STATE OF NEW HAMPSHIRE

CARROLL, SS SUPERIOR COURT

Starbrite Leasing, Inc., Lil' Man Snowmobile Rentals Inc.,ano

Edward C. Furlons. IIIV.

Town of Bartlett, Bartlett Police Department, Bartlett WaterPrecinct, Bartlett Recreation Department

ancl

Carroll County Sheriff s Department

Docket #: 212-2015-CV-53

CARROLL COUNTY SHERIFF'S DEPARTMENTS MEMORANDUM OF LAW INSUPPORT OF MOTION TO DISMISS

Defendant, Carroll County Sheriff s Deparlment, submits this Memorandum of Law in

Support of Its Motion to Dismiss Plaintiffs' Complaint. In doing so, the Sheriff Department notes

that it is the only County Defendant.

INTRODUCTION

The Sheriffs Department files this Motion to Dismiss due to immunities which bars

Plaintiffs' claims against it. The Department is entitled to immunity under 507-B:2and 5, and also

vicarious official immunity. The County notes that Deputy Rowe would be entitled to official

immunity and that his officiai inrmunity exiencis to the County for reasons set iorth belon,. Tire

Department's official immunity stems, in part, from Plaintiffs' failure to plead facts to suppo].-t any

claims of wanton or reckless conduct. Plaintiffs plead only conclusory statements regarding such

conduct.

The Sheriff Department notes that it is unclear whether Mr. Furlong intends to make claims

against the Department on behalf of his businesses. Those ciaims would also fail for the same

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reasons Mr' Furlong's claims fail, but are not addressed separately. Further, plaintiff is hereafter

addressed in the singular, regardless of the inclusion of his businesses as plaintift's .

Plaintiff s claims against the Town of Bartlett appear to stem from a property dispute which

Plaintiff lost in court in 2012. Plaintiff refuses to accept the final adjudication of his claim in2012.

however. This is relevant as to the Sherifls Department only in the sense that plaintiff claims a

conspiracy between the Bartlett Police Department and the Sheriff s Department.

Plaintiff s agitation as to the County is a result of his arest on a separate matter on March

24,2015' That arrest is a result of an incident which brought Deputy Rowe to plaintiff s business

premises when Plaintiff had a dispute with two customers.

Plaintiff s Complaint alleges facts relating to the Sherifls Department as follows:

I . Deputy Rowe arrested Plaintiff on March 24,2015, for threatenins customers

and for holding the customers' credit card. see complaint, \11,92 and 97 .

2. The arrest arose out of an incident at Plaintiff s snowmobile rental business.

rd ,fln96-97.1

3. The arrest by Deputy Rowe followed the customer incident by some three weeks.

4. Plaintiff s car had been pulie,J over Liy Deputy Rowe on February Z0,ZCl5. after

Plaintiff left the'fhird circuit District courr, before his arrest. Id ,fln7g-7g.

5. Bartlett Police Chief Champlin handcuffed Plaintiff immediately after Deputy

Rowe pulled Plaintiff over. Id.

I Plaintiff essentially alleges that he was not paid by the customers for their use of one ofhis business's snowmobiles. Plaintiff was paid, in fact, although Defendant recognizes thatPlaintiff s allegation that he was not paid will be taken as true for a motion to dismiss.

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Plaintiff adds multiple conclusory asseftions, as follows, to round out his Complaint:

I ' Deputy Rowe and chief champlin were friends. 1d, flfl 9 and,92.

2. Deputy Rowe idolized Chief Champlin. Id.,n rc|.

3. Deputy Rowe and chief champlin conspired against him. \d.,,u 100.

4. Chief Champlin wanted Rowe to arrest Plaintilf to "solidiff" Champlin's

already pending charges. Id.,n 105. This "solidification" is said to manifest in both of plaintiff s

crimina.l charges being scheduled for hearing on June 23,2015. Id.,ngg.,

The Sheriff s Deparlment does not believe the balance of Plaintiff s allegations pertain to it.

But to further round out the background, the Sheriff s Department notes the following:

1. Plaintiffand the Town of Bartlett had a dispute over Plaintiff s access to land for

his cabin rentals and/or snowmobiles. Id.,Jl26.

2. Plaintiff lost this issue in couft. see Id., !J 6 and Exhibits I and2.

3. The decision regarding the use of land dispute is final. 1d

4. Plaintiff has been arrested by Chief Champlin multiple times. Id.,n2.

5. The Town's actions are a result of conspiracy (Id ,1132), unfair competition

Ud ,n 37) and fraud (see Count VII, generally).

Plaintiff's claitns against the Couniy are fbr false iniprisoiiment ancl anest (Count II),

malicious prosecution (Count IV), negligence (Count V), negligent infliction of emotional distress

(Count VI), defamation (Count VII), and civil conspiracy (Count X). The Sheriff s Department

notes, without further argument, that Plaintiff has not yet had the charges brought against him

2 The County's prosecuting officer, Lt Santucci, has assented to a motion to continuePlaintiff s trial to October, thereby removing any asserted stain on these charges for the purposeof solidification.

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I.

resolved favorably to him. Therefore, he lacks an essential element ofthat claim.

120 N.H. 844, 846 (19S0).

See Stockv. Byers,

The Canoll County Sheriff s Department is entitled to immunity based on RSA 507-8: 2 and

5. RSA 507-8:5 provides that "[N]o governmental unit shall be held liable in any action to recover

lbr bodily injury, personal injury or property damage e>lcept as provided by this Cha.pter ...." R-SA

507-B:2 provides an exception to the blanket immunity under 507-8:5 by allowing for claims

"caused by... fault or by fault attributable to it arising out of ownership, occupation, maintenance

or operation of all rnotor vehicles, and all premises ...." In short, municipalities can only be sued for

claims which arise out of motor vehicles and premises.

Plaintiff s claims do not arise out of a motor vehicle or premises accident. Therefore, the

Sherifls Department is immune from suit for Plaintiff s claims. The Supreme Court has found that

the protections found in RSA 507-B.2 and 5 extend to injuries incurred by a student participating

in a "loose ball" drill on a high school basketball team. ,See Dichiara v. Sanborn Regional School

Dist., 165 N.H. 694,695 (2013). The Dichiara case is quite clear on the immunity issue:

"Accordingly, r,ve conclucie that RSA 5A7-E:2 provrdes an exception to RSA 507-8: 5 only r.l,hen

there is a nexus between the injury and a governmental unit's ownership, occupation, maintenance.

or operation of a motor vehicle or premises. These statutes have withstood a constitutional

challenge. See Huckins v. McSweeney,166 N.H. 176 (2014).

Governmental units are immune from suit for traditional police activities such as anests.

filing criminal charges and related functions because those activities do not fall within the excention

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in RSA 507-B:2 to the immunity provided by RSA 507-8:5. In Huckins, plaintiff sued the Town

of Sanborton for use of a stun gun claiming that the Town was liable for battery under the doctrine

of respondeat superior. Id. at 178. The Courl in Huckins responded to a certified question from the

United States District Courl for the District of New Hampshire by upholding the constitutionality

of the immunity defense under 507-B:2 and 5. The Federal District Court has applied immunity

under 507-B to claims for assault, battery, false imprisonment, malicious prosecution, and abuse of

process as a result of a police officer's actir.rns in arresting a plaintiff. See lIan.son t,. T'own o{

Ossipee, et al No.13-CV-225-LM, opinionNo.20l4 DNH 072. The immunities contained in RSA

507-B apply to the claims which Plaintiff brings against the Sheriff s Department, just as they did

in Hanson.

Accordingly. Plaintiff s claims against the Sheriff s Department should be dismissed.

II. THE SHERIFF'S DEPARTMENT HAS VICARIOUS OFFICIAL IMMUNITY FORPLAINTIFF'S CLAIMS.

The Sheriff s Department enjoys immunity under the doctrine ofvicarious official immunity,

as well as immunity under RSA 507-B :2 and 5. The immunity applies because the official immunity

which Deputy Sheriff Rowe would have if he were a party extends to the Department. See Everitt

v. General Electric, Co.,I-56 N.H. 202,221-222 (2007).

Police officers are entitled to official imrnunity when they act: l) within the scope of

employment;2) for non-ministerial decisions; and 3) without wanton or reckless behavior. 1d at

219. Deputy Rowe was acting within the scope of employment when he anested Furlong. The

decision to arrest is discretionary, and not ministerial. Plaintiff pleads no facts to show that the arrest

was wanton or reckless.

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Defendants suspects that Plaintiff would argue that his arrest was wanton or reckless. There

is a paucity of facts pleaded to support such a claim, however. Plaintiff essentially argues that

Deputy Rowe took the side of his customers, rather than Plaintiff, regarding a credit card transaction.

See Complaint, flll 92-98. However, Plaintiff s asseftions that Rowe was "rude and unorthodox,,

(n 94, Rowe "berate[d]" Furlong ( fl 96), and that "officials become foreetful about cerlain

fundamental laws..." ( fl 98) do not amount to wanton or reckless conduct. Vague acts of a

conspiracy, pleaded in conclusory fashion, also do not suffice. See Conrplaint, Count X. Deputy

Rowe would tell a very different story than Plaintiff (see footnote 1), of course, but plaintiffls own

pleadings fail to meet what he would need to prove to defeat official immunity.

Where Deputy Rowe would have official immunity, so will the Sheriffs Department.

"Official immunity, when available to individual public officials, generally may be vicariously

extended to the government entity employing the individual, but it is not an automatic grant. Everitt

156 N.H. at221, citation and internal quotation marks omitted. "Vicarious immunity ought to apply

when the very policies underlying the grant of official immunity to an individual public official

would otherwise be effectively undermined. In other words, vicarious immunity applies when

exposing the municipality to liability would focus 'stifling attention' upon the individual official's

job perfbrmance and thereby deter effeciive perfornrance of the discr:etic,nary duties a1 issue." Id,

internal citation omitted, quotation marks original.

Municipal liability here for the Sheriff s Department would focus undue attention and would

deter perfonnance of police duties. While the Department is confident that Plaintiff would not

succeed, even if there were no immunity, the point of official immunity is to prevent law

enforcement from being second guessed. See Everitt, generally. That applies equally here to the

Department as it would to Deputy Rowe.

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Accordingly, Plaintiff s Complaint should be dismissed due to official immunity. as well as

the statutory immunity set forth in $ L

CONCLUSION

Plaintiff s Complaint fails to state viable causes of action, due to the two immunities which

attach' The Carroll County Sherifls Department therefore requests the Court dismiss plaintifls

Complaint.

R espectfullv submittedCanoll Cgurity Sheriff s DepartmentBy their attp{neys

Date: 618115

58 Pleasant StreetConcord, N.H. 03301(603) 22s-s152NH Bar #: 534Email : C orel"b @r-rsa. net

CERTIFICATE OF SERVICE

I hereby certifi/ that a copy of the foregoing has this dag$een forwarded via first classmail, postage prepaid io Edward C. Furion11, III, pro sr, 7/r,/ _.,4,/ /' ,,ryDate: 618115

iil

orey Belobrow,

Corey Belo.b4ffiEsquire{/", "'Maggiotto & Belobrow, PLLC

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