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Human v. Colarusso

United States District Court, D. New Hampshire

January 15, 2015

human, Plaintiff,
Anthony F. Colarusso, Jr., Defendant.


STEVEN J. McAULIFFE, District Judge.

Pro se plaintiff, David Montenegro (a/k/a human), brings this action against Anthony Colarusso, in his official capacity as Chief of Police for Dover, New Hampshire. Plaintiff claims he was the victim of a retaliatory prosecution in violation of the First Amendment (count one) and a malicious prosecution in violation of the Fourth Amendment (count two). Pending before the court is defendant's motion for summary judgment on both of plaintiff's remaining claims. For the reasons discussed, that motion is granted.

Standard of Review

When ruling on a party's 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 & Aero. Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).

This case is somewhat atypical in that plaintiff has neither objected to defendant's motion (his objection was due on or before January 12, 2015), nor has he sought additional time to file an objection. Accordingly, the court will take as admitted the factual statements recited in defendant's motion, as supported by the attached exhibits. See Local Rule 56.1(b) ("All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party."). See also Puerto Rico American Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 131 (1st Cir. 2010) (discussing Puerto Rico's analog to Local Rule 56.1(b), also known as the "anti-ferret rule, " and holding that, "This type of rule is aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record. Given this root purpose, we have held with a regularity bordering on the monotonous that parties ignore the strictures of an antiferret' rule at their peril.") (citations omitted).

Of course plaintiff's failure to object does not automatically entitle defendant to judgment as a matter of law. The court must still determine whether the uncontested facts presented by defendant, when viewed in the light most favorable to plaintiff, entitle defendant to judgment as a matter of law. See, e.g., Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003).


In response to what he believed was "malfeasance in the [Dover] police department, " plaintiff began a series of "regular public protests, on a sidewalk in downtown Dover, condemning police misconduct." Complaint at 2. He says he "applied for and received licenses for all such demonstrations, " and each was conducted "in full compliance with all applicable state and local law." Id . His demonstrations, says plaintiff, prompted the Dover Police Department to begin a campaign of harassment and intimidation against him. One of those alleged instances of harassment gave rise to this action.

On November 29, 2008, Sergeant Jeffrey Mutter and Officer Scott Petrin of the Dover Police Department observed plaintiff in the process of setting up one of his protests at the intersection of Central Avenue and First Street. See Incident Report of Sgt. Jeffrey Mutter (document no. 25-4). Plaintiff had assembled a small folding table, with cement blocks at the bottom of its legs to act as anchors. On the table, he rested a large red sign that read, "Stop Police Corruption." He also placed a tri-pod, onto which he affixed a video camera, adjacent to the display. Plaintiff erected his display on the edge of the sidewalk, where it slopes downward to meet the road, at the intersection of two pedestrian cross walks. Photographs of the scene taken by Sergeant Mutter unmistakably show that plaintiff's display obstructed pedestrian traffic at that intersection, forcing people to walk around his display to access the crosswalks. See Incident Report at 5-9.

The officers approached plaintiff, who immediately began video taping their interactions. According to Sergeant Mutter, the officers' interaction with plaintiff unfolded as follows:

Montenegro would not accept my greeting without first having his video camera on. I then extended a second greeting and handshake to introduce myself. I initiated an explanation of our presence, however Montenegro interrupted and insisted on showing me his City license prior to listening to what I wanted to explain to him and why. After viewing his license, I attempted to explain that his current display location was in violation of the disorderly conduct law, specifically as the law pertained to obstructing pedestrian traffic on any public street or sidewalk.
I told Montenegro my reasons for explaining this issue was to prevent him from wasting his time and effort with setting up in a place that was clearly an obstruction of the crosswalks and to foot traffic. Montenegro insisted on relying on his licensing, referring that he had permission [to erect his display] on any part of Central Ave. within the specified time limits, and that he chose this location due to the high volume of foot traffic. I again tried to explain that although he was correct about his license, it was his location that was the issue at hand.

Id. at 4.

Sergeant Mutter then gave plaintiff examples of where he could assemble his display without running afoul of the disorderly conduct statute and still remain visible to the public. He also provided plaintiff with a copy of New Hampshire's law on disorderly conduct, which plaintiff read in his presence. Nevertheless, plaintiff remained insistent that he had the right to maintain his display in its current location. Sergeant Mutter explained that plaintiff's interpretation of the law was incorrect and that he had to move the display. He then told plaintiff that he was going to take some additional photographs of the scene and, when he returned, he was going to give plaintiff ...

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