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CARROLL,
SS
SUPERIOR COURT
Starbrite Leasing, Inc.,
Inc.,
ano
INTRODUCTION
The Sheriffs Department files this Motion to Dismiss due to immunities which bars
Plaintiffs' claims against
it.
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
Page
I of
reasons
plaintiff is hereafter
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
24,2015' That arrest is a result of an incident which brought Deputy Rowe to plaintiff
s business
2.
as follows:
rd ,fln96-97.1
3.
The arrest by Deputy Rowe followed the customer incident by some three weeks.
4.
Plaintiff left the'fhird circuit District courr, before his arrest. Id ,fln7g-7g.
5.
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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of
'
as
2.
3.
Deputy Rowe and chief champlin conspired against him. \d.,,u 100.
4.
Id.,n rc|.
Id.,ngg.,
But to further round out the background, the Sheriff s Department notes the following:
1.
s access
to land for
2.
3.
4.
5.
The Town's actions are a result of conspiracy (Id ,1132), unfair competition
!J
6 and Exhibits
and2.
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).
notes, without further argument, that Plaintiff has not yet had the charges brought against him
of
resolved favorably to him. Therefore, he lacks an essential element ofthat claim. See Stockv. Byers,
120
I.
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
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
,See
Dist., 165 N.H. 694,695 (2013). The Dichiara case is quite clear on the immunity issue:
"Accordingly,
r,ve conclucie
there is a nexus between the injury and a governmental unit's ownership, occupation, maintenance.
filing criminal charges and related functions because those activities do not fall within the excention
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of
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.
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.
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).
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,
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..."
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.
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,
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
the point
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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of
Accordingly, Plaintiff
as
well
as
CONCLUSION
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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