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Konze v. Town of Salem

United States District Court, D. New Hampshire

January 15, 2019

David Konze
Town of Salem, et al.

          David Konze, pro se, Brian J.S. Cullen, Esq.



         Summary 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 justified.

         This 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.

         I. Applicable legal standard

         Summary 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).

         The 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 322-35).

         “[T]he 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.

         II. Background

         On the 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 the house.

         Detectives 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.

         Based 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.

         Konze 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.

         Konze 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.[1] Ultimately, Konze pleaded guilty to simple assault and criminal threatening.

         III. Analysis

         In this 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.[2] 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.[3]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 ...

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