UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Joseph F. Galibois

v. Civil No. 04-cv-444-JD

Opinion No. 2007 DNH 052

John Fisher

O R D E R

In reviewing the pending motions for summary judgment and

the procedural history of this case, the court became aware that

Joseph F. Galibois’s motion to amend his complaint was

erroneously denied as having been untimely filed. Because the

deadline was extended to January 5, 2007, and he filed the motion

on January 4, 2007, the motion was timely. Therefore, the order

denying Galibois’s motion to file an amended complaint (document

no. 37) is vacated. Galibois’s motion to amend his complaint

(document no. 35) and John Fisher’s objection to that motion

(document no. 36) are considered on the merits and resolved as

follows.

Background

Galibois, who is proceeding pro se, originally filed his

claims against John Fisher, a sergeant in the Nashua, New

Hampshire, Police Department, in a petition for redress in state

court. When that suit was dismissed, he chose to bring a new

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action alleging the same claims in this court rather than pursue

his claims on appeal. His federal complaint, which was filed

November 24, 2004, was dismissed based on the Rooker-Feldman

doctrine. That decision was vacated on appeal, based on an

intervening change in the law, and the case was remanded for

further proceedings here. Galibois v. Fisher, 2006 WL 827326

(1st Cir. Mar. 31, 2006). 

In his proposed complaint, Galibois alleges that on election

day in 2004, he was demonstrating against Senator John F. Kerry

as a candidate for president based on his opposition to Kerry’s

plans for handling terrorism and his belief that terrorists would

prefer Kerry to George W. Bush. He expressed his opposition to

Kerry by dressing as a terrorist and carrying a pro-Kerry and

anti-Bush sign. He was wearing a costume that consisted of black

boots, black sweat pants, a black sweat jacket, a black threehole ski mask, two empty green ammunition bandoliers, and a

plastic toy gun that resembled an AK 47 rifle. 

Beginning shortly after 10:00 a.m., Galibois stood at a busy

intersection in downtown Nashua, New Hampshire, along with other

political demonstrators and supporters of candidates, most of

whom supported Kerry. Galibois alleges that after some initial

verbal skirmishing between him and the Kerry supporters, everyone

settled into their own positions. He continued his demonstration

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by waving his hand and gesturing politely and with enthusiasm for

his candidate. As a result of the demonstrations, pedestrian

traffic at times was diverted off of the sidewalks and traffic

slowed or stopped at the intersection. 

Galibois states that between 10:00 a.m. and 1:30 p.m., eight

Nashua police cars passed the intersection without incident. 

Then, two police cars stopped and parked near the intersection. 

At about 1:40 p.m., Fisher and Officer William Constantineau

approached Galibois and asked him to move away from the others

standing at the intersection, which he did. Constantineau told

Galibois that although they could understand what he was trying

to do, they had received complaints about “‘a terrorist on the

streets with a (rifle).’” Proposed Am. Compl. at 6. 

Fisher said that if Galibois continued his demonstration he

would be subject to prosecution. Galibois said he was only

expressing a political opinion, as the other demonstrators were

doing, but Fisher responded: “‘I’m not playing that game with

you today.’” Id. at 6-7. Constantineau agreed with Fisher, and

one of the officers said that Galibois was violating the

disorderly conduct statute. When Galibois suggested that “his

political opponents” might have generated the complaints, Fisher

responded that they had had several complaints and were compelled

to respond.

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When Galibois asked what he had to do to avoid arrest,

Fisher told him that he had to abandon the toy gun and bandoliers

and that he could not wear the ski mask. Galibois protested

removing his ski mask because the weather was chilly and breezy,

and Fisher responded that he was not playing that game and that

failure to comply would result in his arrest. Fisher also said

that the time it would take to process the arrest would mean that

Galibois would not be free until after the polls were closed. 

Galibois decided not to risk arrest, in part because he had not

yet voted. 

When asked, Galibois gave Constantineau his name, address,

date of birth and home telephone number. Constantineau checked

the information in the police cruiser and then told Galibois that

an arrest warrant was outstanding for a person of that name and

requested his driver’s license. The arrest warrant was

apparently for another person with the same name.

Galibois states that once he had complied with the officers’

requirements, his appearance no longer provided “the irony” that

was necessary to continue his anti-Kerry demonstration. He was

also concerned that Fisher might change his mind and arrest him. 

Although he was never asked to leave, he gathered his belongings

and went home.

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Galibois alleges that sometime after the Election Day

incident, Fisher made statements about him “personally and

through proxies at the Nashua Police Department.” Proposed Am.

Compl. ¶ 17. Specifically, Galibois contends that Fisher or

others at the police department stated publicly that the

department had received multiple complaints about Galibois when

only one phone call was received and that the complaints were

made by alarmed citizens when actually the single call came from

a city official who had noticed a traffic disruption. Galibois

also alleges that Fisher or someone at the department said that

Galibois was found to be a traffic hazard, when he had not

directly interfered with traffic, and that he was found at a

school dressed as a terrorist when he was one-third of a mile

from the nearest school.

Galibois seeks a declaratory judgment that Fisher deprived

him of his constitutionally protected rights to freedom of

expression, due process, and equal protection. Fisher seeks

punitive damages, compensatory damages, and an award of

attorneys’ fees and costs. 

Discussion

Galibois moves for leave to add a Fourth Amendment claim, an

official capacity claim, and a defamation claim. He also asks to

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change his request for punitive damages from $208.00 to $1.00 and

to add a claim for compensatory damages, for the defamation

claim, in the amount of $1.00. Fisher objects to Galibois’s

motion on the grounds that the new claims he asserts are futile

and that no new facts have emerged through discovery to support

his new claims.

Leave to amend a complaint “shall be freely given when

justice so requires.” Fed. R. Civ. P. 15(a). On the other hand,

however, the court may deny a motion to amend in appropriate

circumstances such as “undue delay, bad faith, futility, and the

absence of due diligence on the movant’s part.” Palmer v.

Champion Mortgage, 465 F.3d 24, 30 (1st Cir. 2006). “In

assessing futility, the district court must apply the standard

which applies to motions to dismiss under Fed. R. Civ. P.

12(b)(6).” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122,

126 (1st Cir. 2006).

A. Fourth Amendment Claim

Galibois alleges that Fisher violated his Fourth Amendment

right to be free of unreasonable seizure by stating that he,

Galibois, would be subject to arrest, detention, and prosecution,

which made him submit to Fisher’s authority when Fisher lacked

probable cause to detain him. Fisher contends that such a claim

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is futile and should not be permitted because it is not based on

new facts that emerged during discovery.

In assessing futility, the court “take[s] as true all wellpleaded allegations and draw[s] all reasonable inferences in the

plaintiff’s favor.” Ezra Charitable Trust v. Tyco Int’l, Ltd.,

466 F.3d 1, 5-6 (1st Cir. 2006) (providing standard under Fed. R.

Civ. P. 12(b)(6)). A motion to amend should not be denied on

grounds of futility “‘unless it is apparent beyond doubt that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.’” Stanton v. Metro Corp., 438 F.3d

119, 123-24 (1st Cir. 2006) (quoting Conley v. Gibson, 355 U.S.

41, 45-46 (1957)) (internal quotation marks omitted). 

Although Galibois was not arrested, a brief investigatory

stop “constitutes a seizure within the purview of the Fourth

Amendment and, therefore, is subject to the constitutional

imperative that it must be reasonable under all the

circumstances.” United States v. Coplin, 463 F.3d 96, 100 (1st

Cir. 2006) (internal quotation marks omitted). “An officer may

conduct such a stop if he has reasonable, articulable suspicion

that criminal activity is afoot.” Id. (internal quotation marks

omitted). “In evaluating whether reasonable suspicion existed,

we ‘look at the totality of the circumstances of each case to see

whether the detaining officer ha[d] a particularized and

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objective basis for suspecting legal wrongdoing.’” United States

v. Monteiro, 447 F.3d 39, 43 (1st Cir. 2006) (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002)).

Galibois alleges that Fisher and Constantineau drove by his

demonstration, then stopped and parked on a nearby street. When

the officers approached Galibois, Constantineau said that the

department had received complaints about a “‘terrorist on the

streets with a (rifle).” Galibois alleges that one of the

officers said that he was violating the disorderly conduct

statute.

New Hampshire’s disorderly conduct statute states that “[a]

person is guilty of disorderly conduct if: . . . [h]e or she: . .

. [e]ngages in . . . threatening behavior in a public place; or

[o]bstructs vehicular or pedestrian traffic on any public street

or sidewalk . . . .” RSA 644:2, II(a) & (c). Galibois alleges

that he was carrying a toy gun that resembled “an AK 47-style

rifle.” Proposed Am. Compl. at 3. He also alleges that he was

wearing a terrorist costume, consisting of a ski mask and two

“empty green ammunition bandoliers,” which could be viewed as

threatening behavior. Id. He further alleges that his

demonstration, along with the others, obstructed both pedestrian

and vehicular traffic. Therefore, the circumstances that

Galibois alleges led to the officer’s interaction with him are

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more than sufficient to show that the officers’ had a reasonable

articulable suspicion, when they arrived, that Galibois was

engaged in disorderly conduct.

B. Official Capacity

In his proposed amended complaint, Galibois states that

Fisher “is being sued in both his official and personal

capacities.” Proposed Am. Compl. ¶ 3. A suit against a

defendant in his official capacity is a suit against the entity

of which he is an official. See Surprenant v. Rivas, 424 F.3d 5,

20 (1st Cir. 2005). To state a city’s liability in this context,

a plaintiff must allege facts which show that a city officer or

official violated the plaintiff’s constitutional rights pursuant

to a city policy, custom, or practice. Id.; Powell v. Alexander,

391 F.3d 1, 24 (1st ir. 2004).

Because Fisher is a police officer in Nashua, an official

capacity suit against him is a suit against Nashua. Galibois has

not alleged any policy, custom, or practice in Nashua that would

support his claim. In addition, Nashua was not on notice that

Galibois intended to bring claims against it. See id.

Therefore, Galibois’s official capacity claim is futile.

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C. Defamation

Galibois alleges that Fisher “made public statements that

were intentional, false or misleading, and disparaging toward

[Galibois] and that lowered [him] in the esteem of substantial

and respectable groups of people.” Proposed Am. Compl. ¶ 25. 

Fisher contends that Galibois has not stated a defamation claim

because the statements he cites are substantially true and

because he does not allege to whom the statements were made.

To state a defamation claim under New Hampshire law, a

plaintiff must allege facts showing that the “defendant failed to

exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party.” Indep. Mech. Contractors, Inc. v.

Gordon T. Burke & Sons, 138 N.H. 110, 118 (1993). “A statement

is defamatory if it tends to lower the plaintiff in the esteem of

any substantial and respectable group of people.” Moss v. Camp

Pemigewassett, Inc., 312 F.3d 503, 507 (1st Cir. 2002). In

addition, a statement is not false, and therefore is not

actionable in a defamation claim, if it is substantially true. 

Id. at 509.

Galibois alleges that Fisher made “public statements” that

defamed him. Specifically, he alleges that Fisher’s false

statements were that the police had received multiple complaints

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about him when only one call was received; that the complaints

came from “alarmed citizens,” when the single complaint was from

a city official who was concerned about a traffic disruption;

that he was a traffic hazard, when he was not in or obstructing

the street, and that he was found at a school, dressed as a

terrorist, when he was one-third of a mile from the nearest

school. As Fisher points out, those statements are substantially

true, based on Galibois’s allegations in his proposed amended

complaint. 

In addition, although Galibois alleges that Fisher made the

allegedly defamatory remarks as “public statements,” he does not

explain to whom the statements were made. The allegations in the

complaint include only statements made to Galibois while Fisher

and Constantineau talked with him during his demonstration. 

Galibois alleges that the officers asked him to move away from

the group of other demonstrators, and he does not allege that

others at the scene overheard the officers’ conversation with

him. “Liability in defamation actions has traditionally rested

upon the defendants’s intention to communicate the defamatory

statement to someone other than the plaintiff, or at least upon

negligent responsibility for such communication.” Duchesnaye v.

Munro Enters., Inc., 125 N.H. 244, 250 (1984).

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Galibois’s allegations in his proposed amended complaint do

not state a defamation claim. Therefore, his defamation claim is

also futile.

Conclusion

For the foregoing reasons, the order denying the plaintiff’s

motion to amend his complaint (document no. 37) is vacated. The

plaintiff’s motion to amend his complaint (document no. 35) is

denied to the extent he seeks to add a claim for a Fourth

Amendment violation, an official capacity claim, and a defamation

claim, those claims are futile and are not allowed, but his

motion is otherwise granted. Therefore, the proposed amended

complaint is allowed except for Counts II and IV and his claim

against the defendant in his official capacity.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 18, 2007

cc: Brian J.S. Cullen, Esquire

Joseph f. Galibois, pro se

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