United States District Court, D. New Hampshire
E. Buchholz, Esq. Gary M. Burt, Esq. Samantha Dowd Elliott,
Esq. Sanjeev Lath, pro se Bruce Joseph Marshall, Esq. Sabin
R. Maxell, Esq. Richard C. Nelson, Esq. Brendan D.
O'Brien, Esq. James G. Walker, Esq. Gerard Dufresne, pro
McCafferty United States District Judge.
case now consists of one federal claim against the Manchester
Police Department (“MPD”) and/or the City of
Manchester (“City”), brought through 42 U.S.C.
§ 1983, and state law claims against all four
defendants. Before the court is a motion to dismiss filed by
the MPD. Lath objects. For the reasons that follow, the
motion to dismiss is granted.
turning to the merits of the pending motion, the court notes
that the docket entries in this case illustrate some
confusion over the identity of the municipal
defendant. However, the court need not resolve that
confusion because even under the resolution most favorable to
Lath, i.e., a determination that the municipal defendant is
the City rather than the MPD,  Lath's § 1983 claim must
be dismissed. That said, and notwithstanding its prior
practice to the contrary, in the balance of this order, the
court will refer to the municipal defendant as “the
Cause 1 of his First Amended Complaint (“FAC”),
Lath claims that the City violated his right to equal
protection, under the Fourteenth Amendment to the U.S.
Constitution because: (1) the MPD took 30 minutes to respond
to a burglar alarm from his unit at the Oak Brook Condominium
(“Oak Brook”), but responded more quickly to
calls from other residents of Oak Brook; (2) MPD officers
refused to take information from him when he reported three
incidents, but responded promptly to complaints from other
Oak Brook residents; and (3) various MPD records characterize
him as a “mental subject.”
City moves to dismiss, arguing that Lath has not stated a
claim for municipal liability under § 1983, and that
even if he has, he has not stated a cognizable equal
protection claim. The City's first argument carries the
1983 provides, in pertinent part, that “[e]very person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any
citizen of the United States . . . to the deprivation of any
rights. . . secured by the Constitution and laws, shall be
liable to the party injured in an action at law . . .
.” 42 U.S.C. § 1983. Moreover, despite the
statute's reference to “[e]very person . . .”
(emphasis added), it is well established that “a
municipality is subject to suit pursuant to 42 U.S.C. §
1983.” Petaway v. City of New Haven Police
Dept., 541 F.Supp.2d 504, 510 (D. Conn. 2008). However,
the scope of municipal liability under § 1983 is
circumscribed by Monell v. Department of Social
Services, 436 U.S. 658 (1978). As Judge Underhill
explained in Petaway:
[A] municipality may be liable for allegedly unconstitutional
acts of a municipal employee if [the plaintiff] was subjected
to the denial of his constitutional rights as a result of an
official policy or custom. See Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995). A
municipality cannot be held liable under 42 U.S.C. §
1983 solely on a theory of respondeat superior. See
Monell, 436 U.S. at 694-95. There must be “a
direct causal link between a municipal policy or custom, and
the alleged constitutional deprivation.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989).
541 F.Supp.2d at 514 (parallel citations omitted); see also
Burnham v. Dudley Dist. Court, Civ. Nos.
15-40031-DHH & 15-40032-DHH, 2015 WL 5698418, at *2 (D.
Mass. Sept. 28, 2015) (“pleading a § 1983 claim
against a municipality requires more than enumerating the
alleged wrong-doings of its employees . . . [w]here the
defendant is a municipality . . . the plaintiff must show
that the ‘execution of a government's policy or
custom . . . inflict[ed] the injury'”) (quoting
Monell, 436 U.S. at 694).
FAC does not state a Monell claim against the City. He makes
no allegations about any official policy or custom that was
the cause of the constitutional violations he claims. Rather,
he merely asserts that the City is liable for the actions of
various MPD officers on a theory of respondeat superior,
which is “[t]he doctrine holding an employer or
principal liable for the employee's or agent's
wrongful acts committed within the scope of the employment or
agency, ” Black's Law Dictionary 1505 (10th ed.
2014). That, however, falls short of stating a § 1983
claim against the City. See Petaway, 541 F.Supp.2d
at 514; Burnham, 2015 WL 5698418, at *2. Accordingly, the
§ 1983 claim that Lath asserts against the City in Cause
1 is dismissed.
however, is without prejudice to Lath's filing a motion
for leave to amend his FAC, within 20 days of the date of
this order, to assert a Monell claim against the City. In
asserting such a claim, Lath “must clearly identify (1)
the alleged unconstitutional conduct of the [City]'s
employees; and (2) how the employees' conduct was the
result of a policy or custom of the [City].”
Burnham, 2015 WL 5698418, at *3 (emphasis added). If
Lath does not file a motion for leave to amend within 20 days
of the date of this order, or if he files such a motion but
fails to adequately state a Monell claim, the court will
dismiss Cause 1 with prejudice.
addition, in the event that the court dismisses Cause 1 with
prejudice, the court will decline to exercise supplemental
jurisdiction over any state law claims that Lath asserts
against Gerard Dufresne. That is because those claims are not
sufficiently related to Lath's claims against the two
defendants that would remain in the case (BMS CAT and Amica
Mutual Insurance Company) to provide a basis for supplemental
jurisdiction over them. See 28 U.S.C. § 1367(a)
(extending supplemental jurisdiction to “claims that
are so related to claims in the action within [the
court's] original jurisdiction that they form part of the
same case or controversy under Article III of the United
States Constitution”). That means that if Cause 1 is
dismissed with prejudice, the claims against Dufresne will
also be dismissed.