Consentino is the Chief of the Atkinson Police Department 1

and Atkinson’s Director of Elderly Affairs. Sapia is a former

selectman who heads the town’s Conflict of Interest Committee. 

Sullivan, Childs, and Friel are current selectmen. Polito, a

former selectman, serves as the moderator at Atkinson’s town

meetings. 

 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Leon B. Artus, et al.

v. Case No. 09-cv-87-PB

Opinion No. 2009 DNH 154 

Town of Atkinson, et al.

MEMORANDUM AND ORDER

Leon B. Artus, Gary Brownfield, and Steven Lewis have sued

Town of Atkinson, Philip V. Consentino, Jack Sapia, Jr., Paul

Sullivan, Fred Childs, William Friel, and Francis Polito pursuant

to 42 U.S.C. § 1983, alleging violations of their First Amendment

rights. (First Am. Compl., Doc. No. 18-2, ¶¶ 62-76.) 1

Brownfield has also asserted a state law claim, based upon New

Hampshire’s “Right-to-Know” law, N.H. Rev. Stat. § 91-A:2,

against Polito and the Town of Atkinson. (Id. ¶¶ 77-80.)

The individual defendants, as a group, and the Town of

Atkinson have filed motions to dismiss Count I. Artus,

Brownfield, and Lewis object. For the reasons set forth below, I

grant both motions. 

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 1 of 24
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I. BACKGROUND

Artus, Brownfield, and Lewis assert only one count alleging

First Amendment violations. (Am. Compl., Doc. No. 18-2, ¶¶ 62-

76.) This count, however, arises from three separate but related

incidents, and only some of the plaintiffs and defendants are

involved in each incident. The incidents all involve two warrant

article petitions that Artus and Brownfield circulated in an

attempt to place a warrant article on the Atkinson town meeting

ballot.

A. The Warrant Article Petitions

Artus is an Atkinson resident and the director and spokesman

for the Atkinson Taxpayers for Fair Evaluations Committee

(“ATFEC”). (Am. Compl., Doc. No. 18-2, ¶ 22.) Brownfield, also

an Atkinson resident, holds the same positions in the Atkinson

Taxpayers Committee (“ATC”). (Id.) The purpose of both

associations is to ensure fair taxation in Atkinson. (Artus

Aff., Doc. No. 10-3, ¶ 1; Brownfield Aff., Doc. No. 10-4, ¶ 1.) 

Both associations also seek to ensure that taxpayer money is used

wisely by petitioning to have warrant articles relating to

“fiscal responsibility, accountability, and use of taxpayers’

funds” placed on town meeting ballots. (Artus Aff., Doc. No. 10-

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 2 of 24
 Artus, Lewis, and Brownfield have moved to add ATFEC and 2

ATC as plaintiffs. (See Pls.’ Mot. to Amend Compl. and Add

Parties, Doc. No. 18.) I need not decide whether ATFEC and ATC

have standing because these organizations’ allegations are based

upon the same conduct as the allegations by Artus and Brownfield,

which fail to state a claim. Thus, the claims of the

associational plaintiffs fail even if I assume for purposes of

analysis that they have standing to assert them.

-3-

3, ¶ 2; Brownfield Aff., Doc. No. 10-4, ¶ 2.)2

In January 2009, Artus and Brownfield circulated two warrant

article petitions in order to collect the signatures required to

have the warrant articles placed on the ballot at the next town

meeting. (Am. Compl., Doc. No. 18-2, ¶ 23.) One of the warrant

articles proposed that the town create a full-time, fully

certified Police Chief position (for which Consentino would not

be eligible), and the other was related to the Elderly Affairs

Office (which Consentino ran). (Id. ¶ 24.) Artus and Brownfield

successfully gathered the required signatures and filed their

petitions with the Town Clerk (Id. ¶ 25). 

B. The Phone Call Incident

Immediately after Artus and Brownfield filed the petitions,

Consentino received copies of them and began telephoning

signatories to ask why they had signed. (Am. Compl., Doc. No.

18-2, ¶ 25.) Consentino allegedly asked one citizen why his

family “signed this shit.” (Id. ¶ 26.) A number of the

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 3 of 24
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individuals Consentino contacted then asked Brownfield and Artus

to remove their names from the petitions. (Id. ¶ 27.) Some

individuals also asked Artus and Brownfield to remove them from

the ATFEC and ATC mailing lists and requested that the two

associations not contact them in any way in the future. (Artus

Aff., Doc. No. 10-3, ¶ 7-8.) Artus claims to have lost at least

nine supporters (Id. ¶ 8), and Brownfield claims to have lost at

least eight (Brownfield Aff., Doc. No. 10-4, ¶ 8). 

B. The Town Meeting Incident

In addition to serving as the director of ATC, Brownfield

works as a professional photographer. On January 31, 2009, he

attended the deliberative session of Atkinson’s annual town

meeting, where he was taking photographs for the Coalition of New

Hampshire Taxpayers newspaper. (Am. Compl., Doc. No. 18-2,

¶ 44.) After he took ten photographs in the same manner as other

photographers at the meeting, Polito, the moderator, ordered him

to stop taking photographs while Polito was at the podium. (Id.

¶ 45-46.) When Brownfield protested, Polito insisted that

Brownfield was not allowed to photograph the meeting without his

permission and ordered him to delete all of his photographs. 

(Id. ¶ 47.) When Brownfield objected that he had the right under

New Hampshire law to take the photographs, Polito loudly accused

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 4 of 24
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Brownfield of disrupting the meeting, threatened to eject him,

and even called for a public vote to prohibit Brownfield from

taking additional photographs. (Id. ¶¶ 48-49.) Although

Brownfield originally planned to speak about the warrant articles

he supported, he decided not to do so because of Polito’s “open

threat” and “intimidating public humiliation.” (Id. ¶ 50.)

After this confrontation, at the next break in the meeting,

Sapia (a former selectman and the head of Atkinson’s Conflict of

Interest Committee), accompanied by a “supporter,” approached

Brownfield and ordered him to delete any photographs that

Brownfield had taken of Sapia. (Id. § 51.) Polito then

approached Brownfield and demanded that he erase all photographs

of the meeting. (Id.) Polito threatened that Brownfield would

“be hearing from [Polito’s] lawyer” if he did not cooperate. 

(Id.) As Artus and Edward Naile (the head of the Coalition of

New Hampshire Taxpayers newspaper, for which Brownfield was

working) left the building with a memory card containing

Brownfield’s photographs, Sapia, accompanied by an unnamed

Atkinson police officer, followed them out, demanding the card. 

(Id. ¶ 52.) Brownfield refused these demands and kept the memory

card.

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 5 of 24
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C. The Lewis Incident

Lewis, another Atkinson resident, alleges that he refused to

sign the 2009 petition, despite agreeing with its goals, because

he feared, based upon prior harassment, that Consentino would

retaliate against him. (Am. Compl., Doc. No. 18-2, ¶ 32.) Lewis

alleges that he was fearful because Consentino (1) harassed him

in 2000 after he filed a petition for a warrant article similar

to the one in the instant case (id. ¶ 31(c); Lewis Aff., Doc. No.

10-5, ¶¶ 4-6); (2) allegedly sabotaged his son’s application for

employment at a nearby police department (Am. Compl., Doc. No.

18-2, ¶ 31(c); Lewis Aff., Doc. No. 10-5, ¶ 7); and (3) speaks to

him sarcastically or simply glares at him when they encounter

each other (Lewis Aff., Doc. No. 10-5, ¶ 9). In addition, Lewis

claims he is fearful because an Atkinson police officer called

Lewis’s son in 2007 and said Lewis should “watch what he says in

Town.” (Id. ¶ 8.)

II. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim, I

accept as true the well-pleaded factual allegations of the

complaint and draw all reasonable inferences therefrom in the

plaintiffs’ favor. Martin v. Applied Cellular Tech., Inc., 284

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 6 of 24
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F.3d 1, 6 (1st Cir. 2002). Although the complaint need not

include detailed factual allegations, “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation” is required. 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. The complaint must

“state a claim . . . that is plausible on its face,” and that

“plausibility standard,” while not a “probability requirement,”

requires more than a “sheer possibility that a defendant has

acted unlawfully.” Id. (internal quotations and citations

omitted). 

III. ANALYSIS

The defendants have launched a multifaceted attack on the

complaint. They argue that Artus and Brownfield’s allegations

arising out of Consentino’s phone calls to their supporters fail

to state a viable First Amendment retaliation claim under § 1983. 

They also argue that Brownfield may not sue Polito based upon his

conduct at the town meeting because Polito has absolute

legislative immunity, and may not sue Sapia under § 1983 because

Sapia did not act under color of state law. In addition, they

argue that Lewis’s First Amendment claim against Consentino is

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 7 of 24
 Artus and Brownfield might argue that the Agosto standard 3

does not apply in non-employment contexts. However, Bennett v.

Hendrix, 423 F.3d 1247 (11th Cir. 2005), suggests otherwise. 

Bennett involved First Amendment retaliation outside of the

workplace. The court explained that almost all circuits,

including the First, require plaintiffs to establish that a

reasonable person (often called a “person of ordinary firmness”)

would be chilled from speaking to state a First Amendment

retaliation claim, and thus suggested that the standard Agosto

articulates in the employment context may be applied in nonemployment contexts as well. Id. at 1250-51.

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barred by the three-year statute of limitations that applies to

§ 1983 actions that arise in New Hampshire. I evaluate the

merits of each of these arguments in turn.

A. Artus and Brownfield Fail to State a First Amendment Claim

Against Consentino Based upon the Phone Call Incident

To state a viable claim of First Amendment retaliation under

§ 1983, a plaintiff must show that the defendant intended to

chill his expression. See Tatro v. Kervin, 41 F.3d 9, 18 (1st

Cir. 1994) (the defendant’s “intent or desire to curb . . .

expression” must be the “determining or motivating” factor behind

his action). In addition, the defendant’s action must be such

that it would curb the expression of a “reasonably hardy

individual[].” See Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d

1209, 1217 (1st Cir. 1989) (setting out this standard for claims

made in the employment context pursuant to § 1983 for First

Amendment violations).3

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 8 of 24
 If Artus and Brownfield have a viable First Amendment 4

claim, it is either because they have standing to invoke the

First Amendment interests of third parties who were chilled by

Consentino’s actions or because Consentino violated plaintiffs’

own First Amendment associational rights by chilling third

parties from associating with them. In either case, plaintiffs

must allege conduct that would have chilled a reasonably hardy

person from engaging in protected conduct. 

-9-

Artus and Brownfield have not cited facts sufficient to

support the claim that Consentino’s actions would have chilled

the speech of a “reasonably hardy” person. The plaintiffs’ 4

harshest specific allegation is that Consentino called one person

“angrily demand[ing] . . . an explanation as to why his family

‘signed this shit.’” (Am. Compl., Doc. No. 18-2, ¶ 26.) A

“reasonably hardy” person, however, would not remove his name

from a petition whose goals he supported because of such demands 

even if the alleged speaker is both the chief of police and

director of the local Elderly Affairs Office. The complaint does

not allege that Consentino told any elderly citizens he would

stop providing them with certain benefits if they signed the

petition, nor does it allege that anyone who called Artus and

Brownfield cited this fear, or any similar fear. Thus, the

conclusory allegation that Consentino used “his authority as

Police Chief and Director of the Elderly Affairs [O]ffice to

intimidate Atkinson citizens into remaining silent” (Am. Compl.

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 9 of 24
 Brownfield also alleges that the Town of Atkinson is 5

liable for Polito’s actions because the town meeting incident was

“a result of the town’s de facto policy and custom of permitting

its officials to oppress free speech through retaliation and

harassment against political adversaries.” (Mem. of Law in Supp.

of Pls.’ Objection to Def. Town of Atkinson’s Mot. to Dismiss All

Claims in Count I, Doc. No. 25-2, at 26.)

A municipality may be liable under § 1983 if a violation of

First Amendment rights resulted from “execution of [a municipal]

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy.” 

Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978). Even

-10-

¶ 28) is a “naked assertion devoid of further factual

enhancement” and does not meet the Iqbal standard. See 129 S.

Ct. at 1949.

B. Brownfield Fails to State a Claim Against Polito or Sapia

Based upon the Town Meeting Incident

1. Brownfield’s Claim Against Polito Fails Because Polito

Has Absolute Legislative Immunity

Brownfield, who served as a photographer at the Atkinson

town meeting, appears to make three claims based upon Polito’s

actions: (1) that Polito denied Brownfield the right to take

photographs and use them to express his views; (2) that Polito

engaged in improper viewpoint discrimination by prohibiting

Brownfield from taking photographs while allowing other

photographers to continue their work; and (3) that Polito chilled

Brownfield from speaking at the meeting by publically harassing

and embarrassing him. All three claims fail because Polito is 5

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 10 of 24
the acts of one individual may constitute “policy” if that

individual is a “decisionmaker” who “possesses final authority to

establish municipal policy with respect to the action ordered.” 

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). 

If Brownfield is basing his allegation of municipal

liability on a town “custom” of allowing harassment, he has not

met Iqbal’s pleading requirements. The amended complaint alleges

that the Town of Atkinson had a “custom” of “allowing Chief

Consentino to engage in abuses of power and coercion of citizens

who dare to stand up to him” and cites eight examples to

demonstrate Consentino’s past abuses of power. (Am. Compl., Doc.

No. 18-2, ¶ 31.) It is debatable whether these facts are even

sufficient to state a claim that Atkinson has a “custom” of

allowing Consentino to harass citizens; they are certainly not

sufficient to state a claim that Atkinson has a custom of

allowing town moderators to prohibit individuals from taking

photographs through illegal viewpoint discrimination. 

Alternatively, Brownfield may be alleging municipal

liability because he believes Polito is a “decisionmaker” with

“final authority to establish municipal policy.” See Pembaur,

475 U.S. at 481. However, Brownfield has not cited specific

facts to support the allegation that Polito was a final

policymaker or that he was carrying out a policy enacted by

others (e.g., the selectmen). Thus, Brownfield has not met

Iqbal’s standard on this theory of municipal liability, either.

-11-

protected by absolute legislative immunity.

“Local legislators are entitled to absolute immunity from

§ 1983 liability for their legislative activities.” Bogan v.

Scott-Harris, 523 U.S. 44, 54 (1998). Courts use a functional

test to determine what activities are legislative: “Whether an

act is legislative turns on the nature of the act, rather than on

the motive or intent of the official performing it.” Id. at 54.

Once a court determines that an act is legislative, the court

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 11 of 24
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ought not consider the motives of the legislator: “The claim of

an unworthy purpose does not destroy the privilege.” Tenney v.

Brandhove, 341 U.S. 367, 377 (1951) (discussing federal

legislative immunity; after Bogan, the same principles apply to

local legislative immunity). To subject a legislator to the

burdens of discovery and a trial based on a plaintiff’s

allegations of illicit motives would undermine the goals of

legislative immunity. Legislative immunity is particularly

important at the local level because if it is not granted, local

legislators, who are often “part-time citizen-legislator[s],”

might be “significantly deter[red]” from “service in local

government, where prestige and pecuniary rewards may pale in

comparison to the threat of civil liability.” Bogan, 523 U.S. at

52. Finally, if the activity at issue is legislative, the actor

may not be held liable even if the activity violates the

Constitution, so long as it is not “flagrantly violative of

fundamental constitutional protections.” Nat’l Ass’n of Soc.

Workers v. Harwood, 69 F.3d 622, 634 (1st Cir. 1995). 

Legislative immunity will protect an individual who, when

acting as a moderator during legislative deliberations, enforces

a rule to keep the proceedings in order. See id. at 631-32

(legislative immunity protected the Speaker of the Rhode Island

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 12 of 24
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House of Representatives and the “head doorkeeper” when they

enforced a rule, which the legislative body had adopted, banning

lobbyists from the House floor, and its perimeter, during House

sessions); see also Carlow v. Mruk, 425 F. Supp. 2d 225, 235-36,

239 (D.R.I. 2006) (legislative immunity protected moderator at a

fire district meeting when he announced a rule of order

prohibiting videotaping except by the press and enforced a rule

of order that banned nonresidents from speaking or otherwise

participating). In New Hampshire, town meeting moderators play a

role similar to the role the Speaker of the House and moderator

played in Harwood and Carlow. In New Hampshire, a moderator’s

duties include “presid[ing] in the town meetings, regulat[ing]

the business thereof, [and] decid[ing] questions of order.” N.H.

Rev. Stat. Ann. § 40:4 (2009). Specifically, the law provides

that “[n]o person shall speak in any meeting without leave of the

moderator,” “all persons shall be silent at the desire of the

moderator,” and, if any person “persist[s] in [disorderly]

behavior” after a warning from the moderator, “the moderator may

command any constable or police officer, or any legal voter of

the town, to remove such disorderly person from the meeting and

detain such person until the business is finished.” Id. §§ 40:7-

8. 

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 13 of 24
 A person moderating public discussion at a local public 6

meeting may not always be immune from § 1983 liability. Some

local public meetings are split into periods of non-legislative

public comment (sometimes called the “town meeting” portion) and

periods of legislative activity during which the public may not

comment. See, e.g., Hanson v. Bennett, 948 F.2d 397 (7th Cir.

1991). At that type of meeting, a person who maintains order

during the public comment portion is not acting in a legislative

capacity. Id. at 400-403. However, the typical New England

local meeting (called a “town meeting”) is entirely legislative. 

See Curnin v. Egremont, 510 F.3d 24, 30 (1st Cir. 2007)

(referring to “the town meeting” as “a deliberating legislative

body” and distinguishing “municipal-level public meetings” that

allow public comment during only a portion of the meeting from

typical New England-style meetings). It appears that the

Atkinson town meeting was a typical New England-style meeting in

that the residents were the legislators — they discussed and then

voted on all agenda items. Thus Polito, who kept order

throughout this process, acted in a legislative capacity for the

entire meeting.

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Polito, as a moderator acting to enforce order at a town

meeting, is immune from liability under § 1983. Although Polito

was not establishing or enforcing a specific rule when he ordered

Brownfield to stop taking photographs, he was exercising his

general authority to regulate the meeting and decide questions of

order. 

6

Brownfield relies upon Acevedo-Garcia v. Vera-Monroig, 204

F.3d 1 (1st Cir. 2000), in an attempt to argue that Polito is

liable for his actions as a moderator because they were

administrative, not legislative, in nature. (See Mem. of Law in

Supp. of Pls.’ Objection to Defs.’ Joint Mot. to Dismiss All

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 14 of 24
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Claims in Count I Asserted Against Defs. in Their Individual

Capacities, Doc. 10-2, at 30-31.) In Acevedo, the court

explained the two-part analysis it undertakes to characterize an

act: 

First, if the facts underlying the decision are

“generalizations concerning a policy or state of affairs,”

the decision is legislative. If the decision stems from

specific facts relating to particular individuals or

situations, the act is administrative. Second, the court

must consider the “particularity of the impact of the state

of action.” “If the action involves establishment of a

general policy, it is legislative;” if it “single[s] out

specifiable individuals and affect[s] them differently from

others,” it is administrative.

Id. at 9 (quoting Cutting v. Muzzey, 724 F.2d 259, 261 (1st Cir.

1984)). Brownfield argues that Polito “was not enacting a

generalized policy regarding photography at the meeting,” but

rather was “singl[ing] . . . Mr. Brownfield out and prevent[ing]

only him from taking photographs,” and thus was acting in an

administrative capacity. (See Mem. of Law in Supp. of Pls.’

Objection to Defs.’ Joint Mot. to Dismiss All Claims in Count I

Asserted Against Defs. in Their Individual Capacities, Doc. No.

10-2, at 31.) 

Brownfield’s argument fails because he misapplies the

Acevedo test. A moderator’s job of keeping order will often

involve singling out one disorderly individual. Furthermore,

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 15 of 24
 Brownfield also alleges that Polito, in addition to 7

telling him to stop taking photographs and threatening to eject

him during the meeting, also approached him at a break in the

meeting and demanded that he erase all the photographs of the

meeting. (Am. Compl., Doc. No. 18-2, ¶ 51.) Polito threatened

that Brownfield would “be hearing from his lawyer” if he did not

cooperate. (Id.) No claims based on Polito’s conduct during the

break in the meeting will survive because Polito was not acting

“under color of” state law during that time, which § 1983

requires. See West v. Atkins, 487 U.S. 42, 48 (1988). A

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state statutes cannot anticipate and prohibit every possible

disorderly act. Thus, a moderator must be granted flexibility

and discretion, as New Hampshire moderators are by state law, to

run meetings as they see fit. See N.H. Rev. Stat. Ann. § 40

(2009); see also Curnin v. Town of Egremont, 510 F.3d 24, 31 (“In

[deliberating legislative bodies], some measure of discretion is

inherent in the role of moderator. The moderator is charged with

facilitating an efficient and orderly town meeting.”). When a

moderator uses his authority to single out a disorderly

individual and tries to address a problem in a way that will

allow the meeting to continue efficiently, he may not be held

liable for doing so. Brownfield attempts to hold Polito liable

because he allegedly acted with improper motive. Such claims are

exactly the types of claims legislative immunity is meant to

protect defendants against. Thus, I dismiss the claims against

Brownfield that relate to his actions as a moderator. 

7

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 16 of 24
defendant acts “under color of” state law when he “exercise[s]

power possessed by virtue of state law and made possible only

because [he] is clothed with the authority of state law.” Id. at

49 (internal quotation omitted). The fact that Polito threatened

Brownfield with his personal lawyer, as opposed to with some

municipal punishment (e.g., a fine), shows that during this

interchange, Polito was not acting “under color of” state law.

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2. Brownfield’s Claim Against Sapia Fails Because Sapia

Did Not Act Under Color of State Law

Brownfield claims that Sapia violated his First Amendment

rights because (1) Sapia approached him at a break in the town

meeting and ordered him to delete all his photographs of Sapia,

and (2) Sapia later followed two of his associates out of the

building demanding the memory card from his camera. (Am. Compl.,

Doc. No. 18-2, ¶¶ 51-52.) These allegations, even if true, do

not state a claim because Sapia was not acting “under color of”

state law. 

To state a claim under § 1983, a plaintiff must allege that

the defendant acted “under color of” state law. West v. Atkins,

487 U.S. 42, 48 (1988). “[T]o act ‘under color of’ state law for

§ 1983 purposes does not require that the defendant be an officer

of the State. It is enough that he is a willful participant in

joint action with the State or its agents.” Dennis v. Sparks,

449 U.S. 24, 28 (1980). See also Alexis v. McDonald’s

Restaurants of Massachusetts, Inc., 67 F.3d 341, 351 (1st Cir.

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 17 of 24
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1995) (suggesting that the required joint action can be a “plan,

prearrangement, conspiracy, custom, or policy”). 

Brownfield has not pled facts that support the inference

that Sapia was involved in any plan, prearrangement, conspiracy,

custom, or policy to deprive Brownfield of the right to take

photographs at the meeting. Brownfield does not cite evidence of

any prior agreement between Sapia and Polito. Their actions were

not so concerted as to imply a previous agreement. Sapia

approached Brownfield at a break in the meeting alone. (Am.

Compl., Doc. No. 18-2, ¶ 51.) Although Polito approached

Brownfield during the same break, he did so separately. (Id.) 

In addition, Polito ordered Brownfield to delete all the

photographs from the meeting, whereas Sapia only demanded that

Brownfield delete pictures of him. (Id.) 

The plaintiffs suggest that Sapia may have acted jointly

with another state actor besides Polito: an unnamed police

officer. (Id. ¶ 52.) This police officer accompanied Sapia out

of the building when Sapia followed Artus and Edward Naile (who

runs the newspaper for which Brownfield was taking photographs,

and to whom Brownfield had given his camera) out of the building

to demand the camera’s memory card. (Id.) However, the

plaintiffs do not allege facts that support the inference that

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 18 of 24
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there was a conspiracy or any type of plan between the police

officer and Sapia. The plaintiffs assert that “Mr. Sapia . . .

used his status as a member of Defendant Consentino’s political

clique to enlist a police officer into accompanying him in his

efforts to intimidate Mr. Brownfield and Mr. Artus, thus cloaking

his demands under color and authority of the law.” (Mem. of Law

in Supp. of Pls.’ Objection to Defs.’ Joint Mot. to Dismiss All

Claims in Count I Asserted Against Defs. in Their Individual

Capacities, Doc. No. 10-2, at 30.) However, this assertion is a

mere conclusion, not supported by facts and therefore not

entitled to an assumption of truth. Therefore, I dismiss

Brownfield’s claim against Sapia. 

C. Lewis Fails to State a Claim Against Consentino Because He

Does Not Allege Any First Amendment Violation Arising from

Conduct Occurring Within the Statute of Limitations

Lewis alleges that Consentino violated his First Amendment

rights by harassing him so severely between 2000 and 2009 that he

was chilled from signing Artus and Brownfield’s petition in 2009. 

Specifically, Lewis alleges that in 2000, Consentino retaliated

against him for filing a warrant article petition similar to the

one Artus and Brownfield filed in the instant case by coming to

his office and yelling at him in an outrageous manner. (Am.

Compl., Doc. No. 18-2, ¶ 31(c); Lewis Aff., Doc. No. 10-5, ¶¶ 4-

Case 1:09-cv-00087-PB Document 44 Filed 10/14/09 Page 19 of 24
 The amended complaint says an officer “forwarded a message 8

from Chief Consentino that Mr. Lewis ‘had better watch [sic] he

says’ about Chief Consentino and his police department,” but, as

the defendants point out, that allegation is not supported by

Lewis’s affidavit. (Defs.’ Reply Mem., Doc. No. 21, at 7 n.6.)

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6.) A few years later, when Lewis’s son applied for a job at a

nearby police department, Consentino allegedly contacted the

police chief there and suggested that the son was not a good

candidate for the job. (Am. Compl., Doc. No. 18-2, ¶ 31(c);

Lewis Aff., Doc. No. 10-5, ¶ 7.) Lewis also alleges that in

2007, after he made a sarcastic comment to a police officer who

was laxly investigating a break-in at his son’s house, an

Atkinson police officer called his son and said Lewis should

“watch what he says in Town.” (Lewis Aff., Doc. No. 10-5, ¶ 8.)8

Finally, Lewis alleges that “from 2000 to the present day,”

Consentino has “many times treated [him] either with sarcasm or

[has made] a point of glaring at [him] before pointedly ignoring

[him].” (Id. ¶ 9.)

Any claim arising from Consentino’s 2000 harassment would

normally be time barred because of New Hampshire’s three-year

personal injury statute of limitations, which governs this suit.

See N.H. Rev. Stat. Ann. § 508:4 (2009); Centro Medico del

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.

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2005) (a federal court must borrow the forum state’s personal

injury statute of limitations in a § 1983 suit). However, Lewis

argues that he may still bring a claim based on the 2000 conduct

because of the “continuing violation” doctrine. (See Mem. of Law

in Supp. of Pls.’ Objection to Defs.’ Joint Mot. to Dismiss All

Claims in Count I Asserted Against Defs. in Their Individual

Capacities, Doc. No. 10-2, at 17.) Lewis alleges that

Consentino’s 2007 actions and ongoing “sarcasm” and “glaring” are

“continuing violations” that allow him to bring a claim based, in

part, on the 2000 conduct. I disagree.

Lewis misapplies the continuing violation doctrine. A

plaintiff can only invoke the doctrine “under certain narrow

conditions.” Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104,

107.

Although the name of the doctrine may sound auspicious for

late-filing plaintiffs, it does not allow a plaintiff to

avoid filing suit so long as some person continues to

violate his rights. “The ‘continuing violation’ doctrine is

misnamed. . . . The office of the misnamed doctrine is to

allow suit to be delayed until a series of wrongful acts

blossoms into an injury on which suit can be brought.”

Id. (quoting Morales-Tañon v. Puerto Rico Elec. Power Auth., 524

F.3d 15, 18-19 (quoting Limestone Dev. Corp. v. Vill. of Lemont,

520 F.3d 797, 801 (7th Cir. 2008))). Lewis could have sued

within three years for Consentino’s 2000 conduct if that conduct

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chilled his speech. However, he did not do so, and he does not

convincingly argue that the 2000 harassment, the sabotaging of

his son’s employment application, the 2007 phone call, and the

ongoing glaring and sarcasm have only now blossomed into an

injury on which suit can be brought. Thus, he cannot state a

claim unless he alleges facts that show that Consentino violated

his First Amendment rights within the three-year statute of

limitations period. Lewis fails to do so. 

The allegation that, in 2007, a police officer told Lewis’s

son that Lewis had better “watch what he says in Town” is

insufficient to state a claim. Not every vague threat will

support a First Amendment claim. The alleged act must be

sufficiently severe to curb the expression of a “reasonably hardy

individual[].” See Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d

1209, 1217 (1st Cir. 1989). Even if Consentino himself told

Lewis, “You should watch what you say,” it would not be

sufficient to chill the speech of a “reasonably hardy” person. 

Furthermore, there is no evidence here that Consentino was even

behind the message. The police officer who called Lewis’s son

was not Consentino, nor did that person say the message was from

Consentino. Thus, even if the threat were sufficiently severe,

it would not be sufficiently linked to Consentino to state a

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claim.

The allegation that, between 2000 and 2009, Consentino used

a sarcastic tone of voice and glared at Lewis repeatedly is also

insufficient to state a claim. In some circumstances, a glare

and the use of a sarcastic tone of voice might be enough to chill

the speech of a “reasonably hardy” person. Here, however, Lewis

fails to provide the details required by Iqbal to allege such

circumstances. See 129 S. Ct. 1937. Because Lewis fails to show

a continuing violation that blossomed into an actionable claim

within the three-year statute of limitations, he cannot use

Consentino’s conduct in 2000 to support his claim. 

D. State Law Claim and Counterclaims

When a district court has dismissed the claims over which it

had original jurisdiction, the court may exercise its discretion

to decline supplemental jurisdiction as to any remaining state

law claims. 28 U.S.C. § 1367(c); Marrero-Gutierrez v. Molina,

491 F.3d 1, 7 (1st Cir. 2007). Plaintiffs’ remaining claims and

all of the counterclaims are based on state law. I decline to

exercise supplemental jurisdiction over these claims and direct

the clerk to remand what remains of the case to state court. 

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IV. CONCLUSION

For all of the foregoing reasons, I grant the Town of

Atkinson’s motion to dismiss (Doc. No. 11) and the group of

individual defendants’ motion to dismiss (Doc. No. 6). What

remains of the case shall be remanded to state court. 

SO ORDERED.

/s/Paul Barbadoro

Paul Barbadoro

United States District Judge

October 14, 2009

cc: Charles P. Bauer, Esq.

Charles G. Douglas, III, Esq.

Garry R. Lane, Esq.

Jason R. L. Major, Esq.

James G. Walker, Esq.

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