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Reppucci v. MacIe

United States District Court, First Circuit

September 23, 2013

Daniel Reppucci, Plaintiff.
Kelvin Macie, Richard A. Foote, Cheshire County Sheriff's Office, Cheshire County, Gary A. Phillips, Christopher Roberts, Winchester Police Department, Town of Winchester, Defendants.


STEVEN J. McAULIFFE, District Judge.

David Reppucci was a full-time police officer for the Town of Winchester, New Hampshire, from March of 2003 until July of 2009, when he was suspended from duty. About a month later, the Winchester Board of Selectmen terminated his employment. He brings this action seeking compensatory and punitive damages, as well as costs and attorney's fees, claiming he was the victim of wrongful termination and retaliatory discharge. Additionally, he says defendants deprived him of various constitutionally protected rights.

Defendants deny any wrongdoing and move to dismiss Reppucci's claims on grounds that they are barred by the doctrine of collateral estoppel, fail to state viable causes of action, and are time-barred.[1]

For the reasons discussed, those motions to dismiss are granted.

Standard of Review

When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." SEC v. Tambone , 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

In other words, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge[] [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone , 597 F.3d at 442.

Here, in support of their motions to dismiss, defendants rely upon a written decision issued by the New Hampshire Superior Court (Cheshire County), in which the court addressed Reppucci's claims that his firing was unlawful. They also rely upon the written decision of the New Hampshire Employment Security Appeal Tribunal, reversing Reppucci's award of unemployment benefits. Although a court must typically decide a motion to dismiss exclusively upon the allegations set forth in the complaint (and any documents attached to that complaint) or convert the motion into one for summary judgment, see Fed.R.Civ.P. 12(d), there is an exception to that general rule:

[C]ourts have made narrow exceptions for documents the authenticity of which [is] not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.

Watterson v. Page , 987 F.2d 1, 3 (1st Cir. 1993) (citations omitted). See also Trans-Spec Truck Serv. v. Caterpillar Inc. , 524 F.3d 315, 321 (1st Cir. 2008); Beddall v. State St. Bank & Trust Co. , 137 F.3d 12, 17 (1st Cir. 1998). Since Reppucci does not dispute the authenticity of the state court's written decision or that of the NHES Appeal Tribunal, the court may properly consider those documents without converting defendants' motions to dismiss into ones for summary judgment.


The relevant factual background is largely undisputed and set forth in detail in the Superior Court's order dated June 28, 2010. See Reppucci v. Town of Winchester, No. 09-C-136 (N.H. Sup.Ct. June 28, 2010) (document no. 9-3) ("Reppucci I"). In brief, they are as follows.

In March of 2003, Reppucci became a full-time police officer for the Town of Winchester and, by 2006, he had been promoted to Detective Sergeant. In 2009, he applied for a vacant position as Lieutenant, but he was not selected for the job. In response, he filed a grievance with the Chief of Police, outlining why he believed he should have been selected for the position and challenging the department's promotion procedures. In that grievance, Reppucci made reference to a confidential, internal investigation involving another officer who had also been a candidate for the vacant Lieutenant position.

Town officials became concerned that Reppucci had disclosed a copy of that grievance - including the confidential personnel information about the other police officer - to a member of the public. Accordingly, the Town asked the Cheshire County Sheriff's Department to conduct an investigation. As part of that investigation, on July 9, 2009, Deputy Sheriff Kelvin Macie attempted to interview Reppucci. At the outset, Deputy Macie issued an "Administrative Warning, " informing Reppucci that the Sheriff's Office was conducting an investigation into allegations that Reppucci had engaged in misconduct. Macie informed Reppucci that, "You are required to answer all questions fully and truthfully, and disciplinary action including dismissal may be taken if you refuse to answer fully and truthfully." Reppucci I, at 2 (citation omitted). He also told Reppucci that, "You are further advised that by law, any admission made by you cannot be used against you in any subsequent criminal proceeding." Id. at 2-3 (emphasis supplied).

The "Administrative Warning" given to Reppucci is also known as a "Garrity Warning, " which the New Hampshire Supreme Court has described as follows:

Such a warning informs the accused that the purpose of questioning is to assist in determining whether to impose administrative discipline. Even if the accused were to disclose during questioning information indicating that he may be guilty of criminal conduct, the warning explains that neither his selfincriminating statements, nor the fruits thereof will be used against him in any criminal proceeding. The warning further states that if the accused refuses to answer questions or fails to give truthful answers, he will be subject to disciplinary action, up to and including dismissal.

In re Waterman, 154 N.H. 437, 442 (2006) (citation and quotation marks omitted). See generally Garrity v. ...

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