DiChiara v. Salem, NH, Town of et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephen DiChiara,
Plaintiff
v. Case No. 22-cv-131-SM
Opinion No. 2023 DNH 083
The Town of Salem,
Defendant
O R D E R
Stephen DiChiara was employed by the Town of Salem as a
police officer. He brings this action against the Town seeking
compensation for alleged violations of various state and federal
constitutional rights. He also asserts common law claims for
defamation, intentional and negligent infliction of emotional
distress, and conversion. DiChiara seeks compensatory and
punitive damages, equitable relief, and an award of costs,
interest, and attorney’s fees.
The Town originally moved to dismiss all of DiChiara’s
claims for failure to state a viable cause of action. See Fed.
R. Civ. P. 12(b)(6). By order dated January 27, 2023, the court
converted that motion into one for summary judgment. See Fed.
R. Civ. P. 12(d). The Town was instructed to refile the
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documents upon which it relied and submit an affidavit executed
by a person or persons with first-hand knowledge of the matter,
attesting to the fact that the Town’s submission is an accurate
and complete set of such documents. For his part, DiChiara was
instructed to specifically identify those documents in the so-
called “binder” provided by the Town to the Attorney General’s
office upon which each of his five claims rested.
The parties have responded and, for the reasons given, the
Town’s motion for summary judgment is granted.
Background
The relevant facts are as follows. In July of 2016, the
Salem Police Department hired DiChiara as a patrol officer.
Approximately three years later, he stopped a vehicle on
Interstate 93 for a traffic violation. DiChiara was alone at
the time. At some point during the stop, DiChiara learned that
there was a loaded firearm under the driver’s seat. The
operator was placed under arrest on an outstanding warrant. The
complaint alleges that subsequently (although it is entirely
unclear when), one of the people who had been a passenger in the
vehicle told DiChiara that, “as he was initially approaching the
vehicle at the side of the highway, the operator asserted to the
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other occupants of the vehicle that he was ‘going to kill a
cop,’ and that at the last moment one of the occupants had
successfully managed to persuade[] the felon in possession not
to gun down the Plaintiff.” Amended Complaint (document no. 24)
at para. 21. As a result of the emotional trauma he suffered in
the wake of that encounter, DiChiara developed PTSD which
“disabled him from performing the regular duties of his
occupation.” Id. at para. 23. Accordingly, he sought and was
eventually awarded workers’ compensation benefits.
As part of DiChiara’s application for workers’ compensation
benefits, the Town of Salem was authorized to receive and did,
in fact, receive information relevant to that application –
including DiChiara’s medical records. See generally N.H. Rev.
Stat. Ann. 281-A:23 V(a)(1) (“The act of the worker in applying
for workers’ compensation benefits constitutes authorization to
any physician, hospital, chiropractor, or other medical vendor
to supply all relevant information regarding the worker’s
occupational injury or illness to the insurer, the insurer’s
representative, the worker’s employer, the worker’s
representative, the worker’s employer’s representative, and the
department. Medical information relevant to a claim includes a
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past history of complaints of, or treatment of, a condition
similar to that presented in the claim.”) (emphasis supplied).
At about the same time, the Town was generally concerned
that some of its employees (including DiChiara) may have
overstated the nature of work-related injuries in an effort to
secure workers’ compensation benefits. Accordingly, the Town
notified attorneys at the New Hampshire Attorney General’s
Office of “possible fraudulent activity.” Amended Complaint at
para. 40. Then, according to DiChiara, “on March 6, 2020,
Defendant’s Human Resources Director Anne Fogarty mailed a
binder containing Plaintiff’s privileged and confidential mental
health records, medical records, and worker’s compensation
records to then Deputy Attorney General Jane Young.” Id. at
para. 43 (emphasis supplied).1
In her cover letter to Attorney Young, Ms. Fogarty stated,
“It appeared to me that [DiChiara] possibly enhanced the injury
when describing what occurred to his providers.” Id. at para.
45. That opinion was apparently based, at least in part, on the
1 The vast majority of documents in that binder relate to
Town employees other than DiChiara. And, contrary to the
allegations of the amended complaint, the binder does not
contain any of DiChiara’s confidential medical or mental health
records.
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Department of Labor Hearing Officer’s finding that DiChiara’s
testimony about the events giving rise to his claimed disability
was “inconsistent,” as well as the Hearing Officer’s related
finding that DiChiara tried to falsely suggest that he had been
in a “physical altercation with the perpetrator and guns had
been shown during the course of this action . . . [when] this in
fact is not true.” Decision of the Hearing Officer (document
no. 35) at 55. Indeed, the Hearing Officer concluded that,
“Most regretfully, the claimant’s testimony relative to the
facts of this case was not persuasive.” Id. at 56.
When the Town did not hear back from the Attorney General’s
Office, the Town Manager sent a follow-up email to Deputy
Attorney General Young seeking an update, stating that, “I was
under the impression you were going to go through the binder and
possibly decide if this warrants an investigation.” Email from
Christopher Dillon (document no. 35) at 129. Several months
later, in November of 2020, Assistant Attorney General Nicole
Clay notified the Town that her office had concluded its review
and “[t]he information provided does not support a criminal
allegation on the part of any Town of Salem employee or former
employee.” Letter from Assistant Attorney General Clay
(document no. 35) at 163. This litigation ensued.
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As noted above, DiChiara alleges that the Town
unconstitutionally “seized” and then unlawfully disclosed
confidential “mental health, medical, and New Hampshire Labor
Department documents to multiple individuals.” Amended
Complaint at para. 31. The undisputed facts, however, are less
compelling.
In response to the court’s order directing him to
specifically identify the documents upon which each of his
claims rely, DiChiara filed a Supplemental Memorandum in
Opposition to Summary Judgment (document no. 39). That filing
makes plain that, despite the claims in DiChiara’s amended
complaint, the Town did not share with the Attorney General’s
Office any of DiChiara’s confidential medical or mental health
records. Instead, all of DiChiara’s claims rest upon the
assertion that the Town improperly provided to the Attorney
General’s Office a copy of the Decision of the Department of
Labor’s Hearing Officer, dated November 19, 2019 (document no.
35), pages 51-56. And, because the Hearing Officer’s decision
makes reference to notes made by DiChiara’s counsellors, see id.
at 53-54, DiChiara says that when the Town provided the Attorney
General’s Office with a copy of that decision, it necessarily
also shared his confidential medical and mental health records.
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Discussion
In his amended complaint, DiChiara advances five state and
federal claims:
Count One: the “warrantless and unlawful seizure” of
his confidential medical records, mental health
records, and worker’s compensation records, in
violation of the state and federal constitutions (Id.
at para. 79);
Count Two: defamation arising from the Town’s
communications with the Attorney General’s office and
its “meritless and defamatory accusations of criminal
fraud” on DiChiara’s part (Id. at para. 95);
Counts Three and Four: intentional and negligent
infliction of emotional distress arising from the
Town’s “unauthorized seizure . . . [and] unauthorized
dissemination” of DiChiara’s confidential medical
records and its “meritless accusations of criminal
fraud.” (See Id. at paras. 111, 118); and, finally,
Count Five: conversion arising from the Town’s “theft”
of DiChiara’s medical records and its violation of
“Plaintiff’s right to control disclosure of his mental
health documents, medical documents, and New Hampshire
Labor Department documents.” (Id. at paras. 124 and
126).
DiChiara’s claims fall into two broad categories. First, those
that turn on the alleged improper “seizure” and subsequent
disclosure of his medical and worker’s compensation records in
the so-called “binder” of materials sent to the Attorney
General’s Office on March 6, 2020. And, second, those that turn
on the alleged “meritless accusations [to the Attorney General’s
Office] of criminal fraud.”
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I. The Town’s Communications are not Actionable.
Turning first to the latter category of claims, counts two,
three, and four of the amended complaint all rest on DiChiara’s
assertion that the Town made “meritless and defamatory
accusations of criminal fraud” in its communications with the
Attorney General’s Office. Even assuming the statements
identified by DiChiara are actually defamatory, rather than
matters of opinion (e.g., voicing mere suspicions based upon
administrative proceedings) – an open question the court need
not resolve – it is plain that those statements are subject to
an absolute privilege under New Hampshire law and, therefore,
cannot form the basis of DiChiara’s tort claims.
Except in extreme cases, for which malicious
prosecution or abuse of process are adequate remedies,
a person wrongfully accused of a crime must bear that
risk, lest those who suspect wrongful activity be
intimidated from speaking about it to the proper
authorities for fear of becoming embroiled themselves
in the hazards of interminable litigation.
* * *
For this reason, we adopt the rule that treats both
formal and informal complaints and statements to a
prosecuting authority as part of the initial steps in
a judicial proceeding, and as such entitled to
absolute immunity from an action for defamation. The
same absolute immunity or privilege applies to
statements made to the city or county attorney or
those investigating a suspected crime.
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McGranahan v. Dahar, 119 N.H. 758, 769–70 (1979) (citations
omitted) (emphasis supplied). See also Currier v. Town of
Gilmanton, 2022 DNH 131, 2022 WL 11961748, at *2 (D.N.H. Oct.
20, 2022) (“Under New Hampshire law, statements made in the
course of judicial proceedings, including those preliminary to
proceedings such as a complaint to prosecutors, are subject to
an absolute immunity from defamation claims.”) (emphasis
supplied); Hungerford v. Jones, 988 F. Supp. 22, 27 (D.N.H.
1997) (same).
The Town communicated the statements at issue as part of
its request that the Attorney General’s Office investigate what
the Town reasonably believed might be fraudulent conduct. The
Town is, therefore, absolutely immune with respect to the
allegedly defamatory and/or hurtful comments set forth in its
communications with the Attorney General’s Office. Accordingly,
it is entitled to judgment as a matter of law as to count 2
(defamation), count 3 (intentional infliction of emotional
distress), and count 4 (negligent infliction of emotional
distress). And, because the court has resolved defendant’s
entitlement to summary judgment on grounds that the statements
at issue are absolutely privileged, it need not address the
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Town’s assertion that its employees (and, by extension, the Town
itself) are shielded by official immunity.
II. “Conversion” of Confidential Records.
Count five of DiChiara’s amended complaint – a state common
law claim for conversion – is similarly flawed. According to
DiChiara,
Defendant intentionally exercised unauthorized
dominion and control over Plaintiff’s mental health
documents, medical documents, and New Hampshire Labor
Department documents.
Defendant thereby violated Plaintiff’s right to
control disclosure of his mental health documents,
medical documents, and New Hampshire Labor Department
documents.
Defendant improperly delivered Plaintiff’s mental
health documents, medical documents, and New Hampshire
Labor Department documents to the Office of the New
Hampshire Attorney General.
Defendant’s theft of said documents from Plaintiff’s
worker’s compensation file caused Plaintiff to suffer
emotional distress accompanied by sleep disturbance
and other objective physical symptoms.
Amended Complaint at paras. 123-26 (emphasis supplied).
DiChiara bases his assertion that the Town “stole” or
converted the documents at issue upon an exceedingly strained
reading of New Hampshire law. DiChiara points to a single
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provision of New Hampshire’s Workers’ Compensation statute,
which states that:
Proceedings and records of the department of labor
with respect to workers’ compensation claims under RSA
281-A shall be exempt from RSA 91-A [New Hampshire’s
“Right to Know” law]. Nothing in this section shall
prohibit the department of labor from releasing
information on a person’s claim or claims to the
person, the person’s legal representative, attorney,
health care providers, employer, the employer’s
workers’ compensation insurer, the attorneys for the
employer or employer’s insurer, or state and federal
agencies with relevant jurisdiction. Notwithstanding
the provisions of this section, information relating
to a person’s claim or claims may be released to other
parties only with the prior written permission of the
claimant.
N.H. Rev. Stat. Ann. (“RSA”) 281-A:21-b (emphasis supplied).
Seizing upon that final sentence, DiChiara says the Town
violated state law when it provided the Attorney General’s
Office with a copy of the Hearing Officer’s decision in his
workers’ compensation case. And, says DiChiara, that allegedly
unlawful disclosure amounted to common law conversion.
But, the plain language of that statute bars only the
Department of Labor from releasing information relating to a
party’s workers’ compensation claims. DiChiara has not
identified any New Hampshire precedent applying that statute
more broadly. Nor has he pointed to any support for the notion
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that RSA 281-A provides a private right of action for its
alleged violation by a party other than the Department of Labor.
Even if the court were to read that statute in the same
sweeping manner advocated by DiChiara, it would, in the context
of this case, directly contradict New Hampshire’s common law
doctrine providing that, “complaints and statements to a
prosecuting authority [are] part of the initial steps in a
judicial proceeding, entitled to absolute immunity.”
McGranahan, 119 N.H. at 770. Moreover, the statute unmistakably
authorizes the release of claims information to “state and
federal agencies with relevant jurisdiction.” The New Hampshire
Attorney General has “relevant jurisdiction” over suspected
cases of Workers’ Compensation fraud.
DiChiara’s “conversion” claim is based on a
misunderstanding of that common law cause of action and it is
without legal merit. See, e.g., Muzzy v. Rockingham Cnty. Tr.
Co., 113 N.H. 520, 523 (1973) (citing Restatement (Second) of
Torts § 222A(1) (1965)).
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III. “Seizure” of Confidential Records.
The precise nature of DiChiara’s final claim – “Unlawful
Seizure under 42 U.S.C. § 1983” - is difficult to discern. He
seems to concede – as he must - that the Town came into
possession of his medical and worker’s compensation records
lawfully. See Amended Complaint at para. 73. See also RSA 281-
A:23. But, he goes on to allege that:
Defendant Salem’s permitted statutory use of
Plaintiff’s documents that it thereby acquired, was
and is strictly limited by RSA 281-A:21-b to worker’s
compensation proceedings.
Defendant was thereby prohibited from releasing any of
Plaintiff’s worker’s compensation claim documents to
any other parties without the prior written permission
of the Plaintiff.
Id. at paras. 74-75 (emphasis supplied). He then concludes, in
a circular fashion, that:
Acting under color of state law, Defendant violated
Plaintiff’s Civil Rights, Federal and State
Constitutional Rights, thereby unlawfully seizing
Plaintiff’s confidential mental health records,
medical records, and New Hampshire Labor Department
documents.
* * *
Plaintiff’s mental health records, medical records,
and worker’s compensation records seized by Defendant
were submitted to the Office of the New Hampshire
Attorney General pursuant to Defendant’s policy of
pursuing a criminal investigation against Plaintiff
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relative to Defendant’s allegations of “possible
fraudulent activity.”
Id. at paras. 82, 88 (emphasis supplied). That conduct, says
DiChiara, violated his “rights secured by the Fourth and
Fourteenth Amendments of the United States Constitution and Part
I, Articles 2-b and 19 of the New Hampshire Constitution.” Id.
at para. 83.
At this point it is, perhaps, worth noting that 42 U.S.C. §
1983 is a statutory means by which citizens may sue state actors
for violations of federally protected rights. See Albright v.
Oliver, 510 U.S. 266, 271 (1994). Section 1983 provides no
remedy for alleged violations of state law. See Baker v.
McCollan, 443 U.S. 137, 146 (1979). Consequently, as to count
one of DiChiara’s complaint, the court will focus solely on
those aspects alleging that the Town violated rights protected
by the Fourth and Fourteenth Amendments.
It would seem that DiChiara claims that although the Town
lawfully acquired a copy of the hearing officer’s decision, its
possession of that document subsequently transformed into an
“unconstitutional seizure” when the Town shared it with the
Attorney General’s Office (allegedly in violation of RSA 281-
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A:21-b). If that is, indeed, his claim, he has not developed it
nor has he cited any precedent to support it – despite having
had the opportunity to do so. And, as noted above, the Town’s
disclosure of that document is shielded by an absolute reporting
privilege under New Hampshire law.
On this record, then, there was no unconstitutional seizure
of DiChiara’s records. The Town lawfully came into possession
of the records related to DiChiara’s worker’s compensation
claim. See RSA 281-A:23 V(a)(1). The Town’s subsequent (and
privileged) disclosure of various documents to the Attorney
General’s Office did not render its initial acquisition of those
documents violative of the Fourth Amendment. Even entertaining
the fiction that the Town’s acquisition of DiChiara’s records
could plausibly be viewed as a “seizure,” it was not
unconstitutional at its inception, nor did it become
unconstitutional when the Town shared one or more of those
documents with the New Hampshire Attorney General. See
generally See Denault v. Ahern, 857 F.3d 76, 84 (1st Cir. 2017)
(concluding that a constitutionally valid seizure of property
does not, based upon subsequent government conduct, mature into
a violation of the Fourth Amendment). As the Court of Appeals
for the Seventh Circuit has noted, “Once an individual has been
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meaningfully dispossessed, the seizure of the property is
complete, and once justified by probable cause, that seizure is
reasonable.” Lee v. City of Chicago, 330 F.3d 456, 466 (7th
Cir. 2003). Subsequent governmental use or possession of that
property neither continues the initial seizure nor begins
another. Id.2
Conclusion
DiChiara’s claims are speculative, untethered to legal
precedent or essential facts, and often hyperbolic. As but one
example, he asserts that:
It is undisputed that Defendant intentionally engaged
in a continuing course of conduct that was the
equivalent of “swatting” - the practice of making a
prank report to law enforcement to bring about a
large-scale response. As amply demonstrated,
Defendant’s “swatting” policy was systematically
executed over a period of at least February through
November of 2020 and was executed by Defendant against
nearly two dozen former employees. . . . In its
execution of this policy against Plaintiff (and
others), Defendant took privileged and confidential
documents that it did not have the legal right to
disseminate and turned those documents over to state
law enforcement officials in furtherance of its
“swatting” scheme. It is undisputed that Defendant
had no good faith basis to accuse Plaintiff of fraud
or of “possibly committing fraud.”
2 Parenthetically, the court notes that DiChiara’s amended
complaint does not advance any claims under the Fifth Amendment
to the U.S. Constitution. See generally Denault, 857 F.3d at
83-84.
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Plaintiff’s Reply Memorandum (document no. 32) at 1 (emphasis
supplied).
Nothing of the sort is “undisputed,” nor has DiChiara
“amply demonstrated” anything of legal significance, having
neglected to respond in a meaningful way to the Town’s filings
and having failed to submit an affidavit attesting to any of his
various unsworn factual assertions.
To survive the Town’s motion for summary judgment, more
than unsupported factual claims and speculative legal theories
is necessary. The Town has submitted all of the documents it
provided to the Attorney General’s Office and it has
persuasively shown that none gives rise to any viable state or
federal claims. See Affidavit of Christopher Dillon (document
no. 34) and Revised Submission of Documents Provided to the
Attorney General (document no. 35). See also Defendant’s
Memorandum in Support of Motion to Dismiss (document no. 26-1)
and Defendant’s Reply Memorandum (document no. 40). Among other
things, the Town has demonstrated that none of DiChiara’s
medical or mental health records were provided to the Attorney
General’s Office, thereby refuting the factual claim central to
DiChiara’s amended complaint.
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In response, DiChiara has pointed to a single document (the
hearing officer’s decision) and an audio transcript of the
hearing itself that he says support all of his claims. He has,
however, failed to point to any genuinely disputed material
facts, nor has he cited legal precedent supporting his position.
Instead, he has presented strained and confusing claims and left
it to the court to determine if any are viable under state or
federal law. But, as this court has noted in the past, it
cannot act as legal counsel to one of the parties, nor can it
posit legal or factual claims on their behalf. See Int’l Tape
Co. Inc. v. Technicote, Inc., 2000 DNH 095, 2000 WL 33667076, at
*3 (D.N.H. Apr. 21, 2000) (collecting cases).
For the foregoing reasons, as well as those set forth in
defendant’s legal memoranda (documents no. 26-1 and 40),
defendant’s Motion for Summary Judgment (formerly, Motion to
Dismiss) (document no. 26) is granted. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
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July 12, 2023
cc: Christopher A. Bandazian, Esq.
John Prendergast, Esq.
K. Joshua Scott, Esq.
Nathan W. Kenison-Marvin, Esq.
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