United States District Court, D. New Hampshire
JOSEPH DiCLERICO, Jr., District Judge.
Matthew Levine brought suit in state court, alleging state law claims against the Town of Pelham, the Pelham Police Department, and the Pelham School District, and alleging a claim under 42 U.S.C. § 1983 against the town and the police department. The town removed the case to this court. After filing their answers, the school district and the town filed motions for judgment on the pleadings. Levine then moved to amend his complaint.
Levine alleges that in 2011, during the events that gave rise to his claims, he was an educator in the Pelham School District. He states that he was arrested in August of 2011 when it was discovered that a Facebook account in his name was being used to communicate inappropriately with a student in the Pelham School District. Levine denies that he engaged in those communications. Levine alleges that the police department wrote in a report that he had agreed that he had communicated with the student.
After his arrest, Levine was indicted by a grand jury. The charges against him were ultimately dismissed in the superior court.
Levine alleges that he lost his job in the school district because of the arrest and the charges brought against him. He also alleges that he lost a subsequent job in the Gloucester, Massachusetts school system because of the arrest and charges. He further alleges that his application for a license with the Massachusetts Department of Education was put on hold because of his arrest.
I. Motion to Amend
Levine moves to amend his complaint to add a statement to paragraph 9 that he did not agree that he had communicated with a student, as stated in the police report. He also proposes to add a paragraph which alleges that the town lacked policies and procedures to require its detectives to obtain Internet Protocol addresses from Facebook. He further alleges in the new paragraph that the town's policies and procedures failed to require the police to investigate whether the address associated with the communications with the student was controlled by him. The town objects to the motion to amend on the grounds that the amendment is futile.
A. Standard of Review
Under Federal Rule of Civil Procedure 15(a)(2), a party may move to amend his complaint, and "(t)he court should freely give leave when justice so requires." A motion for leave to amend may be denied, however, if the amendment would be futile. Todisco v. Verizon Commc'ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007). An amendment would be futile if it fails to make a plausible claim for relief as tested under the Rule 12(b)(6) standard. HSBC Realty Credit Corp. (USA) v. O'Neill, 745 F.3d 564, 570 & 578 (1st Cir. 2014).
Under the Rule 12(b)(6) standard, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court accepts all well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff's favor but does not accept legal conclusions or mere recitation of the elements of a cause of action. San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 471 (1st Cir. 2012).
The town contends that Levine's proposed amended complaint is futile because it fails to allege facts to support municipal liability under § 1983, because the state law claims are barred by RSA 507-B, and because the claims are barred by the statute of limitations. Levine did not respond to the town's assertion of futility. The town raised the same issues in its motion for judgment on the pleadings, however, and in his objection ...