STATE OF NEW HAMPSHIRE

CARROLL,

SS

SUPERIOR COURT
Starbrite Leasing, Inc.,

Lil' Man Snowmobile Rentals

Inc.,

ano

Edward C. Furlons. III

V.

Town of Bartlett, Bartlett Police Department, Bartlett Water

Precinct, Bartlett Recreation Department
ancl

Carroll County Sheriff s Department

Docket #: 212-2015-CV-53

CARROLL COUNTY SHERIFF'S DEPARTMENTS MEMORANDUM OF LAW IN

SUPPORT 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

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.

as follows:

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 of
his business's snowmobiles. Plaintiff was paid, in fact, although Defendant recognizes that
Plaintiff 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,

I

'

as

follows, to round out his Complaint:

Deputy Rowe and chief champlin were friends. 1d,

flfl 9 and,92.

2.

Deputy Rowe idolized Chief Champlin.

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 rc|.

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

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

The Sheriff

Id.,ngg.,

Deparlment does not believe the balance of Plaintiff

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.,

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

!J

6 and Exhibits

and2.

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

The County's prosecuting officer, Lt Santucci, has assented to a motion to continue

Plaintiff s trial to October, thereby removing any asserted stain on these charges for the purpose
of solidification.
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resolved favorably to him. Therefore, he lacks an essential element ofthat claim. See Stockv. Byers,
120

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

I.

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

o{

Ossipee, et al

of a police officer's

actir.rns

in arresting a plaintiff.

See lIan.son t,. T'own

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 FOR

PLAINTIFF'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
See Complaint,

credit card transaction.

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

conspiracy, pleaded in conclusory fashion, also do not suffice. See Conrplaint, Count
Rowe would tell a very different story than Plaintiff (see footnote 1), of course, but

acts

X.

of

Deputy

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

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 submitted
Canoll Cgurity Sheriff s Department
By their attp{neys

Date:

618115

Corey Belo.b4ffiEsquire
{/", "'
Maggiotto & Belobrow, PLLC
58 Pleasant Street
Concord, N.H. 03301
(603) 22s-s152
NH Bar #: 534
Email : 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 class
mail, postage prepaid io Edward C. Furion11, III, pro sr,

/'

7/r,/

,/

Date:

iil

618115

orey Belobrow,

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