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Jessica Dennis v. Town of Loudon

September 20, 2012

JESSICA DENNIS
v.
TOWN OF LOUDON, ROBERT N. FISKE, GREGORY L. BAVIS, ROBERT S. AKERSTROM, AND GREGORY N. FERRY



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2012 DNH 165

MEMORANDUM ORDER

The evening giving rise to this civil rights case began like a stereotypical low-budget horror film. On a summer night a little over three years ago, a group of teenagers---including 18-year-old Jessica Dennis---had a few drinks before venturing into the woods. Around midnight, while the teens were sitting in a car alongside a desolate road, Dennis heard unsettling noises coming from outside the car. She panicked, ran, and hid in the woods.*fn1 She might have been better off staying in the car. In those woods lurked something almost as dangerous (to an unlawfully imbibing teenager) as a murderous predator . . . . . . a state police sergeant with a K-9 unit, who coincidentally happened to be searching those same woods for a different person. The dog alerted on Dennis and attacked her, causing minor injuries. Two Loudon police officers on the scene then arrested Dennis and charged her with unlawful intoxication and resisting arrest. The Concord District Court later dismissed one of those charges and acquitted Dennis of the other.

Dennis has filed suit against the state police sergeant and the two Loudon officers who arrested her, asserting a claim for alleged violations of her constitutional rights. See 42 U.S.C. § 1983; U.S. Const. amend. IV. Specifically, she argues that the dog attack constituted a use of excessive force and that her arrest was unsupported by probable cause. She also asserts state-law claims for malicious prosecution; strict liability for the dog attack under N.H. Rev. Stat. Ann. § 466:19; negligence in the handling of the dog; battery; and intentional infliction of emotional distress.*fn2 This court has jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).

Defendants have moved for summary judgment, see Fed. R. Civ. P. 56, arguing that (1) they are entitled to qualified immunity from Dennis's § 1983 claim, (2) they are entitled to statutory immunity from the state-law claims arising from the dog attack under N.H. Rev. Stat. Ann. § 508:18-a, and (3) the record evidence entitles them to judgment as to Dennis's remaining state-law claims. After hearing oral argument, the court grants the defendants' motions for summary judgment in part and denies them in part. Taking the evidence in the light most favorable to Dennis, a rational jury could find that the officers lacked probable cause to arrest Dennis, in violation of her clearly established Fourth Amendment rights. The defendants are therefore not entitled to summary judgment on this claim on the basis of qualified immunity. Defendants are also not entitled to statutory immunity under N.H. Rev. Stat. Ann. § 508:18-a, so their motion for summary judgment is denied as to Dennis's negligence and strict liability claims.

Defendants are, however, entitled to summary judgment as to Dennis's remaining claims. The excessive force claim fails because the dog attack was unintentional, and therefore Dennis was not "seized" within the meaning of the Fourth Amendment. Intent is also an essential element of a battery claim, and its absence here entitles defendants to summary judgment on that claim. Defendants are entitled to summary judgment on Dennis's malicious prosecution claim because the record reveals no evidence that the charges against Dennis were motivated by malice. Finally, because Dennis has assented to the entry of summary judgment against her as to her claim for intentional infliction of emotional distress, see Pl.'s Partial Obj. to Mot. for S.J. (document no. 24) at 2, ¶ 4, the court grants summary judgment to defendants on that count.

I. Applicable legal standard

Summary judgment is appropriate where "the movant 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 dispute is "genuine" if it could reasonably be resolved in either party's favor at trial. See Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010) (citing Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)). A fact is "material" if it could sway the outcome under applicable law.

Id. (citing Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)). In analyzing a summary judgment motion, the court "views all facts and draws all reasonable inferences in the light most favorable to the non-moving party." Id. The following facts are set forth accordingly.

II. Background

At about 11:45 p.m. on July 19, 2009, the Merrimack County Sheriff's Office received a complaint of a loud party in a residential area on Lovejoy Road in Loudon, New Hampshire. The sheriff's dispatcher relayed this information to the Loudon Police Department ("LPD"). Corporal Robert Akerstrom and Patrolman Gregory Bavis of the LPD responded to the scene, where they observed a large number of vehicles in the driveway of a home near the intersection of Lovejoy Road and Dragonfly Lane.

In affidavits accompanying their motion for summary judgment, Akerstrom and Bavis offer slightly different accounts of what they observed upon arriving at the house.*fn3 In Akerstrom's recollection, he and Bavis arrived at about the same time and approached the house together. According to Akerstrom, when he and Bavis knocked on the front door of the home, no one answered, but the occupants hushed their voices and extinguished the lights. Akerstrom says he then walked around to the back of the house, where he saw a male and female. Although he told them to stop, the male dropped a cup and fled into the nearby woods, while the female disappeared, presumably into the house.

According to Bavis, he arrived at the house before Akerstrom and "saw a number of individuals behind the residence, all holding plastic cups or beer cans." When Bavis approached those individuals, who appeared younger than the legal drinking age, a male wearing a red shirt dropped his beer and alerted the others that the police had arrived. All those behind the residence then fled into the house. At that point, Bavis says, the occupants of the house extinguished the lights and refused to acknowledge his knocks at the door. In Bavis's recollection, Akerstrom arrived shortly thereafter and they knocked on the front door together, again without response. A male party attendee then ran into the woods behind the home, despite Akerstrom's order to stop.

Akerstrom and Bavis agree that after this individual ran into the woods, they requested that the state Police respond with a K-9 unit in order to track him. Sergeant Gregory Ferry of the New Hampshire State Police responded to the call with his trained K-9 partner, "Gusta." Upon their arrival at the Lovejoy Road residence, Ferry and Gusta accompanied Bavis into the woods to track the scent of the individual who had fled the party. Ferry instructed Gusta to track the suspect, rather than to bite or hold, and kept the dog on a five- to six-foot lead. Akerstrom went off separately in search of the subject who had fled, and an officer from a nearby town, who had also responded to the disturbance, stayed at the party to maintain the status quo.

At or around the same time, the plaintiff, 18-year-old Jessica Dennis, was sitting with some friends in a sport utility vehicle parked alongside Dragonfly Lane, a cul-de-sac that bordered the side and rear of the lot on which the party was taking place. The car was parked 150 to 200 feet from the house. Dennis had not attended the party and had never been to the house before. She says that she heard some men yelling, became scared, and exited the vehicle and ran into the woods. She sat down on the ground in the woods, where she remained silent and still.

Without warning, and while Dennis remained still, Ferry and Gusta came upon Dennis in the woods and Gusta attacked her, biting her several times on her shoulder, arm, and leg. Dennis did not resist or fight back, and at some point, the dog clamped its teeth on her tightly and began to drag her across the ground. Ferry was eventually able to regain control of Gusta and stop the attack.

Ferry says in his affidavit that, upon encountering Dennis, "it was readily apparent," based upon his training and experience, "that Ms. Dennis had demonstrated the necessary indicia of having consumed alcoholic beverages within a readily noticeable period before the encounter and was acting under the influence of same at the time." In more comprehensible language, he explains that Dennis's breath smelled like alcohol, that she was unsteady on her feet, and that her speech was "thick tongued" and slurred. Bavis confirms this account, as does Akerstrom (who did not observe Dennis at the scene of the attack, but did observe her later at the police station). For her part, Dennis admits that she had three drinks between 7:45 and 10:30 p.m. that evening, but says that she felt "completely sober." Briana Brosnahan, who was with Dennis around the time of her arrest, says that Dennis did not appear to be intoxicated or under the influence of alcohol, and was not having trouble walking or talking.

Ferry and Bavis arrested Dennis, and Bavis later brought her to the LPD station. At the station, Dennis voluntarily submitted to a Portable Breath Test, or "PBT." Although Bavis thrice attempted to administer the PBT, Dennis did not properly follow his instructions, and Bavis decided to institute charges against her. He began to fill out the necessary paperwork, but did not complete it as he needed to go to the ...


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