United States District Court, D. New Hampshire
Opinion No. 2015 DNH 018.
STEVEN J. McAULIFFE, District Judge.
Pro se plaintiff, John Kiernan, brings this action against the Town of Hudson, New Hampshire, and Hudson Police Officer Dan Dolan. In his amended complaint, Kiernan alleges that defendants engaged in conduct that was so extreme and outrageous that it violated his Fourteenth Amendment right to substantive due process (count one). See generally 42 U.S.C. § 1983. See also Report and Recommendation (document no. 20) (construing plaintiff's various claims). He also advances several state common law claims over which he implicitly asks the court to exercise supplemental jurisdiction: intentional infliction of emotional distress (count two); negligence (count three); abuse of process/malicious prosecution (count four); and defamation (count five). In addition to an award of compensatory damages, Kiernan also seeks an award of punitive damages (which he has captioned as the sixth count in his amended complaint).
Pending before the court is defendants' motion for judgment on the pleadings. For the reasons stated, that motion is granted to the extent it seeks judgment on the sole federal claim in Kiernan's complaint. As to Kiernan's state law claims, the court declines to exercise supplemental jurisdiction and they are dismissed without prejudice.
Standard of Review
A motion for judgment on the pleadings is subject to the same standard of review applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Portugues-Santana v. Rekomdiv Int'l, Inc., 725 F.3d 17, 25 (1st Cir. 2013). Accordingly, the court must accept as true all well-pleaded facts in Kiernan's complaint and indulge all reasonable inferences in his favor. See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). To survive defendants' motion, the complaint 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). Legal boilerplate and general conclusory statements are insufficient to state a cognizable claim. See Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012).
Accepting the factual allegations in Kiernan's amended complaint (document no. 3) as true, the relevant background is as follows. Kiernan says there has been animosity between him and Officer Dolan since March of 2008, when Dolan testified as a witness in a civil dispute between Kiernan and his neighbors. Kiernan speculates that because he cross-examined Dolan in that proceeding (and apparently questioned the truthfulness of Dolan's testimony), Dolan began harboring ill feelings toward him. He claims that the day after he cross-examined Officer Dolan, the Hudson Police Department sent him a letter, instructing him not to have any contact with either Dolan or his wife and threatening to arrest Kiernan if he violated that directive.
More than two years later - in October of 2010 - Kiernan says defendants followed through on that "retaliatory promise... to have plaintiff falsely arrested." Amended Complaint at para. 30. Specifically, Kiernan says he was the victim of a "road rage" incident involving Officer Dolan's wife. In the wake of that incident, Dolan's wife sought (and obtained) a judicial restraining order against Kiernan. According to Kiernan, that restraining order issued only because Dolan's wife and, although he was not present during the incident, Dolan himself "lied to the police, filed blatantly false police reports, lied under oath and committed perjury." Id. at para. 38.
A few days later, says Kiernan, Dolan and his wife "filed an additional false police report with the Nashua police in order to arrange the false arrest of plaintiff, " id. at para. 46, for violating the restraining order (by following Dolan's wife after she had picked up the couple's children at school). Kiernan was arrested, arraigned the next day, and released. The following day, Dolan's wife allegedly filed another report with the Nashua Police Department, claiming Kiernan had confronted her at her children's school and saying she feared for their safety. Kiernan denies the factual allegations in that police report and says it was merely another instance of Dolan's wife (and/or Dolan himself) trying to have him falsely arrested. But, according to Kiernan, "Nashua police refused to do the bidding for them yet again" and Nashua police officers neither contacted nor arrested Kiernan. And, he says the initial charges against him were eventually dropped.
The most recent event giving rise to this action occurred in the summer of 2012. According to Kiernan, he encountered Officer Dolan at the Nashua South High School outdoor track. He claims that as he walked past Officer Dolan, Dolan "shook his head back and forth with an angry, menacing look on his face." Id. at para. 67. Dolan then stopped near the track's exit, and Kiernan says he felt "trapped, with no way to exit the track safely, because Dolan had the only exit blocked." Id. Not long thereafter, Kiernan sent a written request to the Hudson Police Department, asking it to conduct an "internal affairs investigation into [his] false arrest at the hands of Officer Dolan and his wife." Id. at para. 70. When he felt his complaints were not receiving adequate attention, Kiernan contacted the office of United States Senator Shaheen and, eventually, the New Hampshire Attorney General's Office. When he failed to receive satisfactory responses (or action) from either, he filed this suit.
I. Plaintiff's Substantive Due Process Claim.
The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. As the Supreme Court has repeatedly held, the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)). See also Elena v. Municipality of San Juan, 677 F.3d 1, 7-8 (1st Cir. 2012) ("State conduct violates an individual's substantive-dueprocess rights when it is so brutal, demeaning, and harmful that it is shocking to the conscience.'") (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 30 (1st Cir. 2008)). Moreover, as the court of appeals for this circuit has observed, "[e]ven executive action that does shock the conscience will still not infringe substantive due process unless it also deprives an individual of a protected interest in life, liberty, or property." Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13 (1st Cir. 2010) (citation and internal punctuation omitted) (emphasis supplied). See generally Albright v. Oliver, 510 U.S. 266, 271-72 (1994) ("As a general matter, the Court has always been reluctant to expand the ...