Christine Woodman Casa, Esq. Brian J.S. Cullen, Esq. Daniel J. Mullen, Esq. Tony E. Soltani, Esq.
Steven J. McAuliffe United States District Judge
Plaintiff, Darren Gallant (“Darren”), filed this action in state court against the Sandown Police Department and his estranged wife, Jessica Gallant (“Jessica”). Defendants removed the proceeding to this forum, invoking federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441. Plaintiff thereafter filed an amended complaint, adding claims and naming a Sandown police officer and the Hampstead Police Department and two of its officers as additional defendants.
The summary judgment motions of Jessica Gallant and the Sandown Police Department and its officer are now before the court. See doc. nos. 31 and 33. Plaintiff objects.
Standard of Review
When ruling on a motion for summary judgment, the court must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Griggs–Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Summary judgment is appropriate when the record reveals “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). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties' positions on the issue are supported by conflicting evidence.” Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199–200 (1st Cir.1996) (citations omitted).
Nevertheless, if the non-moving party's “evidence is merely colorable, or is not significantly probative, ” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986) (citations omitted). The key, then, to defeating a properly supported motion for summary judgment is the non-movant's ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed.R.Civ.P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party's bald assertions, unsupported conclusions, and mere speculation. See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir.1997). See also Scott v. Harris, 550 U.S. 372, 380 (2007).
Darren and Jessica Gallant were married in 1997. They lived together in their home in Sandown, New Hampshire, from 1998 until 2009. In August 2009, Jessica filed for divorce. By agreement, and then by court order, Jessica resided in the Gallant home and Darren resided elsewhere during the pendency of the divorce proceeding.
In a separate state court proceeding, Jessica sought and obtained a Domestic Violence Protective Order (“DVPO”) against Darren, which was to remain in effect from August 2009 to August 2010. Sandown police officers formally served Darren with the DVPO. Under the terms of the protective order, Darren was to have no contact with Jessica, including by telephone, text, or email.
In March 2010, the family court judge issued a temporary order regarding custody of the Gallants’ children. The order stated, among other things, that Darren and Jessica would “share decision making of the two children . . . . and that they will be able to have reasonable contact with each other regarding parenting issues.” Doc. no. 31-7. The court also stated that “previously there was a [DVPO] in place, that is not the case any longer.” Id.
In early April 2010, Darren brought the family court’s temporary order to Chief Joseph Gordon of the Sandown Police Department. Darren stated to Chief Gordon that there was no longer a DVPO in effect and that he could, therefore, contact Jessica as he wished. Chief Gordon suggested that Darren speak with the family court clerk to seek clarification. He also advised Darren that he could be arrested if he went to the marital home because the DVPO still appeared “in the computer” system as valid and effective.
Two days later, Darren met with the family court clerk, who, according to Darren, told him that the DVPO was no longer in place and advised him to keep the temporary order with him at all times. Around the same time, Darren’s counsel filed a “Motion for Explicit Orders” with the family court seeking a clarification of the temporary order. The motion acknowledged that, although the temporary order appeared to lift the DVPO, “[i]n reality, this does not appear to be the case.” Doc. no. 31-8.
On May 4, 2010, Jessica met with Corporal John Sable of the Sandown Police Department and informed him that Darren had contacted her numerous times by phone call and text, including 82 texts on a single day. As recounted in defendants’ statement of facts ...