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Petrello v. City of Manchester

United States District Court, D. New Hampshire

March 21, 2017

Theresa M. Petrello
v.
City of Manchester, et al. No. 2017 DNH 053

          Elliott Berry, Esq., Gilles R. Bissonnette, Esq., Robert J. Meagher, Esq.

          ORDER

          Landya McCafferty United States District Judge

         Theresa M. Petrello brings this action under 42 U.S.C. § 1983 against the City of Manchester and Manchester Police Officer Ryan J. Brandreth, alleging violations of her First, Fourth, and Fourteenth Amendment rights. Petrello claims that Officer Brandreth violated her constitutional rights when he charged her with disorderly conduct while she was peacefully panhandling in public. Officer Brandreth moves for judgment on the pleadings on qualified-immunity grounds. Plaintiff objects.

         Standard of Review

          “The standard of review of a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is the same as that for a motion to dismiss under Rule 12(b)(6).” Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014) (quoting Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)); see also Portugués-Santana v. Rekomdiv Int'l Inc., 725 F.3d 17, 25 (1st Cir. 2013) (“A motion for judgment on the pleadings is treated like a Rule 12(b)(6) motion to dismiss . . . .”). Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation and internal quotation marks omitted). A claim is facially plausible “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). “Judgment on the pleadings is proper ‘only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment.'” Zipperer v. Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007) (quoting Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006)).

         Background

         The relevant facts are not in dispute.[1] On June 3, 2015, Petrello was peacefully soliciting donations in a public place in Manchester, New Hampshire. Specifically, Petrello was standing on the grassy area between the roadway and sidewalk on the west side of Maple Street, south of Bridge Street.[2] Petrello held a sign that said “Veteran. Have Proof. Anything Will Help Please.” Doc. no. 9 at ¶ 19. Petrello never stepped in the road to either solicit or collect donations. Petrello did not approach or touch any passing cars unless the driver or passenger of the car gestured or indicated to her that they wanted to make a donation.

         Officer Brandreth was on patrol at a nearby Seven-Eleven store and noticed Petrello panhandling with her back to the traffic light. Officer Brandreth watched as approximately seven cars stopped and handed Petrello items. Then, while the traffic light was green, a Cadillac driving northbound on Maple Street came to a complete stop and handed something to Petrello. Petrello took the item from the driver, but she did not step in the roadway. When the Cadillac stopped, a Jeep driving behind the Cadillac was forced to stop. The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.

         Officer Brandreth approached Petrello and told her that she could not stop cars. Petrello responded that she did not stop anyone. Officer Brandreth obtained Petrello's driver's license and discovered that she had been issued a summons on May 5, 2015, for being a pedestrian in the roadway. Officer Brandreth then issued Petrello a summons to appear in Manchester District Court on July 9, 2015, on one count of disorderly conduct, in violation of RSA 644:2, II(c), “for obstructing vehicular traffic.” See doc. no. 9 at ¶ 25; doc. no. 9-3 at 7 of 18. Officer Brandreth did not arrest Petrello. On August 31, 2015, the charge against Petrello was nolle prossed.

         Petrello alleges that the Manchester Police Department developed and implemented a policy to detain, harass, threaten, disperse, and charge panhandlers for allegedly “obstructing vehicular traffic on public streets” in violation of RSA 644:2, II(c), even when the panhandlers were in a public place and did not step in the roadway. See doc. no. 9 at ¶¶ 7, 68, 86. Petrello points to a pattern of similar police conduct, including Officer Brandreth's own conduct, and internal police department documents and emails to show the existence of the panhandling policy. Specifically, Petrello cites an email dated July 2, 2015, from Police Captain James Soucy of the Manchester Community Policing Division to all officers with the subject line “Panhandlers.” In relevant part, the email advises officers as follows:

Simply put, if a Panhandler does any of the following - you may use these options:
Action: Panhandler causes traffic to slow or become impeded when accepting donations - even if they're not standing or step into a public way
Officer's Charge with DOC 644:2(c) Obstructing
Option: vehicular traffic on any public street

See doc. no. 9-1 at 37 of 39; doc. no. 9 at ¶ 10. Petrello alleges that Officer Brandreth acted pursuant to this policy on June 3, 2015, when he stopped her and charged her with disorderly conduct. See Id. at ¶¶ 72, 88.

         In her complaint, Petrello brings five claims under 42 U.S.C. § 1983, three against both Officer Brandreth and the City of Manchester (Counts I-III) and two against only the city (Counts IV and V). See doc. no. 9. Only Counts I-III are relevant for purposes of the instant motion. In these counts, Petrello alleges violations of her rights under the Fourth Amendment (Count I), First Amendment (Count II), and Fourteenth Amendment's Equal Protection Clause (Count III). She brings Counts I-III against the City of Manchester, under Monell v. Department of Social Services, 436 U.S. 658 (1978), for establishing a policy, practice, or custom that violated Petrello's constitutional rights, and against Officer Brandreth in his individual capacity as a police officer.

         On August 1, 2016, Officer Brandreth filed the instant motion for judgment on the pleadings on Counts I-III, asserting that he is entitled to qualified immunity, and, alternatively, that he did not violate Petrello's constitutional ...


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