The opinion of the court was delivered by: Paul Barbadoro United States District Judge
Sheila Levy filed suit in the Grafton County Superior Court against Todd Lique, an officer of the Lebanon Police Department ("LPD"), M. James Alexander, the Chief of Police for the LPD, the City of Lebanon, and unknown LPD officers. She asserted four claims for relief: (1) a Fourth Amendment excessive force claim against Lique and unknown LPD officers; (2) a state law claim of assault and battery against Lique and unknown LPD officers; (3) a Section 1983 failure to train and supervise claim against Chief Alexander; and (4) a state law negligent training and supervision claim against Chief Alexander and the City of Lebanon. Defendants removed the case to this court. The parties have filed cross-motions for summary judgment. For the reasons provided below, I deny both Levy and Lique's motions and grant Chief Alexander and the City's motion.
Levy and defendants present two dramatically different versions of the events that transpired in front of the Colonial Deli Mart in Lebanon, New Hampshire on August 5, 2007. I describe each version in turn.
On the morning of August 5, 2007, Levy drove her thirteen-year-old daughter, Skye, and their cats and dogs to a riverbank in Lebanon to give the pets a bath. At some point, one of her dogs got loose and ran off into the woods. Believing that he would come back and would not bother anyone, Levy decided to go to the Colonial Deli Mart to get lunch for herself and her daughter before returning to retrieve the dog.
Approximately five minutes after she arrived at the front of the store, Officer Lique approached her in the parking lot. His first comment to her was "take your daughter and go back to where your dog got loose." Levy's Dep. at 40, Doc. No. 24-2. When she responded that she would first get lunch and then go find her dog, Lique said to another officer who arrived on the scene shortly after Lique, "Perkins, grab her. I'm taking her in." Id. at 42. The two officers then grabbed Levy, picked her up by her arms, and took her to the police cruiser. Skye ran over to the other side of the cruiser.
Once in front of the cruiser, Lique told Perkins to clear the area. He then opened the door and shoved Levy into the cruiser. While holding her left arm, Lique began punching Levy in the stomach with a full fist. She begged him to stop but he continued to punch her, landing eight punches total. He then reached for what Levy believed was a taser and tasered her left arm approximately thirty times and her lower back twice. The tasering lasted approximately six minutes. At one point during the assault, Levy shouted to Skye to run away and call her grandfather, but Lique told Skye that she had to stay next to the cruiser.
After he finished tasering Levy, Lique exited the car and went to speak with Skye. Levy remained in the cruiser. Soon after that an ambulance arrived. Levy felt paralyzed and could not even talk. She was strapped onto a gurney without resistance and taken to the Dartmouth-Hitchcock Medical Center ("DHMC"). She was then transferred to the New Hampshire State Hospital, where she remained for eighteen days.
During her stay at the state hospital, Levy showed the bruises that resulted from Lique's beating and tasering to numerous staff members. She asked them to take pictures of the bruises but they refused. She also showed her bruises to the attorney who represented her in connection with the involuntary hospital admission, as well as to her father and daughter.
B. The Police Officers' Version
On August 4, 2007 -- the day before the incident -- a person approached Lique to report that Levy was sleeping in her van at a nearby auto repair shop. Lique spoke to Levy and noted that her mental capacity seemed diminished. When she denied needing assistance, he left.
Around 4:00 a.m. the next day, someone called the police regarding Levy. Levy reportedly told the caller that the police were looking for her, that they were setting up road blocks to catch her, and that she was bleeding. The caller noted that Levy was not actually bleeding.
Later that day, around noontime, an employee at the Colonial Deli Mart called the police to report that Levy was confronting and bothering customers outside the store. She also reported that Levy had told her that she was wanted by the police. Lique responded to the scene and approached Levy. He found her in her van with her daughter and several animals. She seemed angered by his presence and appeared to be "far worse" than the day before. Levy could not remember her name, the date, where she was or had been, or things said to her just seconds before. She kept talking in circles and asking Lique who he was even after he identified himself as an officer of the LPD.
Several minutes into the conversation, Levy told Lique that she did not have to talk to him, rolled up the window of her car, and left the parking lot. She drove into the parking lot of a store next door to the Deli Mart. While she was there, Lique spoke with the Deli Mart employee who had placed the call. The employee stated that she had known Levy for a long time and that Levy was acting "irrationally." She also told Lique that Levy's mental state had always been "a little off" but that her condition had worsened that day to such an extent that the employee was concerned for Levy and her daughter's welfare.
Based on his observations of Levy on that day and the day before, as well as the Deli Mart employee's comments, Lique believed that Levy was a danger to herself and her child. He informed Officer Perkins that he believed this was a protective custody issue. The two proceeded to the nearby parking lot where Levy had parked her van. As they approached the van, Levy tried to slam shut the driver's side door, but Lique prevented her from doing so. He opened the door to full extension and began speaking with her again.
Levy "began to act irrationally once again and began screaming." Lique's Police Report at 2, Doc. No. 28-13. Lique informed her that he was placing her in protective custody and asked her to step outside the vehicle. Levy then "began screaming even louder and launched herself into the passenger's side seat" where her daughter was seated. Id. The officers attempted to grab Levy from the driver's side but she prevented them by kicking her legs. Perkins then went to the passenger's side and began attempting to remove her from the vehicle. Lique joined him. "Levy was then forcibly removed from the van by the upper torso, as she refused to comply with the orders given to her." Id.
Once she was outside the van, Levy continued to physically struggle against the officers and ignored their orders to stop. After a "brief struggle," the officers "forcibly handcuffed her" and attempted to place her into the police cruiser. Id. She was "kicking and struggling wildly" to prevent being placed into the vehicle until Perkins "picked [her] up . . . and ...