Torres v. Manchester, NH, City of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeremy Torres
v. Civ. No. 22-cv-93-JL
City of Manchester, et al.
REPORT AND RECOMMENDATION
In this civil rights case, self-represented plaintiff
Jeremy Torres claims that he was twice arrested without probable
cause and assaulted by Manchester, New Hampshire, police
officers. Presently before the court for a recommended
disposition is the defendants’ motion for summary judgment (Doc.
No. 162), to which Mr. Torres has not objected. For the reasons
that follow, the undersigned Magistrate Judge recommends
granting the defendants’ motion.
LEGAL STANDARD
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “In conducting this review, we assess the facts in the
light most flattering to the nonmovant and draw all reasonable
inferences on its behalf.” Philadelphia Indem. Ins. Co. v. BAS
Holding Corp., 78 F.4th 53, 58 (1st Cir. 2023) (citation
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 1 of 28

2
omitted). “A genuine dispute is one that would permit a rational
factfinder to resolve the issue in favor of either party, and a
material fact is one that has the potential to affect the
outcome of the suit under the applicable law.” Gattineri v. Wynn
MA, LLC, 63 F.4th 71, 84-85 (1st Cir. 2023) (citations and
quotations omitted). The court draws all reasonable inferences
from the record facts in favor of the nonmovant. Id. at 86.
However, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” Underwood v. Barrett, 924 F.3d 19, 20 (1st
Cir. 2019) (per curiam) (citing Scott v. Harris, 550 U.S. 372,
377 (2007)).
FACTUAL BACKGROUND1
1 Where, as here, the non-movant fails to object to a summary
judgment motion, “a district court is free, in the exercise of
its sound discretion, to accept the moving party's facts as
stated.” Advanced Flexible Cirs., Inc. v. GE Sensing &
Inspection Techs. GmbH, 781 F.3d 510, 521 (1st Cir. 2015)
(quotation marks omitted); see LR 56.1 (“All properly supported
material facts set forth in the moving party's factual statement
may be deemed admitted unless properly opposed by the adverse
party.”); see also Lopez-Hernandez v. Terumo Puerto Rico LLC, 64
F.4th 22, 26 (1st Cir. 2023) (“We have repeatedly emphasized the
importance of complying with [a similar] local rule and have
implored litigants to comply or ignore it at their peril.”)
(quotation omitted).
In accordance with the above authority, the court accepts
the defendants’ versions of the facts set forth in their
affidavits as admitted, except where those facts are
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 2 of 28

3
Two separate encounters with police underlie this lawsuit.
The court describes them chronologically.
A. April 7, 2020 Arrest
On January 7, 2020 Manchester Police Department (“MPD”)
Patrol Officer Justin Hood responded to a report of a motor
vehicle accident with unknown injury. Declaration of Officer
Justin Hood (“Hood Decl.”) (Doc. No. 162-2) ¶ 3. At
approximately 2:21 PM, Officer Hood responded to the scene,
where, based on the footage recorded by Officer Hood’s body-worn
camera (“Hood BWC”), it appeared a car had struck a parked car.
Hood BWC (notice of thumb drive filed as Doc. No. 162-3).
Officer Hood was gathering information from the driver/owners of
the involved vehicles when Mr. Torres, who was off-camera at the
time, shouted, “What the fuck do you need his license for?” Hood
Decl. ¶¶ 4, 5.
Officer Hood observed Mr. Torres walking in the middle of
the road, recording video of the accident scene with his phone.
He was potentially obstructing traffic while recording on his
phone, creating a possible safety issue. The accident location
contradicted or unsupported by the body-worn camera footage
submitted as evidence. See Underwood, 924 F.3d at 20 (court
“should not adopt [blatantly contradicted] version of the facts
for purposes of ruling on a motion for summary judgment”);
Mitchell v. Miller, 790 F.3d 73, 76 (1st Cir. 2015) (“[T]he
inferences that can reasonably be drawn are limited by the
existence of video evidence, . . . .”).
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 3 of 28

4
had sidewalks on both sides of the street. Hood Decl. ¶¶ 6-8;
Hood BWC Officer Hood asked Mr. Torres to get out of the road
due to the risk of oncoming traffic, stating “Do you mind
getting off the road, brother. Hey get out of the road for me.
Get out of the road.” Hood BWC. In his professional opinion, Mr.
Torres was obstructing motor vehicle traffic and placing himself
in danger of being struck by a motor vehicle. Hood Decl. ¶ 9-12;
Deposition of Jeremy Torres (“Torres Dep.”) (Doc. No. 162-4) at
27:24-29:2.
Mr. Torres did not get out of the road. Hood Decl. ¶ 9;
Torres Dep. 32:2-19. Officer Hood asked Mr. Torres to get out of
the road four more times; he refused and instead told Officer
Hood “I’m good.” Hood Decl. ¶ 10; Hood BWC; Torres Dep. 33:16-
35:11. Officer Hood continued to ask Mr. Torres to leave the
road, eventually repeating the request at least six times. Mr.
Torres continued to refuse. Hood Decl. ¶¶ 9-11 Torres Dep.
36:13-24.
Following the multiple unsuccessful requests to Mr. Torres
to leave the road, Officer Hood asked him for his license. Hood
BWC; Torres Dep. 39:9-12. Mr. Torres refused this request as
well. Hood Decl. ¶ 18, Torres Dep. 39:13-19. Officer Hood then
took hold of Mr. Torres’s right arm as he continued to walk away
but would not exit the roadway. Hood Decl. ¶¶ 13-14, Hood BWC;
Torres Dep. 42:1-8; 43:3-6. Mr. Torres then began yelling at
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 4 of 28

5
Officer Hood. Hood Decl. ¶ 15; Hood BWC; Torres Dep. 46:3-6. Mr.
Torres, believing he was being assaulted, decided he would
“stand his ground.” Torres Dep. 37:16-20. Officer Hood told Mr.
Torres that he was taking hold of his arm because he was
refusing to get out of the road. Hood Decl. ¶ 16; Hood BWC;
Torres Dep. 46:17-21.
Following Mr. Torres’s repeated refusal to leave the
roadway, Officer Hood believed that he had probable cause that
Mr. Torres had violated N.H. Rev. Stat. Ann. (“RSA”) § 265:39,
which makes it unlawful to walk in a roadway where sidewalks are
provided. Officer Hood then decided to arrest Mr. Torres. Hood
Decl. ¶¶ 17-19. He told Mr. Torres to put his hands behind his
back so that he could be handcuffed. Hood Decl. ¶ 20; Torres
Dep. 47:3-5. Mr. Torres refused seven requests to put his hands
behind his back for handcuffing. Hood Decl. ¶ 21 Hood BWC;
Torres Dep. 51:1-8. Mr. Torres believed that he had a right to
physically resist what he thought was an illegal arrest. Torres
Dep. 53:15-54:17.
In an effort to place Mr. Torres into custody, Officer Hood
forced him to the ground so he could secure his hands. Because
Mr. Torres resisted by holding his arms close to the front of
his body Officer Hood therefore used two closed fist strikes to
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 5 of 28

6
Mr. Torres’s ribcage to effectuate the arrest. Hood Decl. ¶¶ 23-
25; Hood BWC.2
While Mr. Torres was continuing to struggle with Officer
Hood, MPD Officer Victoria Catano arrived at the scene to
provide assistance. Hood Decl. ¶ 27; Torres Dep. 55:12-13.
Officer Catano knelt on Plaintiff’s legs to assist Officer Hood
in gaining control of his arms. Hood Decl. ¶ 27; Torres Dep.
55:12-13. Mr. Torres conceded in his deposition that Officer
Catano acted appropriately and did nothing wrong in her
interactions with him. Torres Dep. 55:12-22.
Despite Officer Hood’s warnings that he would be tased if
he did not stop resisting, Mr. Torres continued to do so. Hood
Decl. ¶ 28-9; Torres Dep. 56:24-57:3. Officer Hood then
administered a “dry tase” (one that uses no electrodes) twice to
Mr. Torres’s left side. Hood Decl. ¶ 29; Hood BWC. Mr. Torres
then stopped resisting and placed his hands behind his back,
allowing Officers Hood and Catano to handcuff him. Hood Decl.
¶¶ 30-31; Hood BWC. Officer Hood assisted Mr. Torres in standing
up and led him to a marked patrol vehicle. Hood Decl. ¶ 32,
Torres Dep. 61:9-12.
2 MPD standard operating procedures (SOP) authorizes officers
to use non-deadly force when and to the extent it is reasonably
necessary to effectuate an arrest or detention. Declaration of
Robert Gravelle, ¶ 5 (“Gravelle Decl.”) (Doc. No. 162-5);
Manchester PD SOP VII-d (January 2020), (Doc. No. 162-6).
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 6 of 28

7
Mr. Torres was transported to the MPD for booking and
charged with disorderly conduct and resisting arrest. Hood Decl.
¶¶ 34-35. At his request, he was then taken by medical personnel
from MPD to Elliot Hospital for medical attention. Hood Decl. ¶
36; Torres Dep. 194:23-195:16. He was evaluated at Elliott
Hospital, where no evidence of injuries was noted. Torres Dep.
204:6-205:4. Mr. Torres also had difficulty identifying the area
on his body where he had been tased, requiring the MPD officer
accompanying him to show the doctors where the tasing had
occurred. Torres Dep. 205:11-23.
Officer Hood used what he believed to be the minimal amount
of force necessary to safely effectuate Mr. Torres’s arrest and
believed he was following MPD use of force policy in making the
arrest. Hood Decl. ¶¶ 37-38. The designated Officer in Charge,
Captain Robert Gravelle agreed after reviewing Officer’s Hood
use of force report and BWC footage. Gravelle Decl. (Doc. No.
162-5) ¶ 8.
B. April 15, 2021 Arrest
At approximately 1:37 AM on April 15th, 2021, MPD officers
responded to Spruce Street for a report of a possible fight in
progress. Declaration of Officer Rachel Eutzy (“Eutzy Decl.”)
(Doc. No. 162-7) ¶ 5; Declaration of Nathan Harrington
(“Harrington Decl.”) (Doc. No. 162-8) ¶ 4. MPD had received a
report that an Uber Driver had scheduled a pickup at this
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 7 of 28

8
location and encountered a black male, approximately 40 years of
age, brandishing a stick and making a comment to the effect of
that he was “going to take care of him tonight.” Eutzy Decl. ¶¶
6-7. The Uber driver reported hearing a loud commotion and
believing a fight was in progress. Eutzy Decl. ¶ 8.
When Officer Eutzy arrived at the scene she observed two
males, both of whom matched the description provided by the Uber
driver. Eutzy Decl. ¶¶ 9-10. One of the men, later identified as
Mr. Torres, appeared to be walking very quickly away from Spruce
Street. Eutzy Decl. ¶ 12. Officer Eutzy told Mr. Torres to stop,
but he ignored her and continued walking away. Eutzy Decl. ¶¶
13-15. Mr. Torres was heading towards an alley to avoid the
police. Torres Dep. 95:21-97:6. He had observed the individual
whom he believed to have been the victim of a fight holding a
large stick and had initially intended to offer assistance
before noticing the police had arrived. Torres Dep. 96:6-96:15.
Mr. Torres continued walking away while Officer Eutzy
repeatedly shouted, “police, Stop.” Eutzy Decl. ¶ 15; Torres
Dep. 99:7-100:15. He eventually stopped in an alley adjacent to
Spruce Street. Eutzy Decl. ¶ 16; Torres Dep. 97:1-97:18. Officer
Eutzy was able to see that Mr. Torres had his left hand in his
jacket pocket. She instructed him to remove his hand, which he
initially hesitated to do. Officer Eutzy also asked Mr. Torres
if he was involved in the fight at the Spruce Street address.
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 8 of 28

9
Mr. Torres immediately became belligerent and started raising
his voice. Eutzy Decl. ¶¶ 17-20.
After Officer Dylan Naylor entered the alley to assist,
Officer Eutzy explained to Mr. Torres that the police had
received a report of a fight in progress and asked him for
identification. Eutzy Decl. ¶¶ 21-22; Torres Dep. 101:19-102:8.
Mr. Torres refused to provide any identification. Eutzy Decl. ¶
23; Torres Dep. 108:20-110:10. Officer Naylor conducted a brief
pat down to ensure that Mr. Torres did not possess a weapon.
Eutzy Decl. ¶ 21; Torres Dep. 102:9-13, 104:24-105:4; Eutzy BWC
(notice of conventional filing attached as Doc. No. 162-9).
Mr. Torres then became very agitated, began to raise his
voice, stated that he had epilepsy, and accused the police of
touching him for no reason. Due to the loud yelling, additional
officers arrived in the alleyway to assist. Mr. Torres continued
to yell and refused to provide any information that would allow
Officer Eutzy to determine whether he had been involved in the
reported altercation on Spruce Street. Eutzy Decl. ¶¶24-26;
Eutzy BWC; Torres Dep. 102:14-105:10, 105:19-106:5. Officer
Eutzy attempted to assure Mr. Torres that he would be released
when police confirmed he was not involved in the reported fight.
Eutzy Decl. ¶ 27; Torres Dep. 106:11-18; Eutzy BWC.
Mr. Torres, who testified in his deposition that he had
been growing paranoid during the encounter, perceived Officer
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 9 of 28

10
Eutzy’s words as threatening. Torres Dep. 106:11-19. He
continued to yell and talk over Officers Eutzy and Naylor, who
along with other officers, advised him several times to lower
his voice given the early morning hours and their location in
front of a residential apartment complex. A civilian approached
the alleyway because he had heard the loud yelling and wanted to
ensure that everything was alright. Eutzy Decl. ¶¶ 28-30; Torres
Dep. 107:8-14, 111:3-21; Eutzy BWC.
Officer Harrington arrived at the scene and heard Mr.
Torres yelling from the alley. He observed that Mr. Torres
appeared to be agitated and excited. Officers still had not
ascertained whether Mr. Torres had been involved in the fight
that led to the police call. Harrington Decl. ¶¶ 4-11;
Harrington BWC (attached to notice filed conventionally at Doc.
No. 162-10). Mr. Torres was still yelling loudly at the officers
after 1 a.m. Harrington Decl. ¶¶ 12-15; Eutzy Decl. ¶ 31; Torres
Dep. 121:1-21. Officers continued to ask him to lower his voice
and respond to questions, but Mr. Torres refused and residents
began gathering in the area to investigate the source of the
loud noise. Harrington Decl. ¶¶ 16-17; Eutzy Decl. ¶ 28. By this
time, MPD Officers Hondros and Fazio had also responded to the
alleyway to assist. Eutzy Decl. ¶ 32; Torres Dep. 18:5-18:11.
MPD Officers Colburn, Pauley and Fenton were never in the alley
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 10 of 28

11
with Mr. Torres. Pltf. Interrog. Ans. (Doc. No. 162-11); Torres
Dep. 18:21-20:10.
Ignoring warnings that he would be arrested if he continued
to yell and make a disturbance, Mr. Torres continued. Eutzy
Decl. ¶ 33; Harrington Decl. ¶ 16, 18; Eutzy BWC; Harrington
BWC. Officer Eutzy advised Mr. Torres that he was under arrest
and asked him to place his hands behind his back. Eutzy Decl. ¶¶
34-35; Harrington Decl. ¶ 20; Torres Dep. 167:8-12. Mr. Torres
refused to place his hands behind his back. Eutzy Decl. ¶ 35;
Harrington Decl. ¶¶ 20-21. Officers Eutzy and Harrington
attempted to take Mr. Torres into custody by placing him on the
ground to gain control. Eutzy Decl. ¶ 36; Harrington Decl. ¶ 25.
He continued to resist until Officer Harrington delivered closed
hand strikes to his right mid-side abdominal area. Harrington
Decl. ¶¶ 27-28; Eutzy BWC; Harrington BWC. The closed hand
strikes allowed police to gain control of Plaintiff’s arms and
place him in handcuffs. Harrington Decl. ¶¶ 28-30. The entire
use of force to get Mr. Torres under control lasted for twenty
seconds. Harrington BWC; Torres Dep. 169:9-15. Mr. Torres was
charged with disorderly conduct and resisting arrest. Eutzy
Decl. ¶ 39.
Officer Harrington used what he believed to be the minimal
amount of force necessary to safely effectuate Mr. Torres’s
arrest and believed he was following MPD use of force policy in
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 11 of 28

12
making the arrest. Hood Decl. ¶¶ 37-38. His superior officer,
Captain Shawn McCabe, reviewed Officer Harrington’s use of force
report and BWC footage and concluded that the use of force
complied with MPD policy and was the least amount of force
necessary to effectuate the arrest. McCabe Decl. (Doc. No. 162-
12).
PRIOR PROCEEDINGS
Mr. Torres commenced this action in March 2022. Following
preliminary review mandated by 28 U.S.C. § 1915 and amendment to
the original complaint, the case proceeded with state common law
and federal constitutional claims against City, the MPD and
twelve police officers. The court subsequently dismissed the
federal claims against the City and MPD. February 18, 2025 R&R
(Doc. No. 61), approved March 28, 2025. (Doc. No. 62). The
following federal claims, asserted pursuant to 42 U.S.C. § 1983,
remain for consideration on summary judgment: false arrest,
excessive force, failing to intervene and assisting other
officers’ illegal acts in violation of the Fourth and Fourteenth
Amendments; and retaliation for protected speech in violation of
the First Amendment. Mr. Torres has also brought state-law
claims of assault, battery, false imprisonment, and negligent
and intentional infliction of emotional distress.
DISCUSSION
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 12 of 28

13
A. Federal Claims
1. January 7, 2020 Arrest
a. False Arrest
Mr. Torres’s false arrest claim is predicated on the Fourth
Amendment, which protects against “unreasonable . . . seizures”
of the person. U.S. Const. amend. IV. To succeed on a false
arrest claim, a plaintiff must prove that the arresting officers
lacked probable cause to believe that he had committed or was
committing a crime. See Jordan v. Town of Waldoboro, 943 F.3d
532, 545 (1st Cir. 2019), abrogated on other grounds by Thompson
v. Clark, 596 U.S. 36 (2022). Probable cause for a warrantless
arrest exists “when, at the time of the arrest, the ‘facts and
circumstances within the officer's knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.’” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st
Cir. 2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)). “To determine whether an officer had probable cause for
an arrest, ‘[courts] examine the events leading up to the
arrest, and then decide whether these historical facts, viewed
from the standpoint of an objectively reasonable police officer,
amount to probable cause.’” District of Columbia v. Wesby, 583
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 13 of 28

14
U.S. 48, 56-57 (2018) (quoting Maryland v. Pringle, 540 U.S.
366, 371 (2003)).
Here, the undisputed facts show that Officer Hood had
probable cause to arrest Mr. Torres for refusing to move out of
the street while he was investigating the accident to which he
was dispatched. See N.H. (“RSA”) § 265:39. The BWC footage
conclusively showed that traffic was still active in the area,
and that Mr. Torres belligerently refused repeated requests to
leave the roadway. That Mr. Torres was subsequently arrested on
other charges does not change the calculus. See Zinicola v. Mott
MacDonald, LLC, No. 16-CV-542-JL, 2018 WL 1832408, at *11
(D.N.H. Apr. 17, 2018) (observing that “the court's probable
cause analysis does not focus on the specific crime charged . .
. but upon whether there was probable cause to arrest.”
(emphasis in original) (citing United States v. Jones, 432 F.3d
34, 41 (1st Cir. 2005) (noting that ultimate charge “is
irrelevant . . . [i]f, on the facts known to the arresting
officers, there was probable cause to believe he was committing
another crime, the arrest was valid.”))); see also Devenpeck v.
Alford, 543 U.S. 146, 153 (2004) (holding that an arrest for
intent to commit robbery which lacked factual support would
nevertheless be upheld because the facts and circumstances known
to the arresting officer established probable cause for a
firearms violation).
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 14 of 28

15
Against this legal and factual backdrop, the court
concludes that Officer Hood is entitled to summary judgment on
Mr. Torres’s false arrest claim related to the January 7, 2020
incident. In addition, though Officer Eutzy, denoted as “John
Doe No. 2,” was named in this count, there is no evidence that
she was present at the January 2020 incident. She is therefore
entitled to summary judgment on this count as well.3
b. Excessive Force
To state a Fourth Amendment claim for the use of excessive
force incident to an arrest, Mr. Torres must show that the
arresting officers’ actions were objectively unreasonable, in
light of the facts and circumstances known to them at the time
of the use of force. See Jennings v. Jones, 499 F.3d 2, 11 (1st
Cir. 2007); see also Graham v. Connor, 490 U.S. 386, 397 (1989)
In Graham, the Court outlined the basic contours and
elements of an excessive force claim:
The “reasonableness” of a particular use of force must
be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight. The Fourth Amendment is not violated by an
arrest based on probable cause, even though the wrong
person is arrested, nor by the mistaken execution of a
valid search warrant on the wrong premises.
With respect to a claim of excessive force, the same
standard of reasonableness at the moment applies: Not
every push or shove, even if it may later seem
3 The only other MPD officer involved with the January 2020
incident was Officer Catano, who is not a defendant.
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 15 of 28

16
unnecessary in the peace of a judge's chambers,
violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments - in circumstances that are tense,
uncertain, and rapidly evolving - about the amount of
force that is necessary in a particular situation.
Graham, 490 U.S. at 396-97 (citations and internal punctuation
omitted). “The question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Id. at 397.
The Court also set out a non-exhaustive list of relevant
factors to consider when analyzing an excessive force claim.
Those factors include: the relationship between the need for the
use of force and the amount of force used; any effort made by
the officer to temper or to limit the amount of force; the
severity of the security problem at issue;
the threat reasonably perceived by the officer; whether the
plaintiff was actively resisting; and the extent of the
plaintiff's injury. See Kingsley v. Hendrickson, 576 U.S. 389,
397 (2015).
Given the court’s finding that Officer Hood had probable
cause to arrest Mr. Torres, the BWC footage showing Mr. Torres’s
refusal to comply with legitimate requests to move out of the
roadway, and his resistance to efforts to place him under
arrest, the court has little trouble concluding that Officer
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 16 of 28

17
Hood’s use of force was reasonable under the circumstances.
Certainly, the crime for which Officer Hood first had probable
cause for arrest – unlawfully walking in a roadway when a
sidewalk is available – is a relatively minor violation-level
offense. See N.H. RSA 265:2. But the undisputed context shows
that Mr. Torres was in the street with traffic passing while
Officer Hood was the first to respond to a motor vehicle
accident. Under those circumstances, Officer Hood’s multiple
requests for Mr. Torres to move to the sidewalk were undoubtedly
reasonable. From there, it was Mr. Torres, not Officer Hood, who
escalated the situation by refusing multiple requests to move to
the sidewalk. After the refusal of the verbal requests, the
court also finds that it was reasonable for Officer Hood to use
physical persuasion to try and guide Mr. Torres off the street.
When Mr. Torres chose to “stand his ground,” Officer Hood was
justified in trying to place him under arrest, which Mr. Torres
further refused, incorrectly believing that he had the right to
physically resist if he thought an arrest was unlawful.4 See NH
RSA 642:2 (making it a misdemeanor for anyone to “knowingly or
purposely physically interfere[ ] with a person recognized to be
4 At this point, Officer Hood had probable cause to arrest
Mr. Torres for resisting arrest pursuant to NH RSA 642:2 and
disorderly conduct, pursuant to NH RSA 644:2(II)(e), which makes
it illegal to “Knowingly refuse[] to comply with a lawful order
of a peace officer to move from or remain away from any public
place.”
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 17 of 28

18
a law enforcement official . . . seeking to effect an arrest or
detention of the person . . . regardless of whether there is a
legal basis for the arrest.”).
Summing up the relevant factors set forth in Kingsley, Mr.
Torres’s refusal to follow verbal requests to leave the roadway
and subsequent resistance both to being physically removed from
the roadway and then to arrest reasonably required some force.
The amount of force used was no more than necessary to effect
the arrest. See Gray v. Cummings, No. CV 15-10276-TSH, 2017 WL
8942566, at *5 (D. Mass. Mar. 15, 2017) (finding single use of
taser in “dry” mode reasonable when arrestee was resisting by
refusing to release arms to be handcuffed), report and
recommendation adopted, No. 4:15-CV-10276, 2018 WL 1956872 (D.
Mass. Mar. 15, 2018), aff'd, 917 F.3d 1 (1st Cir. 2019).5
Officer Hood attempted to avoid using any force by making
several requests to Mr. Torres to leave the roadway. And,
finally, Mr. Torres was not seriously injured by the force, as
evidenced by the need for others with him at the hospital to
point out where the tasing had occurred and the lack of recorded
injuries.
5 A dry tase is a less severe tase because the cartridge is
removed prior to tasing. Johnson v. Cherokee Cnty. Bd. of Cnty.
Comm’rs, No. 02:17-CV-2644-JAR, 2020 WL 1320720, at *3 (D. Kan.
Mar. 20, 2020).
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 18 of 28

19
Accordingly. Officer Hood is entitled to summary judgment
on Mr. Torres’s excessive force claim. In addition, as with the
claim for false arrest, though Officer Eutzy was named in this
count, there is no evidence that she was present at the January
2020 incident. She is therefore entitled to summary judgment on
this count as well.
c. Assisting in Violations and/or Failing to Intervene
The court interpreted Mr. Torres’s complaint as alleging
Fourth Amendment violations against Officers Hood (then John Doe
No. 1) and Eutzy (then John Doe No. 2) for assisting in the
violation of his Fourth Amendment rights and for failing to
intervene to stop those violations. As the court has already
found that Mr. Torres’s Fourth Amendment claims fail as a matter
of law, his claims based on assistance and failure to intervene
necessarily fail.
d. First Amendment Retaliation
The court originally interpreted Mr. Torres’s complaint as
alleging that his April 15, 2021 arrest was in retaliation for
his First Amendment activity. Report and Recommendation (Doc.
No. 3) at 8-9. The court will analyze that claim when it turns
to discussion of that arrest. In an abundance of caution, and
given Mr. Torres’s self-represented status, the court considers
whether a claim of being arrested in retaliation for recording
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 19 of 28

20
the accident scene January 7, 2020, in violation of his First
Amendment rights, can survive summary judgment.
“It is well established that claims of retaliation for the
exercise of First Amendment rights are cognizable under section
1983.” Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014) (citing
Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004)). To succeed
on such a claim, Mr. Torres must prove that his “conduct was
constitutionally protected and was a ‘substantial’ or
‘motivating’ factor for the retaliatory decision.” Id. (some
internal quotation marks omitted) (quoting Powell, 391 F.3d at
17). Additionally, Mr. Torres can only succeed on this claim if
he can point to “sufficient facts to establish that law
enforcement lacked probable cause for arresting the plaintiff.”
Kynard v. Robbins, No. 24-cv-30092-MGM, 2025 WL 1473959, at *3
(D. Mass. May 22, 2025) (citing Nieves, 587 U.S. at 404).
Where, as here, the court has already determined that
probable cause exists, the claim fails unless Mr. Torres can
cite facts of record demonstrating that he “was arrested when
other similarly situated individuals engaged in the same sort of
protected speech had not been.” Nieves, 587 U.S. at 406; see
also Doyle v. Rumsey, 22-cv-00127-GZS, 2023 WL 2868315, at *4
(D. Me. Apr. 10, 2023) (dismissing the complaint after
concluding that the plaintiff's arrest was supported by probable
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 20 of 28

21
cause and that “the [c]omplaint does not allege that similarly
situated individuals . . . were not arrested”).
Here, as discussed, Mr. Torres’s arrest was supported by
probable cause and there are no allegations about similarly
situated individuals. His First Amendment retaliation claim
therefore fails as a matter of law, entitling Officers Hood and
Eutzy to summary judgment.
2. April 15, 2021 Arrest
The court interpreted Mr. Torres’s complaint as asserting
the same constitutional claims resulting from the April 15, 2021
incident as those resulting from the January 7, 2020 arrest:
false arrest, excessive force, assisting/failure to intervene,
and retaliation. The first three claims allege violations of the
Fourth Amendment; the retaliation claim alleges a First
Amendment violation. Report and Recommendation (Doc. No. 3) at
7-9. The court will address each claim separately, but will not
repeat each claim’s required legal elements, which were
described in the discussion of the earlier arrest.
a. False Arrest
Before analyzing Mr. Torres’s false arrest claim, the court
notes that he alleges that the police lacked any reason to stop
and question him in the first place. The court will address that
claim in its analysis.
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 21 of 28

22
As previously explained, MPD was responding to a call about
a possible fight in a residential neighborhood at 1:30 AM,
including information about an individual holding a weapon and
making threats. Mr. Torres did not dispute that a fight might
have taken place. Officer Eutzy responded and saw Mr. Torres,
matching the description of one of the individuals fighting. He
was walking quickly away from the scene towards an alley. She
and Officer Naylor attempted to speak with him, even after they
explained that they were trying to investigate the fight. The
undisputed record then shows that Mr. Torres, after initially
refusing to cooperate, began to raise his voice, eventually
yelling loudly and drawing neighbors’ attention to the scene,
after which he was arrested for disorderly conduct. Neither the
initial stop nor the subsequent arrest violated Mr. Torres’s
rights.
When law enforcement personnel make “brief investigatory
stops of persons or vehicles that fall short of traditional
arrest . . . the Fourth Amendment is satisfied if the officer's
action is supported by reasonable suspicion to believe that
criminal activity may be afoot.” United States v. $48,940 in
United States Currency, 594 F. Supp. 3d 125, 131 (D. Mass. 2022)
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).6
6 Such temporary detentions are “known colloquially as a
Terry stop.” Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009)
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 22 of 28

23
Officer Eutzy’s stop of Mr. Torres, after being dispatched to
the scene of a possible fight, fits comfortably within this
framework. See United States v. Arthur, 764 F.3d 92, 97 (1st
Cir. 2014) (upholding validity of Terry stop where the officer
had received a reliable, though generic, description of suspects
and their approximate location, from an unconnected witness).
Next, the undisputed evidence, including BWC footage,
demonstrates the existence of probable cause to arrest Mr.
Torres. NH RSA 644:2(III)(a) prohibits “[m]aking loud or
unreasonable noises in a public place or making loud or
unreasonable noises in a private place which can be heard in a
public place or other private places, which noises would disturb
a person of average sensibilities.” Mr. Torres was shouting at
1:30 in the morning in a residential neighborhood. Area
residents, apparently hearing the commotion, came to the scene.
His arrest was supported by probable cause and did not violate
the Fourth Amendment.
b. Excessive Force
The court acknowledges that the charged crime – disorderly
conduct – is relatively minor. See, e.g., Pliakos v. City of
Manchester, No. 01–461–M, 2003 WL 21687543, at *11 (D.N.H. July
(citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 23 of 28

24
15, 2003) (characterizing disturbing of the peace in excessive
force analysis as “relatively minor criminal mischief”).
Nevertheless, other than transitioning Mr. Torres to the ground
as he resisted arrest for disorderly conduct, the only force
used by any defendant was Officer Harrington’s “closed-fist
strikes” to Mr. Torres’s abdomen as the resistance continued,
after which officers were able to handcuff him. Mr. Torres
reported no injuries. Furthermore, the undisputed record
supports the defendants’ claim that the officers’ use of force
did not violate MPD policy. See supra, n.2, p. 12; Raiche v.
Pietroski, 623 F.3d 30, 37 (1st Cir. 2010) (considering Police
Department policies to determine whether level of force was
reasonable). Accordingly, the defendants are entitled to
summary judgment on this claim.
c. Assistance / Failure to Intervene
The court interpreted Mr. Torres’s complaint as alleging
Fourth Amendment violations for assisting in the violation of
his Fourth Amendment rights and for failing to intervene to stop
those violations. As the court has already found that Mr.
Torres’s Fourth Amendment claims fail as a matter of law, his
claims based on assistance and failure to intervene necessarily
fail.
d. Retaliatory Arrest
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 24 of 28

25
Mr. Torres’s claim that his arrest was retaliation for his
speaking out against the officers fails for the same reason his
claim based on his previous arrest fails. His arrest was
supported by probable cause and there are no allegations about
similarly situated individuals. See Nieves, 587 U.S. at 406. His
First Amendment retaliation claim therefore fails as a matter of
law.
Against this legal and undisputed factual backdrop, all of
the individual defendants are entitled to summary judgment on
all of Mr. Torres’s federal constitutional claims. While the
defendants’ motion relies, in part, on assertions that certain
defendants were not present for certain aspects of Mr. Torres’s
arrests, the court need not parse out this information in light
of its finding that the constitutional claims fail as a matter
of law. Similarly, having found that no constitutional violation
occurred, the court does not address defendants’ claims of
qualified immunity.
B. State Law Claims
As previously noted, the court interpreted Mr. Torres’s
complaint as asserting state common law claims against the
individual officers, the City and the MPD, as well federal
constitutional claims against City and the MPD. The court
subsequently dismissed the federal claims against the City and
MPD. February 18, 2025 R&R (Doc. No. 61), approved March 28,
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 25 of 28

26
2025. (Doc. No. 62). As the defendants correctly point out,
however, state law immunizes them against liability for state
torts.
N.H. RSA 507-B grants municipalities and municipal
employees immunity in certain circumstances. McCarthy v.
Manchester Police Dep't, 168 N.H. 202, 207-08 & n.1, 124 A.3d
686 (2015). RSA 507-B:5 provides: “No governmental unit shall be
held liable in any action to recover for bodily injury, personal
injury or property damage except as provided by this chapter or
as is provided or may be provided by other statute.” The phrase
“personal injury” is broadly defined to include “[a]ny injury to
the feelings or reputation of a natural person . . . .” RSA 507-
B:1, III(a).
The only exception within the chapter to RSA 507-B:5’s
grant of immunity is RSA 507-B:2, which provides that “[a]
governmental unit may be held liable for damages . . . arising
out of ownership, occupation, maintenance or operation of all
motor vehicles, and all premises.” RSA 507-B:2; see also
Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 698, 82 A.3d
225, 229 (2013) (“[W]e conclude that RSA 507–B:2 provides an
exception to RSA 507–B:5 only when there is a nexus between the
injury and a governmental unit's ownership, occupation,
maintenance, or operation of a motor vehicle or premises.”).
This exception has no application to the facts of this case.
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 26 of 28

27
Although RSA 507-B:5 speaks in terms of “governmental
unit[s],” another statute extends this immunity to municipal
employees and officials. N.H. RSA 507-B:4, IV; accord McCarthy,
168 N.H. at 207 n.1, 124 A.3d 686. Under RSA 507-B:4, IV, a
municipal employee has immunity on the same terms as the
municipality itself so long as the employee acted (1) within the
scope of the employee's official duties; and (2) with a
reasonable belief that her actions were lawful. Currier v. Town
of Gilmanton, 621 F. Supp. 3d 233, 249 (D.N.H. 2022). Regarding
the second prong, the employee must subjectively believe that
her conduct is lawful, and her belief must be objectively
reasonable. Farrelly v. City of Concord, 168 N.H. 430, 444, 130
A.3d 548 (2015). A belief in the lawfulness of one's conduct is
not objectively reasonable when the employee acts “recklessly or
wantonly.” Id. at 445, 130 A.3d 548.
Based on the plain language of the statute and the cases
interpreting it, RSA 507-B:5 unequivocally bars the state law
claims against the City and the MPD. Moreover, the officers
involved in the two arrests were indisputably acting within the
scope of their official duties, and there is no evidence in the
record that suggests they lacked a reasonable belief in the
lawfulness of their actions. See Hood Decl. (Doc. No. 162-2) ¶¶
37-38; Harrington Decl. (Doc. No. 162-8) ¶¶ 28-29. Accordingly,
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 27 of 28

28
all defendants are entitled to summary judgment on Mr. Torres’s
state law claims.7
CONCLUSION
Based on the foregoing, the district court should grant the
defendants’ motion for summary judgment (Doc. No. 162). If the
district judge adopts this recommendation, the Clerk’s office
should be directed to enter judgment and close the case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
to appeal the district court's order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 19, 2026
cc: Mary Macwell, pro se
7 In light of the court’s finding that immunity bars Mr.
Torres’s state law claims, the court does not address the
defendants’ remaining arguments regarding those claims.
Case 1:22-cv-00093-JL-AJ Document 190 Filed 03/19/26 Page 28 of 28