United States District Court, D. New Hampshire
Theresa M. Petrello
City of Manchester, et al. No. 2017 DNH 053
Elliott Berry, Esq., Gilles R. Bissonnette, Esq., Robert J.
McCafferty United States District Judge
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
“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)).
relevant facts are not in dispute. 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. 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.
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.
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.
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.
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.
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 ...