UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John S. Briand

v. Case No. 09-cv-003-SM

City of Berlin, et al.

O R D E R

While I agree with Magistrate Judge Arenas's thorough legal analysis in the

main, I take a slightly different view of the complaint and record. Law enforcement

officers are generally allowed to enter homes without a warrant in order to assist in

an emergency or protect someone in the home from imminent injury, assuming a

reasonable basis to think such a circumstance exists. While plaintiff's complaint may

prove weak in the end, on the current record I do not find a solid basis upon which

to identify what reasonable bases the officers had for thinking an emergency existed

in Briand's home, or that someone inside required assistance or protection. It may

well be that that was the case, but the complaint does not suggest it, and, taking the

allegations in the complaint as true, I cannot say that the facts pled lend themselves

to no viable theories of recovery, or that plaintiff is not entitled to offer evidence in

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support of his claims. See generally Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);

Garnier v.Rodriquez, 506 F.3d 22, 26 (1st Cir. 2007). I do not agree that plaintiff

"concedes that the officers entered his house to take him into protective custody,"

under applicable state law. The complaint is to the contrary. While it is conceivable

that the officers had no legitimate basis for entering Briand's home in the absence of

a warrant , or permission, the problem here is that the record does not disclose a

legitimate basis for the initial entry and plaintiff claims there was none.

Whether the officers employed excessive force is generally an issue of fact,

though often such claims can be determined on summary judgment motions. Plaintiff

has, initially at least, alleged sufficient facts in support of his excessive force claim

to at least permit him to go beyond dismissal upon initial review.

Finally, because I find that plaintiff may proceed with his federal unlawful

entry and excessive force claims, the court will also retain jurisdiction, at this stage,

of the litigation, over his state law claims.

Except as noted above, the Magistrate Judge's Report and Recommendation

is approved. That is, plaintiff may proceed on his federal claims of illegal entry and

excessive force, and his state law claims of assault as to the officers and respondeat

superior liability (relative to the City of Berlin), and property loss (presumably on a

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negligence theory). 

Without commenting on the merits of the complaint, I find that plaintiff has

stated claims upon which relief might be granted. Accordingly, the complaint shall

be served on Defendants, Arsenault, Godin, and the City of Berlin. Plaintiff shall

prepare summonses for each defendant named and submit them to the Clerk's office

within thirty (30) days of the date of this order. Upon receipt of the completed

summons forms, the Clerk's office shall issue the summonses and forward same to

the United States Marshal for the District of New Hampshire along with copies of the

complaint (document no. 1), Magistrate Judge Arenas's Report and Recommendation

(document no. 5), plaintiff's objections (document nos. 6 and 7), and this order, for

service upon defendants. Fed. R. Civ. P. 4(c)(2). Service on defendants Arsenault

and Godin shall be made on the individual. Fed. R. Civ. P. 4(e). Under state law,

service on the City of Berlin is to be made upon the major or an alderman and the

City Clerk. See N.H. Rev. Stat. Ann. 510:10.

Defendants shall file an answer or other responsive pleading within twenty

(20) days after service of process has been effected. Fed. R. Civ. P. 12(a)(1)(A).

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Plaintiff is instructed that all future pleadings, written motions, notices, or

similar papers shall be served directly on the Defendants by delivering or mailing the

materials to them or their attorneys, pursuant to Fed. R. Civ. P. 5 (b).

SO ORDERED.

Dated: June 24, 2009

 _________________________________

Steven J. McAuliffe

Chief Judge

cc: John S. Briand, pro se

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