Lewis v. Daine et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allan Lewis
v. Civil No. 19-cv-626-LM
Opinion No. 2019 DNH 211
Kyle Daine et al.
O R D E R
Plaintiff Allan Lewis, proceeding pro se, sues Rochester
Police Officers Kyle Daine, Jacob Benjamin, and Dwayne Hatch,
the City of Rochester (collectively “Rochester defendants”), the
Strafford County Attorney’s Office, and Strafford County
Prosecutor Carol Chellman (collectively “Strafford County
defendants”) for claims arising out of Lewis’s arrest and
criminal trial in state court. The Rochester defendants and the
Strafford County defendants separately move to dismiss Lewis’s
respective claims against them. Doc. nos. 3, 10. Lewis objects
only to the Strafford County defendants’ motion. Doc. no. 5.
For the following reasons, the court grants both motions to
dismiss.1
1 Although Lewis requests a hearing on these motions, see
doc. no. 5 at 1, the court is not convinced that oral argument
would “provide assistance to the court.” LR 7.1(d).
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 1 of 16

2
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true and draw all reasonable
inferences from those facts in the plaintiff’s favor. Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014).
The court may also consider “documents incorporated by reference
in the complaint, matters of public record, and other matters
susceptible to judicial notice.” Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (internal quotation marks and brackets
omitted). Considering all these facts, the court must determine
whether “plaintiff’s complaint set[s] forth a plausible claim
upon which relief may be granted.” Foley, 772 F.3d at 75
(internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
A Rule 12(b)(6) motion, in addition to asserting that
plaintiff fails to state a plausible claim, may be premised on
the inevitable success of an affirmative defense, such as res
judicata or a statute of limitations. See Blackstone Realty LLC
v. F.D.I.C., 244 F.3d 193, 197 (1st Cir. 2001). “Dismissing a
case under Rule 12(b)(6) on the basis of an affirmative defense
requires that (i) the facts establishing the defense are
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 2 of 16

3
definitively ascertainable from the complaint and the other
allowable sources of information, and (ii) those facts suffice
to establish the affirmative defense with certitude.” Nisselson
v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006).
BACKGROUND
In March 2016, Officers Daine and Benjamin conducted a
welfare check at Lewis’s residence. The officers spoke with
Lewis’s live-in girlfriend, Lynn Labombard, who told them that
she had had a verbal altercation with Lewis and that he had
pushed her against a wall. Officer Hatch then arrested Lewis
for domestic violence simple assault and a criminal complaint
was filed against him. See N.H. Rev. Stat. Ann. § (“RSA”)
631:2-b, I. Subsequently, during a civil restraining order
proceeding, Labombard testified under oath that Lewis did not
hurt her during the March 2016 encounter and that she was not
afraid of him.
Lewis pleaded not guilty on the domestic violence simple
assault charge and proceeded to trial in the 7th Circuit Court,
District Division, in Rochester on May 25, 2016. Carol Chellman
of the Strafford County Attorney’s Office prosecuted the case.
At trial, Labombard testified consistent with her statement
during the restraining order proceeding: that Lewis did not hurt
her and that she was not afraid of him. Officer Daine also
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 3 of 16

4
testified and the court admitted his police report—containing
Labombard’s statement about Lewis pushing her—to contradict
Labombard’s in-court testimony. Officer Benjamin did not
testify at trial. The Circuit Court found Lewis not guilty
based on Labombard’s testimony. Doc. no. 10-3.
In April 2017, Lewis filed a civil suit in Strafford County
Superior Court against the Rochester Police Department and the
Strafford County Attorney’s Office. Doc. no. 4-2 at 1-19.
Lewis’s 2017 suit alleged claims of false arrest, false
imprisonment, malicious prosecution, libel, and a claim under 42
U.S.C. § 1983 for violation of his Fourth Amendment rights and
failure of police to follow certain protocols regarding
investigation of potential domestic violence. All these claims
were based on the Rochester Police Department’s and Strafford
County Attorney’s Office’s conduct in arresting and prosecuting
Lewis for the March 2016 domestic violence simple assault
charge. Ultimately, the Superior Court granted the Strafford
County Attorney’s Office’s motion to dismiss the claims against
it and the Rochester Police Department’s motion for summary
judgment. Doc. nos. 4-2 at 21-23, 10-9. Lewis did not appeal
either of those rulings.
In 2018, Lewis filed another civil suit in Strafford County
Superior Court, this time against the Rochester Police
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 4 of 16

5
Commissioner, the Rochester Police Department, and Officers
Daine and Hatch. Doc. no. 4-3 at 1-40. The claims in that suit
also originated from the 2016 police investigation, Lewis’s
arrest, and the criminal trial. Lewis asserted claims of false
arrest, libel, violation of his constitutional and civil rights,
and failure of the police to follow certain protocols governing
domestic violence investigations and requested that the court
issue a declaratory judgment that Officer Daine’s police report
contained inadmissible hearsay. The Superior Court subsequently
dismissed Lewis’s 2018 action based on the doctrine of res
judicata. The Superior Court reasoned that the 2017 suit barred
the 2018 suit because it arose out of the same transaction or
occurrence as the 2017 suit: Lewis’s arrest for domestic
violence simple assault, the resulting police reports, and the
criminal trial resulting in his acquittal. Doc. no. 4-3 at 41-
49. Lewis filed an appeal of this decision with the New
Hampshire Supreme Court, which the Court dismissed as untimely
filed. Id. at 50.
Lewis filed this suit on June 6, 2019. He asserts claims
arising out of the police investigation leading to his 2016
arrest for domestic violence simple assault, the police reports
regarding that investigation, and the criminal trial of that
charge resulting in his acquittal.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 5 of 16

6
DISCUSSION
Both sets of defendants move to dismiss all claims asserted
against them, arguing, among other things, that the claims are
barred by res judicata. To determine whether this action is
precluded by the prior state court actions, this court must look
to the law of res judicata in New Hampshire. See Dillon v.
Select Portfolio Servs., 630 F.3d 75, 80 (1st Cir. 2011) (“Under
federal law, a state court judgment receives the same preclusive
effect as it would receive under the law of the state in which
it was rendered.”). Under New Hampshire law, res judicata
“precludes the litigation in a later case of matters actually
decided, and matters that could have been litigated, in an
earlier action between the same parties for the same cause of
action.” Brooks v. Tr. of Dartmouth Coll., 161 N.H. 685, 690
(2011). Three elements must be met for res judicata to apply:
“(1) the parties must be the same or in privity with one
another; (2) the same cause of action must be before the court
in both instances; and (3) a final judgment on the merits must
have been rendered in the first action.” Id. The court will
analyze the applicability of res judicata separately as to the
Rochester defendants and the Strafford County defendants.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 6 of 16

7
I. Rochester Defendants
A. Same Parties
For res judicata to apply, the parties here must be the
same or in privity with the parties to the earlier action(s).
See Brooks, 161 N.H. at 690. Although defendant City of
Rochester was not a named defendant in either the 2017 or 2018
actions, the Rochester Police Department was a party to both.
Because the police department is a department of the City of
Rochester, the 2017 and 2018 suits were effectively brought
against the City of Rochester. In other words, the City of
Rochester, as the municipal entity, controlled the suits and may
be considered the “same party” as the Rochester Police
Department in this context. See Restatement (Second) of
Judgments § 39 (1982) (“A person who is not a party to an action
but who controls or substantially participates in the control of
the presentation on behalf of a party is bound by the
determination of issues decided as though he were a party.”).
Officers Daine and Hatch were parties to the 2018 action,
but not the 2017 suit and Officer Benjamin was not a party in
either action. “Although generally res judicata does not apply
to nonparties to the original judgment, this rule is subject to
exceptions.” Brooks, 161 N.H. at 690 (internal quotation marks
omitted). “One exception concerns a variety of pre-existing
substantive legal relationships between the person to be bound
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 7 of 16

8
and a party to the judgment,” which are collectively referred to
as “privity.” Id. “The privity exception applies where the
non-party’s interests were in fact represented and protected in
the litigation although he was not a formal party to the
proceedings.” Waters v. Hedberg, 126 N.H. 546, 549 (1985).
Privity relationships may include those between a principal and
an agent or an employer and employee. See Sutliffe v. Epping
Sch. Dist., 627 F. Supp. 2d 41, 50 (D.N.H. 2008), aff’d, 584
F.3d 314 (1st Cir. 2009) (collecting cases involving res
judicata impact of first suit against principal on second suit
asserted against agent); see also Restatement (Second) of
Judgments § 51 cmt. a (1982).
Here, though the individual police officers were not named
parties in the 2017 action, they were employees of the Rochester
Police Department, which was a party. And the officers’
conduct—including their alleged lack of probable cause to arrest
Lewis and their failure to follow domestic violence
investigation protocols—served as the factual basis for the
majority of Lewis’s claims against the Rochester Police
Department. Thus, the officers’ interests were represented and
protected in the 2017 suit such that they can be considered in
privity with the Rochester Police Department for the purposes of
res judicata. See Town of Seabrook v. State of N.H., 738 F.2d
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 8 of 16

9
10, 11 (1st Cir. 1984) (applying New Hampshire law to hold that
two named state officials in second action were in privity with
the state commission that was named party in first action);
Sutliffe, 627 F. Supp. 2d at 50 (naming individual school board
members and school employees in second suit did not avoid res
judicata effect of first suit against school and select board).2
The same can be said about Officer Benjamin with respect to
the 2018 suit. Although not a party, Officer Benjamin’s
interests were represented and protected by the Rochester Police
Department in the 2018 action. Finally, it is undisputed that
Lewis was a party to both the prior actions. The “same parties”
requirement is therefore satisfied regarding all the Rochester
defendants in relation to both the 2017 and 2018 actions.
B. Same Causes of Action
For res judicata to apply, the same cause of action must be
before this court as was before the Superior Court in the 2017
and/or 2018 actions. See Brooks, 161 N.H. at 690. Under New
Hampshire law, “cause of action” “is defined as the right to
recover, regardless of theory of recovery.” Merriam Farm, Inc.
v. Town of Surry, 168 N.H. 197, 199 (2015). “Generally, in
2 Relying on the res judicata effect of the 2017 suit, the
Superior Court dismissed the 2018 suit even though Officers
Daine and Hatch were not parties to the 2017 action. Doc. no.
10-11.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 9 of 16

10
determining whether two actions are the same cause of action for
the purpose of applying res judicata, [the court] consider[s]
whether the alleged causes of action arise out of the same
transaction or occurrence.” Id. at 199-200 (internal quotation
marks omitted). “Res judicata will bar a second action even
though the [plaintiff] is prepared in the second action to
present evidence or grounds or theories of the case not
presented in the first action.” Id. at 200.
Construing the present complaint favorably to Lewis, he
alleges the following claims against the Rochester defendants
arising out his arrest and criminal trial: discrimination on the
basis of Lewis’s race in violation of Title VI, 42 U.S.C. §
2000d et seq.; and violations of his civil rights under 42
U.S.C. § 1983 based on the lack of probable cause supporting his
arrest, imprisonment, and prosecution, and the failure of all
the Rochester Defendants to follow protocols governing the
conduct of domestic violence investigations and prosecutions.3
Many of these claims overlap with claims Lewis raised in the
2017 action, including his claims of false arrest, false
imprisonment and failure of the police to follow protocols for
3 Lewis also alleges a violation of the “O.J.P. Program
Statute.” Doc. no. 1 at 2. Although it appears that Lewis may
be referring to the U.S. Department of Justice’s Office of
Justice Programs (“O.J.P.”), he does not cite a particular
statute or otherwise clarify the legal basis for this
allegation.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 10 of 16

11
domestic violence investigations. They also overlap with
Lewis’s claims in the 2018 action, which the Superior Court
concluded was barred on res judicata grounds by the 2017 action
because both actions asserted claims arising out of the same
transaction or occurrence. This court reaches the same
conclusion. Though the current complaint raises some new
grounds or theories of relief, it is based on the same set of
facts underlying both the 2017 and 2018 suits: Lewis’s arrest
for domestic violence simple assault, the resulting police
reports, and the subsequent criminal trial. Thus, this
litigation involves the same “cause of action” as both of
Lewis’s prior suits in state court.
C. Final Judgment
Both the 2017 and 2018 suits were resolved by a final
judgment on the merits. The Superior Court granted summary
judgment to the Rochester Police Department in the 2017 action.
That summary judgment order constitutes a final judgment on the
merits. See Thone v. Cairo, 130 N.H. 157, 158 (1987) (“Summary
judgment procedure allows a final judgment to be entered when
there is no genuine issue of material fact requiring a formal
trial.” (internal quotation marks omitted; emphasis added)).
The New Hampshire Supreme Court has also considered a dismissal
based on an affirmative defense as a final judgment on the
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 11 of 16

12
merits. See Opinion of the Justices, 131 N.H. 573, 580 (1989)
(dismissal based on statute of limitations is a final judgment
on the merits for purposes of res judicata); see also ERG, Inc.
v. Barnes, 137 N.H. 186, 189 (1993) (dismissal for failure to
state a claim is a final decision on the merits). In Lewis’s
2018 action, the Superior Court dismissed the case based on the
Rochester Police Department’s affirmative defense of res
judicata and the New Hampshire Supreme Court dismissed Lewis’s
appeal as untimely. Thus, the “final judgment” requirement is
satisfied.
In sum, the court finds that the facts underlying the
Rochester defendants’ res judicata argument “suffice to
establish the affirmative defense with certitude.” Nisselson,
469 F.3d at 150. Lewis has had several bites at the apple in
state court on the same cause of action raised here; those prior
actions preclude litigation of the current matter. The
Rochester defendants’ motion to dismiss is granted.
II. Strafford County Defendants
A. Same Parties
Lewis and the Strafford County Attorney’s Office were
parties to Lewis’s 2017 suit, thus meeting the “same party”
requirement. Prosecutor Chellman is an additional defendant not
named in the 2017 or 2018 suits. She is, however, an employee
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 12 of 16

13
of the Strafford County Attorney’s Office and her conduct at
Lewis’s criminal trial served as the factual basis for Lewis’s
claims against the Strafford County Attorney’s Office in the
2017 suit. Consequently, the Strafford County Attorney’s
Office’s defense of the 2017 suit adequately represented and
protected Prosecutor Chellman’s interests such that she is in
privity with the Strafford County Attorney’s Office for the
purposes of res judicata. See Town of Seabrook, 738 F.2d at 11;
Sutliffe, 627 F. Supp. 2d at 50-51. The “same parties”
requirement is, therefore, satisfied with respect to the
Strafford County defendants in relation to the 2017 suit.
B. Same Causes of Action
As explained above, “cause of action” collectively refers
to “all theories on which relief could be claimed on the basis
of the factual transaction in question.” E. Marine Const. Corp.
v. First S. Leasing, Ltd., 129 N.H. 270, 275 (1987). Construing
the complaint in this suit favorably to Lewis, he alleges the
following claims against the Strafford County defendants arising
out of his 2016 arrest and criminal trial: malicious
prosecution; discrimination on the basis of Lewis’s race in
violation of Title VI, 42 U.S.C. § 2000d et seq.; and violations
of his civil rights under 42 U.S.C. § 1983 including violation
of his 6th Amendment right under the confrontation clause based
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 13 of 16

14
on the admission of the “hearsay” police report, and violation
of his due process rights under the 5th and 14th Amendments
based on the introduction of a “fabricated” statement at trial
(Labombard’s statement contained in the police report). Lewis
also alleges an additional claim against Prosecutor Chellman
individually. He claims that she violated New Hampshire Rule of
Professional Conduct 3.8 by prosecuting him for a charge that
she knew was not supported by probable cause.
Lewis’s malicious prosecution claim is the same here as in
the 2017 action: he claims that the Strafford County defendants
lacked probable cause to prosecute him for the domestic violence
simple assault charge. Although his other claims appear to
raise new theories of relief not advanced in the 2017 suit, they
all arise from the same factual transaction: the Strafford
County Attorney’s Office’s prosecution of him for the domestic
violence simple assault charge. Because his new claims
originate from the same transaction that formed the basis of his
2017 suit, Lewis could have raised these claims in that earlier
action. Lewis’s claims asserted here are therefore part of the
same “cause of action” brought in the 2017 suit.
C. Final Judgment
The Superior Court dismissed Lewis’s claims against the
Strafford County Attorney’s Office in the 2017 suit based on
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 14 of 16

15
prosecutorial immunity and failure to state claims upon which
relief could be granted. Doc. no. 4-2 at 21-23. This dismissal
was a final decision on the merits that Lewis did not appeal.
See ERG, Inc., 137 N.H. at 191. It therefore satisfies the
“final judgment” requirement.
In sum, the court finds that the facts underlying the
Strafford County defendants’ res judicata argument “suffice to
establish the affirmative defense with certitude.” Nisselson,
469 F.3d at 150. Lewis’s current claims against them are barred
by the preclusive effect of the 2017 litigation. The Strafford
County defendants’ motion to dismiss is granted.4
CONCLUSION
For the foregoing reasons, the court grants the Rochester
defendants’ motion to dismiss (doc. no. 10) and the Strafford
County defendants’ motion to dismiss (doc. no. 3). All other
pending motions (doc. nos. 6, 13) are denied as moot. The clerk
4 The Rochester defendants and Strafford County defendants
also move to dismiss on several other grounds. They argue that
the entire suit is barred by the Rooker-Feldman doctrine and
that Lewis’s § 1983 claims are barred by the applicable statute
of limitations. The Rochester defendants additionally argue
that certain allegations against them fail to state claims upon
which relief may be granted. Because the court has resolved the
pending motions to dismiss on res judicata grounds, the court
need not address these additional arguments.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 15 of 16

16
of court shall enter judgment in accordance with this order and
close the case.5
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
December 18, 2019
cc: Allan Lewis, pro se
Charles P. Bauer, Esq.
Christine Friedman, Esq.
5 It appears that Lewis may be seeking relief this court
cannot provide: removal of his arrest for domestic violence
simple assault from the public record. To the extent that is
the relief Lewis seeks, he must pursue that before the Rochester
Circuit Court. See RSA 651:5, I-II.
Case 1:19-cv-00626-LM Document 17 Filed 12/18/19 Page 16 of 16