The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
This case, arising from a dispute over a vacation camping trailer at a campground, presents a question over the due process guaranteed by the Constitution before state officials can deprive a citizen of the property in his possession. The plaintiffs, Robin Foley, Gregory Vankooiman, and Foley's two minor children, claim that the Town of Lee, its police department, its chief of police, and three of its police officers (the "municipal defendants"), as well as the owner of the camper, Brenda Tenaglia,*fn1 violated the plaintiffs' constitutional rights to procedural and substantive due process by forcing them, under threat of arrest, to leave the camper and the campground. The plaintiffs also claim that the defendants committed the state-law torts of trespass to chattels and intentional infliction of emotional distress.*fn2 This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).
The municipal defendants have moved for summary judgment on all of the plaintiffs' claims against them. See Fed. R. Civ. P. 56. They argue that:
(1) the plaintiffs lacked the protected property interest in the camper necessary to support their procedural and substantive due process claims,
(2) the municipal defendants' actions fail to "shock the conscience" so as to give rise to a substantive due process claim,
(3) even if the plaintiffs could show a federal constitutional violation, none of the municipal defendants can be held liable for it under 42 U.S.C. § 1983, because (a) the police chief and officers are entitled to qualified immunity for their actions, and (b) there is no evidence that those actions were carried out under a Town or department custom, policy, or practice, and
(4) the chief and officers are entitled to official immunity, and the Town and department are entitled to municipal immunity, against the plaintiffs' state-law tort claims.
Tenaglia has likewise moved for summary judgment, arguing, like the municipal defendants, that the plaintiffs' federal constitutional claims fail for lack of a protected property interest and further arguing that, as a matter of law, she neither committed trespass to chattels nor intentional infliction of emotional distress.
Following oral argument, the court grants the summary judgment motions in part and denies them in part. Even if, as the defendants argue, the plaintiffs had no right to occupy the camper under their agreement with Tenaglia, they did have a possessory interest in the camper that entitled them to due process before being deprived of it through the intervention of public officials. When certain of the defendant officers threatened the plaintiffs with arrest if they did not leave the camper, then, that amounted to a violation of the plaintiffs' procedural due process rights. Those rights, moreover, are clearly established, and it would have been clear to a reasonable officer in the defendants' position that they were violating them. So, as fully explained infra, the defendant officers who threatened the plaintiffs with arrest unless they left the camper are not entitled to summary judgment, on the basis of qualified immunity or otherwise, on their procedural due process claim.
But neither the chief nor one of the other defendant officers made such threats, or did anything else to interfere with the plaintiffs' possessory interest in the camper, so those defendants are entitled to summary judgment on the procedural due process claim. Furthermore, all of the municipal defendants are entitled to summary judgment on the substantive due process claim because the police conduct was not conscience-shocking, even insofar as it was a procedural due process violation. There is also no evidence that it was the product of any municipal custom, policy, or practice, so neither the Town nor the department can be held liable for it. And the municipal defendants are entitled to official immunity against the plaintiffs' trespass to chattels and intentional infliction of emotional distress claims, because no rational trier of fact could find that their conduct allegedly comprising those torts was wanton or reckless.
Tenaglia, for her part, is not a state actor, nor do the plaintiffs assert any other basis for holding her liable for any violations of their constitutional rights, so she is entitled to summary judgment on the due process claims against her. She is also entitled to summary judgment on the intentional infliction of emotional distress claim, because no rational factfinder could conclude that her actions rose to that level. A rational factfinder could conclude, however, that Tenaglia committed trespass to chattels, so she is not entitled to summary judgment on that claim.
I. Applicable legal standard
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. Where, however, "the party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive." EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002) (quotation marks omitted). As discussed infra, this standard applies to the municipal defendants' arguments for summary judgment on the basis of qualified immunity from the federal constitutional claims, and municipal and official immunity from the state-law claims, because they bear the burden of proof on each of those defenses.
The court considers the undisputed material facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. See, e.g., Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011). The following facts are set forth accordingly.
On July 7, 2007, Tenaglia entered into a handwritten agreement with Foley and Vankooiman to sell them her 1990 Scamper camping trailer and its attached porch (the "camper"), which were located on a site at the Wellington Camping Park in Lee, New Hampshire. The plaintiffs agreed to pay Tenaglia $3,500 for the camper in two installments: $1,600 upon the signing of the agreement and the remaining $1,900 by August 1, 2007. The agreement provided that if the entire purchase price was not paid by that date, the sale would be void and the money paid would be forfeited. As part of the deal, the plaintiffs agreed to pay, to Wellington, the $1,050 fee to use the camper's site for the season, from May 15, 2007, to October 15, 2007. The plaintiffs made the initial payment of $1,600 to Tenaglia on July 7 and a further payment of $200 on July 15, 2007.
Although use of the camper pending payment in full is not expressly addressed in the purchase and sale agreement, Tenaglia allowed the plaintiffs to use the camper after they made the initial payment.*fn3 Tenaglia also gave the plaintiffs the paper title to the camper, but she did not sign it over to them, and she states that she gave them the document only so they could begin the process of insuring the camper. The plaintiffs also entered into a written agreement with the camping park "to rent space, on which is to be placed" the camper they were buying from Foley (parenthetical omitted). The plaintiffs paid the rental fee due under this agreement, which was $1,050 for the season running from April 15, 2007 to September 15, 2007.
As of August 1, 2007, however, the plaintiffs had not made the final payment on the camper. At some point that day, Tenaglia put a lock on the camper's porch door and left a note asking the plaintiffs to contact her. Tenaglia also notified the Lee Police Department that she had locked the camper because the buyers had not made the final payment on the day that it was due. Defendant Raymond Pardy, then a Lee police officer, entered the call into the department's records, but there is no evidence of any further involvement on his part.
When Vankooiman subsequently returned to the camper on August 1, he climbed onto the porch and removed the lock. On August 3, Tenaglia discovered that the plaintiffs were using the camper again, and called the Lee Police Department. Defendant Brian Huppe, a sergeant, went to the campground in response to the call that same day. There, Sergeant Huppe met separately with both Tenaglia and Foley, and ultimately convinced Tenaglia to accept payment for the amount due on the camper in the form of a check for the outstanding amount, even though, under the parties' written agreement, the payment was to have been made by August 1, in cash. So the plaintiffs gave Tenaglia a check for $1,700 written on Vankooiman's account at TD Banknorth. While Tenaglia accepted the check, she explained that she was reluctant to do so and would be presenting the check to the bank the next day, on August 4, 2007. When she did so, however, a teller informed Tenaglia that the account lacked funds to cover the check and that the bank would not cash it.*fn4
Tenaglia then called Sergeant Huppe and told him that, because the check had not cleared, the plaintiffs could no longer stay in the camper. Huppe went to the campground and relayed this message to the plaintiffs, telling them they would have to leave by 4 p.m. Huppe also warned them that any damage to the camper could lead to their arrest.
Later in the day, defendant Scott Flanagan, another officer with the Lee Police Department, relieved Sergeant Huppe when his shift ended, and went to the campground to check on the camper. There, Officer Flanagan found the plaintiffs packing their belongings into their vehicles, although Vankooiman pointed out a few items, including a fish tank (with a pet fish) and a day bed, that he said they did not have room for in the vehicles. Officer Flanagan told the plaintiffs that they were "close to being arrested" for criminal trespass but gave them until 6 p.m. to leave. When Officer Flanagan returned to the campground around that time, he again saw the plaintiffs, who at that point appeared to be leaving. Flanagan then inspected the camper and found that everything was in order. In fact, the plaintiffs had left the fish tank (with the fish), the day bed, and a few other items of personal property in the camper. Tenaglia subsequently destroyed or otherwise disposed of these items.
Rather than leaving the camping park, the plaintiffs stayed and visited with friends at another campsite. Upon learning of this, the campground's owner told Officer Flanagan that the plaintiffs had to leave the premises. Officer Flanagan proceeded to relay this message to the plaintiffs, who left the campground in response. Two days later, the Lee police chief, defendant Chester Murch, came upon the plaintiffs as they were leaving the campground after picking up Foley's daughter from there. There is a dispute about what was said during this encounter (Chief Murch recalls that the plaintiffs told him that they were going to bring a lawsuit, while Foley maintains that it was Chief Murch who, on his own initiative, advised the plaintiffs to get a lawyer), but there is no evidence that Chief Murch said or did anything to encourage the plaintiffs to leave the campground. The plaintiffs later brought a small claims action against the campground's owner in the Durham District Court, which eventually issued judgment for the owner.
The plaintiffs then brought this action. The remaining counts of their amended complaint, see note 2, supra, are:
* violation of the plaintiff's federal Constitutional rights, specifically, their "due process and procedural rights," against all defendants (count 1);
* intentional infliction of emotional distress, against all ...