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Belmore v. Nashua Police Department

United States District Court, D. New Hampshire

October 12, 2017

Maurice A. Belmore, Jr.
v.
Nashua Police Department, Ryan McDermott, Steven Berry, Dennis Pereira, Jason Reinold, and Daniel Mederos [1]

          REPORT AND RECOMMENDATION

          Andrea Johnstone United States Magistrate Judge.

         Before the court is the complaint (Doc. No. 1), filed by pro se plaintiff Maurice A. Belmore, Jr., while he was an inmate at the Hillsborough County Department of Corrections. The complaint caption names the Nashua Police Department ("NPD") as a defendant, and the complaint narrative names individual defendants. The matter is here for preliminary review under LR 4.3(d)(1) and 28 U.S.C. § l9l5A(a).

         Preliminary Review Standard

         The court may dismiss claims asserted in an inmate's complaint, if the court lacks subject matter jurisdiction, a defendant is immune from the relief sought, the complaint fails to state a claim, or the action is frivolous or malicious. See 28 U.S.C. § l9l5A(b). In determining whether a pro se complaint states a claim, the court must construe the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive preliminary review, the complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief.'" See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court treats as true all well-pleaded factual allegations, and construes reasonable inferences in plaintiff's favor. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

         Background

         Belmore alleges that on July 12, 2014, at 1:30 a.m., he was walking across East Hollis Street in Nashua, New Hampshire, when an NPD police cruiser struck him and did not stop, injuring his knee. Belmore alleges that NPD Officers Steven Berry, Dennis Pereira, Jason Reinold, and Sgt. Daniel Mederos appeared on the scene and interviewed witnesses. No. accident report was filed.

         Belmore alleges that, when NPD Officer Ryan McDermott arrived, McDermott pushed Belmore from a sitting position to the ground, pinning him there with his knee against Belmore's throat, and threatening an arrest if Belmore continued to say he had been hit by a car. Belmore alleges that McDermott waved off EMTs in the area. Belmore alleges McDermott then told Belmore to get up or he would be maced, and threatened Belmore again with an arrest to make Belmore stop saying he had been hit by a car. Belmore alleges McDermott then handcuffed him, folding Belmore's thumb backwards and twisting his arm while doing so. Belmore alleges McDermott and/or NPD Officers Berry, Pereira, and Reinold punched and delivered knee strikes to Belmore's torso, and then carried him facedown by his wrists and ankles, towards a cruiser. Belmore alleges that Sgt. Mederos, their supervisor, watched without stopping the assault.

         Belmore alleges that after his arrival at the NPD station on July 12, 2014, NPD officers assaulted him in an incident that was recorded on a surveillance video. Belmore received treatment for a sprained left knee and bruised ribs after these incidents.

         On July 14, 2014, Belmore pleaded not guilty to five misdemeanor charges: disorderly conduct, resisting arrest, criminal trespass, and two charges of simple assault. The case was prosecuted by a police prosecutor in the New Hampshire Circuit Court, 9th Circuit, District Division, Nashua ("Nashua District Court"). Belmore, who was represented by appointed counsel in those proceedings, pleaded not guilty and was released on personal recognizance. After a trial, the Nashua District Court found Belmore not guilty of resisting arrest and guilty of the remaining charges, and sentenced him to sixty days on each charge.

         Belmore spent several months in jail serving the Nashua District Court sentence before the matter was transferred to Hillsborough County Superior Court, Southern District. On October 29, 2015, a jury found Belmore guilty of criminal trespass and not guilty of the remaining charges. The Superior Court sentenced Belmore to sixty days on that conviction and granted him credit for sixty days time served. The New Hampshire Supreme Court ("NHSC") affirmed Belmore's conviction. See State v. Belmore, No. 2015-0751, 2016 N.H. LEXIS 262, 2016 WL 7451408 (N.H. Nov. 14, 2016) .

         Belmore seeks damages and an order setting aside his criminal trespass conviction, based upon the following claims, asserted under 42 U.S.C. § 1983 and state tort law:

         1. NPD Officers Ryan McDermott, Steven Berry, Dennis Pereira, and/or Jason Reinold violated Belmore's Fourth Amendment rights by using unreasonable and excessive force July 12, 2014, in that:

a. McDermott pinned Belmore to the ground with his knee against Belmore's throat;
b. McDermott bent back Belmore's thumb and twisted his arm while handcuffing him;
c. McDermott, Berry, Pereira, and/or Reinold punched Belmore and delivered knee strikes to his torso; and
d. McDermott, Berry, Pereira, and/or Reinold carried Belmore facedown by his wrists and ankles to an NPD cruiser.

         2. NPD Officer Ryan McDermott retaliated against Belmore for exercising his First Amendment rights, by arresting him on July 12, 2014, for saying he had been struck by a car.

         3. NPD Sgt. Daniel Mederos, a supervisory officer, and NPD Officers Berry, Pereira, and/or Reinold violated Belmore's Fourth Amendment rights, in that those officers witnessed but failed to intervene to stop the other NPD officers from using unreasonable and excessive force in arresting, handcuffing, and assaulting Belmore on July 12, 2014.

         4. Unnamed NPD officers used unreasonable and excessive force in an assault occurring at the NPD station ...


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