680 F.Supp.3d 70
D.N.H.2023Background
- Ortolano bought a Nashua home; after significant assessment increases she criticized City assessing officials and sought records via RTK requests.
- In 2019 she asked Nashua PD to investigate Assessing Department employees; NPD opened an investigation but Ortolano alleges it was redirected at her and she was warned not to contact assessing staff.
- In January 2021 Ortolano went to City Hall to obtain date-stamped abatement filings, waited in the Legal Department lobby, was escorted out by police after a confrontation with City attorneys, and was later arrested (Feb. 17, 2021) on trespass-related charges; she ultimately pleaded to a violation-level offense and sought annulment.
- Ortolano sued the City, the Mayor, various city employees (including Chief Michael Carignan) and others, asserting federal § 1983 claims (First Amendment, substantive and procedural due process) and state-law claims (NH constitutional access, civil conspiracy, IIED, etc.).
- Chief Carignan moved for judgment on the pleadings (Fed. R. Civ. P. 12(c)). The court denied the motion only as to Ortolano’s First Amendment retaliation claim to the extent it rests on an alleged retaliatory arrest; the motion was granted in all other respects as to Carignan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation (Counts 1 & 2) | Ortolano says her protected speech and petitioning led City officials to retaliate and that Carignan ordered her arrest. | Carignan says complaint lacks specific factual allegations tying him to wrongdoing; challenges legality/effect of the arrest and notes plea. | Investigation-based claims dismissed; but claim that Carignan ordered a retaliatory arrest survives at pleading stage. |
| Substantive due process (Count 3) | Carignan’s conduct (investigation and role in arrest) was conscience-shocking and intended to injure. | Allegations are conclusory and do not approach the high "shocks the conscience" standard. | Dismissed: facts alleged do not meet conscience-shocking threshold. |
| Procedural due process (Count 4) | Ortolano claims deprivation of liberty without constitutionally adequate process. | She received criminal proceedings (charge, plea, annulment effort); she fails to identify a process deficiency. | Dismissed: plaintiff has not pleaded lack of constitutionally adequate process. |
| Civil conspiracy (Count 6) | Carignan conspired with Legal Dept. officials to overrule investigators and cause wrongful arrest. | Intracorporate conspiracy doctrine bars conspiracy claims among agents of the same government entity. | Dismissed: intracorporate doctrine precludes a conspiracy claim against Carignan and other Nashua officials. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard for constitutional claims)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (no constitutional right to compel police to arrest)
- County of Sacramento v. Lewis, 523 U.S. 833 ("shocks the conscience" substantive due process standard)
- DePoutot v. Raffaelly, 424 F.3d 112 (substantive due process protects against arbitrary government action)
- Gonzalez-Fuentes v. Molina, 607 F.3d 864 (guideposts for conscience-shocking analysis)
- Cummings v. McIntire, 271 F.3d 341 (examples of substantive due process claims and analysis)
- Aponte-Torres v. Univ. of P.R., 445 F.3d 50 (Rule 12(c) and pleadings treatment)
- Mikell v. School Adm. Unit No. 33, 972 A.2d 1050 (New Hampshire IIED standard)
- Khater v. Sullivan, 999 A.2d 377 (N.H. Supreme Court declines to create new constitutional tort where statutory remedies exist)