United States District Court, D. New Hampshire
B. McCafferty United States District Judge
Webber, proceeding pro se, brings eighteen claims against a
large group of defendants arising out of alleged assaults on
him that occurred during a “No Labels Problem
Solvers” political event held at the Radisson Hotel in
Manchester, New Hampshire, in October 2015. Specifically,
Webber alleges that he was assaulted at the event by
defendants Edward Deck (an agent of Donald J. Trump for
President, Inc.), Fred Doucette (a New Hampshire State
Representative), and several officers of the Manchester
Police Department. Defendants Donald J. Trump for President,
Inc. (“Trump Campaign”), Deck, and Doucette, move
to dismiss the claims against them. Webber objects.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court accepts the well-pleaded
factual allegations in the complaint as true and construes
reasonable inferences in the plaintiff's favor.
Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st
Cir. 2019). 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).
following background information is summarized from
Webber's second amended complaint, document number 75.
The complaint is forty-five pages long, single-spaced,
followed by thirty-two pages of additional material that
Webber labels as appendices.
describes himself as a “video and print journalist and
a documentary filmmaker” and “a known internet
and radio personality and peace activist.” Doc. no. 75
at 1. He explains that during the 2016 presential campaign he
became known as “Flower Man” because he would
hand out flowers as symbols of peace to the major candidates.
Webber attended a Trump Campaign event in September 2015,
where his reading from the Bible, “First Timothy,
” caused him to be evicted from the
event. He also attempted to attend a Trump
Campaign event on September 30 but was turned away
“because he was wearing religious attire.”
Id. at 8.
then planned to attend a “No Labels Problem
Solvers” event on October 12, 2015, at the Radisson
Hotel in Manchester, New Hampshire. He alleges that No.
Labels Problem Solvers (“No Labels”) publicized
the event as a public forum where citizens could challenge
presidential candidates. He attempted to get press
credentials for the event but was unsuccessful and, instead,
attended as a member of the public.
Labels spokesperson began the event by eliciting responses
from the audience, encouraging the audience to shout and
scream, and generally inciting a rowdy atmosphere. Jon
Huntsman, Joe Lieberman, and Donald Trump spoke at the event.
Webber did some filming and then sat with the press next to
sound system was not working properly during the event, which
caused difficulty for speakers. The microphone for audience
members to use was not working during Candidate Trump's
turn at the podium. Some audience members attempted to shout
questions, which resulted in shouting from other audience
members. Staff members brought out megaphones.
Candidate Trump concluded his speech, Webber asked him if he
were aware that Webber had been assaulted at a prior Trump
Campaign event. Trump responded that Webber looked healthy.
Edward Deck, who was inside the roped off area for the stage,
tapped Webber on the back and said that there was a
microphone at the rear of the room and that questions were
only being taken from the microphone. Webber alleges that
Deck was a security employee hired by the Trump Campaign
through his company, XMark.
got up from his seat and went to the back of the room to use
the microphone. He then realized that Deck had deceived him
and that there was no microphone in the back. Certain
unidentified Trump Campaign staff members, along with Deck
and Fred Doucette (a New Hampshire state representative and
then-co-chair of the New Hampshire Donald J. Trump for
President campaign), and others made a wall around Webber
that blocked him from returning to his seat.
told Webber to keep moving and that he was not going to get
to use the microphone. Webber told Deck, who was holding
Webber, to get his hands off of him and asked him his name.
Deck responded in a threatening manner.
waved to Trump to signal for access to the microphone. James
Pittman, an officer with the Manchester Police Department,
and Deck grabbed Webber's arms, moved him past the
seating in the back of the room, and threw him into a table,
which knocked the table over.
Manchester police officer, Brian Cosio, joined Deck and
Pittman. Their efforts to move Webber caused him to be thrown
to the floor.
Cosio and Officer Daniel Craig took Webber outside. When
Webber asked, Cosio and Craig said that he was being
detained. Captain Allen Aldenberg, who was a sergeant at the
time, arrived and told Webber that he was free to leave.
Craig agreed that Webber could leave.
walked away from the hotel and stopped at a park bench with
Aldenberg. He asked Aldenberg to file a complaint against the
people who Webber said had assaulted him. Aldenberg took
notes and then went back to the hotel to retrieve
Webber's camera battery. Webber saw that Aldenberg was
talking with Pittman, Cosio, and Craig. As Craig walked
toward him, Webber shouted to Aldenberg to keep him away.
Aldenberg, Pittman, and Craig then arrested Webber.
attempted unsuccessfully to file a complaint with the
Manchester Police Department about his treatment at the
event. Several newspapers and other media published material
about the event which Webber believes damaged his reputation.
Webber contacted the Office of the New Hampshire Attorney
General for assistance in pressing charges against those
involved in removing him from the No. Labels event and was
told that the office would not open an investigation.
then brought this action against President Donald J. Trump;
Trump Campaign; The Trump Organization, Inc.; Trump
Organization, LLC; Edward Deck; XMark; No. Labels; the City
of Manchester; James Pittman; Allen Aldenberg; Brian Cosio;
Daniel Craig (together with Pittman, Aldenberg, and Cosio,
the “Officer Defendants”); Fred Doucette; and JPA
III Management Company, Inc. He alleged eighteen claims
against the various defendants.
Trump Campaign, Deck, and Doucette are represented by the
same counsel and refer to themselves jointly as the
“Campaign Defendants.” Webber brings eleven
claims against all of the Campaign Defendants, including
several state law claims, such as: Assault (Count I), Battery
(Count II), Intentional Infliction of Emotional Distress
(Count III), Negligence (Count IV), Fraud (Count VI), and
False Imprisonment (Count VII). Webber also asserts numerous
federal claims against all of the Campaign Defendants under
42 U.S.C. § 1983, including two counts of Violation of
the First Amendment (Counts X and XI), Negligent Hiring and
Retention (Count XII), False Imprisonment (Count XV), and
False Arrest (Count XVI).
also brings three additional claims against the Trump
Campaign (but not Deck or Doucette): a state law claim for
Negligent Hiring (Count V) and two federal claims under
§ 1983 for Negligent Supervision (Count XIII) and
Retaliation (XVII). He brings one additional federal claim
under § 1983 for Malicious Abuse of Process (Count XIV)
against Deck (but not Doucette or the Trump Campaign).
Finally, he brings two federal claims under § 1983
against the Trump Campaign and Deck but not Doucette:
Unreasonable Seizure (Count VIII) and Excessive Force (Count
Campaign Defendants move to dismiss all of the claims against
them. They contend that all federal claims against them must
be dismissed because the complaint lacks factual allegations
to show that they were state actors. They also argue that all
claims against the Trump Campaign are based on a theory of
vicarious liability, but that there are no factual
allegations to support that theory. Finally, they argue that
the state law claims asserted against Deck and Doucette fail
on the merits. Webber objects to the motion, asserting that
the second amended complaint adequately alleges his claims
against each of the Campaign Defendants.
discussed above, Webber brings several federal claims against
the Campaign Defendants under § 1983. The Campaign
Defendants move to dismiss those claims on the ground that
they are not state actors, as is required for liability under
§ 1983. Webber contends that the Campaign Defendants can
be deemed to be state actors because they conspired or
participated in joint action with the defendant police
1983 provides a remedy against persons who, while acting
under color of state law, deprive others of rights secured by
the federal constitution or federal law. Klunder v. Grown
Univ., 778 F.3d 24, 30 (1st Cir. 2015). Although a
private party does not ordinarily act under the color of
state law, a “plaintiff may demonstrate state action by
showing that a private party has conspired with state actors
to deprive him of a civil right.” Arias v. City of
Everett, CV 19-10537-JGD, 2019 WL 6528894, at *9 (D.
Mass. Dec. 4, 2019) (internal quotation marks omitted). A
private entity also may be deemed a state actor if the entity
was “a willful participant in joint action with the
State or its agents” and “jointly engaged with
state officials in the challenged action.” Dennis
v. Sparks, 449 U.S. 24, 27-28 (1980).
rights conspiracy requires an agreement between two or more
persons to violate the plaintiff's federally protected
rights. Nieves v. McSweeney, 241 F.3d 46, 53 (1st
Cir. 2001). To show joint action or a conspiracy between the
state and a private entity, “‘the relationship or
nature of cooperation between the state and a private
individual must be pled in some detail.'”
McGillicuddy v. Clements, 746 F.2d 76, 77 (1st Cir.
1984) (quoting Glaros v. Perse, 628 F.2d 679, 685
(1st Cir. 1980) (emphasis in original)). Conclusory
allegations and speculation about what might have happened
are insufficient to show joint action or a conspiracy.
McGillicuddy, 746 F.2d at 78; see also Lucero v.
Koncilja, 781 Fed.Appx. 786, 788-89 (10th Cir. 2019);
Liberty Sackets Harbor LLC v. Village of Sackets
Harbor, 776 Fed.Appx. 1, 3 (2d Cir. 2019); Little v.
Hammond, 744 Fed.Appx. 748, 751-52 (3d Cir. 2018).
second amended complaint, Webber alleges facts, which taken
in the light most favorable to him, support his theory that
certain unidentified Trump Campaign staff members, along with
Doucette and Deck, worked jointly with the Manchester police
to remove him from the No. Labels event. Although minimally
sufficient, his allegations are enough to avoid dismissal of
the § 1983 claims against the Campaign Defendants at
this stage. The Campaign Defendants may challenge the
sufficiency of the evidence of joint action through a
properly supported motion for summary judgment.
Campaign Defendants move to dismiss the state law claims
against the Trump Campaign, all of which are based on the
vicarious liability of the Trump Campaign for the actions of
Deck, Doucette, certain unidentified campaign staff members,
and the defendant police officers. The Campaign Defendants
assert that there is no basis for the Trump Campaign's
vicarious liability for those torts.
New Hampshire law, an employer may be vicariously liable for
the torts committed by an employee who was acting within the
scope of his employment. Tessier v. Rockefeller, 162
N.H. 324, 342 (2011). On the other hand, “[r]espondeat
superior, or vicarious liability, ordinarily does not extend
to torts by independent contractors because the employer
reserves no control or power of discretion over the execution
of the work.”Arthur v. Holy Rosary Credit
Union, 139 N.H. 463, 465 (1995). Whether an agency
relationship has been created that is sufficient to support
vicarious liability depends on establishing the following
factual elements: “(1) authorization from the principal
that the agent shall act for him or her; (2) the agent's
consent to so act: and (3) the understanding that the
principal is to exert some control over the agent's
actions.” Dent v. Exeter Hosp., Inc., 155 N.H.
787, 792 (2007). ...