Lima v. Decker

Lima v. Decker                           CV-01-272-JD   10/28/02
                 UNITED STATES DISTRICT COURT FOR THE
                       DISTRICT OF NEW HAMPSHIRE


Edwardina Lima

     v.                               Civil No. 01-2 72-JD
                                      Opinion No. 

Weslev C. Decker,
Kenneth E. Mulchahev,
and Town of Salem


                               O R D E R


     The plaintiff, Edwardina Lima, brings a civil rights action,

pursuant to 

, against the Town of Salem and Salem

police officers Wesley C. Decker and Kenneth E. Mulchahey,

arising out of her arrest and prosecution on charges of driving

while intoxicated.     Lima contends that the officers' actions

violated her Fourth Amendment rights and her due process and

equal protection rights under the Fourteenth Amendment.      Lima

also brings state law claims for negligence, false imprisonment,

and malicious prosecution.     The defendants move for summary

judgment, and Lima objects.1



     1Lima, who is represented by counsel, did not file a
response to the motion for summary judgment within the time
allowed.   See LR 7.1(b). After the deadline, she moved for an
extension of time to file an objection, which was granted.   She
did not file her objection or any other response on or before the
extended deadline.   She then filed a motion for an additional
extension of time, along with her objection.   Despite the
lateness of Lima's objection, the court will consider it.
                        Standard of Review

     Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law."     Fed. R. Civ. P.

56(c).   The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett, 

 (1986) .    A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial.   See Anderson v. Liberty Lobby, Inc., 

 (1986); Torres v. E.I. Dupont de Nemours & Co., 

 (1st Cir. 2000).   All reasonable inferences and all

credibility issues are resolved in favor of the nonmoving party.

See Anderson, 

.



                            Background

     On June 30, 2000, Edwardina Lima awoke at about 4:30 a.m.

and drove to Salem to help her husband open the convenience store

the family operated in Salem, New Hampshire.     She then drove to

Andover, Massachusetts, to her primary workplace, Adjulant, and

worked until two or three in the afternoon.    After work, she did


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errands and then drove back to Salem to the convenience store to

help her husband.     When they were ready to leave for the night,

Mr. Lima asked his wife to drive home because he was very tired.

She was driving a car, purchased for their son, that she did not

like to drive.

     As she drove through Salem, New Hampshire, around 11 p.m.,

Mrs. Lima drove passed two stationary police cars.      One of the

police cars pulled out and began to follow her as she drove along

Veterans' Memorial Parkway, a one-lane road.      Salem Police

Officer Wesley Decker saw the Limas' car driving well below the

speed limit and also noticed that the car was weaving over the

road in erratic movements.     Mrs. Lima states that she attempted

to "change lanes" on the one-lane road to avoid Decker's

headlights behind her but asserts that she did not cross the

double yellow line.

     Decker activated his lights and pulled the car over.        He

approached the driver's side of the car and asked Mrs. Lima for

her license and car registration.      Mrs. Lima was argumentative

and refused to allow him to speak, but she produced her license

and registration.     Mrs. Lima appeared to be very hyperactive; her

arms were shaking, and she continually repeated her statements.

Decker asked Mrs. Lima if she had consumed alcohol, and she       said

that she had not.     He did not smell alcohol.


                                   3
     Salem Officer Kenneth E. Mulchahey arrived.       Both Decker and

Mulchahey were trained, experienced, and state certified police

officers.   Both were trained at the State Police Academy in

conducting field sobriety tests and for recognizing other

symptoms of intoxication.    Mulchahey was also a Drug Recognition

and Evaluation Expert certified by the International Association

of Chiefs of Police.    As part of his training, Mulchahey learned

physical and behavioral symptoms to recognize intoxication due to

different categories of drugs.     His training had been updated

just two months before the incident involving Mrs. Lima.

     Mrs. Lima agreed to take a series of sobriety tests.         Decker

administered the tests while Mulchahey observed.      Mrs. Lima

showed signs of intoxication in each of the three tests given.

She was unable to follow directions, and she argued with Decker's

directions even when she was asked to stop.       She was very nervous

throughout the tests.

     Decker told Mulchahey that he had seen the car cross the

double yellow line and the fog line before he made the stop.

Decker and Mulchahey agreed that Mrs. Lima showed symptoms that

indicated that she was impaired.       Decker arrested Mrs. Lima for

driving while intoxicated and transported her to the Salem Police

Department.

     At the Police Department, Mrs. Lima agreed to take a Breath


                                   4
Test, which indicated a blood alcohol concentration of 0.0%.

Mulchahey then conducted a Drug Recognition Evaluation ("DRE")

examination.   Mrs. Lima showed signs that she was under the

influence of intoxicating substances.    Her pulse was 130 beats

per minute, above the normal range of 60 to 90.     She began the

tests without waiting for the instructions.     During one test that

required her to stand still and count, she swayed forward and in

a circular motion throughout the test.    She had difficulty with a

balance test, and in four out of six tries she was unable to

touch her index finger to her nose with her eyes closed.

     Based on the test results on the DRE Chart and his

experience, Mulchahey concluded that there was probable cause to

believe that Mrs. Lima was impaired by a stimulant drug and a

narcotic analgesic.   Mulchahey then transported Mrs. Lima to

Parkland Medical Center for a blood test.     Mulchahey referred the

matter to the Salem Police Department Prosecutor who filed a

complaint against Mrs. Lima in Salem District Court.

     The Salem Police Department received the test results

several months later, on October 3, 2000.     The results were

negative for the six drugs tested.   Despite the negative results,

the prosecutor proceeded with the case against Mrs. Lima based on

the observations reported by Decker and Mulchahey.     The charges

were dismissed before trial.


                                 5
                               Discussion

      In support of summary judgment, the defendants contend that

Mrs. Lima cannot prove a Fourth Amendment violation and that her

due process claim is precluded by the Fourth Amendment claim.

They also contend that she cannot provide any evidence of

discrimination in support of her equal protection claims.        With

respect to the claims against the town, the defendants assert

that Mrs. Lima cannot show any town custom or policy that caused

the alleged constitutional violations.2 Alternatively, the

defendants assert qualified immunity as to the civil rights

claims against the officers.     With respect to the state law

claims, the defendants ask the court to decline supplemental

jurisdiction, and alternatively, challenge the claims on the

merits .



A.   Fourth Amendment Claim

      In Count One, Mrs. Lima alleges that all of the defendants

violated her Fourth Amendment rights in the course of the stop,

arrest, and prosecution.      In her objection to summary judgment.



     2 The court first addresses the merits of Mrs. Lima's
constitutional claims and will only consider qualified immunity
if a triable issue exists as to the asserted violations.   See
Saucier v. Katz, 121 S. C t . 2151, 2156 (2001).


                                    6
however, Mrs. Lima pursues her Fourth Amendment claim only as to

Officer Decker.    She argues that Decker lacked probable cause or

reasonable suspicion to stop her car and lacked probable cause to

arrest her for driving while impaired.        Therefore, Mrs. Lima is

deemed to have waived her Fourth Amendment claim as to the town

and Officer Mulchahey.



     1.    The initial stop.

     "The Fourth Amendment prohibits 'unreasonable searches and

seizures' by the Government, and its protections extend to brief

investigatory stops of persons or vehicles that fall short of

traditional arrest."     United States v. Arvizu, 

(2002)    (quoting Terry v. Ohio, 

 (1968)).     To satisfy

the Fourth Amendment in making a Terry stop, an officer must have

reasonable articulable suspicion that a criminal violation is

occurring or is about to occur.        See United States v. Velez-

Saldana, 

 (1st Cir. 2001); United States v.

Hunnicutt, 

 (10th Cir. 1998).        In assessing

whether reasonable suspicion existed, courts are to consider the

totality of the circumstances, including the officer's experience

and training, to determine "whether the detaining officer has a

particularized and objective basis for suspecting legal

wrongdoing."    Arvizu, 

.


                                   7
       Before Decker activated his cruiser's lights and stopped the

Limas' car, he saw the car driving slowly and weaving on a one-

lane road.   Mrs. Lima provides no description of her driving

before the police cruiser began to follow her.     She contends that

she was driving "within" the speed limit but she does not contest

that she was driving slowly.   After she noticed the cruiser

behind her, she became nervous and found it difficult to see due

to the headlights.    She confirms that she "changed lanes" on the

one-lane road, and she does not dispute that she crossed the fog

line on the right side of the road.

       Therefore, despite Mrs. Lima's explanations, it is

undisputed that Decker observed erratic driving before he stopped

her.    Decker believed, based on his training and experience, that

the erratic driving indicated the driver might be impaired.      See,

e.g.. State v. Melanson, 

 (1995); State v.

Landry, 

 (1976).     New Hampshire Revised Statute

Annotated ("RSA") § 265:82 prohibits driving while under the

influence of intoxicating liquor or a controlled drug.      Based on

the undisputed circumstances, reasonable suspicion existed that

the driver of the Limas' car was driving while impaired, in

violation of RSA 265:82.    See, e.g.. United States v. Dhinsa, 

 (2d Cir. 1998); United States v. Harris, 

 (11th Cir. 1991); State v. Galgav, 

, 103-

04 (2000).

                                  8
     2.   The arrest.

     A warrantless arrest must be supported by probable cause.

See Diaz v. Citv of Fitchburg, 

 (1st Cir. 1999).

"Probable cause exists if, at the time of the arrest, the

collective knowledge of the officers involved was sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense."    United States v. Link,

 (1st Cir. 2001)    (internal quotation omitted).

The probable cause standard applies, and, if satisfied, an arrest

is proper, without a need to balance the costs, benefits, or

necessity of the arrest.   Atwater v. Citv of Lacro Vista, 

 (2001) .

     Mrs. Lima was arrested after Decker observed her erratic

driving, talked with her, administered field sobriety tests, and

discussed the situation with Mulchahey.    Mrs. Lima argues that

probable cause was lacking because Decker did not decide to

arrest her immediately after the field sobriety tests and because

Mulchahey did not have an opinion before the arrest as to whether

she was under the influence of a controlled drug.    Mrs. Lima

misconstrues Decker's statement that he had not decided to arrest

her immediately after the field sobriety tests as an admission

that he lacked sufficient indication of impairment to support


                                 9
probable cause.    Instead, the undisputed evidence shows that

Decker had probable cause to arrest Mrs. Lima, based on her

conduct and test performance, and that he conferred with

Mulchahey to confirm his impression.3

      Mrs. Lima does not dispute that she was initially

argumentative and would not allow Officer Decker to speak to her.

She does not dispute that she was shaking and repeating her own

statements.    During the field sobriety tests, Mrs. Lima was

unable to follow Decker's directions; she continually swung her

body in a circular motion; she was unable to stand on one leg for

more than nine seconds; and she had difficulty walking in a

straight line and turning.

     Decker conferred with Mulchahey after observing Mrs. Lima's

performance.   When Mulchahey concurred with Decker's impression

of Mrs. Lima's impairment. Decker placed Mrs. Lima under arrest.

A driver's unusual behavior and failure to perform field sobriety

tests properly constitutes probable cause to support an arrest

for driving while impaired.    See State v. Wong, 

(1984); see also Ritz v. Breen, 

, at *5 (D. Conn.

Mar. 11, 2002); Bulanov v. Town of Lumberland, 

, at

*5 (S.D.N.Y. Feb. 6, 2002); Babers v. Citv of Tallassee, 

   (M.D. Ala. 2001).


     3It is undisputed that Mrs. Lima agreed to take the field
sobriety tests.

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B.   Substantive Due Process Claim

     Mrs. Lima contends that the events surrounding the stop,

arrest, and prosecution violated her substantive due process

rights under the Fourteenth Amendment.       Claims that a plaintiff

was stopped, arrested, or prosecuted without probable cause are

not actionable as substantive due process violations.        See

Albright v. Oliver, 

, 288 n.2       (1994); Britton

v. Maloney, 

 (1st Cir. 1999).        Therefore, the

defendants are entitled to summary judgment on Mrs. Lima's claim

in Count Two that the defendants' actions violated her

substantive due process rights.



C.   Equal Protection Claim

       Ordinarily, an equal protection claim consists of two

elements:    "whether the [plaintiff] was treated differently than

others similarly situated, and (2) whether such a difference was

based on an impermissible consideration, such as race."        Macone

v. Town of Wakefield, 

 (1st Cir. 2002) .

Alternatively, a plaintiff may be able to show a denial of equal

protection by demonstrating a gross abuse of power or

fundamentally unfair procedures.        See Collins v. Nuzzo, 

    (1st Cir. 2001).   When a plaintiff asserts

discrimination only as to herself, constituting a class of one,

she must show that she has been intentionally treated differently

                                   11
than others similarly situated and that no rational basis exists

for such treatment.     See Village of Willowbrook v. Olech, 

 (2000); see also Woicik v. Mass. State Lottery

Comm'n, 

 (1st Cir. 2002).

     Mrs. Lima asserts that she was stopped, arrested, and

prosecuted without probable cause because she is of Portuguese

descent.   As is discussed above, Mrs. Lima has not provided

probative evidence that she was stopped or arrested without

probable cause.   She has provided no evidence that the prosecutor

was aware of her national origin in making her decision to

prosecute Mrs. Lima.4    She has provided no evidence that she was

treated differently in any of the circumstances of this case than

others who were similarly situated.     Further, the record includes

no evidence that the circumstances of this case constituted a

gross abuse of power or fundamentally unfair procedures, nor has

Mrs. Lima made any developed argument in that regard.




     4In her affidavit, the prosecutor states that she decided to
proceed with the prosecution, despite negative blood test
results, because of Mrs. Lima's symptoms of impairment, as
observed by Decker and Mulchahey, the results of Mulchahey's Drug
Recognition Evaluation, and her own knowledge that drugs other
than the six tested by the laboratory could impair a driver such
as Mrs. Lima.

                                  12
D.   Federal Claims Against the Town5

     A municipality cannot be liable under § 1983 on a theory of

respondeat superior based on the conduct of its employees.      See

Monell v. Dep't of Soc. Servs., 

 (1978).

"Rather, liability can be imposed on a local government only

where that government's policy or custom is responsible for

causing the constitutional violation or injury."    Kelley v.

Laforce, 

 (1st Cir. 2002).   Although a governmental

custom or policy may be established by a single event, that will

occur only "where 'the decisionmaker possesses final authority to

establish municipal policy with respect to the action ordered.'"

 (quoting Pembaur v. Citv of Cincinnati, 

(1986)).   Whether such authority exists depends on state law.

See Pembaur, 

.

     Mrs. Lima contends that the town prosecutor was a final

decisionmaker for purposes of deciding which cases to prosecute

and, therefore, her decision to prosecute Mrs. Lima constitutes

town policy.   Mrs. Lima provides no evidence or legal authority

to show that the prosecutor was a final decisionmaker for the

town, stating only that she "is indisputably an authorized

decision maker for municipal liability purposes."    Obj. at 9.



     iAlthough Mrs. Lima does not now pursue her Fourth Amendment
claim against the town, in her complaint she brings the claim
against all three defendants.

                                   13
She cites no state law that establishes that town prosecutors

generally, or the Salem prosecutor in particular, have final

authority in deciding which cases to prosecute.     C f . Pembaur, 

; see also Kellev, 

.     Therefore, Mrs.

Lima has not shown a trialworthy issue as to whether the decision

to prosecute her was made pursuant to town custom, practice, or

policy.   The town is entitled to summary judgment due to Mrs.

Lima's failure to show a basis for municipal liability, in

addition to the lack of evidence of an underlying constitutional

violation.



E.   State Law Claims

     Mrs. Lima also brings state law claims of negligence,         false

imprisonment, and malicious prosecution.     She alleges in the

complaint that "pendant" jurisdiction exists as to the state law

claims, which the court deems to be a reference to supplemental

jurisdiction.   See 

(a).    If supplemental

jurisdiction is the only jurisdictional predicate for state law

claims, ordinarily the court will decline jurisdiction once the

federal claims are dismissed.    See § 1367(c).

      In this case, however, it appears from the complaint that

Mrs. Lima and the town are of diverse citizenship.6       See 28


     6M r s . Lima alleges that she resides in Methuen,
Massachusetts.

                                  

(a).   The complaint includes no allegations as to

the citizenship of the defendant officers.      If Officer Decker and

Officer Mulchahey are both New Hampshire citizens, or citizens of

a state other than Massachusetts, complete diversity of

citizenship would exist, supporting subject matter jurisdiction

under § 1332(a).    In contrast, if either officer is a citizen of

Massachusetts, along with Mrs. Lima, complete diversity does not

exist, precluding subject matter jurisdiction under § 1332.      See,

e.g., Owen Equip. & Erection Co. v. Kroger, 

(1978); Valentin v. Hosp. Bella Vista, 

 (1st

Cir. 2001).   The complaint also includes no allegations as to the

amount in controversy.     See § 1332 (a) .

     Mrs. Lima bears the burden of showing that subject matter

jurisdiction exists.     See Velentin, 

; Pei eoscot

Indus. Park, Inc. v. Me. Cent. R.R. Co., 

(1st Cir. 2000); Aversa v. United States, 

 (1st

Cir. 1996).   Despite the defendants' argument that the court

should decline supplemental jurisdiction, pursuant to § 1367 (c),

Mrs. Lima failed to address subject matter jurisdiction in her

objection to summary judgment.      Therefore, Mrs. Lima has failed

to carry her burden of showing that subject matter jurisdiction

exists on any basis other than § 1367(a).

     Because the federal claims are now dismissed and Mrs. Lima's

state law claims are not well articulated or developed, the court

                                   15
declines to exercise supplemental jurisdiction as to those

claims.     See § 1367(c).



                              Conclusion

      For the foregoing reasons, the defendants' motion for

summary judgment    (document no. 10) is granted.    The clerk of

court shall enter judgment in favor of the defendants and close

the case.

      SO ORDERED.


                                        Joseph A. DiClerico, Jr.
                                        United States District Judge

October 28, 2002

cc:   Thomas J. Gleason, Esquire
      Donald E. Gardner, Esquire




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