United States District Court, D. New Hampshire
Lewis, pro se Charles P. Bauer, Esq. Christine Friedman, Esq.
McCafferty United States District Judge
Allan Lewis, proceeding pro se, sues Rochester Police
Officers Kyle Daine, Jacob Benjamin, and Dwayne Hatch, the
City of Rochester (collectively “Rochester
defendants”), the Strafford County Attorney's
Office, and Strafford County Prosecutor Carol Chellman
(collectively “Strafford County defendants”) for
claims arising out of Lewis's arrest and criminal trial
in state court. The Rochester defendants and the Strafford
County defendants separately move to dismiss Lewis's
respective claims against them. Doc. nos. 3, 10. Lewis
objects only to the Strafford County defendants' motion.
Doc. no. 5. For the following reasons, the court grants both
motions to dismiss.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true and draw all reasonable inferences
from those facts in the plaintiff's favor. Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir.
2014). The court may also consider “documents
incorporated by reference in the complaint, matters of public
record, and other matters susceptible to judicial
notice.” Giragosian v. Ryan, 547 F.3d 59, 65
(1st Cir. 2008) (internal quotation marks and brackets
omitted). Considering all these facts, the court must
determine whether “plaintiff's complaint set[s]
forth a plausible claim upon which relief may be
granted.” Foley, 772 F.3d at 75 (internal quotation
marks omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
12(b)(6) motion, in addition to asserting that plaintiff
fails to state a plausible claim, may be premised on the
inevitable success of an affirmative defense, such as res
judicata or a statute of limitations. See Blackstone
Realty LLC v. F.D.I.C., 244 F.3d 193, 197 (1st Cir.
2001). “Dismissing a case under Rule 12(b)(6) on the
basis of an affirmative defense requires that (i) the facts
establishing the defense are definitively ascertainable from
the complaint and the other allowable sources of information,
and (ii) those facts suffice to establish the affirmative
defense with certitude.” Nisselson v. Lernout,
469 F.3d 143, 150 (1st Cir. 2006).
March 2016, Officers Daine and Benjamin conducted a welfare
check at Lewis's residence. The officers spoke with
Lewis's live-in girlfriend, Lynn Labombard, who told them
that she had had a verbal altercation with Lewis and that he
had pushed her against a wall. Officer Hatch then arrested
Lewis for domestic violence simple assault and a criminal
complaint was filed against him. See N.H. Rev. Stat. Ann.
§ (“RSA”) 631:2-b, I. Subsequently, during a
civil restraining order proceeding, Labombard testified under
oath that Lewis did not hurt her during the March 2016
encounter and that she was not afraid of him.
pleaded not guilty on the domestic violence simple assault
charge and proceeded to trial in the 7th Circuit Court,
District Division, in Rochester on May 25, 2016. Carol
Chellman of the Strafford County Attorney's Office
prosecuted the case. At trial, Labombard testified consistent
with her statement during the restraining order proceeding:
that Lewis did not hurt her and that she was not afraid of
him. Officer Daine also testified and the court admitted his
police report-containing Labombard's statement about
Lewis pushing her-to contradict Labombard's in-court
testimony. Officer Benjamin did not testify at trial. The
Circuit Court found Lewis not guilty based on Labombard's
testimony. Doc. no. 10-3.
April 2017, Lewis filed a civil suit in Strafford County
Superior Court against the Rochester Police Department and
the Strafford County Attorney's Office. Doc. no. 4-2 at
1-19. Lewis's 2017 suit alleged claims of false arrest,
false imprisonment, malicious prosecution, libel, and a claim
under 42 U.S.C. § 1983 for violation of his Fourth
Amendment rights and failure of police to follow certain
protocols regarding investigation of potential domestic
violence. All these claims were based on the Rochester Police
Department's and Strafford County Attorney's
Office's conduct in arresting and prosecuting Lewis for
the March 2016 domestic violence simple assault charge.
Ultimately, the Superior Court granted the Strafford County
Attorney's Office's motion to dismiss the claims
against it and the Rochester Police Department's motion
for summary judgment. Doc. nos. 4-2 at 21-23, 10-9. Lewis did
not appeal either of those rulings.
2018, Lewis filed another civil suit in Strafford County
Superior Court, this time against the Rochester Police
Commissioner, the Rochester Police Department, and Officers
Daine and Hatch. Doc. no. 4-3 at 1-40. The claims in that
suit also originated from the 2016 police investigation,
Lewis's arrest, and the criminal trial. Lewis asserted
claims of false arrest, libel, violation of his
constitutional and civil rights, and failure of the police to
follow certain protocols governing domestic violence
investigations and requested that the court issue a
declaratory judgment that Officer Daine's police report
contained inadmissible hearsay. The Superior Court
subsequently dismissed Lewis's 2018 action based on the
doctrine of res judicata. The Superior Court reasoned that
the 2017 suit barred the 2018 suit because it arose out of
the same transaction or occurrence as the 2017 suit:
Lewis's arrest for domestic violence simple assault, the
resulting police reports, and the criminal trial resulting in
his acquittal. Doc. no. 4-3 at 41-49. Lewis filed an appeal
of this decision with the New Hampshire Supreme Court, which
the Court dismissed as untimely filed. Id. at 50.
filed this suit on June 6, 2019. He asserts claims arising
out of the police investigation leading to his 2016 arrest
for domestic violence simple assault, the police reports
regarding that investigation, and the criminal trial of that
charge resulting in his acquittal.
sets of defendants move to dismiss all claims asserted
against them, arguing, among other things, that the claims
are barred by res judicata. To determine whether this action
is precluded by the prior state court actions, this court
must look to the law of res judicata in New Hampshire.
See Dillon v. Select Portfolio Servs.,630 F.3d 75,
80 (1st Cir. 2011) (“Under federal law, a state court
judgment receives the same preclusive effect as it would
receive under the law of the state in which it was
rendered.”). Under New Hampshire law, res judicata
“precludes the litigation in a later case of matters
actually decided, and matters that could have been litigated,
in an earlier action between the same parties for the same
cause of action.” Brooks v. Tr. of Dartmouth
Coll., 161 N.H. 685, 690 (2011). Three elements must be
met for res judicata to apply: “(1) the parties must be
the same or in privity with one another; (2) the same cause
of action must be ...