Ortolano v. Bolton et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Laurie Ortolano
v. Case No. 22-cv-326-LM
Opinion No. 2023 DNH 079 P
City of Nashua et al.
O R D E R
Plaintiff Laurie Ortolano brought this suit against the City of Nashua, New
Hampshire (“Nashua” or the “City”), its Mayor, several current and former Nashua
employees and officials, and two private parties involved in providing certain
services to the City. Ortolano brings claims under the state and federal
constitutions, as well as under statutory and common law. Although not all ten
counts in Ortolano’s complaint (doc. no. 1) are leveled against every defendant, the
gist of her claims is that the defendants, individually or collectively, improperly
deprived Ortolano of various rights in retaliation for her criticism of City acts and
officials, including wrongfully arresting her for trespassing. Ortolano alleges that,
in connection with her arrest, defendant Michael Carignan, Nashua Police Chief
until his retirement at the end of 2021, violated her rights under the state and
federal constitutions and is also liable under state-law theories of civil conspiracy
and intentional infliction of emotional distress (“IIED”). Before the court is Chief
Carignan’s motion for judgment on the pleadings (doc. no. 36). See Fed. R. Civ. P.
12(c).
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Chief Carignan’s motion for judgment on the pleadings is granted in part and
denied in part.
STANDARD OF REVIEW
Rule 12(c) allows a party to move for judgment on the pleadings at any time
“[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ.
P. 12(c). On a Rule 12(c) motion, unlike a Rule 12(b) motion, the Court considers
the pleadings, including the answer. See Aponte-Torres v. Univ. of P.R., 445 F.3d
50, 54 (1st Cir. 2006)). In addition, “[t]he court may supplement the facts contained
in the pleadings by considering documents fairly incorporated therein and facts
susceptible to judicial notice.” R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182
(1st Cir. 2006) (citation omitted).
Ultimately, a Rule 12(c) motion for judgment on the pleadings is “ordinarily
accorded much the same treatment” as a Rule 12(b)(6) motion. Aponte-Torres, 445
F.3d at 54 (citing cases). Accordingly, “[j]udgment on the pleadings is proper ‘only if
the uncontested and properly considered facts conclusively establish the movant's
entitlement to a favorable judgment.’” Zipperer v. Raytheon Co., Inc., 493 F.3d 50,
53 (1st Cir. 2007) (quoting Aponte-Torres, 445 F.3d at 54). The court must accept
the factual allegations in the complaint as true, construe reasonable inferences in
the plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal
quotation marks omitted). A claim is facially plausible “when the plaintiff pleads
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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).
BACKGROUND1
Ortolano asserts that in 2014, shortly after purchasing a home in Nashua,
the City’s Assessing Department increased her home’s assessment by more than
50%. Complaint (doc. no. 1) ¶15. Ortolano alleges that by July 2017 her tax bill
exceeded $18,000 a year. Id. ¶17. Ortolano alleges that she called the City’s then-
Chief Assessor, defendant Jonathan Duhamel, for an explanation for her increasing
tax bills. Id. ¶18. She claims that Duhamel was defensive and ended the phone call
by tersely stating “you bought it; you own it; you pay for it.” Id. She further claims
that after this exchange Duhamel actively sought to prevent her from obtaining
public documents and information from the Assessing Department. Id. ¶20.
1 Ortolano’s complaint covers 67 pages and nearly 200 paragraphs. The court
limits the factual background in this Order only to those allegations necessary to
resolve the instant motion. Moreover, in ruling on this motion the court declines to
consider Ortolano’s affidavit or its 78 pages of attachments. (Doc. No. 39-2). As
previously noted, Fed. R. Civ. P. 12(c) ordinarily constrains the court’s analysis to the
pleadings. Aponte-Torres, 445 F.3d at 54. Although the First Circuit has recognized
a limited exception to this general rule for certain categories of documents, see GE
Mobile Water, Inc., 6 F. Supp. 3d at 199, there is no question here that Ortolano’s
affidavit and attachments – which include the report of a private investigator she
hired to conduct surveillance of an Assessing Department employee – do not fall
within one or more of these categories. See (noting that such documents include
records “the authenticity of which are not disputed by the parties; . . . official public
records; ... documents central to plaintiffs’ claim; [and] . . . documents sufficiently
referred to in the complaint.”)., 714 F.3d 29, 36 (1st Cir. 2013) (noting that such
documents include records “the authenticity of which are not disputed by the parties;
. . . official public records; ... documents central to plaintiffs’ claim; [and] . . .
documents sufficiently referred to in the complaint.”).
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Ortolano also asserts that Duhamel “would even launch a behind the scenes
campaign to impugn [her] character and cause other City employees and officials to
treat her unfavorably.” Id.
This “campaign,” Ortolano states, began after the July 2017 phone call and
resulted in Duhamel and other employees exchanging emails disparaging her. Id.
¶¶ 22-23. She contends that by late 2018 “Duhamel, Kleiner, Bolton, Leonard, and
the Mayor were taking her public criticisms personally and had started treating her
differently than other citizens when she sought public documents and information
from City Hall.” Id. ¶ 39.
Ortolano alleges that in late June 2019 she and another Nashua resident
requested that the Nashua Police Department (“NPD”) conduct a criminal
investigation into the Assessing Department, its supervisor, Kim Kleiner, who had
been the head of the department for several months, and department employee
Greg Turgiss. Id. ¶¶ 49, 62.2 “[W]ithin 24 hours” of that request, Chief Carignan
and Captain Lehto met with the Mayor and Kleiner “to discuss how to handle
Ortolano’s claims.” Id. ¶ 63. The result of the meeting was that Ortolano’s request
was granted – it was decided that the NPD would investigate Turgiss and Kleiner.
Id.
As part of the investigation, defendant Frank Lombardi, – then an NPD
detective and now a sergeant – interviewed members of the Assessing Department
as well as an employee from KRT Appraisal that was working with the City on the
2Kleiner is a defendant in this case. Turgiss is not.
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2018 property reevaluation. ¶ 76. While the investigation was ongoing, Ortolano
approached one Assessing Department employee in the City Hall parking lot. Id. ¶
70. Detective Lombardi subsequently told Ortolano that the Assessing Department
staff had requested that she not contact them outside of work. Id. ¶ 82. As a result,
Ortolano “came to believe that she could be arrested merely be attempting to speak
to one of the Assessing Department staff members outside the Assessing
Department office.” Id. ¶ 83. She says that this belief “chill[ed] her ability to
engage in First Amendment rights while interacting with City employees.” Id. ¶ 84.
Id. ¶ 76. While the investigation was ongoing, Ortolano approached one Assessing
Department employee in the City Hall parking lot. Id. ¶ 70. Detective Lombardi
subsequently told Ortolano that the Assessing Department staff had requested that
she not contact them outside of work. Id. ¶ 82. As a result, Ortolano “came to
believe that she could be arrested merely be attempting to speak to one of the
Assessing Department staff members outside the Assessing Department office.” Id.
¶ 83. She says that this belief “chill[ed] her ability to engage in First Amendment
rights while interacting with City employees.” Id. ¶ 84.
In January 2020, the NPD issued a written exoneration of Turgiss. Id. ¶ 90.
Ortolano claims that the investigation of Kleiner and Turgiss that she requested
“had actually been manipulated to focus on” herself, as police reports she obtained
demonstrated that investigating officers did not ask Assessing Department
employees about any of the concerns Ortolano had expressed about Kleiner. Id. ¶
91.
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In January 2021, Ortolano attempted to go to the Assessing Department to
file real estate tax abatement applications on behalf of senior citizens she was
assisting. Id. ¶ 105. That office was closed, however, due to construction. Id. ¶ 106.
Although she eventually mailed the applications, Ortolano received no response to
her request for confirmation of her filings. Id. Ortolano went to Nashua City Hall
seeking date-stamps for the applications on January 22, 2021. Id. ¶ 107. When the
office to which she was directed was closed, Ortolano sought another office to obtain
her proof of abatement filings. Id.
The only open City Hall office at this time was the Legal Department. Id.
¶ 108. Ortolano describes the events that culminated in her arrest as follows:
Ortolano knocked on the door to the Legal
Department and employee Mindy Lloyd opened it and
asked if Ortolano had an appointment. Ortolano answered
in the negative, saying she needed a date stamp, and
asking if Attorney Neumann (the attorney handling RTK
requests) was available to provide one. Ortolano walked
past Ms. Lloyd and called out for Attorney Neumann who
eventually came out of the conference room, said he would
not date stamp her abatement applications, and told her
she would have to leave. Ortolano said she was going to
wait in the lobby area for someone to assist her and sat
down in the lobby area on the floor.
A short time later, Attorney Leonard arrived at the
Legal Department, walked up to Ortolano who was sitting
on the floor and began berating her. Ms. Lloyd called the
Nashua PD, who arrived and escorted Ortolano out of the
building. At that time, the Nashua PD told Ortolano that
she would be given a no trespass order and would be unable
to visit City Hall for a year. A day or so later, however, the
police informed Ortolano’s attorney and the press that “the
incident required no further action” and they were not
going to issue a no trespass order.
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But Leonard had other ideas. When a Union Leader
reporter informed Leonard of the Nashua PD’s statement
quoted directly above, Leonard responded, “I find it
troublesome, to say the least. My office will be speaking
with the police further.”
On information and belief, Bolton, Leonard, and other
city officials cajoled, pushed, and pressured Chief Carignan
to order that Ortolano be arrested for felony trespass until
he finally caved and did so on February 17, 2021.
Id. ¶¶ 109-12 (emphasis in original).3
3The criminal complaint lodged against Ortolano shows that the original
charge was a misdemeanor. (Doc. No. 42-2). Ortolano eventually pleaded guilty to a
violation-level offense. Id.; Pltf. Mem. (doc. no. 33-1) at 9 n.1. The relevant statute,
N.H. Rev. Stat. Ann. § 635:2, describes the various permutations of criminal trespass
as follows:
I. A person is guilty of criminal trespass if, knowing that
he is not licensed or privileged to do so, he enters or
remains in any place.
II. Criminal trespass is a misdemeanor for the first offense
and a class B felony for any subsequent offense if the
person knowingly or recklessly causes damage in excess of
$1,500 to the value of the property of another.
III. Criminal trespass is a misdemeanor if:
(a) The trespass takes place in an occupied
structure as defined in RSA 635:1, III; or
(b) The person knowingly enters or remains:
(1) In any secured premises;
(2) In any place in defiance of an order to
leave or not to enter which was personally
communicated to him by the owner or
other authorized person;
(3) In any place in defiance of any court
order restraining him from entering such
place so long as he has been properly
notified of such order; or
(4) On any grounds, lands, or parking
areas of any state correctional facility or
transitional housing unit operated by the
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DISCUSSION
Among the 10 counts in the complaint, 7 include claims against Chief
Carignan: (1) suppression and chilling of Ortolano’s First Amendment right to free
speech; (2) violation of Ortolano’s First Amendment right to petition the
government; (3) violation of Ortolano’s substantive due process rights; (4) violation
of Ortolano’s procedural due process rights; (5) violation of the New Hampshire
Constitution’s right of access to governmental proceedings and records; (6) civil
conspiracy; (7) intentional infliction of emotional distress. The first four claims are
brought under 42 U.S.C. § 19834; the remainder under New Hampshire
constitutional and common law. The court addresses these claims seriatim.
department of corrections without prior
authorization or without a legitimate
purpose associated with department of
corrections operations.
IV. All other criminal trespass is a violation.
4 42 U.S.C. § 1983, “supplies a private right of action against a person who,
under color of state law, deprives another of rights secured by the Constitution or by
federal law.” Mead v. Indep. Ass'n, 684 F.3d 226, 231 (1st Cir. 2012) (internal
quotation marks omitted). “In order to make out a viable claim under § 1983, a
plaintiff must show both that the conduct complained of transpired under color of
state law and that a deprivation of federally secured rights ensued.” Id. (internal
quotation marks omitted). There appears to be no dispute here that Chief Carignan
acted under color of state law. The court therefore focuses on whether Ortolano has
adequately alleged a deprivation of a federally secured right.
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I. Suppression of First Amendment Rights (Counts 1 and 2)
In Counts 1 and 2 of her complaint, Ortolano alleges that the defendants5:
chilled her right to free speech (Count 1) and violated her right to petition the
government (Count 2). To prevail, Ortolano must demonstrate that “(1) she
engaged in constitutionally protected conduct, (2) was subjected to an adverse
action by the defendant, and (3) the protected conduct was a substantial or
motivating factor in the adverse action. Currier v. Town of Gilmanton, 621 F. Supp.
3d 233, 258 (D.N.H. 2022) (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d
26, 43 (1st Cir. 2012)).
Chief Carignan does not dispute that Ortolano was engaged in protected
speech or that she was arrested. Instead, Chief Carignan focuses on the paucity of
factual allegations concerning his actions, as well as the legitimacy of her arrest.
Chief Carignan is correct that the complaint contains few allegations specific to
him. First, Ortolano asserts that the investigation he instigated at her request did
not result in any action against Kleiner or Turgiss, but instead turned into an
investigation of Ortolano herself, which resulted in Detective Lombardi warning her
against visiting the Assessing Department. These allegations are insufficient to
5The court’s task is complicated because the complaint and much of Ortolano’s
objection to Chief Carignan’s motion lump all the defendants together as
transgressors of her rights. But, in a multiple defendant case such as this, each
defendant's acts must be isolated and analyzed separately under Rule 12(b)(6). See,
e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009); Rivera-Torres v.
Ruiz-Vale, Civil No. 13-1684 (SEC), 2016 WL 3962904, at *2 (D.P.R. July 21, 2016).
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state a First Amendment claim against Chief Carignan based on the investigation.
Although Ortolano asserts that “Chief Carignan’s thumbprints” are all over the
investigation, Pltf. Mem. (doc. no. 39-1) at 19, there are no factual allegations in the
complaint to support this conclusory assertion. Similarly, her argument that “it is
likely that Chief Carignan assigned Detective Lombardi and Sergeant McCloud to
the investigation” and “signed off on” the warning to Ortolano is without factual
support. Finally, with respect to the results of the investigation that Chief
Carignan began at her request, Ortolano has no constitutional right to direct the
course of the investigation or have someone else arrested. Town of Castle Rock v.
Gonzales, 545 U.S. 748, 768 (2005); see Gini v. Las Vegas Metro. Police Dep't, 40
F.3d 1041, 1045 (9th Cir. 1994) (“The police have no affirmative obligation to
investigate a crime in a particular way or to protect one citizen from another even
when one citizen deprives the other of liberty or property.”); Thibeault v. Brown, No.
12-cv-10333-PBS, 2012 WL 1865834, at *4 (D. Mass. May 21, 2012) (“There is no
constitutional right to a police investigation, adequate or otherwise.”). Accordingly,
to the extent that Ortolano’s First Amendment claims are premised on the conduct
related to the investigation of Assessing Department personnel, the motion for
judgment on the pleadings is granted.
Ortolano’s claim based on her arrest fares differently, however. In her
complaint, she alleges that Chief Carignan “ordered” her arrest, overruling the
judgment of other officers who believed her conduct was not arrest-worthy.
Complaint (doc. no. 1) ¶¶ 110-12. Given the apparent enmity between Ortolano and
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the City, this allegation is sufficient to allow this particular claim against Chief
Carignan to proceed at this time. Although Chief Carignan relies on Ortolano’s
eventual guilty plea and her seeming admission to facts that would support a
trespassing arrest to negate her arrest-based claim, neither side has addressed the
legal implication of her plea or the status of her conviction – which she sought to
annul. If the effect and status of her criminal case, and the extent, if any, that
Chief Carignan was involved in the decision to arrest Ortolano are to be resolved
before trial, such resolution will take place in the context of a motion for summary
judgment under Fed. R. Civ. P. 56, rather than a Rule 12 motion.
II. Due Process (Counts 3 and 4)
A. Substantive Due Process (Count 3)
In Count 3, Ortolano asserts that Chief Carignan’s actions violated her right
to substantive due process. The Fourteenth Amendment to the United States
Constitution prohibits a state from depriving any person of “life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. “The
touchstone of this due process guarantee is the protection of the individual against
arbitrary action of government.” DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.
2005) (internal quotation marks omitted). The substantive due process guarantee
“safeguards individuals against certain offensive government action,
notwithstanding that facially fair procedures are used to implement them.” Id.
To set out a substantive due process claim, a plaintiff challenging specific
acts of government officials must sufficiently allege that: (1) the officials’ “acts were
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so egregious as to shock the conscience”; and (2) that the acts “deprived [her] of a
protected interest in life, liberty, or property.” Pagan v. Calderon, 448 F.3d 16, 32
(1st Cir. 2006); see also DePoutot, 424 F.3d at 118. A plaintiff must provide
evidence of a defendant’s acts that are “so extreme and egregious as to shock the
contemporary conscience.” Abdisamad v. City of Lewiston, 960 F.3d 56, 59–60 (1st
Cir. 2020). The question whether “the challenged conduct shocks the contemporary
conscience is a threshold matter that must be resolved before a constitutional right
to be free from such conduct can be recognized.” DePoutot, 424 F.3d at 118. To
meet that standard, the officers’ conduct must be “truly outrageous, uncivilized, and
intolerable.” Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir. 2011).
The First Circuit has depicted certain guideposts to direct the analysis. See
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880-81 (2010). On one hand,
“negligence, without more, is simply insufficient to meet the conscience-shocking
standard.” Id. at 881 (internal quotation marks omitted). On the other, allegations
that state officials had “an intent to injure in some way unjustifiable by any
government interest is likely sufficient” to meet the conscience-shocking threshold.
Id. (internal quotation marks and brackets omitted). Between these two poles are
cases that present “closer calls.” Id. (internal quotation marks omitted).
Ultimately, though, the shocks-the-conscience threshold is necessarily a “high one,”
to prevent the Constitution from being demoted to a “font of tort law.” Drake v.
Town of New Bos., No. 16-CV-470-SM, 2017 WL 2455045, at *13 (D.N.H. June 6,
2017) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
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As this court recently recognized, the First Circuit has collected
representative cases in which plaintiffs established a viable substantive due process
claim:
Among the cases in which plaintiffs have prevailed are
those involving a student blinded in one eye when a coach
intentionally struck him in the head with a metal weight;
a teacher’s fabrication of sexual abuse charges against a
father, resulting in loss of contact with his child for three
years; rape by a police officer in connection with a car stop;
a 57–day unlawful detention in the face of repeated
requests for release, police officers aiding a third-party in
shooting the plaintiff; an intentional assault by a police
officer who struck a pretrial detainee twice in the head and
threatened to kill him; and a principal forcing his way into
a room where a student was hiding, grabbing her from the
floor, throwing her against the wall, and slapping her.
Spencer v. Doran, No. 18-CV-1191-LM, 2020 WL 4904826, at *5 (D.N.H. Aug. 20,
2020) (quoting Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir. 2001) (citations
omitted)). In Spencer, following the Court of Appeals’s guidance, the court found
that allegations of deliberate misuse of official authority targeting the plaintiff and
allegations of false testimony aimed at causing the plaintiff economic and
reputational harm were insufficient to state a substantive due process claim. The
allegations in this case call for the same result.
None of the allegations against Chief Carignan comes remotely close to
establishing a claim for a violation of Ortolano’s substantive due process rights.
Indeed, her objection to the instant motion pays scant notice to the guideposts
outlined by the First Circuit. Nor does her reliance on some unspecified future
discovery, Pltf. Mem. (doc. no. 39-1) at 21, save this claim. The allegations in
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Ortolano’s complaint are insufficient to state a claim for relief under a theory of
substantive due process. The motion for judgment on the pleadings is granted as to
Count 3.
B. Procedural Due Process (Count 4)
Ortolano claims in Count 4 that Chief Carignan violated her rights under the
procedural component of the Fourteenth Amendment's Due Process Clause. The
requirements of procedural due process mandates that “certain substantive rights
— life, liberty, and property — cannot be deprived except pursuant to
constitutionally adequate procedures.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d
81, 88 (1st Cir. 2014) (internal quotation marks omitted). To properly plead a
procedural due process violation, a plaintiff must allege: (1) a protected liberty or
property interest; and (2) that the defendants, while acting under color of state law,
deprived him of that interest without constitutionally adequate process. Id.; see
also Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 11 (1st Cir. 2013).
Ortolano’s objection does not address Chief Carignan’s motion with respect to
this claim. That alone would be sufficient to grant the motion. See LR 7.2 (Waiver);
ITI Holdings, Inc. v. Odom, 468 F.3d 17 (1st Cir. 2006) (affirming dismissal based
on waiver pursuant to local rule). Even ignoring waiver, however, her claim fails.
Assuming that Ortolano’s arrest satisfies the first prong of the analysis –
deprivation of a right – the second prong of a procedural due process claim (that the
deprivation occurred without constitutionally adequate process), requires a
description of the process afforded to the plaintiff in relation to the alleged
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deprivation, see Aponte-Torres, 445 F.3d 50, 56, and requires her to identify the
failings of that process or describe the process that was due to them, see Doe by
Fein v. D.C., 93 F.3d 861, 870 (D.C. Cir. 1996), so that the court can assess whether
the process given accords with the due process guarantee.
“The basic guarantee of procedural due process is that, before a significant
deprivation of liberty or property takes place at the state's hands, the affected
individual must be forewarned and afforded an opportunity to be heard at a
meaningful time and in a meaningful manner.” Gonzalez-Droz v. Gonzalez-Colon,
660 F.3d 1, 13 (1st Cir. 2011) (internal quotation marks omitted). Here, to the
extent there is any description of the process that was afforded to Ortolano, it is in
her concession that she was charged, went to court, pleaded guilty to a lesser
included of the original offense, and sought annulment of the conviction. Ortolano
has provided no authority for the proposition that this is insufficient process, nor is
the court aware of any. Accordingly, Chief Carignan’s motion is granted as to Count
4.
III. New Hampshire Constitution (Count 5)
In Count 5, Ortolano alleges that Chief Carignan violated her rights under
Part I, Art. 8 of the New Hampshire Constitution, which guarantees access to
government proceedings and records. Once again, Ortolano’s failure to interpose an
objection to the motion with respect to this claim warrants waiver. But even if
argument on this issue were not waived, it does not appear that such a
constitutional tort exists under New Hampshire law. The New Hampshire
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Supreme Court has rejected the creation of constitutional torts where adequate
statutory relief exists. See Khater v. Sullivan, 999 A.2d 377, 379 (N.H. 2010). Such
relief exists here, as Ortolano has explained in detail her use of New Hampshire’s
Right-to-Know Law, N.H. Rev. Stat. Ann. § 91-A, to gain access to records.
Accordingly, Chief Carignan’s motion for judgment on the pleadings is granted as to
Count 5.
IV. Civil Conspiracy (Count 6)
In Count 6, Ortolano alleges that Chief Carignan was part of a civil
conspiracy in connection with her arrest for trespassing. Under New Hampshire
law, a viable claim for civil conspiracy requires at least “two or more persons”
conspiring to achieve an unlawful objective. In re Appeal of Armaganian, 147 N.H.
158, 163 (2001). As she explains in her objection, Ortolano’s conspiracy claim is
that “someone in the Police Department – likely Chief Carignan – agreed with one
or more people from the Legal Department – likely Bolton and/or Leonard to
overrule a supported finding of five Police Department investigators that there was
no probable cause to charge Ortolano with a crime.” Pltf. Mem. (doc. no. 39-1)) at
22.
In his motion, Chief Carignan invokes the “intracorporate conspiracy
doctrine,” pursuant to which “the agents and employees of a corporate entity acting
within the scope of their employment or authority are legally incapable of
conspiring together.” Def. Mem. (doc. no. 36-1) at 11 (citing Carney v. Town of
Weare, No. 15-CV-291-LM, 2017 WL 680384, at *15 (D.N.H. Feb. 21, 2017)).
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Ortolano did not respond to this legal argument in her objection. In Carney, this
court applied the doctrine and dismissed a conspiracy claim brought against town
employees and an attorney representing the town because all were agents of the
town. 2017 WL 680384, at *16. 6 The same reasoning applies here. Chief Carignan
cannot form a conspiracy with other Nashua government officials. The motion for
judgment on the pleadings is therefore granted as to Count 6.
V. Intentional Infliction of Emotional Distress (Count 10)
“One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional
distress . . . .” Mikell v. School Adm. Unit No. 33, 972 A.2d 1050, 1055 (N.H. 2009)
(citing Morancy v. Morancy, 593 A.2d 1158, 1159 (N.H. 1991)). “In determining
whether conduct is extreme and outrageous, it is not enough that a person has acted
with an intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by malice.”
Mikell, 972 A.2d at 1055 (citation and quotations omitted). Rather, “[l]iability has
been found only where the conduct has been so outrageous in character, and so
6In Carney, the court noted that New Hampshire had not adopted the doctrine,
but it concluded that, if confronted with the issue, New Hampshire would adopt it
based on traditional principles of agency. Carney, 2017 WL 680384, at *16. Although
the New Hampshire Supreme Court has not weighed in, at least two Superior Court
decisions followed Carney’s reasoning. See Legacy Global Sports, LP v. St. Pierre,
218-2019-CV-198, 2020 WL 2027401, at *3 (N.H. Super. Apr. 27, 2020); D.G.
Whitefield, LLC v. Cate St. Capital, Inc., 218–2015–CV–1406, 2017 N.H. Super.
LEXIS 16, at *28-29 (N.H. Super. July 10, 2017).
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extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id.
(citation omitted).
As previously noted, the allegations against Chief Carignan in the complaint
are limited. Ortolano’s objection states only that he began the investigation she
requested and cooperated with others to cause Ortolano to be wrongfully arrested.
Pltf. Mem. (doc. no. 39-1) at 22. This is plainly insufficient to state a viable claim
for intentional infliction of emotional distress.
A comparison with the New Hampshire Supreme Court’s decision in Mikell is
instructive. There, the Court upheld the trial court’s dismissal of an IIED claim in
a case involving a student who committed suicide. His estate alleged that a
schoolteacher falsely reported a disciplinary infraction against the student, causing
emotional distress that resulted in the student’s suicide. Id. at 1055. The plaintiff
claimed that the teacher’s motive was to cause the student’s expulsion. Id. The
Court held that while a “teacher falsely reporting misconduct by a student is a
reprehensible act, the circumstances of this case are simply not beyond all possible
bounds of decency.” Id. at 1056. Even as alleged by Ortolano, nothing about Chief
Carignan’s conduct could be characterized as “reprehensible,” a characterization
which itself fell short of the mark in Mikell. 972 A.2d at 1056.
A decision by this court also provides guidance. In Banks v. Hall, No. 10–cv–
269–JL, 2012 WL 3263607 (D.N.H. Aug. 9, 2012), the plaintiff sued several state
troopers who allegedly kicked, tasered, and sicced their police dog on him. Id. at *1.
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Although the court found the allegations sufficient to deny the officers summary
judgment on plaintiff’s excessive force claim, the court granted summary judgment
for the troopers on plaintiff’s emotional distress claim “because, even if the
defendants’ conduct amounted to excessive force, no rational factfinder could deem
it ‘atrocious, and utterly intolerable in a civilized society.’” Id. at *2 (quoting Mikell,
972 A.2d at 1056). Similarly, here, the allegations that Ortolano lodges against
Chief Carignan fall well short of “extreme and outrageous conduct” as those terms
have been used in this court and the courts of New Hampshire. Accordingly, Chief
Carignan’s motion for judgment on the pleadings in granted as to Count 10,
intentional infliction of emotional distress.
CONCLUSION
Chief Carignan’s motion for judgment on the pleadings (doc. no. 36) is
granted in part and denied in part as follows:
• the motion is denied as to Counts 1 and 2 (First Amendment), but only
insofar as those counts relate to Ortolano’s claim of retaliatory arrest.
• the motion is otherwise granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 28, 2023
cc: Counsel of Record.
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