Bijeol v. Catano et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Bijeol
v. 	Case No. 19-cv-749-JL
Manchester Police Department Officer
Victoria R. Catano, Chief of Police
Enoch Willard, Capt. Michael J. Begley,
Sgt. Richard W. Brennan, Sgt. Michael
Biron, and the City of Manchester
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by
plaintiff, Jonathan Bijeol, an inmate at the New Hampshire State
Prison for Men. 	The complaint is before the court for
preliminary review under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, 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. § 1915A(b). 	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). 	To
determine whether to dismiss claims for failure to state a
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 1 of 43

2
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
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)).
Background
In the morning of July 21, 2016, a cab driver taking Mr.
Bijeol to work in Manchester, New Hampshire, saw him nodding off
in the back seat. 	When Mr. Bijeol appeared to slump over, the
driver stopped, called 911, and began CPR. 	An ambulance
arrived, and emergency medical technicians (“EMTs”) took charge.
Mr. Bijeol, who had stopped breathing, was treated for an
apparent heroin overdose.
Manchester Police Department (“MPD”) Officer Victoria
Catano responded to a dispatch call at 10:04 a.m., requesting
that she assist the EMTs working to save Mr. Bijeol. 	Mr. Bijeol
alleges that after he was revived, he sat up and tried to walk
away. 	He further alleges that the first responders did not tell
him what was happening or explain to him what they were doing in
a way he could understand. 	A medical record attached to the
complaint states that Mr. Bijeol tried to leave the ambulance.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 2 of 43

3
See Doc. No. 1-8. 	Mr. Bijeol alleges that one of the EMTs put
him in a chokehold, while the other used her knees to compress
him to the gurney. 	Mr. Bijeol alleges that while the EMTs were
forcing him down, Officer Catano seized his right wrist, pulled
it behind him and across his back, and handcuffed his wrist to
the opposite side of the ambulance gurney, causing his body
weight to rest upon his wrist when the EMTs put straps across
his chest, waist, knees and ankles to secure him to the gurney.
Mr. Bijeol alleges he complained about the pain and
compression, that he was compliant at all times, and that he
asked the officer to remove or reposition the handcuffs to
release the pressure on his right arm. 	Officer Catano refused
that request, saying, Mr. Bijeol alleges, that if he stopped
crying out, the cuffs would be loosened upon his arrival at the
hospital. 	Mr. Bijeol further alleges that Officer Catano told
him as she left the ambulance that after he was released from
the hospital, he was going to be booked for drug possession.
Compl. (Doc. No. 1) at 5.
While Mr. Bijeol was in the ambulance with the EMTs on his
way to the hospital, Officer Catano received a dispatch call
stating that Mr. Bijeol was under a parole officer’s
supervision. 	Officer Catano contacted that parole officer and
told him about the overdose and that Mr. Bijeol was in custody.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 3 of 43

4
The parole officer said he would be placing a 72-hour hold on
Mr. Bijeol, which would allow time to determine whether to
initiate parole violation proceedings against him.
Mr. Bijeol arrived at the Elliot Hospital Emergency
Department, approximately an hour after he had been handcuffed
to the gurney, about thirty minutes before Officer Catano. 	Upon
Officer Catano’s arrival, the hospital staff asked her to remove
Mr. Bijeol’s handcuffs. 	She did so, switching the cuffs from
Mr. Bijeol’s right wrist to his left, in a manner that allowed
the medical staff to begin monitoring his condition. 	Mr. Bijeol
was discharged from the Elliot Hospital at 1:42 p.m. 	MPD
officers then transported him to the Manchester Police Station
for booking.
Officer Catano prepared an affidavit on that day recounting
her investigation and warrantless arrest of Mr. Bijeol. 	In the
affidavit Officer Catano states that she arrested Mr. Bijeol
because she had information that he had possessed a controlled
drug, in violation of N.H. Rev. Stat. Ann. (“RSA”) § 318-B:2,
and because he was subject to a 72-hour hold requested by Mr.
Bijeol’s parole officer. 	The affidavit generally describes her
observations of what was happening when she arrived at the
scene, the information and evidence she obtained from the EMTs,
her interview with the cab driver who called 911, and her
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 4 of 43

5
conversation with Mr. Bijeol’s parole officer, which preceded
Mr. Bijeol’s discharge from the hospital and booking. 	The
affidavit states that the physical evidence from the scene --
recovered when the EMTs had to cut Mr. Bijeol’s shorts to treat
him – included 	a small vial, a hypodermic needle, and a clear
cylinder with a hard-packed white substance which tested
presumptively positive for heroin. 	See Doc. No. 1-3, at 1. 	The
affidavit was witnessed by a justice of the peace (“JP”), MPD
Sgt. Richard Brennan. 	A handwritten notation stating “P.C.
found” appears on the affidavit attached to the Complaint, along
with illegible initials and a date of July 22, 2016.
Sometime after witnessing Officer Catano sign her
affidavit, Sgt. Brennan signed a criminal complaint, on behalf
of “complainant” MPD Chief of Police Enoch Willard, initiating
Mr. Bijeol’s criminal prosecution for drug possession. 	See Doc.
No. 1-4. 	The officer’s signature swearing to the truth of the
matters asserted was witnessed by a JP on July 22, 2016. 	That
criminal complaint charges Mr. Bijeol with a Class B felony for
knowingly having heroin in his possession in violation of RSA
§ 318-B:2, “without authorization by any exceptions of NH RSA
318-B.” 	Id.
After his booking, officers transported Mr. Bijeol to the
Hillsborough County House of Corrections (“HCHC”) to await his
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 5 of 43

6
arraignment the next morning. 	Compl. (Doc. No. 1) at 6. 	On
July 22, 2016, the court in State v. Bijeol, No. 456-2016-cr-
03825(1253089C) (N.H. Cir. Ct., 9th Cir.-Dist. Div.-Manchester),
ordered Mr. Bijeol detained in lieu of bail and scheduled an
August 2, 2016 probable cause hearing. 	Mr. Bijeol remained at
the HCHC for ten days until his release on August 1, 2016, when
the drug possession charges were nol prossed for reasons not
stated in this court’s record. 	The complaint does not indicate
whether parole violation proceedings were initiated.
Mr. Bijeol has attached the text of certain state laws as
exhibits to his complaint, including RSA § 592-A:7, I; RSA
§ 455-A:3; and RSA § 318-B:28-b, III. 	RSA § 592-A:7, I,
authorizes police officers to sign criminal complaints to
initiate proceedings in circuit courts in New Hampshire. 	RSA
§ 455-A:3 requires JPs, when notarizing documents, to state the
expiration date of their commission, although that statute
further notes that the “juridical act” is not invalidated by the
JP’s failure to do so. 	Mr. Bijeol’s criminal complaint does not
state the expiration date of the JP’s commission. 	See Doc. No.
1-4.
RSA § 318-B:28-b, III, provides as follows:
It shall be a defense to an offense of possessing or having
under his or her control, a controlled drug in violation of
RSA 318-B:2 that a person who is experiencing a drug
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 6 of 43

7
overdose, in good faith and in a timely manner, requests
medical assistance for himself or herself. 	A person who in
good faith requests, or is the subject of a good faith
request for medical assistance, shall not be arrested,
prosecuted, or convicted for possessing, or having under
his or her control, a controlled drug in violation of RSA
318-B:2, if the evidence for the charge was gained as a
proximate result of the request for medical assistance.
Id. 	That statute protects a person who is having an overdose
from being arrested, prosecuted, or convicted of the state law
crimes of drug possession or of having drugs under his or her
control, depending on how the evidence for the charge was
acquired. 	See id.; see also State v. Eldridge, No. 2018-0551,
2020 N.H. LEXIS 18, at *8-*9, 2020 WL 812924, at *3–*4 (N.H.
Feb. 19, 2020). 	Neither Officer Catano’s affidavit, nor the
criminal complaint, makes any reference to RSA § 318-B:28-b,
III.
Claims
The court has identified and renumbered the claims asserted
by Mr. Bijeol as follows:
1. 	MPD Officer Victoria Catano violated Mr. Bijeol’s
Fourth Amendment right not to be subjected to an
unreasonable arrest involving excessive force, rendering
her liable under 42 U.S.C. § 1983, in that:
a. 	Officer Catano handcuffed Mr. Bijeol behind his
back, as the EMTs were strapping him face-up to an
ambulance gurney, and then failed to release or
reposition his handcuffs when he said that they were
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 7 of 43

8
causing him pain although he was compliant with the
officer’s directions; and
b. 	Officer Catano allowed Mr. Bijeol to remain in
handcuffs for several hours after repositioning them,
until he was booked at the Manchester Police Station.
2. 	In that MPD Officer Catano made a warrantless arrest
of Mr. Bijeol and then signed an affidavit that formed the
basis of a criminal complaint, signed by MPD Sgt. Richard
Brennan on behalf of MPD Chief Enoch Willard, charging Mr.
Bijeol with drug possession:
a. 	Defendants violated Mr. Bijeol’s Fourth Amendment
right not to be subjected to a warrantless arrest
except upon probable cause,
i. 	Rendering Officer Catano liable under 42
U.S.C. § 1983 for arresting Mr. Bijeol for drug
possession before she determined he was a
parolee;
ii. 	Rendering Officer Catano liable under 42
U.S.C. § 1983 for causing him to remain in
custody after she learned he was a parolee; and
iii. Rendering Sgt. Brennan liable under 42
U.S.C. § 1983 for causing him to remain in
custody prior to his initial appearance.
b. 	Defendants violated Mr. Bijeol’s Fourth Amendment
right not to be subjected to court-ordered pretrial
detention except upon a valid probable cause finding,
i. 	Based on Officer Catano’s affidavit,
rendering her liable under 42 U.S.C. § 1983; and
ii. 	Based on the criminal complaint, rendering
Sgt. Brennan and Chief Willard liable under 42
U.S.C. § 1983.
c. 	Defendants are liable, under 42 U.S.C. § 1983,
for violations of Mr. Bijeol’s Fourteenth Amendment
right to due process, by causing Mr. Bijeol to be
subject to prosecution and pretrial detention, despite
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 8 of 43

9
the immunity afforded by RSA § 318-B:28-b, III and the
irregularities in the signatures on the criminal
complaint; and
d. 	Defendants are liable, under 42 U.S.C. § 1983,
for violations of Mr. Bijeol’s Fourteenth Amendment
right to equal protection by selectively arresting and
charging Mr. Bijeol with drug possession, despite the
immunity available under RSA § 318-B:28-b, III.
3. 	The City of Manchester (“City”) and MPD Chief Willard
are liable under 42 U.S.C. § 1983, for violations of
plaintiff’s federal constitutional rights, in that:
a. 	The (i) City and (ii) Chief Willard allowed for
the implementation of a custom of unsupervised entry
of criminal complaints signed by subordinate officers
including Sgt. Brennan on behalf of Chief Willard; and
b. 	The City and Chief Willard failed to supervise or
train subordinate officers in implementing state laws:
i. 	Concerning arrests and prosecutions for drug
crimes under RSA § 318-B:2 and the immunity
available in relation to a drug overdose under
§ 318-B:28-b; and
ii. 	Concerning the proper procedures for signing
and filing criminal complaints, and notarizing
the signatures on those documents.
4. 	Defendants are liable, under 42 U.S.C. §§ 1983 and
1985, for a conspiracy to violate Mr. Bijeol’s federal
rights, in that:
a. 	MPD Officer Catano and MPD Sgt. Brennan conspired
to violate Mr. Bijeol’s rights in the manner
summarized in Claims 2(a)-(d).
b. 	The City and Chief Willard conspired to violate
Mr. Bijeol’s rights as summarized in Claims 3(a)-(b).
5. 	Defendants are liable under state law, in that:
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 9 of 43

10
a. 	The conduct summarized in Claims 2(a)-(d)
violated Mr. Bijeol’s state constitutional rights;
b. 	The conduct summarized in Claims 2(a)-(d)
violated RSA §§ 318-B:28-b, III (overdose immunity),
456-B:3, III (authorizing JPs to notarize documents),
455-A:3 (same), and 592-A:7, I (authorizing police
officers to initiate circuit court criminal
proceedings by criminal complaints); and
c. 	The conduct summarized in Claims 2(a)-(d)
amounted to the common law torts of:
i. 	false arrest/detention (A) relating to
Officer Catano’s arrest of Mr. Bijeol before she
learned he was a parolee, and (B) relating to
defendants’ conduct in keeping Mr. Bijeol in
custody until his initial appearance;
ii. 	tortious “violation of statute,” and/or
negligence per se, based on defendants’ failure
to conform their conduct to RSA § 318-B:28-b,
III; RSA § 456-B:3, III; RSA § 455-A:3; and RSA
§ 592-A:7, I;
iii. malicious prosecution;
iv. 	intentional infliction of emotional
distress; and
v. 	deceit.
6. 	MPD Capt. Michael Begley, Sgt. Michael Biron, Chief
Willard, Sgt. Brennan, and the City of Manchester are
liable under state law for the tortious conduct of the
subordinate officers named as defendants:
a. 	Based on the supervisory officers’ failure to
train or supervise their subordinates concerning
arrests and prosecutions for drug crimes under RSA
§ 318-B:2 and the immunity under § 318-B:28-b; and
b. 	Based on the supervisory officers’ failure to
train or supervise their subordinates concerning the
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 10 of 43

11
proper procedures for signing and filing criminal
complaints and notarizing the signatures on documents.
c. 	Based on the City’s vicarious liability for the
tortious conduct of its employees undertaken within
the scope of their employment.
Discussion
I. 	Fourth Amendment Handcuffing Claims (Claims 1(a) and 1(b))
A. 	Elements of Fourth Amendment Excessive Force Claims
In order to prevail on a Fourth Amendment excessive force
claim arising from handcuffing incident to an arrest,
a plaintiff must establish that the defendant’s
actions in handcuffing her were objectively
unreasonable in light of the circumstances and the
facts known to the officer at the time. 	This showing
must take into account the reasonableness of the
officer’s actions, viewed from the perspective of a
prototypical officer confronted with the same or
similar circumstances. 	All of the attendant facts
must be considered.
Calvi v. Knox Cty., 470 F.3d 422, 428 (1st Cir. 2006) (citations
omitted).
[T]he “reasonableness” inquiry in an excessive force
case is an objective one: the question is whether the
officers’ actions are “objectively reasonable” in
light of the facts and circumstances confronting them,
without regard to their underlying intent or
motivation. . . .
Graham v. Connor, 490 U.S. 386, 397 (1989) (internal citations
omitted). 	Factors that courts have considered pertinent to
examining Fourth Amendment excessive force claims involving
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 11 of 43

12
handcuffing include: “‘1) [whether] the handcuffs were
unreasonably tight; 2) [whether] the defendants ignored the
arrestee’s pleas that the handcuffs were too tight; and 3) the
degree of injury to the wrists.’” 	Usavage v. Port Auth. of N.Y.
& N.J., 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013) (citation
omitted).
B. 	Claim 1(a)
In Claim 1(a), Mr. Bijeol claims that Officer Catano
violated his Fourth Amendment rights when she used force in
handcuffing his right wrist behind his back to the opposite side
of the ambulance gurney and then left him that way after the
EMTs strapped him down, causing his weight to compress his wrist
and arm behind him. 	Although there are allegations in the
Complaint that may not support a Fourth Amendment excessive
force claim, cf. Fitzgerald v. Santoro, 707 F.3d 725, 735 (7th
Cir. 2013) (use of wrist lock by officer accompanying individual
handcuffed to ambulance gurney was not objectively unreasonable,
considering she was surrounded by potentially hazardous medical
equipment and had previously attempted to flee), the complaint
nonetheless states a plausible Fourth Amendment excessive force
claim. 	Accordingly, in the Order issued this date, the court
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 12 of 43

13
has directed MPD Officer Catano, in her individual capacity, to
answer the Complaint with respect to Claim 1(a).
C. 	Claim 1(b))
Claim 1(b) concerns Officer Catano’s conduct in allowing
Mr. Bijeol to remain in handcuffs, after she repositioned them
in the Emergency Department, throughout his several hour stay
and discharge from the hospital, until he was booked at the
Manchester Police Station. 	A reasonable officer in Officer
Catano’s position, assessing the need for handcuffs, would have
known that Mr. Bijeol had recently overdosed on opiates, that he
had tried to leave the ambulance in a manner that caused both of
the EMTs to apply substantial force to subdue him, that he
remained in close proximity to potentially hazardous items at
the hospital, and that he was a parolee facing the possibility
of revocation proceedings and detention. 	As there are no
allegations suggesting that Mr. Bijeol complained about the
handcuffs being painful after they were repositioned, no
allegations that he suffered any physical injuries from the
handcuffs, and no allegations that the duration of his
handcuffing was inconsistent with standard operating procedures
involving arrestees who receive emergency care, Officer Catano’s
conduct in leaving Mr. Bijeol handcuffed for several hours,
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 13 of 43

14
under the circumstances, does not state a Fourth Amendment claim
of excessive force upon which relief can be granted. 	Cf. Calvi,
470 F.3d at 428 (where standard practice called for handcuffing
arrestees, officer’s decision to keep arrestee handcuffed as
long as necessary to transport arrestee to lockup was
reasonable). 	Accordingly, the district judge should dismiss
Claim 1(b).
II. 	Fourth Amendment False Arrest Claims (Claims 2(a)(i)-(ii))
A. 	Probable Cause and False Arrest Elements
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable searches
and seizures” and provides that “no Warrants shall issue, but
upon probable cause . . . .” 	U.S. Const. amend. IV. 	“Probable
cause is an absolute bar to a claim of false arrest asserted
under the Fourth Amendment and section 1983.” 	Dollard v.
Whisenand, 946 F.3d 342, 353 (7th Cir. 2019); see also Holder v.
Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (warrantless
arrests are generally lawful if police officer had probable
cause).
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
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 14 of 43

15
suspect has committed, is committing, or is about to
commit an offense.”
Holder, 585 F.3d at 504. 	“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).
B. 	Officer Catano and Drug Possession (Claim 2(a)(i)))
Claim 2(a) asserts violations of Mr. Bijeol’s Fourth
Amendment rights, arising from his arrest in circumstances he
contends could not support his arrest or prosecution for drug
possession under state law. 	Officer Catano is alleged to have
told Mr. Bijeol, when she left him in the ambulance, that she
would be arresting him for heroin possession after his discharge
from the hospital. 	Officer Catano’s affidavit and the criminal
complaint initiating Mr. Bijeol’s prosecution both cite RSA
§ 318-B-2, which generally criminalizes the unauthorized
possession of heroin.
Mr. Bijeol does not deny that he was in possession of
heroin at the time of his arrest, and he does not allege facts
suggesting that his use and possession of that drug was
authorized by law. 	Rather, citing RSA § 318-B:28-b, III, he
claims he was immune from arrest and prosecution for drug
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 15 of 43

16
possession because the evidence supporting his arrest and
prosecution were recovered by the EMTs resuscitating him. 	In
pertinent part, RSA § 318-B:28-b, III, provides as follows:
A person who . . . is the subject of a good faith
request for medical assistance, shall not be arrested,
prosecuted, or convicted for possessing . . . a
controlled drug in violation of RSA 318-B:2, if the
evidence for the charge was gained as a proximate
result of the request for medical assistance.
Id. § 318-B:28-b, III. 	The scope of the protection from arrests
and prosecutions available under that statute is cabined by a
related provision, RSA § 318-B:28-b, IV(c), which preserves the
authority of police officers to place a person in custody as
part of an investigation, or to make arrests for other offenses.
Paragraph IV(c) provides, in pertinent part, as follows:
Nothing in this section shall be construed to limit or
abridge the authority of a law enforcement officer to
detain or place into custody a person as part of a criminal
investigation, or to arrest a person for an offense not
protected by the provisions of . . . [paragraph III].
RSA § 318-B:28-b, IV(c).
The immunity afforded to a person experiencing an overdose
is analogous to an affirmative defense to a charge of drug
possession, on which Mr. Bijeol would have borne the burden of
proof at trial.1 	In general, arresting officers do not have a
1Whether the immunity from “arrests” offered by New
Hampshire law extends more protection to overdose victims and
their associates than a state-created affirmative defense would
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 16 of 43

17
duty to investigate to determine if there could be a viable
defense to prosecution under state law, once it appears that
there is probable cause for an arrest, see Acosta v. Ames Dep’t
Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004).
This court cannot conclude in light of the facts pleaded in
the Complaint that a reasonable officer in Officer Catano’s
position would not have understood that Mr. Bijeol’s arrest
under the circumstances was unlawful, given the apparent
applicability of Paragraph III of the overdose immunity statute.
The Complaint thus states an actionable Fourth Amendment false
arrest claim (Claim 2(a)(i)) relating to facts known to Officer
Catano at the time she placed Mr. Bijeol under arrest for drug
possession, before she learned he was a parolee. 	In the Order
issued this date, the court has directed service of the
offer, as some commentators have argued, is an issue this court
need not resolve in its preliminary review of the Fourth
Amendment claims in this case. 	See Nicole Schill, “The Fatal
Shortcomings of Our Good Samaritan Overdose Statutes and
Proposed Model Statute,” 25 Cardozo J. Equal Rts. & Soc. Just.
123 (2018). 	In Virginia v. Moore, the Supreme Court observed
that when State law forbids officers from arresting individuals
for certain criminal conduct, the law may manifest that the
State “values its interests in forgoing arrests more highly than
its interests in making them,” but the State’s enactment of a
restrictive arrest policy does not engraft that policy choice
onto the Fourth Amendment’s probable cause requirement. 	553
U.S. 164, 174 (2008).
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 17 of 43

18
complaint upon Officer Catano, in her individual capacity, with
respect to Claim 2(a)(i).
C. 	Officer Catano and Parole Violation (Claim 2(a)(ii))
Claim 2(a)(ii) raises the issue of whether there was
probable cause to retain Mr. Bijeol in detention after Officer
Catano learned that Mr. Bijeol was a parolee subject to
conditions of supervised release. 	Officer Catano prepared an
affidavit on July 21, 2016, which cites both RSA § 318-B-2 and
the parole officer’s 72-hour hold as grounds for his warrantless
arrest. 	Probable cause regarding a parole violation may provide
sufficient grounds for a constitutional warrantless arrest by a
police officer who is not also a parole officer. 	United States
v. Bernacet, 724 F.3d 269, 279 (2d Cir. 2013). 	A standard
condition of supervised release in New Hampshire is to avoid
criminal conduct, see State v. Budgett, 146 N.H. 135, 138, 769
A.2d 351, 353 (2001). 	Officer Catano’s affidavit states she
learned that Mr. Bijeol was a parolee after he was on his way to
the hospital. 	The evidence uncovered by Officer Catano’s
investigation at that point indicated that he had used or
possessed heroin while on parole, and that his parole officer
intended to place a 72-hour hold on him because of his conduct
on July 21, 2016. 	In that there is no express provision in RSA
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 18 of 43

19
§ 318-B:28-b, III, immunizing parolees who overdose from arrests
or prosecutions for parole violations based on evidence
recovered from the scene of an overdose, the facts known to
Officer Catano at the time she learned that Mr. Bijeol would be
subject to a 72-hour hold amounted to probable cause to detain
him on suspicion of a parole violation, and thus her warrantless
arrest on that basis did not violate his Fourth Amendment
rights. 	Accordingly, the district judge should dismiss Claim
2(a)(ii).
D. 	Sgt. Brennan and False Arrest (Claim 2(a)(iii))
Mr. Bijeol seeks to join Sgt. Brennan as a co-defendant to
his Fourth Amendment false arrest claims. 	Sgt. Brennan’s
involvement, however, is alleged to have occurred after Officer
Catano had already taken Mr. Bijeol to the Manchester Police
Station for booking. 	There are no allegations suggesting that
Sgt. Brennan had any direct involvement in Officer Bijeol’s
decision to arrest Mr. Bijeol before she determined he was a
parolee.
Furthermore, to the extent Mr. Bijeol intends to name Sgt.
Brennan as a defendant to his Fourth Amendment claim challenging
his detention after Sgt. Brennan witnessed Officer Catano’s
signing of the affidavit, nothing in the record indicates that
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 19 of 43

20
Sgt. Brennan, when he witnessed the oath, had any reason to
believe that Officer Catano was making a false statement, or
that Sgt. Brennan engaged in any conduct causing Mr. Bijeol to
be improperly detained. 	Accordingly, the district judge should
dismiss Claim 2(a)(iii).
III. Fourth Amendment Malicious Prosecution (Claim 2(b))
Claim 2(b) summarizes Mr. Bijeol’s claim that the defendant
officers violated his Fourth Amendment right to avoid pretrial
detention unsupported by probable cause, with respect to his
court-ordered detention at the HCHC from July 22, 2016 through
August 1, 2016. 	Mr. Bijeol hinges his Fourth Amendment
malicious prosecution/pretrial detention claim on the affidavit
signed by Officer Catano, and on the criminal complaint,
charging him with drug possession.
A. 	Fourth Amendment Malicious Prosecution Elements
To state a claim of a Fourth Amendment violation relating
to pretrial detention that is authorized by a court order,
unsupported by probable cause, the plaintiff must allege facts,
which, if taken as true, establish: “‘the defendant (1) caused
(2) a seizure of the plaintiff pursuant to legal process
unsupported by probable cause, and (3) criminal proceedings
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 20 of 43

21
terminated in plaintiff’s favor.’” 	Hernandez-Cuevas, 723 F.3d
at 101 (citation omitted). 	A decision to nol pros a case may or
may not satisfy the favorable termination requirement, depending
on the facts of a particular case. 	Cf. Robinson v. Fimbel Door
Co., 113 N.H. 348, 350-51, 306 A.2d 768, 770 (1973) (regarding
analogous state law tort of malicious prosecution).
B. 	Officer Catano’s Affidavit (Claim 2(b)(i))
Liberally construed, the complaint alleges facts suggesting
that at the time of Mr. Bijeol’s initial appearance, the court
had before it Officer Catano’s affidavit. 	Mr. Bijeol highlights
no false statements of fact in, or omissions of material facts
from, Officer Catano’s affidavit, which could have affected the
state court’s ruling. 	And there are no other facts alleged in
the Complaint suggesting that Officer Catano made any other
false or misleading statements regarding her arrest of Mr.
Bijeol that were before the court when it ordered Mr. Bijeol
detained in lieu of bail.
Even if the information in the affidavit concerning the
events of July 21, 2016 were insufficient to provide probable
cause to detain Mr. Bijeol, the affidavit included the fact that
Mr. Bijeol was arrested pursuant to a 72-hour hold requested by
his parole officer. 	Therefore, the court’s finding that there
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 21 of 43

22
was probable cause to detain Mr. Bijeol pursuant to Officer
Catano’s affidavit did not Mr. Bijeol’s Fourth Amendment rights.
Accordingly, the district judge should dismiss Claim 2(b)(i) to
the extent it is asserted against Officer Catano.
C. 	Criminal Complaint (Claim 2(b)(ii))
Mr. Bijeol asserts a similar Fourth Amendment malicious
prosecution/false imprisonment claim against Chief Willard
and/or Sgt. Brennan, for their conduct in preparing, signing,
and filing the criminal complaint that charged Mr. Bijeol with
knowingly possessing heroin, without any authorization to do so.
Chief Willard and/or Sgt. Brennan, in preparing and filing that
criminal complaint, implemented the officers’ authority under
state law to initiate a criminal prosecution in the state
circuit court. 	Absent from the statement of facts supporting
the charges is any clarification of why the overdose immunity
statute did not apply in Mr. Bijeol’s circumstances.
The court concludes that the Fourth Amendment malicious
prosecution claim asserted against those officers is sufficient
to survive preliminary review. 	Without prejudice to their
ability to move to dismiss that claim on any proper basis, see,
e.g., Barber v. Miller, 809 F.3d 840, 844 (6th Cir. 2015)
(“social worker [who] acts as a legal advocate when initiating
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 22 of 43

23
court proceedings” and “filing child-abuse complaints,” is
shielded from claims for damages, “even under allegations that
the social worker intentionally misrepresented facts to the
family court”), the court directs service of that claim (Claim
2(b)(ii)), against defendants Chief Willard and Sgt. Brennan, in
the Order issued this date.
IV. 	Fourteenth Amendment Due Process Claim (Claim 2(c))
Mr. Bijeol alleges that his arrest and pretrial detention
violated his Fourteenth Amendment due process rights. 	Mr.
Bijeol appears to seek relief for what he considers to be the
defendants’ failure to conform their conduct to the requirements
of state law. 	For example, he points to the defendants’
decision to arrest and detain him, notwithstanding the state’s
overdose immunity law. 	And with respect to the criminal
complaint, he points out that Sgt. Brennan, in signing on behalf
of Chief Willard, the nominal complainant, swears to the truth
of the matters in the complaint on the complainant’s behalf.
Mr. Bijeol further asserts that the JP who signed the complaint,
attesting that the “complainant” personally appeared and made an
oath that the complaint is true in the complainant’s belief, did
not include with his or her signature the date of expiration of
the JP’s commission.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 23 of 43

24
To plead a viable claim of a violation of the right to
procedural due process, a plaintiff must allege facts showing
that a state actor has deprived him or her of a fundamental
right or a protected liberty or property interest. 	To the
extent Mr. Bijeol seeks relief on Claim 2(c) based on the above-
noted irregularities in the signing, notarizing, and filing of
the criminal complaint, he has failed to show that those actions
deprived him of any protected liberty interest, independent of
his Fourth Amendment right not to be seized without a warrant
except upon a showing of probable cause. 	To the extent Mr.
Bijeol’s due process claims summarized in Claim 2(c) are based
on his arrest and detention without probable cause, the Fourth
Amendment, and not the Fourteenth Amendment, provides the proper
foundation for those claims. 	See generally Hernandez-Cuevas,
723 F.3d at 98. 	To the extent Mr. Bijeol seeks relief for a
violation of his right to substantive due process arising from
defendants’ conduct, he has failed to plead facts showing that
the defendants’ non-conformity with the requirements of state
law objectively shocks the conscience, or that the defendants’
actions amounted to more than “humdrum legal error” or “bad
faith.” 	S. Commons Condo. Ass’n v. Charlie Arment Trucking,
Inc., 775 F.3d 82, 91, 93 (1st Cir. 2014) (citation omitted).
Accordingly, the district judge should dismiss Claim 2(c).
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 24 of 43

25
V. 	Fourteenth Amendment Equal Protection Claim (Claim 2(d))
In Claim 2(d), Mr. Bijeol asserts a selective prosecution
claim, asserting that his arrest and prosecution violated his
equal protection rights under the Fourteenth Amendment, as he
was not afforded the protections generally available in like
circumstances under RSA § 318-B:28-b, III. 	“The requirements
for a selective-prosecution claim draw on ‘ordinary equal
protection standards.’” 	United States v. Armstrong, 517 U.S.
456, 465 (1996) (citation omitted).
The Fourteenth Amendment’s Equal Protection Clause dictates
“that ‘similarly situated persons are to receive substantially
similar treatment from their government.’” 	Kuperman v. Wrenn,
645 F.3d 69, 77 (1st Cir. 2011) (citation omitted). 	To assert
an equal protection claim, a plaintiff must state facts to show
that, as compared to others similarly situated, he was treated
differently based on an improper consideration. 	See id. at 78.
Mr. Bijeol points to no facts suggesting any racial
discrimination or suspect class-based bias, as grounds for his
arrest and prosecution. 	Rather, he asserts in a conclusory
manner that the defendants targeted him for arrest and
prosecution because he was an overdose victim who needed medical
treatment. 	He pleads no facts, however, suggesting that
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 25 of 43

26
otherwise similarly-situated individuals who are not overdose
victims needing medical treatment have been treated differently;
the existence of the statute does not show that the defendant
officers implement that statute differently, based on whether
the arrestee is an overdose victim or a similarly-situated
bystander to an overdose also found to be in possession of
drugs. 	Mr. Bijeol has failed to show that such bystanders who
are parolees and/or who have attempted to get away from first
responders at the scene have also been treated more favorably by
these defendants. 	In the absence of any allegations showing
that any similarly-situated individuals have been treated
differently without a rational basis for the difference, the
allegations of selective prosecution in this case are
speculative and conclusory. 	Accordingly, the district judge
should dismiss Claim 2(d).
VI. 	§ 1983 Supervisory/Municipal Liability (Claims 3(a)-(b))
Claims 3(a) and 3(b) seek to join certain supervisory
officers and the City of Manchester as defendants, based on
their alleged failure to train or supervise the officers who are
alleged to have violated Mr. Bijeol’s rights. 	In addition, Mr.
Bijeol asserts claims of supervisory and municipal liability
based on the MPD custom of allowing subordinate officers to sign
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 26 of 43

27
criminal complaints on behalf of MPD Police Chief Willard.
A. 	Claim 3(a)
1. 	Liability for Custom/Policy under Monell
“[W]hen execution of a [local] government’s policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts the injury,” then “the government as an entity” may be
held responsible under § 1983. 	Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). 	The complaint lacks non-conclusory
allegations that could show that the custom of allowing
subordinate officers to sign criminal complaints on Chief
Willard’s behalf has caused any of the alleged Fourth Amendment
uses of excessive force or false arrests that have been allowed
to proceed in this case. 	Without a sufficient showing of
causation, the alleged custom does not form the basis for a
Monell claim in this case. 	Accordingly, Claim 3(a)(i) should be
dismissed, to the extent liability is claimed under Monell.
2. 	§ 1983 Supervisory Liability
A theory of liability arising from a supervisor’s alleged
deliberate indifference can provide a separate ground for
finding a supervisor liable for the unconstitutional acts of his
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 27 of 43

28
or her subordinates. 	Parker v. Landry, 935 F.3d 9, 14-15 (1st
Cir. 2019).
Facts showing no more than a supervisor’s mere
negligence vis-à-vis his subordinate’s misconduct are
not enough to make out a claim of supervisory
liability. 	At a minimum, the plaintiff must allege
facts showing that the supervisor’s conduct sank to
the level of deliberate indifference.
Id. at 15 (citations omitted).
“A showing of [supervisory] deliberate indifference has
three components: “the plaintiff must show ‘(1) that the
officials had knowledge of facts, from which (2) the official[s]
can draw the inference (3) that a substantial risk of serious
harm exists.’” 	Id. (citation omitted). 	“And even if the
complaint contains facts plausibly showing deliberate
indifference, the plaintiff must also allege facts giving rise
to a causal nexus between the supervisor’s acts or omissions and
the subordinate’s misconduct.” 	Id. at 16. 	A plaintiff may
state a claim of supervisory liability under 42 U.S.C. § 1983
upon allegations showing that there was an “affirmative link”
between the supervisory defendant’s deliberate indifference and
the unconstitutional acts or omissions of his or her
subordinates, which “led inexorably to the constitutional
violation.” 	Morales v. Chadbourne, 793 F.3d 208, 221 (1st Cir.
2015).
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 28 of 43

29
Mr. Bijeol points to Chief Willard’s alleged custom of
allowing Sgt. Brennan or other subordinate officers to file
criminal complaints without adequate supervision. 	Those
allegations, without more, fail to demonstrate that there was
any affirmative link between that custom or practice and the
alleged constitutional violations in this case, which could be
characterized as leading inexorably to any actionable Fourth
Amendment claim in this case. 	And there are no allegations
suggesting deliberate indifference on Chief Willard’s part, as
there are no allegations showing he was aware of a substantial
risk that his subordinate officers would: employ excessive force
in arrests, arrest individuals who are immune from such arrests
in the context of an overdose, or lodge criminal complaints that
would result in court-ordered pretrial detention unsupported by
probable cause. 	Accordingly, the district judge should dismiss
Claim 3(a)(ii) to the extent the claim is based on a theory of
supervisory liability under section 1983.
B. 	Failure to Train/Supervise (Claims 3(b)(i)-(ii))
Mr. Bijeol alleges that the City and Chief Willard are
liable under § 1983 for failing to provide adequate supervision
of or training to subordinate officers regarding the interplay
and requirements of RSA § 318-B:2 (drug crimes) and § 318-B:28-b
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 29 of 43

30
(overdose immunity); and the statutes regarding justices of the
peace notarizing documents (RSA § 455-A:3) and officers signing
and filing criminal complaints (RSA § 592-A:7).
The failure to train theory offers a way for
plaintiffs to hold a municipality liable under 42
U.S.C. § 1983 for the acts of its employees.
Typically, a plaintiff first identifies a
constitutional violation (often related to police
misconduct) and then attempts to show that the
violation was the direct result of poor training or
supervision of municipal employees, stemming from
“deliberate indifference to the rights of persons with
whom the [employees] come into contact.” 	To prevail,
the plaintiff must show that the constitutional
violation had a “direct causal link” to the deficiency
in training.
Jones v. City of Bos., 752 F.3d 38, 59 (1st Cir. 2014)
(citations omitted); see also Voutour v. Vitale, 761 F.2d 812,
820 (1st Cir. 1985) (“we hold that the supervisor must
demonstrate at least gross negligence amounting to deliberate
indifference, and that this conduct must be causally linked to
the subordinate’s violation of plaintiff’s civil rights”).
Mr. Bijeol has alleged that officers were inadequately
trained or supervised regarding the cited state laws. 	Construed
liberally, the complaint’s allegations regarding the failure to
train or supervise officers regarding RSA § 318-B:2 (controlled
drug crimes) and RSA § 318-B:28-b (overdose immunity) suffice to
state a failure-to-train/deliberate indifference claim under
section 1983, relating to Mr. Bijeol’s arrest and the filing of
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 30 of 43

31
a criminal complaint, which survives this court’s preliminary
review. 	Accordingly, in the Order issued this date the court
directs the City, under Monell, as well as Chief Willard to be
served and to file a response to Claim 3(b)(i), relating to the
lack of training or supervision relating to RSA §§ 318-B:2 and
318-B:28-b.
The remaining failure to train and supervise allegations
fail to plead any facts showing a causal link between the
supervisory deficiencies and any alleged unconstitutional
conduct. 	Moreover, the facts alleged do not give rise to viable
claim of any supervisory defendant’s deliberate indifference to
a substantial risk of serious harm relating to alleged
inadequate training or supervision regarding the statutory
requirements for police officers signing and filing criminal
complaints, in general, and/or justices of the peace notarizing
documents. 	Accordingly, Claim 3(b)(ii) should be dismissed for
failure to state a claim.
VII. Civil Rights Conspiracy (Claims 4(a)-(b))
Claims 4(a) and 4(b) summarize Mr. Bijeol’s allegation of a
conspiracy among the defendants to violate his Fourth and
Fourteenth Amendment rights, for which he seeks damages under 42
U.S.C. §§ 1983 and 1985. 	A civil rights conspiracy is “a
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 31 of 43

32
combination of two or more persons acting in concert to commit
an unlawful act, or to commit a lawful act by unlawful means,
the principal element of which is an agreement between the
parties to inflict a wrong against or injury upon another, and
an overt act that results in damages.” 	Estate of Bennett v.
Wainwright, 548 F.3d 155, 178 (1st Cir. 2008). 	Although “pro se
complaints are to be read generously, allegations of conspiracy
must nevertheless be supported by material facts, not merely
conclusory statements.” 	Slotnick v. Garfinkle, 632 F.2d 163,
165 (1st Cir. 1980) (per curiam) (citation omitted).
Stripped of conclusory statements and speculation about the
goal of the conspiracy (punishing overdose victims who need
medical care), the allegations in the complaint fail to state a
claim that the defendants agreed to violate Mr. Bijeol’s civil
rights with respect to Officer Catano’s alleged decision to
subject him excessive force and warrantless arrest, and the
officers’ decision to file a criminal complaint charging him
with drug possession. 	The complaint does not allege any other
facts which, taken as true, would establish that there was a
conspiratorial agreement between defendants.
Furthermore, to state a claim of a civil rights conspiracy
claim under § 1985 a plaintiff must allege interference with a
federally protected right, and race discrimination or other
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 32 of 43

33
class-based discrimination. 	Boyle v. Barnstable Police Dep’t,
818 F. Supp. 2d 284, 318 (D. Mass. 2011). 	There are no
allegations in the complaint that state a claim of race
discrimination or any other discrimination targeting a protected
class. 	Accordingly, the district judge should dismiss the civil
rights conspiracy claims summarized here as Claims 4(a) and
4(b), for failure to state a claim upon which relief can be
granted.
VIII. State Law Claims (Claims 5 and 6)
A. 	State Constitution and Statutes (Claims 5(a)-(b))
Mr. Bijeol asserts defendants are liable for damages for
violating unspecified provisions of the state constitution and
for violating certain state laws. 	The state constitution and
the state statutes he cites, however, do not give rise to any
privately enforceable claim for damages in their breach, and the
New Hampshire Supreme Court (“NHSC”) has not recognized any of
those statutes as providing an implied cause of action for
damages. 	See Dionne v. Amatucci, No. 10-cv-230-PB, 2011 DNH
170, 2011 WL 4915550, at *7, 2011 U.S. Dist. LEXIS 120394, at
*20 (D.N.H. Oct. 17, 2011) (declining to recognize cause of
action for damages for violation of state constitution relating
to officer’s use of excessive force incident to arrest, as NHSC
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 33 of 43

34
has not recognized that claim, and “[l}itigants who choose a
federal forum . . . cannot expect a federal court to push the
boundaries of state law”); see also Kinney v. Town of Pepperell,
Civ. No. 00-87-JD, 2000 DNH 229, 2000 WL 1745167, at *3, 2000
U.S. Dist. LEXIS 16306, at *7 (D.N.H. Oct. 26, 2000) (“The New
Hampshire Constitution does not provide remedies for violations,
and [plaintiff, who alleged violations of articles 15, 19, and
22 of state constitution] has not shown that the New Hampshire
Supreme Court has established remedies for the violations he
alleges.”). 	Accordingly, Claims 5(a)-(b) should be dismissed
for failure to state a claim upon which relief can be granted.
B. 	Tort of False Arrest (Claims 5(c)(i))
Mr. Bijeol alleges that the facts giving rise to a false
arrest claim under the Fourth Amendment with respect to Officer
Catano also provide grounds for finding her liable under state
law for the intentional tort of false arrest.
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)
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 34 of 43

35
(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 state a false arrest
tort claim upon which relief can be granted against Officer
Catano, with respect to her warrantless arrest of Mr. Bijeol
before she learned he was a parolee subject to a 72-hour hold.
Accordingly, in the Order issued this date, the court has served
Claim 5(c)(i)(A) upon Officer Catano.
To the extent plaintiff seeks to assert the same state law
false arrest claim against defendants after the 72-hour hold was
lodged against Mr. Bijeol, plaintiff has failed to state a
viable claim. 	See RSA § 594:13 (“If a lawful cause of arrest
exists, the arrest will be lawful even though the officer
charged the wrong offense or gave a reason that did not justify
the arrest.”). 	Accordingly, the district judge should dismiss
that aspect of the false arrest claim (Claim 5(c)(i)(B)).
C. 	Tort of Violation of Statute (Claim 5(c)(ii))
The complaint asserts a tort claim that Mr. Bijeol has
labeled “violation of statute.” 	Mr. Bijeol claims that Officer
Catano’s and Sgt. Brennan’s violations of state laws,
specifically, Sgt. Brennan’s alleged failure to sign under oath
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 35 of 43

36
and properly notarize the criminal complaint, and Officer
Catano’s arrest of Mr. Bijeol on a charge of drug possession
notwithstanding the existence of the overdose immunity statute,
provides grounds for finding them liable in tort.
The violation of a statutory standard of conduct can
constitute negligence and may give rise to liability
in tort. 	A claim of negligence may be founded on a
failure to satisfy such a standard of conduct “when
the consequences contemplated by the statute have
actually resulted from the violation.”
Nichols v. Estabrook, 741 F. Supp. 325, 329 (D.N.H. 1989)
(citations omitted).
The common law in New Hampshire does not appear to provide
a cause of action for damages for negligent arrests and
prosecutions. 	Nor is there authority for the proposition that a
police officer can be sued for negligence for failing to
properly notarize or sign a criminal complaint before filing it.
Assuming, without deciding, that such negligence claims could be
deemed actionable in New Hampshire, in the Order issued this
date, the court directs service of Claim 5(c)(ii) upon Officer
Catano; upon Sgt. Brennan, who signed the criminal complaint
individually and in a representational capacity; and upon the
City under a theory of vicarious liability. 	That Order is
issued without prejudice to defendants’ ability to move to
dismiss Claim 5(c)(ii) on any basis, including Fed. R. Civ. P.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 36 of 43

37
12(b)(6), or to seek pretrial disposition of that claim based on
defendants’ common law official or vicarious immunity, see
Farrelly v. City of Concord, 168 N.H. 430, 447, 130 A.3d 548,
561 (2015) (although officers “may have acted negligently in
arresting the plaintiff without a warrant and in charging him
under an unconstitutional subsection of the harassment statute,”
summary judgment was appropriate where “the record demonstrates
as a matter of law that their actions did not rise to the level
of reckless or wanton conduct sufficient to strip them” of
official immunity for their acts).
D. 	Tort of Malicious Prosecution (Claim 5(c)(iii))
“The four elements of a claim for malicious prosecution
[under state law] are: (1) the plaintiff was subjected to a
criminal prosecution or civil proceeding instituted by the
defendant; (2) without probable cause; (3) with malice; and (4)
the prior action terminated in the plaintiff’s favor.” 	Id., 168
N.H. at 445, 130 A.3d at 560. 	At the time when Officer Catano’s
arrest of Mr. Bijeol led to the filing of a criminal complaint,
there was probable cause to order Mr. Bijeol detained because of
the 72-hour hold. 	Furthermore, with respect to Sgt. Brennan and
Chief Willard, Mr. Bijeol’s state law malicious prosecution
claim should be dismissed as the complaint lacks any non-
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 37 of 43

38
speculative, non-conclusory allegations of malice with respect
to those officers. 	Accordingly, the claim seeking damages for
the tort of malicious prosecution (Claim 5(c)(iii)) should be
dismissed.
E. 	Emotional Distress (Claim 5(c)(iv))
To state a claim of intentional infliction of emotional
distress, a plaintiff must allege facts showing that the
defendants’ extreme and outrageous conduct has caused the
plaintiff severe emotional distress. 	Tessier v. Rockefeller,
162 N.H. 324, 341, 33 A.3d 1118, 1133 (2011); Konefal v.
Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 260, 723 A.2d
30, 33 (1998). 	Such factual allegations are lacking with
respect to the alleged deficiencies in the signing of the
criminal complaint and/or the alleged absence of probable cause
relating to Mr. Bijeol’s warrantless arrest and prosecution.
Accordingly, Mr. Bijeol’s claim of intentional infliction of
emotional distress (Claim 5(c)(iv)) should be dismissed.
F. 	Deceit/Fraud (Claim 5(c)(v))
Mr. Bijeol asserts that unspecified representations in the
criminal complaint provide grounds for finding Sgt. Brennan
liable for the tort of “deceit.” 	Construed liberally, Mr.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 38 of 43

39
Bijeol appears to take issue with Sgt. Brennan’s signature on
that complaint on Chief Willard’s behalf, and upon the
procedural deficiencies in the JP’s signature on the criminal
complaint, where, he argues, it is not clear that either officer
personally appeared before a JP, swearing to the truth of the
matters alleged.
In order to prove deceit, the plaintiff must prove
that the defendant intentionally made material false
statements to the plaintiff, which the defendant knew
to be false or which he had no knowledge or belief
were true, for the purpose of causing, and which does
cause, the plaintiff reasonably to rely to his
detriment.
Caledonia, Inc. v. Trainor, 123 N.H. 116, 124, 459 A.2d 613,
617-18 (1983). 	The Complaint lacks any allegations suggesting
any detrimental reliance by plaintiff on any false statements
knowingly made by any defendant, upon which an actionable fraud
or deceit claim could be based. 	Accordingly, the district judge
should dismiss plaintiff’s tort claim of deceit (Claim 5(c)(v))
for failure to state a claim upon which relief can be granted.
G. 	Tortious Failure to Train/Supervise (Claim 6(a)-(b))
Mr. Bijeol bases a claim of tort liability upon allegations
that MPD officers received inadequate training and supervision
regarding arrests and prosecutions for drug possession, in
violation of RSA § 318-B:2, in circumstances where RSA § 318-
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 39 of 43

40
B:28-b may provide immunity. 	Mr. Bijeol specifically alleges
that Capt. Begley, Sgt. Biron, Sgt. Brennan, and Chief Willard
were responsible for training or supervising their subordinate
officers regarding those matters.
The basis for a claim of negligent employment or
supervision brought against an employer where the
employee harms a third party is not the vicarious
liability of the doctrine of respondeat superior, but
a separate theory of employer liability. . . .
“Liability exists only if all the requirements of an
action of tort for negligence exist.”
Tessier, 162 N.H. at 342, 33 A.3d at 1133 (citations omitted).
Construed liberally, the complaint’s allegations regarding
the failure to train officers regarding RSA § 318-B:2
(controlled drug crimes) and RSA § 318-B:28-b (overdose
immunity) suffice to state a failure-to-train negligence claim,
which survives this court’s preliminary review. 	Accordingly, in
the Order issued this date the court directs defendants Capt.
Michael Begley, Sgt. Michael Biron, Sgt. Brennan, and Chief
Willard to be served and to file a response to Claim 6(a),
relating to the lack of training or supervision as to RSA
§§ 318-B:2 and 318-B:28-b.
The remaining failure to train and supervise allegations,
stripped of legal conclusions, fail to plead sufficient facts
showing that the alleged deficiencies were causally related to,
or the proximate cause of, any injury suffered by Mr. Bijeol.
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 40 of 43

41
Accordingly, Claim 6(b) should be dismissed for failure to state
a claim.
H. 	Vicarious Liability (Claim 6(c))
In Claim 6(c), Mr. Bijeol claims that the City is
vicariously liable for the MPD officers’ alleged tortious
conduct. 	The Complaint states a claim of the City’s vicarious
liability for Mr. Bijeol’s alleged tortious arrest of Mr. Bijeol
for drug possession, and for the supervisory defendants’
negligent failure to train or supervise Officer Catano with
respect to RSA §§ 318-B:2 and 318-B:28-b. 	Accordingly, the City
is required to answer Claim 6(c), with respect to those issues,
pursuant to the terms of the Order issued this date.
IX. 	Request for Criminal Prosecution and Injunctive Relief
Mr. Bijeol asks the court to initiate a criminal
prosecution of defendants and seeks injunctive relief regarding
the MPD’s practices relating to arrests and the filing of
criminal complaints. 	“Private citizens lack a
judicially cognizable interest in the prosecution or
nonprosecution of another.” 	In re Compact Disc Minimum Advert’d
Price Antitr. Litig., 456 F. Supp. 2d 131, 145 (D. Me. 2006)
(quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973))
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 41 of 43

42
(internal quotation marks and alterations omitted).
Accordingly, the district judge should deny Mr. Bijeol’s request
that this court initiate criminal proceedings against any
defendant.
Moreover, the district judge should dismiss Mr. Bijeol’s
claims for injunctive relief for lack of standing, as he cannot
demonstrate that he faces any realistic threat that he would be
subjected to the same law enforcement policies and practices he
challenges in this lawsuit. 	See City of L.A. v. Lyons, 461 U.S.
95, 109 (1983) (plaintiff who had been subjected to police
chokehold in past lacked standing to seek injunction against
enforcement of police chokehold policy in future because he
could not credibly allege that he faced realistic threat from
policy).
Conclusion
For the foregoing reasons the district judge should:
1. 	Deny Mr. Bijeol’s requests that the court
initiate criminal prosecutions against defendants, for lack
of standing;
2. 	Dismiss Mr. Bijeol’s claims to the extent he
seeks any injunctive relief, for lack of standing; and
3. 	Dismiss Claims 1(b), 2(a)(ii), 2(a)(iii),
2(b)(i), 2(c), 2(d), 3(a)(i), 3(a)(ii), 3(b)(ii), 4(a),
4(b), 5(a), 5(b), 5(c)(i)(B), 5(c)(iii), 5(c)(iv), 5(c)(v),
and 6(b).
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 42 of 43

43
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	That period may be extended upon motion.
Failure to file objections 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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 8, 2020
cc: 	Jonathan Bijeol, pro se
Case 1:19-cv-00749-JL Document 11 Filed 06/08/20 Page 43 of 43