), filed by
pro se plaintiff Maurice A. Belmore, Jr., while he was an inmate
at the Hillsborough County Department of Corrections. The
complaint caption names the Nashua Police Department (“NPD”) as
a defendant, and the complaint narrative names individual
defendants. The matter is here for preliminary review under LR
4.3(d)(1) and 28 U.S.C. § 1915A(a).
1 Belmore has named the Nashua Police Department (“NPD”) as a
defendant. The court construes the complaint to state claims
against individual NPD Officers Ryan McDermott, Steven Berry,
Dennis Pereira, Jason Reinold, Sgt. Daniel Mederos, and other
unnamed officers. The court has issued an Order directing
service upon the named defendants on this date.
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Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. See
28 U.S.C. § 1915A(b). In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To
survive preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). The court treats as true all well-pleaded
factual allegations, and construes reasonable inferences in
plaintiff’s favor. See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Background
Belmore alleges that on July 12, 2014, at 1:30 a.m., he was
walking across East Hollis Street in Nashua, New Hampshire, when
an NPD police cruiser struck him and did not stop, injuring his
knee. Belmore alleges that NPD Officers Steven Berry, Dennis
Pereira, Jason Reinold, and Sgt. Daniel Mederos appeared on the
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scene and interviewed witnesses. No accident report was filed.
Belmore alleges that, when NPD Officer Ryan McDermott
arrived, McDermott pushed Belmore from a sitting position to the
ground, pinning him there with his knee against Belmore’s
throat, and threatening an arrest if Belmore continued to say he
had been hit by a car. Belmore alleges that McDermott waved off
EMTs in the area. Belmore alleges McDermott then told Belmore
to get up or he would be maced, and threatened Belmore again
with an arrest to make Belmore stop saying he had been hit by a
car. Belmore alleges McDermott then handcuffed him, folding
Belmore’s thumb backwards and twisting his arm while doing so.
Belmore alleges McDermott and/or NPD Officers Berry, Pereira,
and Reinold punched and delivered knee strikes to Belmore’s
torso, and then carried him facedown by his wrists and ankles,
towards a cruiser. Belmore alleges that Sgt. Mederos, their
supervisor, watched without stopping the assault.
Belmore alleges that after his arrival at the NPD station
on July 12, 2014, NPD officers assaulted him in an incident that
was recorded on a surveillance video. Belmore received
treatment for a sprained left knee and bruised ribs after these
incidents.
On July 14, 2014, Belmore pleaded not guilty to five
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misdemeanor charges: disorderly conduct, resisting arrest,
criminal trespass, and two charges of simple assault. The case
was prosecuted by a police prosecutor in the New Hampshire
Circuit Court, 9th Circuit, District Division, Nashua (“Nashua
District Court”). Belmore, who was represented by appointed
counsel in those proceedings, pleaded not guilty and was
released on personal recognizance. After a trial, the Nashua
District Court found Belmore not guilty of resisting arrest and
guilty of the remaining charges, and sentenced him to sixty days
on each charge.
Belmore spent several months in jail serving the Nashua
District Court sentence before the matter was transferred to
Hillsborough County Superior Court, Southern District. On
October 29, 2015, a jury found Belmore guilty of criminal
trespass and not guilty of the remaining charges. The Superior
Court sentenced Belmore to sixty days on that conviction and
granted him credit for sixty days time served. The New
Hampshire Supreme Court (“NHSC”) affirmed Belmore’s conviction.
See State v. Belmore, No. 2015-0751, 2016 N.H. LEXIS 262, 2016
WL 7451408 (N.H. Nov. 14, 2016).
Belmore seeks damages and an order setting aside his
criminal trespass conviction, based upon the following claims,
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asserted under 42 U.S.C. § 1983 and state tort law:
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.
2. NPD Officer Ryan McDermott retaliated against Belmore
for exercising his First Amendment rights, by arresting him
on July 12, 2014, for saying he had been struck by a car.
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. Unnamed NPD officers used unreasonable and excessive
force in an assault occurring at the NPD station on July
12, 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
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summarized in Claims 1 and 2, 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. The unnamed NPD officers’ battery of Belmore at
the NPD station on July 12, 2014, summarized in Claim
4(b).
7. Belmore was falsely arrested and falsely imprisoned by
NPD officers, without probable cause, in violation of his
rights under the Fourth Amendment, and giving rise to
liability under state tort law.
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.
9. Belmore was subjected to a malicious prosecution of
charges including criminal trespass, unsupported by
probable cause: (a) in violation of Belmore’s Fourth
Amendment rights; and (b) in a manner constituting an
intentional tort.
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Discussion
I. False Arrest, False Imprisonment, and Malicious Prosecution
A. False Arrest and False Imprisonment (Claim 7)
Belmore asserts Fourth Amendment false arrest and false
imprisonment claims under 42 U.S.C. § 1983. In general, an
arrest is lawful if the police officer has probable cause. See
Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009).
“Although ‘a lack of probable cause is not an element of false
imprisonment’” under state common law, “probable cause is ‘a
defense to a [tort] claim for false imprisonment resulting from
a warrantless detention.’” Farrelly v. City of Concord, 168
N.H. 430, 445, 130 A.3d 548, 560 (2015).
Stripped of legal conclusions about false arrest and false
imprisonment, the facts alleged in the complaint fail to state a
claim that officers who arrested and prosecuted Belmore for
criminal trespass lacked probable cause to do so.
[N.H. Rev. Stat. Ann. (“RSA”)] 635:2 (2016) provides that:
“A person is guilty of criminal trespass if, knowing that
he is not licensed or privileged to do so, he enters or
remains in any place.” Criminal trespass constitutes a
misdemeanor offense if “[t]he person knowingly . . .
remains . . . [i]n any place in defiance of an order to
leave . . . which was personally communicated to him by the
owner or other authorized person.” RSA 635:2, III(b)(2).
Belmore, 2016 WL 7451408, at *1, 2016 N.H. LEXIS 262, at *1.
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The jury that considered the evidence on Belmore’s criminal
trespass charge found him guilty of that charge, based on
evidence that a bar owner and a police officer summoned to the
scene both ordered Belmore to leave. Cf. id., 2016 WL 7451408,
at *1-*2, 2016 N.H. LEXIS 262, at *3-*4 (failure to dismiss
criminal trespass charge for lack of evidence was not plain
error). Belmore’s criminal trespass conviction was affirmed.
See id. Belmore is collaterally estopped from challenging the
sufficiency of the evidence to support that conviction in this
case, and, in light of the trial court’s finding that a police
officer ordered Belmore to leave, Belmore is effectively
collaterally estopped from litigating here whether the officer
who ordered Belmore to leave had probable cause for an arrest
when he did not comply with that order. Accordingly, the
district judge should dismiss Claim 7.
B. Malicious Prosecution (Claims 8 and 9)
Belmore has asserted malicious prosecution claims, Claims 8
and 9. Belmore specifically requests that the court issue an
order invalidating his criminal trespass conviction for criminal
trespass, and he seeks damages for his prosecution arising out
of the events of July 12, 2014. “[A] plaintiff may bring a suit
under § 1983 . . . [for a Fourth Amendment malicious prosecution
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claim] if he can establish that: ‘the defendant (1) caused (2) a
seizure of the plaintiff pursuant to legal process unsupported
by probable cause, and (3) criminal proceedings terminated in
plaintiff’s favor.’” Hernandez-Cuevas v. Taylor, 723 F.3d 91,
101 (1st Cir. 2013) (citation omitted). Similarly, under state
law, the elements of malicious prosecution are: “(1) the
plaintiff was subjected to a criminal prosecution . . .
instituted by the defendant; (2) without probable cause; (3)
with malice; and (4) the prior action terminated in the
plaintiff’s favor.” Farrelly, 168 N.H. at 445, 130 A.3d at 560.
1. Criminal Trespass Prosecution (Claim 9)
The criminal trespass prosecution did not terminate in
Belmore’s favor, and that conviction has not been invalidated.
See generally Heck v. Humphrey, 512 U.S. 477, 487 (1994) (courts
must dismiss § 1983 claims if judgment in plaintiff’s favor
would necessarily imply invalidity of conviction or sentence
that has not been previously invalidated). Accordingly, Claim 9
should be dismissed.
2. Acquitted Charges (Claim 8)
Belmore alleges that his prosecution on the remaining
charges of resisting arrest, simple assault, and disorderly
conduct was maliciously motivated and unsupported by probable
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cause. Belmore was found not guilty of each of those charges.
Without prejudice to defendants’ ability to move to dismiss
upon any valid basis, as it relates to those acquitted charges,
in the Order issued this date, the court has directed service of
Claims 8(a) and 8(b)(i) on the arresting officer, NPD Officer
McDermott, and has directed service of Claim 8(b)(ii) on the NPD
under a theory of respondent superior. To the extent that a
Fourth Amendment malicious prosecution claim is asserted against
the NPD, that claim should be dismissed as nothing in the
complaint suggests that a municipal policy or custom caused the
unconstitutional conduct at issue. See Haley v. City of Boston,
657 F.3d 39, 51 (1st Cir. 2011).
II. First Amendment Retaliation Claim (Claim 2)
Construed liberally, the complaint alleges that NPD Officer
McDermott arrested Belmore, in retaliation for Belmore saying
that he had been struck by a police car. Belmore names the NPD
as a defendant to this claim, numbered above as Claim 2,
although Belmore has not pleaded any facts suggesting that any
NPD policy or custom resulted in a retaliatory arrest. See
Haley, 657 F.3d at 51. Accordingly, the district judge should
drop the NPD as a Claim 2 defendant.
“Qualified immunity protects public officials from § 1983
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suits for damages if their actions ‘d[id] not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Ciolino v. Gikas, 861
F.3d 296, 302 (1st Cir. 2017). The defense of qualified
immunity provides grounds for the district judge to dismiss
Claim 2 to the extent it is asserted against any NPD officers.
Cf. Chavez v. Robinson, 817 F.3d 1162, 1169 (9th Cir. 2016)
(“district court may dismiss a claim on qualified immunity
grounds under 28 U.S.C. § 1915(e)(2)(B)(iii), but only if it is
clear from the complaint that the plaintiff can present no
evidence that could overcome a defense of qualified immunity”).
“Whether the law was clearly established is . . . a
question of law for the court.” Stamps v. Town of Framingham,
813 F.3d 27, 39 (1st Cir. 2016). Neither the Supreme Court, nor
the First Circuit, has issued any ruling indicating that an
officer may be held liable for a retaliatory arrest that is
supported by probable cause, see Reichle v. Howards, 566 U.S.
658, 132 S. Ct. 2088, 2093 (2012) (Supreme Court has never
recognized that there is a First Amendment right not be
subjected to a retaliatory arrest, if the arrest is supported by
probable cause); see also Cabot v. Lewis, 241 F. Supp. 3d 239,
255-56 (D. Mass. 2017), and there has been a split in the
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Circuits regarding whether such a right exists. See Cabot, 241
F. Supp. 3d at 256. Therefore, it was not clearly established
in Nashua in 2014 that subjecting a plaintiff to a criminal
trespass arrest supported by probable cause was unlawful, if
that arrest was also undertaken in retaliation for protected
speech. Accordingly, the individual officers who arrested
Belmore are entitled to qualified immunity as a matter of law,
and for that reason, Claim 2 should be dismissed.
III. July 12, 2014 Assaults
A. Fourth Amendment Excessive Force (Claims 1, 3, 4(a))
“The Fourth Amendment prohibits ‘unreasonable searches and
seizures.’” Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539,
1546 (2017).
[Fourth Amendment] “[e]xcessive force claims . . . are
evaluated for objective reasonableness based upon the
information the officers had when the conduct occurred.”
That inquiry is dispositive: When an officer carries out a
seizure that is reasonable, taking into account all
relevant circumstances, there is no valid excessive force
claim.
Id. at 1546–47 (citations omitted). A “bystander-officer who
has a realistic opportunity to prevent the use of excessive
force by a fellow [police] officer [in violation of plaintiff’s
Fourth Amendment rights] may in certain circumstances be held
liable for a failure to intervene.” Calvi v. Knox Cnty., 470
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F.3d 422, 428 n.3 (1st Cir. 2006).
1. Officers on East Hollis Street (Claims 1 and 3)
Construed liberally, the complaint, summarized in pertinent
part in Claim 1, asserts that NPD Officers Ryan McDermott,
Steven Berry, Dennis Pereira, and/or Jason Reinold used
unreasonable force in arresting, handcuffing, striking, and
putting Belmore into a cruiser. Claim 3, numbered above,
summarizes Belmore’s allegations that supervisory officer Sgt.
Daniel Mederos and fellow NPD Officers Berry, Pereira, and/or
Reinold witnessed the uses of force by other officers and
despite having a realistic opportunity to intervene, did not do
so, in violation of Belmore’s Fourth Amendment rights. The
court has directed service of Claims 1 and 3 against each of the
named NPD officers, in the Order issued this date.
2. Officers at NPD Station (Claim 4(a))
Belmore’s allegations concerning the assault at the NPD
station appear to state a claim of a violation of Belmore’s
Fourth Amendment rights. Belmore, however, has not provided
this court with the name of any officer involved in that
beating, and he has not described what each officer did. The
court therefore declines to order service of Claim 4(a), arising
out of that incident, at this time, pending receipt of Belmore’s
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response to the Order issued this date. In that Order, the
court directs Belmore to name the officers who assaulted him at
the NPD station on July 12, 2014, and to describe their conduct;
or to file either a statement saying why he cannot name them and
describe their conduct, or a motion to extend time for doing so.
3. Municipal Liability under § 1983 for Assaults
Belmore names the NPD as a defendant to his Fourth
Amendment claims relating to the assaults on East Hollis Street
and at the NPD station. Belmore has failed to plead facts,
however, to state a claim that the assaults occurred because of
any municipal policy or custom. Cf. Haley, 657 F.3d at 51.
Accordingly, the district judge should dismiss the Fourth
Amendment claims against the NPD relating to the assaults that
are alleged to have occurred on East Hollis Street and at the
NPD station on July 12, 2014.
B. Tort Claims of Assault and Battery (Claims 4(b), 5, 6)
Construed liberally, the complaint asserts claims arising
under state tort law, alleging that NPD Officers Ryan McDermott,
Steven Berry, Dennis Pereira, and Jason Reinold used and
threatened to use unreasonable force in arresting, handcuffing,
and putting Belmore into a cruiser; and that unnamed NPD
officers at the NPD station struck Belmore in an incident
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recorded on a surveillance video, rendering those officers
(Claims 4(b) and 5) and their employer, upon a theory of
respondeat superior (Claims 6(a) and 6(b)), liable for damages.
In the Order this date, the court has directed service of those
tort claims upon McDermott, Berry, Pereira, and Reinold (Claim
5) and upon the NPD (Claims 6(a) and 6(b)). The Order also
grants Belmore leave within thirty days to identify the officers
who struck him at the NPD station on July 12, 2014 (Claim 4(b)),
and to describe their conduct; or, in the alternative, either to
state why Belmore cannot name those defendants or describe their
conduct, or to seek an extension of the thirty-day deadline.
Conclusion
For reasons stated herein, the district judge should
dismiss all of the federal constitutional claims asserted
against the NPD, and should dismiss all of Belmore’s false
arrest and false imprisonment claims (Claim 7), the malicious
prosecution claim relating to the criminal trespass charge
(Claim 9), and the First Amendment retaliatory arrest claim
(Claim 2). Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). The fourteen day period may be
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extended upon motion. Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea Johnstone
United States Magistrate Judge
October 12, 2017
cc: Maurice A. Belmore, Jr., pro se
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