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Webber v. Deck

United States District Court, D. New Hampshire

January 13, 2020

Roderick Webber
v.
Edward Deck, et al.

          ORDER

          Landya B. McCafferty United States District Judge

         Roderick 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.

         STANDARD OF REVIEW

         In 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).

         BACKGROUND

         The 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.[1]

         Webber 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.[2] 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.

         Webber 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.

         A No. 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 the stage.

         The 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.

         After 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.[3]

         Webber 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.

         Doucette 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.

         Webber 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.

         Another Manchester police officer, Brian Cosio, joined Deck and Pittman. Their efforts to move Webber caused him to be thrown to the floor.

         Officer 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.

         Webber 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.

         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.

         Webber 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.

         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).

         Webber 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 IX).

         DISCUSSION

         The 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.

         I. Federal Claims

         As 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 officers.

         Section 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).

         A civil 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).

         In the 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.[4]

         II. Vicarious Liability

         The 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.

         Under 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.”[5]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). ...


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