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Estate of Cadman v. Dennis

United States District Court, D. New Hampshire

January 29, 2018

Estate of Aaron Bruce Cadman
v.
Stephen Dennis and the Town of Henniker, New Hampshire

          MEMORANDUM AND ORDER

          Andrea K. Johnstone United States Magistrate Judge

         In November 2014, Henniker Police Officer Stephen Dennis shot Aaron Bruce Cadman while on duty. The shooting was not fatal, and in May 2016, Cadman filed this action against Dennis and the Town of Henniker (“Town”) alleging violations of the Fourth Amendment and state law. Specifically, Cadman alleged federal claims of excessive force against Dennis (Count I) and failure to train and supervise against the Town (Count II), both brought pursuant to 42 U.S.C. § 1983 (Count I); and state-law claims of assault (Count III), battery (Count IV), and negligent use of force (Count V) against Dennis and vicarious liability against the Town (Count VI). The case was assigned to the undersigned magistrate judge, to whose jurisdiction the parties consented. Cadman's estate (the “Estate”) was substituted as a party in August 2016, after Cadman died of causes unrelated to the shooting.

         Defendants moved for judgment on the pleadings on the state-law claims. The court granted that motion as to the vicarious liability claim against the Town, but denied it without prejudice as to any of the state-law claims against Dennis. With discovery closed, defendants now move for summary judgment on all remaining claims. The Estate concedes that the Town is entitled to summary judgment on Count II, the failure to train and supervise claim, but otherwise objects.

         Because Dennis is entitled to qualified immunity on the federal claim and municipal immunity on the state-law claims, the court grants defendants' motion for summary judgment.

         I. STANDARD OF REVIEW

         Summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “If a nonmovant bears the ultimate burden of proof on a given issue, she must present ‘definite, competent evidence' sufficient to establish the elements of her claim in order to survive a motion for summary judgment.” Pina v. Children's Place, 740 F.3d 785, 795-96 (1st Cir. 2014) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). The court must “draw all reasonable inferences from the record in the light most favorable to the nonmoving party, disregarding any ‘conclusory allegations, improbable inferences, or unsupported speculation.'” McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014) (quoting Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir. 2014)). Where, as here, the moving party raises a qualified immunity defense, the nonmoving party has the burden of showing that qualified immunity does not apply. See Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015) (second prong); cf. Lopera v. Town Of Coventry, 640 F.3d 388, 395- 96 (1st Cir. 2011) (first prong); Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

         II. BACKGROUND

         The relevant facts appear to be largely undisputed. On November 26, 2014, Henniker Police Officer Stephen Dennis was on duty in a marked Henniker Police Department (“HPD”) cruiser. Doc. no. 24-2 ¶ 7. At just after 5:00 p.m., Merrimack County Dispatcher Danica Gorham called Dennis's cell phone[1] and informed him that dispatch had received a “BOLO” for a vehicle stolen in a “strong arm robbery” (the “vehicle”). Id. ¶ 8. Gorham informed Dennis that the vehicle was being tracked using OnStar and was located on Route 202 in Henniker. Id. Dennis understood that the driver of the stolen vehicle had hit or attempted to hit the vehicle's owner and should be considered “armed and dangerous.”[2] Id. Only a few miles away, Dennis activated his emergency lights and proceeded to the route. Id. ¶ 9; doc. no. 27-4 at 27.

         Traffic was heavy due to snowy conditions. Doc. no. 24-2 ¶ 9; doc. no. 24-5 ¶ 3. While en route, Dennis heard Hillsborough dispatch calls over his radio updating the location of the vehicle. Doc. no. 24-2 ¶ 9. Dennis made contact with a vehicle matching the description of the vehicle in question. Id. Dennis deactivated his emergency lights and contacted Hillsborough dispatch to confirm the license plate of the vehicle. Id.; doc. no. 27-4 at 18. Once confirmed, Dennis reactivated his emergency lights to signal to the driver to pull over. Doc. no. 24-2 ¶ 9.

         The driver accelerated and pulled into the oncoming lane of traffic. Id. ¶ 9. Dennis activated his siren and pursued the vehicle. Id. ¶ 10. Traffic was generally moving at around thirty miles-per-hour due to the snow. Doc. no. 24-5 ¶ 3; doc. no. 27-4 at 15. Dennis pursued the vehicle at approximately fifty miles-per-hour, but was unable to keep up. Doc. no. 27-4 at 6, 13, 14, 27. While in pursuit, Dennis put a call out over Hillsborough dispatch. Id. at 7.

         Dennis was able to maintain visual contact with the vehicle during the pursuit. Doc. no. 24-2 ¶ 10. The vehicle remained in the oncoming lane of traffic. Doc. no. 27-4 at 13. Dennis saw the vehicle spin, indicating that the driver had lost control. Id. at 7; doc. no. 24-2 ¶ 10. As Dennis approached, he observed the vehicle in the middle of the road perpendicular to traffic with the driver's side facing Dennis. Doc. no. 24-2 ¶ 11; doc. no. 27-5. The vehicle had collided with a red pickup truck traveling in the oncoming lane, which had sustained damage and was off to the side of the roadway. Doc. no. 24-2 ¶ 11; doc. no. 27-5. The vehicle had also collided with a black pickup truck, which had come to a stop fifteen-to-twenty feet from the vehicle in the right breakdown lane. Doc. no. 24-2 ¶ 11; doc. no. 24-5 ¶ 4; doc. no. 24-6 ¶ 4. Another car had stopped behind the black pickup truck in the right lane. Doc. no. 24-6 ¶ 6; doc. no. 27-5.

         Dennis stopped his cruiser in the roadway approximately level with the red pickup truck. Doc. no. 24-2 ¶ 11; doc. no. 24-6 ¶ 6; doc. no. 27-5. The driver of the stolen vehicle, later identified as Aaron Bruce Cadman, exited the vehicle. Doc. no. 24-2 ¶ 12; doc. no. 24-6 ¶ 6. Dennis exited his cruiser, unholstered his weapon, and pointed it at Cadman. Doc. no. 24-2 ¶ 13; doc. no. 24-5 ¶ 5; doc. no. 24-6 ¶ 6. Dennis shouted at Cadman to show his hands, but Cadman did not respond. Doc. no. 24-2 ¶ 13; doc. no. 24-6 ¶ 6. Dennis slowly approached Cadman with his weapon drawn, repeatedly shouting at Cadman to show his hands. Doc. no. 24-2 ¶ 13; doc. no. 24-6 ¶ 6. Cadman kept his back to Dennis and started rummaging in the vehicle.[3]Doc. no. 24-2 ¶ 13; doc. no. 24-5 ¶ 6; doc. no. 24-6 ¶ 6. Dennis reached the back of the black pickup truck and shouted multiple times for Cadman to show his hands. Doc. no. 24-2 ¶ 14; doc. no. 24-5 ¶¶ 5, 6; doc. no. 24-6 ¶¶ 6, 7. Cadman kept his back to Dennis and continued to rummage in the driver's side of the vehicle. Doc. no. 24-2 ¶ 14; doc. no. 24-5 ¶ 6; doc. no. 24-6 ¶ 7.

         Concerned for the safety of himself and others at the scene, Dennis fired a single shot, striking Cadman in the arm. Doc. no. 24-2 ¶ 15, 16; doc. no. 24-5 ¶ 6; doc. no. 24-6 ¶ 7. Cadman fell to the ground, and Dennis closed the distance and checked Cadman for weapons. Doc. no. 24-2 ¶ 15; doc. no. 24-6 ¶ 7. Not finding any, Dennis identified Cadman and began tending to his medical needs. Doc. no. 24-2 ¶ 15; doc. no. 27-4 at 36.

         III. DISCUSSION

         The Estate currently has a federal claim pending against Dennis for excessive force, a federal claim pending against the Town for failure to train and supervise, and state-law claims pending against Dennis for assault, battery, and negligent use of force. As noted, however, the Estate concedes that the Town is entitled to summary judgment on the failure to train and supervise claim. Thus, defendants' motion for summary judgment is granted as to ...


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