United States District Court, D. New Hampshire
Konze, pro se, Brian J.S. Cullen, Esq.
N. LAPLANTE, UNITED STATES DISTRICT JUDGE
judgment in this action, in which plaintiff David Konze
alleges that members of the Salem Police Department violated
his rights under the United States Constitution, turns on
whether contents of his cell phone were searched pursuant to
a valid warrant. Konze was arrested by two of the defendants,
Detectives Robert Farah and Joshua Dempsey, on May 9, 2015.
While being questioned at the Salem Police Department, he
requested, but was not provided, an opportunity to test his
blood glucose. Detective Farah subsequently obtained a
warrant to search Konze's phone and, after another
officer created a forensic copy of the phone's contents,
did so. Konze brings claims under 42 U.S.C. § 1983,
alleging that the defendants violated his rights under the
Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution by (1) using excessive force in his arrest, (2)
failing to provide him with medical treatment after the
arrest, (3) searching his phone before a warrant issued, and
(4) conducting a search broader than the circumstances
court has subject-matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 (federal question). The
defendants move for summary judgment on all claims. Because
Konze concedes that defendants did not use excessive force
and did not fail to provide him with medical treatment after
his arrest, the defendants are entitled to summary judgment
on those claims. And because Konze has not raised any dispute
of material fact concerning the warrant-related claims, the
court grants the defendants' motion for summary judgment
on those claims as well.
Applicable legal standard
judgment is appropriate where “the movant 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). A dispute is “genuine” if it
could reasonably be resolved in either party's favor at
trial, and “material” if it could “sway the
outcome under applicable law.” Estrada v. Rhode
Island, 594 F.3d 56, 62 (1st Cir. 2010).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the factual record] which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “Once the moving party has
properly supported [his] motion for summary judgment, the
burden shifts to the nonmoving party, with respect to each
issue on which [he] has the burden of proof, to demonstrate
that a trier of fact reasonably could find in [his]
favor.” DeNovellis v. Shalala, 124 F.3d 298,
306 (1st Cir. 1997) (citing Celotex, 477 U.S. at
non-moving party ‘may not rest upon mere allegation . .
. but must set forth specific facts showing that there is a
genuine issue for trial.'” Braga v.
Hodgson, 605 F.3d 58, 60 (1st Cir. 2010) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). In analyzing a summary judgment motion, the court
“views all facts and draws all reasonable inferences in
the light most favorable to the non-moving” parties.
Estrada, 594 F.3d at 62.
night of May 9, 2015, Konze visited an acquaintance at a
house on Haverill Road in Salem, New Hampshire. While he was
there, an altercation broke out. According to its occupants,
Konze had broken into the home the previous day and, that
night, had sent the occupants a series of threatening text
messages before arriving unexpectedly and entering the house.
One of the occupants called 911. Konze fled into woods near
Farah and Dempsey, and a third not named in this action,
responded to the call. Detective Farah arrived first and
followed Konze into the woods. He ordered Konze to leave the
woods and lay face down on the ground. Konze complied. All
three officers took Konze into custody. According to Konze,
the arrest lasted less than twelve seconds.
on the text messages that one of the house's occupants
showed to Detective Farah, he sought and obtained a warrant
to search Konze's phone -- specifically, his text
messages, photographs, voicemail, email, GPS coordinates, and
internet history. Another detective copied the phone's
contents and reviewed that copy.
was interviewed at the Salem Police Department. At one point
during the interview, he informed the interviewing detective
that he was diabetic and asked to test his blood sugar,
though he did not indicate that he felt any ill effects. The
detective agreed to ask the fire department to bring a
glucometer for this purpose but instead concluded the
interview. Konze was then transported to the Rockingham
County House of Corrections, where he requested and was given
crackers and milk. He sought no further treatment.
was charged with burglary, assault with a deadly weapon,
falsifying physical evidence, and criminal threatening. A
second burglary charge was added in light of GPS information
drawn from Konze's phone. Ultimately, Konze pleaded guilty
to simple assault and criminal threatening.
action, Konze brought two claims against the Town of Salem
and three of its officers. By his first claim, brought under
42 U.S.C. § 1983, he alleged violations of the Fourth,
Fifth, and Fourteenth Amendments of the United States
Constitution. As his second claim, he sought declaratory
judgment that the defendants' conduct violated those
Amendments, as well as Konze's rights under New
Hampshire's Constitution.Konze has since clarified that he
based these claims on: (1) Detective Farah's use of force
in pointing his gun at Konze during the arrest; (2) Officer
Dempsey's use of force in allegedly striking Konze from
behind during the arrest; (3) the ...