Gagne v. Barrington Police Department

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Gagne
v. 	Case No. 23-cv-403-SM-TSM
Barrington Police Department et al.
REPORT AND RECOMMENDATION
Pro se plaintiff, Timothy Gagne, a prisoner in New Hampshire, filed a complaint and an
addendum to the complaint (Doc. Nos. 1, 5), pursuant to 42 U.S.C. § 1983, asserting claims of
violations of his federal constitutional rights and related state law tort claims, seeking damages
from the Barrington Police Department (“BPD”) and four unnamed BPD officers (identified herein
as BPD Officers John Doe #1, #2, #3, and #4),1 relating to a police encounter in his garage and his
subsequent detention at the Strafford County Jail and the Wentworth Douglas Hospital on or about
August 23-24, 2021. 	His initial pleadings (Doc. Nos. 1, 5) are before the court for preliminary
review. See LR 4.3(d)(1); see also 28 U.S.C. § 1915A.
For the reasons that follow, the district judge should dismiss: all of Mr. Gagne’s federal
constitutional claims against the Barrington Police Department, including all of his “official
capacity” claims; all of his claims under the Federal Tort Claims Act; and all of his Eighth
Amendment cruel and unusual punishment claims and his Fourteenth Amendment substantive due
process claims, relating to his arrest.
1 In his complaint addendum (Doc. No. 5), Mr. Gagne refers to three of the arresting officers as
John Does #2, #3, and #4 and alleges they acted together at all times. Mr. Gagne has not referred
to any individual as “John Doe #1.” For convenience, this court numbers the four arresting officers
as John Doe #1-#4.
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Preliminary Review Standard
This court conducts a preliminary review of complaints filed by prisoners seeking relief
from government agents. See 28 U.S.C. § 1915A. Claims may be dismissed sua sponte, if, among
other things, the court lacks jurisdiction, a defendant is immune from the relief sought, or the
complaint fails to state a claim upon which relief may be granted. See id. In considering whether
the complaint states a claim, the court determines if, stripped of legal conclusions and with all
reasonable inferences construed in plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief” that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). In undertaking this review, the court is mindful that
pro se complaints must be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam).
Background
On August 23, 2021, Mr. Gagne was sitting in his truck in his garage with the motor
running, with one garage door open and one door closed. Four officers from the Barrington Police
Department entered the garage for a welfare check. 	The officers entered with weapons drawn,
ordered Mr. Gagne to walk backwards from his truck, and then handcuffed him. 	Mr. Gagne
contends he was arrested for attempting suicide. 	The same officers brought Mr. Gagne to the
Strafford County Jail for detention, where he “was exposed to pepper spray and became sick.”2
Doc. No. 5, at 3. The following day, over Mr. Gagne’s objection, the same officers brought Mr.
Gagne to the Wentworth Douglas Hospital. Mr. Gagne was released shortly thereafter.
2 Mr. Gagne’s passing reference to pepper-spraying does not appear intended to state any claim in
this case. If Mr. Gagne intends to assert a claim in this lawsuit arising from his exposure to pepper-
spray, Mr. Gagne may file a motion to add a new claim against an appropriate defendant, or file a
new lawsuit, asserting the identity of the person who injured him, how it happened, and why that
person’s acts or omissions violated his federal rights or otherwise provide grounds for relief.
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Claims
Construed liberally, Mr. Gagne’s initial pleadings assert the following claims for damages
against the individual officers under 42 U.S.C. § 1983 and tort claims against both them and their
municipal employer under state common law:
1. 	BPD Officers John Does #1-#4 violated Mr. Gagne’s Fourth Amendment rights by
subjecting him to an unreasonable seizure involving the use of excessive force,
rendering those officers liable under 42 U.S.C. § 1983, in that:
a. 	The defendant officers used excessive force by pointing their weapons at Mr.
Gagne; and
b. 	The defendant officers used excessive force by handcuffing Mr. Gagne.
2. 	BPD Officers John Does #1-#4 violated Mr. Gagne’s Fourth Amendment rights by
subjecting him to a false arrest, rendering those officers liable under 42 U.S.C. § 1983,
in that:
a. 	The defendant officers arrested Mr. Gagne, without probable cause, a warrant,
or any other legal process; and
b. 	The defendant officers detained Mr. Gagne at (i) the Strafford County Jail and
(ii) the Wentworth Douglas Hospital, without probable cause, a warrant, or any
other legal process.
3. 	BPD Officers John Does #1-#4 engaged in the tort of assault, by pointing their weapons
at Mr. Gagne, rendering those officers as well as their employer, the BPD (under a
theory of respondeat superior), liable for damages under New Hampshire law.
4. 	BPD Officers John Does #1-#4 engaged in the tort of battery, by handcuffing Mr.
Gagne, rendering those officers as well as their employer, the BPD (under a theory of
respondeat superior), liable for damages under New Hampshire law.
5. 	BPD Officers John Does #1-#4 falsely imprisoned Mr. Gagne, rendering those
individual defendants as well as their employer, the BPD (under a theory of respondeat
superior), liable for damages under New Hampshire law, in that:
a. 	The defendant officers arrested Mr. Gagne, without probable cause, a warrant,
or any other legal process; and
b. 	The defendant officers detained Mr. Gagne at (i) the Strafford County Jail and
(ii) the Wentworth Douglas Hospital, without probable cause, a warrant, or any
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other legal process.
6. 	BPD Officers John Does #1-#4 failed to exercise reasonable care in conducting a
welfare check and/or ensuring that there was probable cause to arrest and detain the
plaintiff without legal process, causing him to suffer emotional injury and lost wages,
rendering those individual defendants as well as their employer, the BPD (under a
theory of respondeat superior), liable for negligence under New Hampshire law.
Discussion
I. 	Fourth Amendment Excessive Force Claims
“When a plaintiff alleges excessive force during an investigation or arrest, the federal right
at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S.
650, 656 (2014). To state a Fourth Amendment claim for the use of excessive force, Mr. Gagne
must show that the arresting officers’ actions were objectively unreasonable, in light of the totality
of the facts and circumstances known to them at the time of the use of force, “‘without regard to
their underlying intent or motivation.’” Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (citation
omitted). 	Factors relevant to the objective reasonableness inquiry include the “severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.” 	Graham v.
Connor, 490 U.S. 386, 396 (1989). “Pointing a weapon at a nonthreatening, compliant individual,
even while executing a warrant, can constitute excessive force.” Penate v. Sullivan, 73 F.4th 10,
21 (1st Cir. 2023).
Mr. Gagne’s allegations regarding the officers’ use of their weapons and handcuffs suggest
he has a plausible claim that the officers’ use of force was excessive under the circumstances, in
violation of his Fourth Amendment rights. But because none of the arresting officers are named
in this action, this court cannot direct service of process upon any of them. 	In the “Order to
Disclose Names” this date, the court directed their employer, the defendant BPD, to disclose their
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names to Mr. Gagne, so that, within ninety days of this date, he may move to substitute those
names for John Does #1-#4 and join those individuals as parties to this action.
II. 	Fourth Amendment False Arrest Claims
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. 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).
One possible exception to the probable cause requirement is suggested by the allegation
that the officers had been called to perform a “welfare check.” 	“The community caretaking
doctrine recognizes that law enforcement officers provide an infinite variety of services to preserve
and protect community safety,” in addition to being “enforcer[s] of the criminal law.” 	United
States v. Wetmore, 560 F. Supp. 3d 591, 600–01 (D.N.H. 2021) (citation omitted). 	“The
imperatives of the fourth amendment are satisfied in connection with the performance of . . .
noninvestigatory duties, including community caretaker tasks, so long as the procedure employed
(and its implementation) is reasonable.” United States v. Rodriguez-Morales, 929 F.2d 780, 785
(1st Cir. 1991).
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The facts alleged in the Complaint regarding Mr. Gagne’s situation in a garage with a door
open, the forceful arrest, and the overnight detention at the Strafford County Jail, taken as true,
suggest that the officers may have used warrantless, unreasonable procedures exceeding the scope
of the caregiving function, without probable cause for an arrest. 	Those allegations give rise to
Fourth Amendment false arrest claims upon which relief can be granted against the individual
defendants under 42 U.S.C. § 1983.
Lacking the individual officers’ names, this court cannot direct that they be served. In the
Order to Disclose Names, the court has directed the defendant BPD to disclose to Mr. Gagne the
names of the officers who arrested him, as well as the names of the officers who transported him
to the Strafford County Jail and to the Wentworth Douglas Hospital, within fourteen days of the
date of the BPD’s appearance in this action, so that he may move this court to join those individuals
as parties to this action within ninety days.
III. 	Municipal Liability and Official Capacity Claims under § 1983
Mr. Gagne’s complaint asserts federal constitutional claims for damages against the John
Doe officers in their “official capacities” and also names their municipal employer, the BPD, as a
defendant. Official-capacity suits “‘represent only another way of pleading an action against an
entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citation
omitted).
A municipal government can only be liable under § 1983 for federal constitutional
violations caused by its own customs, policies, or practices. Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978); Bannon v. Godin, 99 F.4th 63, 88 (1st Cir. 2024). The doctrine of respondeat
superior does not apply in this context. Monell, 436 U.S. at 694. Because Mr. Gagne has not set
forth any allegations regarding any municipal act or omission, pertinent municipal policy, custom,
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or widespread practice, he has not stated a claim against the BPD or the Town of Barrington upon
which relief can be granted under § 1983. The District Judge should dismiss Mr. Gagne’s § 1983
claims against the BPD (including his “official capacity” claims).
IV. 	FTCA, Eighth Amendment, and Fourteenth Amendment Claims
Mr. Gagne has asserted that his tort claims are within this court’s jurisdiction under the
Federal Tort Claims Act (“FTCA”), and that his federal constitutional claims arise under the Eighth
Amendment and the Fourteenth Amendment Due Process Clause. 	“By enacting the FTCA,
Congress waived the immunity of the United States to suit for the tortious actions of federal
employees.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). As the defendants are
Town officers and agents, the FTCA does not apply.
The Eighth Amendment is inapplicable here, as Mr. Gagne does not allege that any
defendant punished him after he was convicted of a crime. 	“[T]he less protective Eighth
Amendment [cruel and unusual punishment] standard applies ‘only after the State has complied
with the constitutional guarantees traditionally associated with criminal prosecutions.’” Graham
v. Connor, 490 U.S. 386, 398 (1989). Accordingly, the district judge should dismiss the FTCA and
Eighth Amendment claims asserted by Mr. Gagne.
Moreover, Mr. Gagne’s claims regarding his warrantless arrest arise under the Fourth
Amendment and not the Fourteenth Amendment. “[A]ll claims that law enforcement officers have
used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather
than under a ‘substantive due process’ approach.” Id. at 395.
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V. 	State Law Tort Claims
Mr. Gagne asserted state law tort claims for damages against the John Doe officers and
their employer, the BPD. Cf. Tessier v. Rockefeller, 162 N.H. 324, 342, 33 A.3d 1118, 1132 (2011)
(employer may be vicariously liable under state law “‘if the employee was acting within the scope
of his or her employment when his or her tortious act injured the plaintiff’” (citation omitted)).
Mr. Gagne’s tort claims against the individual John Doe defendants and their employer are related
to his actionable Fourth Amendment claims against the John Doe defendants and are thus within
this court’s supplemental jurisdiction under 28 U.S.C. § 1367.
A. 	Assault and Battery
Mr. Gagne asserted assault and battery claims arising under state law relating to his Fourth
Amendment excessive force claims. Under state law, “[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).
The allegations in the pleadings (Doc. Nos. 1, 5) sufficient to state Fourth Amendment
excessive force claims also state claims of assault and battery upon which relief can be granted
under New Hampshire common law. The proper defendants to those claims include the individual
officers and their municipal employer (under a theory of respondeat superior or vicarious liability).
In the Service Order this date, the court has directed the defendant BPD to answer those claims.
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Because the individual arresting officers (John Does #1-#4) have not been named in this
action, this court cannot direct service of process upon any of them. 	In the Order to Disclose
Names, the court has directed the defendant BPD to disclose to Mr. Gagne the names of the officers
who arrested him within fourteen days of the date of the BPD’s appearance in this action, so that
he may move this court to substitute those names for the John Does and join those named
individuals as defendants to this action within ninety days of this date.
B. 	False Imprisonment
Mr. Gagne’s initial pleadings assert state law tort claims of false imprisonment relating to
his Fourth Amendment false arrest claims.
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.
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 allegations in the pleadings (Doc. Nos. 1, 5) including those which suffice to give rise
to liability under § 1983 for false arrest under the Fourth Amendment, also state claims for damages
for false imprisonment under New Hampshire law. 	In the Service Order this date, the court has
directed the BPD (an agency of the Town of Barrington) to answer Claims 5(a)-(b).
Because the BPD officers (John Does #1- #4) have not been named in this action, this court
cannot direct service of process upon any of them. In the Order to Disclose Names, the court has
directed the defendant BPD to disclose to Mr. Gagne the names of the arresting officers, as well
as the officers who transported him to the Strafford County Jail and the Wentworth Douglas
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Hospital, within fourteen days of the date of the BPD’s appearance in this action, so that he may
move this court to join those individuals as parties to this action within ninety days of this date.
C. 	Negligence
Mr. Gagne asserts a claim of “negligence” in the Complaint Addendum, arising from his
arrest and detention. Although police officers in New Hampshire do not owe an arrestee a duty to
conduct a reasonable investigation beyond finding probable cause, see Lahm v. Farrington, 166
N.H. 146, 154, 90 A.3d 620, 626 (2014), Mr. Gagne’s negligence claim is premised on the absence
of probable cause and upon actions that do not necessarily fall within the community caregiving
exception to the Fourth Amendment. Assuming, without deciding, that New Hampshire would
recognize a negligence claim in this circumstance, and without prejudice to the defendants’ ability
to fashion arguments implicating the community caregiving exception, this court concludes that
Claim 6 is sufficiently stated, to warrant a response from the defendant BPD. Cf. Alonzo v. United
States, No. 16–cv–337–JD, 2017 DNH 081, 2017 WL 1483366, at *5 n,9 (D.N.H. Apr. 24, 2017)
(“The New Hampshire Supreme Court long ago decided that police officers do have a duty to use
reasonable care while performing their duties and that police officers are liable for injuries that
they negligently inflict on both those they are arresting and innocent third parties.”). Accordingly,
in the Service Order this date, the court has directed the BPD to respond to Claim 6, in its capacity
as the officers’ employer. In the Order to Disclose Names, the court has further directed the BPD
to identify the officers at issue and grants the plaintiff leave to move to amend the complaint to
join the named officers as parties to this claim.
Conclusion
For the foregoing reasons, the district judge should dismiss: all of Mr. Gagne’s federal
constitutional claims against the Barrington Police Department, including all of his “official
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capacity” claims; all of his claims under the Federal Tort Claims Act; and all of his Eighth
Amendment cruel and unusual punishment and Fourteenth Amendment substantive due process
claims, relating to his arrest. 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 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 R&R “‘are subject to
review in the district court,’” and any issues “‘not preserved by such objection are precluded on
appeal.’” Id. (citations omitted).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
June 7, 2024
cc: 	Timothy Gagne, pro se
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