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Fredyma v. Hurley

United States District Court, D. New Hampshire

March 13, 2019

Dia Fredyma, Plaintiff
Daniel J. Hurley, Defendant

          Brian R. Marsicovetere, Esq., Samantha D. Elliott, Esq.


          Steven J. McAuliffe, United States District Judge.

         Plaintiff, Dia Fredyma, brings this action against Daniel Hurley, a former officer in the Keene, New Hampshire Police Department.[1] By prior order, the court dismissed Fredyma's First Amendment retaliation claim. See Order dated February 16, 2018 (document no. 8). And, more recently, Fredyma has notified the court that “she does not object to the entry of judgment on the pendent state law claims.” Plaintiff's Opposition Memorandum (document no. 14) at 1. So, at this point, Fredyma advances a single claim: that Officer Hurley violated her constitutionally protected right to be free from unreasonable seizures when Hurley deemed her to be “intoxicated” and took her into “protective custody” under the provisions of state law, N.H. Rev. Stat. Ann. (“RSA”) ch. 172-B.

         Pending before the court is Hurley's motion for summary judgment. Fredyma objects. For the reasons discussed, that motion is granted.

         Standard of Review

         When ruling on a motion for summary judgment, the court is “obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” Block Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Summary judgment is appropriate when the record reveals “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). In this context, a factual dispute “is ‘genuine' if the evidence of record permits a rational factfinder to resolve it in favor of either party, and ‘material' if its existence or nonexistence has the potential to change the outcome of the suit.” Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted). Consequently, “[a]s to issues on which the party opposing summary judgment would bear the burden of proof at trial, that party may not simply rely on the absence of evidence but, rather, must point to definite and competent evidence showing the existence of a genuine issue of material fact.” Perez v. Lorraine Enters., 769 F.3d 23, 29-30 (1st Cir. 2014). In other words, “a laundry list of possibilities and hypotheticals” and “[s]peculation about mere possibilities, without more, is not enough to stave off summary judgment.” Tobin v. Fed. Express Corp., 775 F.3d 448, 451-52 (1st Cir. 2014). See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


         On Saturday afternoon, July 19, 2014, Ms. Fredyma and her husband attended a wedding at the Keene Country Club, in Keene, New Hampshire. After the ceremony, they joined the wedding party and a No. of guests at a reception at the same facility. While there, Fredyma says she ate dinner and drank “maybe two” Samuel Adams beers. Fredyma Deposition (document no. 11-6) at 23. She estimates the reception ended around 6 pm, Id. at 25, at which point she, her husband, and several other guests drove to Waxy O'Connor's, a bar immediately adjacent to (but apparently unaffiliated with) the Best Western Hotel. They remained there for roughly seven and one-half hours, until the bar closed, at approximately 1:30 am. Id. at 28. Fredyma did not eat anything at the bar, but acknowledges that she did consume more beer - “I probably had another two or three more drinks.” Id.

         After the bar closed, Fredyma and her husband decided that, because they had been drinking, neither should drive home. See Id. at 29 (“Q: Do you think you could have operated a motor vehicle safely? A: No. That's why I was not driving.”). See also Id. at 66 (“We chose not to drive. It's not - it would be illegal for us to drive. . . . It would have been illegal. So I should not have driven, and that's why I was where I was at.”). Accordingly, they walked to the Best Western, where Fredyma spoke to the clerk at the front desk and asked whether there were any rooms available for the night. The clerk informed her that there were none. And, he told her that he had already contacted all the other local hotels, inquiring on behalf of other people, to see if any rooms were available. There were not. See Fredyma Deposition at 43 (“He told me that he spoke to every hotel nearby, including all the way over to Brattleboro, and there was no vacancies anywhere that could be found. And he already knew this because he called earlier.”).

         Fredyma described the front desk area as “hectic” and noted that the clerk was busy fielding calls from guests (there were, apparently, several complaints about noisy guests in another area of the hotel). The clerk was also dealing with another person who had come to the front desk. See Fredyma deposition at 41. The clerk told Fredyma that because he had already checked with the area hotels about vacancies he was unwilling to do so again. He did, however, print out a list of those local hotels, with their phone numbers, and handed it to her. Id. at 42. Fredyma testified that she was “angry” and “frustrated” at that point, and “snatched” the paper from the clerk's hand. Id. at 44, 46, and 48. She doubted that he had actually called all of those hotels, Id. at 43, and, because the battery in her cell phone was dead, she asked to use the front desk phone so she could personally verify the information he had shared with her. Id. at 45. The clerk told her that he was not permitted to allow guests to use the front desk phone, per company policy.

         According to the clerk, Fredyma “was being vulgar and started calling [him] names, ” and told him “she was going to come across that counter and beat [him] down.” Trial Transcript of State v. Joshua Fredyma (document no. 11-7) at 7.[2] Fredyma denies threatening the clerk. Nevertheless, given Fredyma's agitated state, the clerk warned her that he was going to call the police. Id. at 50. Around that time, Fredyma's husband, Joshua, arrived at the front counter. The desk clerk described his interaction with the couple as follows:

But she then mentioned something about not having a phone, and could she use a phone. And I said, “Well, we don't have any public phone here.” And that time the hotel was in renovation, and while normally we would have had several phones, one of which I guess I could have let her use, at this particular time we had only one phone, the hotel console. Which I'm not able - I cannot make available for public use.
And I said this to her, and she wasn't satisfied with that. It was apparent to me that this was just a guest who wasn't going to take no for an answer. And she - I felt at the time she was probably intoxicated, so I was patient with her. Then she told me, “I want you to call every, you know, hotel around the town, and find out, ” and so on. And I said, “Look, I know there aren't any rooms available and I'm not going to do that. And I have, you know, quite enough to do here. I'm sorry, I can't help you. I just can't help you.” And then she started - she was being vulgar and started calling me names, and so on. And I guess at some point she said - she referred to some military training, and how she was going to come across that counter and beat me down. Anyway, it was about this time when Mr. Fredyma came into the lobby. And I realized then that they were in fact together, though I had suspected that with her having come in so soon after he had been in.
And then it began. He walked up to the office at the end of the counter. So one - they were at opposite ends of the counter where I was working. And he started asking the same questions that she had just asked. And then, “Well, why can't she use the phone?” And you know, I had to - again, I explained to them that there are no rooms, and I don't have any phone available, and that I can't help them. You know, I'm sorry.
The situation went from hounding to just harassment, to out and out threatening. And I was very concerned. I was all alone. You know, a large hotel full of guests, many of whom were complaining, calling me on the phone as I was trying to have this conversation with these two people. And it was simply - I was putting myself in danger. (Tr. 8).

Trial Transcript at 6-8.

         At that point, Fredyma admits she was getting “more and more frustrated” and concedes that it was “very possible” that she was swearing at the clerk. Although she denies “yelling, ” she admits she was “very animated” and “speaking in a raised voice.” She also began to cry. Fredyma Deposition at 55-57 and 59. She also admits that she smelled of beer, and agrees that it was “possible” that she had red, bloodshot, glassy eyes. Id. at 58. At 1:52 am, the front desk clerk called the Keene Police Department to report a disturbance at the hotel.

         The first officer to arrive at the scene was the defendant, Officer Hurley. Fredyma says she explained the situation to him. During that interaction, she admits that she continued to be “excited, ” was “still animated, ” spoke in a “raised voice, ” was crying, and may have been swearing. Id. at 63. Her husband, Joshua, joined the conversation and both addressed Hurley in what Fredyma describes as an “animated” manner. Id. at 64. See also Exhibit C to Defendant's Memorandum (document no. 11-1), Video from Hotel Lobby. Officer Hurley testified that Joshua told him that “this fucking place over-served me” and now won't give me a room. Trial Transcript at 21.[3]See also Police Narrative (document no. 11-3) at 1. Ms. Fredyma was plainly agitated and described herself as “bawling” and being “just beside myself.” Fredyma ...

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