Torres v. Manchester, NH, City of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeremy Torres
v. 	Case No. 22-cv-93-JL
City of Manchester et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Jeremy Torres’s Complaint
(Doc. No. 1), which he filed in forma pauperis. 	The matter is
before this court for preliminary review, pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
The court may dismiss claims asserted by a plaintiff who is
proceeding in forma pauperis, 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. § 1915(e)(2). 	To determine whether to
dismiss a claim for failure to state a claim, the court strips
away legal conclusions, takes as true the factual content in the
1 The defendants listed in the Complaint are the City of
Manchester, the Manchester Police Department (“MPD”), ten unnamed
MPD officers, and ten unnamed MPD supervising officers.
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complaint as a whole, and inferences reasonably drawn from those
facts, and considers whether the plaintiff has stated a claim
that is plausible on its face. 	Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). 	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).
Background
Mr. Torres asserts claims in this case arising from police
encounters in Manchester, New Hampshire, in 2021, which, he
alleges, involved false arrests and assaults of him by Manchester
Police Department (“MPD”) officers. 	He asserts that those
incidents worsened his epilepsy and caused him to suffer severe
emotional distress and Post Traumatic Stress Disorder (“PTSD”).
He asserts that as a consequence of those encounters, he had to
be committed to an institution and now cannot function in the
community because he suffers from flashbacks as a result of his
PTSD stemming from those incidents.
The first of these incidents occurred on January 7, 2021,
when he was a bystander to an accident on Chestnut Street, to
which two MPD officers responded, whose names he does not know.
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Without provocation, probable cause, or a warrant, and after
hearing Mr. Torres say he had epilepsy, one of the officers (“MPD
Officer John Doe #1”) used a stun gun or taser on him twice. 	The
other officer (“MPD Officer John Doe #2”) threw him to the
ground, slamming his face against the pavement, and punched him
in the head.
Mr. Torres asserts that several months later, he had further
run-ins with MPD officers which resulted in those officers
arresting him without probable cause. 	He asserts he was charged
with the same crime twice on April 15, 2021, even though he was
not the “person of interest” whom the police were seeking. 	His
complaint elaborates on the second incident on that date, which
occurred as he was walking down Lake Avenue on April 15, 2021.
Two MPD officers, whose names he does not know (“MPD Officer John
Doe #3” and “MPD Officer John Doe #4”), stopped him, he asserts,
falsely claiming he fit the description of someone they were
looking for. 	Mr. Torres responded to their questions by saying
he was minding his own business and wanted nothing to do with the
MPD. 	When they continued to press him for some identification,
Mr. Torres, holding his phone, told the officers he was calling
his lawyer. 	The officers’ tone of voice and questioning then
became more aggressive. 	Mr. Torres began shaking. 	He told the
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officers he just wanted to go home, and then asked to speak with
their supervisor. 	At that point, the officers proceeded to
assault him.2
Mr. Torres filed a Complaint in this case, asserting an
intent to plead claims of “excessive force, failure to train,
failure to supervise, failure to discipline, false statement on
government documents, bias, and intimidation,” arising from those
police encounters. 	He names as defendants the City of
Manchester; the MPD; ten unnamed MPD (patrol) officers; and ten
unnamed MPD supervising officers.
The court construes the allegations in the Complaint as
giving rise to the following claims under 42 U.S.C. § 1983 and
state tort law3:
1. 	On Chestnut Street on January 7, 2021, when Mr. Torres
was a cooperating bystander at the scene of an accident:
A. 	MPD Officer John Doe #1 tased Mr. Torres twice,
knowing he had epilepsy and could have epileptic
seizures, causing harm to Mr. Torres, causing his
2 The description of the April 15, 2021 incident in the
Complaint appears to be incomplete. 	The paragraph describing the
incident (on page 4 of the Complaint) ends abruptly, as follows:
“the officers did not have any description of the person they
[were] looking for in the first place and the officers proceeded
to assault me specifically by forcing me to the.”
3 Mr. Torres’s apparent intent to assert instances of “bias”
and “false statement on government documents” as grounds for
seeking relief finds no apparent support in any of the facts
alleged in the Complaint.
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epilepsy to worsen, causing or exacerbating his PTSD,
and causing severe emotional distress:
i. 	Rendering MPD Officer John Doe #1 liable
under 42 U.S.C. § 1983, for the use of excessive
force incident to an arrest, in violation of the
Fourth Amendment;
ii. 	Rendering MPD Officer John Doe #2 liable
under 42 U.S.C. § 1983,
a. 	For failing to intervene to stop the
assault by MPD Officer John Doe #1 when
there was a reasonable opportunity to do so,
in violation of the Fourth Amendment, and
b. 	For assisting MPD Officer John Doe #1’s
attack by placing Mr. Torres in a vulnerable
position, in violation of the Fourth
Amendment;
iii. Rendering MPD Officers John Doe #1 and John
Doe #2, and their employer(s), the MPD and the
City of Manchester, liable under state law for:
a. 	The intentional tort of assault;
b. 	The intentional tort of battery;
c. 	The intentional infliction of emotional
distress; and
d. 	The negligent infliction of emotional
distress.
B. 	MPD Officer John Doe #2 threw Mr. Torres to the
ground, slammed his face against the pavement, and
punched him in the head, causing him harm, causing his
epilepsy to worsen, causing or exacerbating his PTSD,
and causing severe emotional distress:
i. 	Rendering MPD Officer John Doe #2 liable
under 42 U.S.C. § 1983, for the use of excessive
force incident to an arrest, in violation of the
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Fourth Amendment; and
ii. 	Rendering MPD Officer John Doe #1 liable
under 42 U.S.C. § 1983,
a. 	For failing to intervene to stop the
assault by MPD Officer John Doe #2 when there
was a reasonable opportunity to do so, in
violation of the Fourth Amendment, and
b. 	For assisting MPD Officer John Doe #2’s
attack by placing Mr. Torres in a vulnerable
position, in violation of the Fourth
Amendment.
iii. Rendering MPD Officers John Doe #1 and John
Doe #2, and their employer(s), the MPD and the
City of Manchester, liable under state tort law
for:
a. 	The intentional tort of assault;
b. 	The intentional tort of battery;
c. 	The intentional infliction of emotional
distress;
d. 	The negligent infliction of emotional
distress.
C. 	MPD Officers John Doe #1 and John Doe #2 seized
and arrested Mr. Torres, without probable cause or a
warrant, in violation of his rights under the Fourth
Amendment,
i. 	Rendering MPD Officers John Doe #1 and John
Doe #2 liable for false arrest under 42 U.S.C.
§ 1983; and
ii. 	Rendering MPD Officers John Doe #1 and John
Doe #2, and their employer(s), the MPD and the
City of Manchester, liable under state law for
the intentional tort of false imprisonment.
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2. 	On Lake Avenue on April 15, 2021, MPD Officers John Doe
#3 and John Doe #4 violated Mr. Torres’s federal rights and
engaged in tortious conduct under state law, in that:
A. 	MPD Officers John Doe #3 and John Doe #4
unjustifiably and unreasonably stopped, questioned, and
seized Mr. Torres, while he was not engaged in any
illegal conduct, without any information showing he was
a person being sought by the MPD, and without any
reasonable suspicion of any criminal activity in the
area, in violation of Mr. Torres’s rights under the
Fourth Amendment, rendering those officers liable under
42 U.S.C. § 1983;
B. 	MPD Officers John Doe #3 and John Doe #4 seized
and arrested Mr. Torres, without probable cause or a
warrant, in violation of his rights under the Fourth
Amendment,
i. 	Rendering MPD Officers John Doe #3 and John
Doe #4 liable for false arrest under 42 U.S.C.
§ 1983; and
ii. 	Rendering MPD Officers John Doe #3 and John
Doe #4, and their employer(s), the MPD and the
City of Manchester, liable under state law for the
intentional tort of false imprisonment.
C. 	MPD Officers John Doe #3 and John Doe #4 used
excessive force incident to an arrest of Mr. Torres, in
that:
i. 	MPD Officers John Doe #3 and John Doe #4 -
a. 	Assaulted Mr. Torres, in violation of
the Fourth Amendment, rendering them liable
under 42 U.S.C. § 1983,
b. 	Failed to intervene to stop the
attacking officer when there was a reasonable
opportunity to do so, in violation of the
Fourth Amendment, rendering them liable under
42 U.S.C. § 1983, and
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c. 	Assisted the attacking officer by
placing Mr. Torres in a vulnerable position,
in violation of the Fourth Amendment,
rendering them liable under 42 U.S.C. § 1983;
and
ii. 	MPD Officers John Doe #3 and John Doe #4
attacked Mr. Torres, causing him harm, causing his
epilepsy to worsen, causing or exacerbating his
PTSD, and causing him to suffer severe emotional
distress, rendering them and their employer(s),
the MPD and the City of Manchester, liable under
state law for:
a. 	The intentional tort of assault;
b. 	The intentional tort of battery;
c. 	The intentional infliction of emotional
distress; and
d. 	The negligent infliction of emotional
distress.
D. 	In response to Mr. Torres’s statements indicating
that he wanted nothing to do with the MPD, was calling
his lawyer, wanted to go home, and wanted to speak to
the officers’ MPD supervisor:
i. 	MPD Officers John Doe #3 and John Doe #4
arrested Mr. Torres, in retaliation for his
exercise of his First Amendment rights, rendering
them liable under 42 U.S.C. § 1983 for a
retaliatory arrest;
ii. 	MPD Officers John Doe #3 and John Doe #4
assaulted him, failed to intervene to stop the
attacking officer when there was a reasonable
opportunity to do so, and/or assisted the
attacking officer by placing Mr. Torres in a
vulnerable position, in retaliation for his
exercise of his First Amendment rights, rendering
them liable under 42 U.S.C. § 1983 for a
retaliatory assault; and
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iii. MPD Officers John Doe #3 and John Doe #4
falsely imprisoned Mr. Torres, in retaliation for
his exercise of his First Amendment rights,
rendering them and their employer(s), the MPD and
the City of Manchester, liable under state law for
the intentional tort of false imprisonment.
Discussion
I. John Doe Defendants
There are no names in the Complaint for any of the MPD
officers who are alleged to have arrested or assaulted Mr.
Torres. 	Mr. Torres has listed twenty unnamed officers, calling
them “Officer Does.”
The practice of suing unnamed defendants by using a
pseudonym like “John Doe” is permissible where a plaintiff cannot
identify the individual’s name and has “no realistic means of
obtaining the information outside the discovery process.”
Martinez-Rivera v. Ramos, 498 F.3d 3, 8 n.5 (1st Cir. 2007).
Generally, the plaintiff must show that “a good-faith
investigation has failed to reveal the identity of the relevant
defendant and there is a reasonable likelihood that discovery
will provide that information.” 	Id. at 8. 	Such circumstances
may exist in cases involving allegations of the use of excessive
force by law enforcement officers. 	See id. at 8 n.5.
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The Complaint suggests that only four unnamed MPD officers
may be responsible for Mr. Torres’s alleged injuries, and for
that reason, this court has identified those potentially
responsible officers as MPD Officers John Doe #1, John Doe #2,
John Doe #3, and John Doe #4. 	Plaintiff should move to amend the
Complaint, as permitted by this court’s orders and applicable
rules, if he has more precise information regarding the names and
numbers of officers involved in the incidents at issue, so that
they may be added as defendants to this case.
This court cannot order the service of a summons upon any
“John Does” who have not been named. 	Mr. Torres may file a
motion seeking permission to serve a limited number of discovery
requests upon the MPD and/or the City of Manchester, for the
purpose of obtaining the names of MPD Officers John Doe #1-#4,
and other potentially responsible, as-yet unnamed officers who
may be defendants. 	Mr. Torres should then move to amend the
complaint to substitute the correct name for each “John Doe,” see
id., by filing a motion to name and join them as defendants.
II. 	Fourth Amendment Excessive Force
To state a Fourth Amendment claim for the use of excessive
force incident to an arrest, Mr. Torres must show that the
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arresting officers’ actions were objectively unreasonable, in
light of the facts and circumstances known to them at the time of
the use of force. 	See Jennings v. Jones, 499 F.3d 2, 11 (1st
Cir. 2007); see also Graham v. Connor, 490 U.S. 386, 397 (1989).
Factors relevant to the objective reasonableness of the force
used include the “‘severity of the crime at issue, whether the
suspect pose[d] an immediate threat to the safety of the officers
or others, and whether he [wa]s actively resisting arrest or
attempting to evade arrest by flight.’” 	Jennings, 499 F.3d at 11
(citation omitted).
In addition,
“an officer who is present at the scene [of an arrest] and
who fails to take reasonable steps to protect the victim of
another officer’s use of excessive force can be held liable
under section 1983 for his nonfeasance,” provided that he
had a “realistic opportunity” to prevent the other officer’s
actions.
Martinez v. Colon, 54 F.3d 980, 985 (1st Cir. 1995) (citation
omitted). 	And a “constitutional duty to intervene may also arise
if onlooker officers are instrumental in assisting the actual
attacker to place the victim in a vulnerable position.” 	Id. at
985 n.4. 	“In such a scenario, the onlooker officers and the
aggressor officer are essentially joint tortfeasors and,
therefore, may incur shared constitutional responsibility.” 	Id.
Mr. Torres has stated Fourth Amendment excessive force
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claims upon which relief can be granted, with respect to the
unnamed officers listed in Claims 1(A)(i), 1(A)(ii)(a)-(b),
1(B)(i), 1(B)(ii)(a)-(b), and 2(C)(i)(a)-(c). 	If the court
receives and grants a motion to name and join MPD Officers John
Doe #1-#4 as defendants, service upon them may be directed.
III. Assault & Battery and Vicarious Liability
“A successful assault claim requires that ‘(1) the defendant
. . . intended to cause harmful or offensive contact to the
plaintiff, and (2) the plaintiff must have been put in imminent
apprehension of such contact.’” 	Rand v. Town of Exeter, 976 F.
Supp. 2d 65, 75 (D.N.H. 2013) (citation omitted). 	“A defendant
may be held liable for battery if ‘(a) he acts intending to cause
a harmful or offensive contact with the person of the other or a
third person, or imminent apprehension of such a contact, and (b)
a harmful contact with the person of the other directly or
indirectly results.’” 	Id. at 75-76 (citation omitted).
In addition, under state law, “[u]nder the doctrine of
respondeat superior, ‘an employer may be held vicariously
responsible for the tortious acts of its employee if the employee
was acting within the scope of his or her employment when his or
her tortious act injured the plaintiff.’” 	Tessier v.
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Rockefeller, 162 N.H. 324, 342, 33 A.3d 1118, 1132 (2011)
(citation omitted). 	“Conduct falls within the scope of
employment if: ‘(1) it is of the kind [the employee] is employed
to perform; (2) it occurs substantially within the authorized
time and space limits; and (3) it is actuated, at least in part,
by a purpose to serve the employer.’” 	Id., 162 N.H. at 342-43,
33 A.3d at 1132 (citation omitted).
The factual allegations concerning the assaults, and their
alleged impact on Mr. Torres, give rise to actionable claims of
the intentional torts of assault and battery under state law,
against the MPD officers and their employer(s) (under a theory of
vicarious liability), as summarized in Claims 1(A)(iii)(a)-(b),
1(B)(iii)(a)-(b), and 2(C)(ii)(a)-(b). 	In the Order issued this
date, the court has directed service upon the named employer
defendants. 	The court may also direct service of the Complaint
upon MPD Officers John Doe #1-#4 if the court receives and grants
a motion to name and join them.
IV. 	Emotional Distress Torts
The plaintiff has pleaded facts that assert state law tort
claims of intentional and/or negligent infliction of emotional
distress. 	“The elements of a claim for negligent infliction of
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emotional distress include: ‘(1) causal negligence of the
defendant; (2) foreseeability; and (3) serious mental and
emotional harm accompanied by objective physical symptoms.’”
Id., 162 N.H. at 342, 33 A.3d at 1132 (citation omitted). 	To
state a claim for intentional infliction of emotional distress
under New Hampshire law, a plaintiff must allege facts to show
that “‘by extreme and outrageous conduct,’” that is, conduct
which may be regarded as “‘atrocious, and utterly intolerable in
a civilized community,’” the defendant “‘intentionally or
recklessly cause[d] severe emotional distress to another.’” 	Id.,
162 N.H. at 341, 33 A.3d at 1131 (citation omitted).
The factual allegations concerning the assaults in January
2021 and April 2021, and the alleged impact on Mr. Torres, give
rise to actionable claims of negligent and intentional infliction
of emotional distress against MPD Officers John Doe #1-#4 and
their employer(s), the City of Manchester and the MPD, based on a
theory of their vicarious responsibility as the officers’
employer (Claims 1(A)(iii)(c)-(d), 1(B)(iii)(c)-(d), and
2(C)(ii)(c)-(d)). 	In the Order issued this date, the court has
directed service of the Complaint upon the named employer(s).
The court may also direct service of the Complaint upon MPD
Officers John Doe #1-#4 if the court receives and grants a motion
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to name and join them.
V. 	Fourth Amendment Seizure Claims
A. 	Terry Stop
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable searches
and seizures.” 	U.S. Const. amend. IV. 	“The reasonableness of a
seizure under the Fourth Amendment is determined ‘by balancing
its intrusion on the individual’s Fourth Amendment interests
against its promotion of legitimate government interests.’”
Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 187–88 (2004).
In the ordinary course a police officer is free to ask
a person for identification without implicating the Fourth
Amendment. 	“[I]nterrogation relating to one’s identity or a
request for identification by the police does not, by
itself, constitute a Fourth Amendment seizure.”
Id. at 185. 	If a police officer has a reasonable and articulable
suspicion that a person may be involved in criminal activity, the
officer may briefly stop the person to investigate
further. 	See id. 	But such a “Terry stop” must be both justified
and commensurately limited. 	Id. (citing Terry v. Ohio, 392 U.S.
1 (1968)). 	The stop must be “justified at its inception, and
. . . reasonably related in [duration and] scope to the
circumstances which justified the interference in the first
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place,” to be considered “constitutionally reasonable.” 	Hiibel,
542 U.S. at 185 (internal quotation marks and citations omitted).
The facts alleged in the Complaint regarding the initial
encounter between Mr. Torres and police officers on April 15,
2021 state a claim upon which relief can be granted under 42
U.S.C. § 1983, for a violation of Mr. Torres’s Fourth Amendment
rights, where the detention of Mr. Torres exceeded the scope of
any legitimate, investigative purpose and was unjustified by any
reasonable suspicion of his involvement in criminal activity.
The court may direct service of the Complaint upon MPD Officers
John Doe #3 and #4 if the court receives and grants a motion to
name and join them.
B. 	Fourth Amendment False Arrest
The Fourth Amendment provides that “no Warrants shall issue,
but upon probable cause.” 	U.S. Const. amend. IV. 	“A federal
constitutional tort of false arrest — and thus an unlawful arrest
under § 1983 — occurs when there is detention without probable
cause and without legal process (i.e., without a valid warrant).”
Karamanoglu v. Town of Yarmouth, 15 F.4th 82, 87 (1st Cir. 2021).
The existence of probable cause will bar a claim of false arrest
asserted under the Fourth Amendment and § 1983. 	Finamore v.
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Miglionico, 15 F.4th 52, 58 (1st Cir. 2021).
A police officer has probable cause when, at the time
of the arrest, the “facts and circumstances within the
officer’s knowledge . . . are sufficient to warrant a
prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an
offense.”
Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009)
(citation omitted). 	In “determining whether the officer had
probable cause, [the court] must view the circumstances from the
perspective of a reasonable person in the position of the
officer.” 	Id. (citations omitted).
The facts alleged in the Complaint, regarding the seizure
and arrest of Mr. Torres in January 2021 and April 2021, state
claims upon which relief can be granted under 42 U.S.C. § 1983,
for false arrests in violation of Mr. Torres’s Fourth Amendment
rights. 	The court may direct service of the Complaint upon MPD
Officers John Doe #1-#4 with respect to Claims 1(C)(i) and
2(B)(i) if the court receives and grants a motion to name and
join them.
VI. 	First Amendment Retaliation
To prove a First Amendment retaliation claim, a plaintiff
must show that he engaged in constitutionally protected conduct
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and that he was subjected to an adverse action by the defendant.
See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st
Cir. 2012). 	In addition, with respect to a claim of a
retaliatory arrest, the plaintiff must also “plead and prove the
absence of probable cause for the arrest.” 	Nieves v. Bartlett,
139 S. Ct. 1715, 1724 (2019).
The facts alleged in the Complaint, regarding the assault
and arrest of Mr. Torres in April 2021, state claims upon which
relief can be granted under 42 U.S.C. § 1983, for First Amendment
retaliation in violation of Mr. Torres’s rights, with respect to
Claims 2(D)(i)-(ii). 	The court may direct service of the
Complaint upon MPD Officers John Doe #3 and #4 if the court
receives and grants a motion to name and join them.
VII. False Imprisonment under State Law
The Complaint’s allegations of Fourth Amendment false arrest
claims implicate the tort of false imprisonment.
To prevail on a claim for false imprisonment, a
plaintiff must demonstrate that: (1) the defendant
acted with the intent of confining him within
boundaries fixed by the defendant; (2) the defendant’s
act directly or indirectly resulted in the plaintiff’s
confinement; (3) the plaintiff was conscious of or
harmed by the confinement; and (4) the defendant acted
without legal authority.
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Ojo v. Lorenzo, 164 N.H. 717, 726, 64 A.3d 974, 982
(2013) (citations omitted). 	“[P]robable cause is a defense to a
claim for false imprisonment resulting from a warrantless
detention.” 	Id.
The facts alleged in the Complaint, which give rise to
actionable Fourth Amendment false arrest and First Amendment
retaliatory arrest claims, also state claims upon which relief
can be granted under state law for the tort of false
imprisonment, occurring on January 7, 2021 and April 15, 2021,
against MPD Officers John Does #1-#4 and the City of Manchester
and the MPD (under a theory of vicarious liability). 	In the
Order issued this date, the court has directed service of the
Complaint upon the named defendants. 	The court may also direct
service of the Complaint upon the officers identified here as MPD
Officers John Doe #1-#4 if the court receives and grants a motion
to name and join them.
VIII. § 1983 Claims of Supervisory and Municipal Liability
Mr. Torres lists the MPD, the City of Manchester, and ten
unnamed supervisory MPD officers whom he seeks to hold
responsible for the injuries he suffered on January 7 and April
15, 2021, and he lists theories of municipal or supervisory
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liability including “failure to train,” “failure to supervise,”
and “failure to discipline.” 	With respect to his claims of
violations of his federal constitutional rights, however, he has
failed to plead sufficient facts to support any actionable claims
of supervisory or municipal liability under 42 U.S.C. § 1983.
Generally, a supervisor or employer cannot be held liable
under 42 U.S.C. § 1983 on a “respondeat superior” theory of
vicarious liability for federal constitutional violations,
Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021); Ҥ 1983
liability cannot rest solely on a defendant’s position of
authority.” 	Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014). 	The liability of a supervisor or employer
“‘must be premised on his or her own acts or omissions’ and does
not attach automatically even if a subordinate is found liable.”
Justiniano, 986 F.3d at 20 (internal citations and brackets
omitted).
Similarly, under § 1983, a city or municipality cannot be
held liable under 42 U.S.C. § 1983 on a theory of respondeat
superior or vicarious liability; the municipality itself must
proximately cause the constitutional injury, through the
promulgation (or tacit approval) of a municipal policy or custom,
which must be the moving force behind the constitutional
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violation. 	See Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997); Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 	In
other words, the plaintiff must establish “that the municipal
action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.” 	Brown, 520 U.S.
at 404.
Liability will attach to the municipal employer where its
failure to properly train its officers “amounts to
deliberate indifference to the rights of persons with whom
the police come into contact,” and where a specific
deficiency in training is the “moving force” behind a
constitutional injury. 	A supervisory officer may be held
liable for the behavior of his subordinate officers where
his “action or inaction [is] affirmatively linked . . . to
that behavior in the sense that it could be characterized as
‘supervisory encouragement, condonation or acquiescence’ or
‘gross negligence amounting to deliberate indifference.’”
Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002)
(citations omitted).
Here, Mr. Torres’s complaint lacks any non-conclusory
allegations regarding what the City or any MPD supervisory
officers did or did not do that related to the January 7 and
April 15, 2021 incidents he describes. 	Without more factual
allegations as to what those supervisors and municipal agents may
have done, or as to the existence and effect of any municipal
policy or custom relating to the alleged assaults and arrests,
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the Complaint fails to state any claim of liability under 42
U.S.C. § 1983 against any MPD supervisory officers, the City of
Manchester, or the MPD. 	Accordingly, the district judge should
dismiss without prejudice the § 1983 supervisory and municipal
liability claims, including all of Mr. Torres’s claims of failure
to train, failure to discipline, or failure to supervise, and all
of the (unnamed) MPD supervisory officers should be dropped as
defendants.
Conclusion
For the foregoing reasons, the district judge should direct:
(1) that all of the Complaint’s claims of municipal and
supervisory liability under 42 U.S.C. § 1983, and the Complaint’s
unsupported assertions of “bias” and “false statements on
government documents,” be dismissed for failure to state a claim,
without prejudice to plaintiff’s ability to move to amend the
Complaint; and (2) that all ten of the unnamed “Supervising
Officer Does” listed in the Complaint be dropped as parties to
this action.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
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motion. 	Failure to file any objection 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). 	Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 14, 2022
cc: 	Jeremy Torres, pro se
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