Traudt v. Lebanon Police Department, City of Lebanon et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott Traudt
v. Civil No. 23-cv-500-LM-TSM
Opinion No. 2026 DNH 087 P
Lebanon Police Department et al
O R D E R
Plaintiff Scott Traudt brings this action against several current and former
police officers for the City of Lebanon, as well as the City and its police department.
The gravamen of Traudt’s complaint is that the defendants unlawfully failed to
disclose police disciplinary records prior to Traudt’s state court criminal trial.
Presently before the court is Officer Richard Smolenski’s motion for judgment on
the pleadings. Doc. no. 25. Traudt objects. Doc. no. 27. For the following reasons,
Officer Smolenski’s motion (doc. no. 25) is granted in part and denied in part.
STANDARD OF REVIEW
“The standard of review of a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) is the same as that for a motion to dismiss
under Rule 12(b)(6),” Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96
(1st Cir. 2014) (quoting Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)),
with the exception that the court considers the defendant’s answer as well as the
plaintiff’s complaint, Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir.
2006). “Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of contested
facts; rather, a court may enter judgment on the pleadings only if the uncontested
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and properly considered facts conclusively establish the movant’s entitlement to a
favorable judgment.” Id. at 54. The court must accept the factual allegations in the
complaint as true, construe reasonable inferences in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Ortolano v. City of Nashua, 680
F. Supp. 3d 70, 76 (D.N.H. 2023) (quoting Foley v. Wells Fargo Bank, N.A., 772 F.3d
63, 71, 75 (1st Cir. 2014)). In addition, the court may consider matters susceptible to
judicial notice, such as public records in other judicial proceedings. See id. at 75. A
claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Analyzing
plausibility is “a context-specific task” in which the court relies on its “judicial
experience and common sense.” Id. at 679.
BACKGROUND1
Traudt and his wife Victoria were stopped at a traffic light in Lebanon in the
early morning hours of January 14, 2007. Victoria (the driver) signaled her
intention to turn right, then did so. Officer Phillip Roberts stopped the car, claiming
that Victoria ran the red light. Victoria gave Officer Roberts her license but could
not initially find her registration. While Victoria looked for her registration, Officer
Roberts returned to his cruiser with Victoria’s license. Victoria found her
1 The following well-pled facts are alleged in Traudt’s complaint (doc. no. 1).
They are assumed to be true for purposes of this order.
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registration and got out of the car to give it to Officer Roberts. While at the cruiser,
Officer Roberts questioned Victoria about what she had been doing earlier in the
evening. Victoria acknowledged that she had had a few drinks. Officer Roberts
asked Victoria to perform field sobriety tests, and Victoria agreed.
While Officer Roberts was speaking with Victoria near his cruiser, Officer
Smolenski arrived. Traudt exited the passenger seat of the car when the field
sobriety tests began, asking if Victoria was okay. Although Traudt remained by the
passenger door of his vehicle, Officer Smolenski began yelling at Traudt and
demanded he get back in the car. When Traudt did not immediately get back in the
car, Officers Smolenski and Roberts approached him. The officers grabbed Traudt
and forced him to the ground. According to Traudt, the officers repeatedly punched
him and shoved his face into the ground. He alleges they choked him, pepper-
sprayed him, struck him with their batons, and dragged him to their cruiser. The
officers’ actions left Traudt with severe injuries.
Traudt was ultimately charged with two counts of assault on a police officer
in violation of RSA 631:2-a and 651:6(g), as well as one count of disorderly conduct
in violation of RSA 644:2, II(d). The interaction between Traudt and the officers was
not recorded. Thus, Traudt’s state court criminal trial in Grafton County Superior
Court was essentially a “he-said, he-said”; Traudt claimed the officers attacked him
without provocation or justification, while the officers claimed the opposite. The
case therefore turned on the credibility of the officers’ testimony.
Traudt requested the officers’ disciplinary records prior to trial, but the State
provided no records. Traudt alleges that Officer Smolenski was aware of Traudt’s
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records request and that Officer Smolenski denied that any such records existed.
Doc. no. 1 ¶¶ 36-37. At trial, the prosecutor highlighted the officers’ credibility by
pointing to the lack of any evidence that the arresting officers had disciplinary
records. The jury convicted Traudt of one of the assault charges as well as the
disorderly conduct charge. The trial court sentenced him to a term of imprisonment
of one-to-three years, and the New Hampshire Supreme Court upheld his conviction
on appeal.
In January 2010, Traudt filed a pro se civil rights action in this court against
Officer Smolenski and others, seeking damages for the injuries allegedly caused by
the officers and for violations of his civil rights. See Traudt v. Roberts, Civ. No. 10-
cv-12-JL (D.N.H. Jan. 12, 2010) [hereinafter “First Federal Lawsuit”] (doc. no. 1).
The court granted the defendants’ motion for summary judgment in 2013. See
Traudt v. Roberts, Civ. No. 10-cv-12-JL, 2013 WL 3754862, at *1-2 (D.N.H. July 15,
2013).
During discovery, however, Traudt learned for the first time that Officer
Smolenski had been disciplined by the Lebanon Police Department in 2006, prior to
plaintiff’s arrest. Defendants did not disclose these records to Traudt; instead, they
filed a motion requesting that the court conduct an in camera review of Smolenski’s
records and order that they were not relevant to any of Traudt’s claims in the First
Federal Lawsuit and therefore not discoverable under the Federal Rules of Civil
Procedure. See Traudt v. Roberts, Civ. No. 10-cv-12-JL, 2013 WL 3712437, at *5
(D.N.H. July 12, 2013). Defendants also requested a determination from the court
that the records were not subject to disclosure under State v. Laurie and its
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progeny. See id.; see also State v. Laurie, 139 N.H. 325 (1995). Following an in
camera review, the court ruled that Officer Smolenski’s records were not
discoverable. Traudt, 2013 WL 3712437, at *6. However, the court declined to
resolve whether the records were subject to disclosure under Laurie. Id.
Traudt thereafter attempted unsuccessfully for several years to obtain
information regarding Officer Smolenski’s disciplinary records. He filed a pro se
petition for a writ of habeas corpus in this court, but the court denied Traudt’s
petition because he was no longer in custody. See Traudt v. N.H. Att’y Gen., Civ.
No. 13-cv-234-PB (D.N.H. Mar. 24, 2014) (doc. no. 11). He also sought relief in New
Hampshire state court. Traudt finally received details regarding Officer Smolenski’s
records in 2021 after the New Hampshire Supreme Court issued its decision in
Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325 (2020), which held
that police disciplinary records are not categorically exempt from disclosure under
New Hampshire’s “Right-to-Know” law, RSA ch. 91-A.2
Officer Smolenski’s records showed that he had been disciplined for engaging
in an extramarital affair and for handling a harassment complaint that his
paramour filed against an unrelated third party. This gave the appearance that
Officer Smolenski was not impartially investigating the harassment complaint but
would instead impermissibly favor the complainant. The records also showed that
Officer Smolenski had been emailing his affair-partner from the police station using
2 Traudt was also able to obtain Officer Roberts’ disciplinary records after the
Seacoast Newspapers decision. Officer Roberts’ records showed that he had been
accused of assaulting an animal control officer in Vermont while employed as a
Lebanon Police Officer.
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City resources regarding matters that were “not [of] a work nature,” and that he
met with her while on duty approximately a dozen times. Doc. no. 1 at 9. The
investigation into Officer Smolenski’s misconduct resulted in a finding that he had
engaged in “conduct unbecoming an officer,” as well as a suspension without pay
and being placed on probationary status after returning to work.
Traudt thereafter filed a petition for a writ of coram nobis in Superior Court,
seeking vacatur of his convictions on the basis of the State’s failure to disclose
Officer Smolenski’s disciplinary records. See generally Hart v. Warden, N.H. State
Prison, 171 N.H. 709, 716-19 (2019) (discussing availability of writs of coram nobis).
In January 2023, the Superior Court granted Traudt’s petition and vacated his
convictions. The Court held that, “[a]t the very least, the information should have
been disclosed to [Traudt] because, given [that his theory] of the case was that the
officers involved were renegade police officers and were not credible, the evidence of
Smolenski’s investigation and discipline would have been relevant to that defense
or otherwise used as impeachment evidence.” Doc. no. 1 at 12. The State later
dismissed (or “nolle prossed”) the charges.
Traudt commenced the instant suit against Officer Smolenski and others in
November 2023. Following the court’s prior orders (doc. nos. 16 & 23), the following
claims remain against Officer Smolenski:
• Counts I and II: Traudt alleges that Officer Smolenski
violated his rights to due process rights under the Fifth
and Fourteenth Amendments as set forth in Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny by failing
to disclose Officer Smolenski’s disciplinary records in
advance of Traudt’s criminal trial; and
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• Count IV: Officer Smolenski’s failure to disclose his
disciplinary records in advance of trial constitutes
negligence under New Hampshire common law.
DISCUSSION
Officer Smolenski moves for judgment on the pleadings with respect to all of
Traudt’s claims against him. The court first considers Officer Smolenski’s
arguments regarding the Brady claims before briefly addressing the plausibility of
Traudt’s negligence claim.
I. Brady
Officer Smolenski seeks judgment on the pleadings regarding Traudt’s Brady
claims on several grounds. First, he asserts that they are untimely. Second, he
contends that Traudt fails to plausibly allege that Officer Smolenski violated
Traudt’s constitutional rights. Third, he argues that, even if Traudt states a
plausible Brady claim, he is entitled to qualified immunity. The court will consider
each contention in turn.
A. Timeliness
The statute of limitations is an affirmative defense. Oullette v. Beaupre, 977
F.3d 127, 135 (1st Cir. 2020). Ordinarily, a motion to dismiss under Rule 12(b)(6) (or
for judgment on the pleadings under Rule 12(c)) tests the sufficiency of a plaintiff’s
claims and “a complaint need not anticipate or overcome affirmative defenses.”
Urena v. Travelers Cas. & Sur. Co. of Am., 714 F. Supp. 3d 31, 39 (D.N.H. 2024)
(quoting Schmidt v. Soklas, 770 F.3d 241, 248 (3d Cir. 2014)). The court may
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dismiss a plaintiff’s claims on affirmative-defense grounds only when the plaintiff
“‘affirmatively plead[s] himself out of court’ by alleging ‘everything necessary to
satisfy the affirmative defense.’” Id. (quoting Hyson USA, Inc. v. Hyson 2U, Ltd.,
821 F.3d 935, 939 (7th Cir. 2016)). This is a demanding standard: a 12(b)(6) or 12(c)
motion premised upon an affirmative defense must be denied when the complaint’s
allegations “leave open the possibility” that the defense may not apply. Id.
The limitations period that governs a plaintiff’s § 1983 action is the
limitations period for general personal injury actions in the state in which the
alleged constitutional violation occurred. Oullette, 977 F.3d at 135. In New
Hampshire, that limitations period is three years. RSA 508:4. However, while
§ 1983 borrows its limitations period from state law, “the accrual date of a § 1983
cause of action is a question of federal law that is not resolved by reference to state
law.” Oullette, 977 F.3d at 135 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).
“Under federal law, a § 1983 claim accrues when the putative ‘plaintiff has a
complete and present cause of action, that is, when the plaintiff can file suit and
obtain relief.’” Id. (ellipsis omitted) (quoting Wallace, 549 U.S. at 388). In Heck v.
Humphrey, the Supreme Court held that, where a § 1983 plaintiff seeks relief for
“harm caused by actions whose unlawfulness would render a conviction or sentence
invalid, [the] plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). In other words, a § 1983 claim that necessarily implies the invalidity of a
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criminal conviction or sentence does not accrue until that conviction or sentence has
been vacated. Id. at 489-90. “Brady-based § 1983 claims necessarily imply the
invalidity of the challenged conviction in the trial (or plea) in which the Brady
violation occurred.” Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014)
(emphasis omitted); accord, e.g., Barone v. United States, Civ. No. 06-11923-RWZ,
2008 WL 11388577, at *3-4 (D. Mass. Sept. 25, 2008). “That should come as no
surprise; the remedy for a Brady violation is vacatur of the judgment of conviction
and a new trial in which the defendant now has the Brady material available to
her.” Poventud, 750 F.3d at 133 (emphasis omitted).
Here, Traudt’s Brady claims did not accrue until his convictions were vacated
in January 2023. He filed this action in November 2023, well within the applicable
three-year limitations period. In seeking dismissal on timeliness grounds, Officer
Smolenski does not meaningfully dispute Heck’s applicability to this case. Instead,
he asserts that it is unfair that Heck allows Traudt to “sit on his claims.” Doc. no. 28
at 1. The court disagrees that Heck permits Traudt to pursue “stale claims.” Id.
Rather, Traudt did not have a Brady claim until his conviction was vacated; there
was no claim in existence that he could have “sat on” before that point. See Heck,
512 U.S. at 489 (explaining that Heck rule “den[ies] the existence of a cause of
action” until conviction is vacated; “the § 1983 claim has not yet arisen” prior to
vacatur). While Officer Smolenski complains that Heck permits Traudt to pursue
relief on the basis of an alleged unlawful conviction that occurred many years ago,
this court is not free to disregard Heck’s clear rule.
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B. Plausibility
Under Brady v. Maryland and its progeny, the failure to disclose evidence
that is material and favorable to a criminal defendant violates due process.
Drumgold v. Callahan, 707 F.3d 28, 38 (1st Cir. 2013). “[T]his affirmative disclosure
obligation . . . encompasses evidence known only to law enforcement officers and not
to prosecutors.” Id. While law enforcement officers need not disclose Brady material
to defendants directly, “law enforcement officers have a . . . duty to turn over to the
prosecutor any material evidence that is favorable to a defendant.” Id. The officer’s
nondisclosure need not have been done in bad faith; Brady imposes a “no-fault
standard of care.” Id. (quoting Porter v. White, 483 F.3d 1294, 1305 (11th Cir.
2007)). Thus, where an officer is aware of evidence that is material and favorable to
a criminal defendant but fails to disclose that evidence to the prosecutor, the officer
violates Brady. See id.
The undisclosed evidence must be (1) favorable and (2) material. Id.
“Evidence is favorable to a defendant if it is either exculpatory or impeaching in
nature.” Id. “Evidence is material if there is a ‘reasonable probability’ that, had it
been disclosed, the result of the proceeding would have been different.” Id. at 38-39
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). To establish
materiality, the defendant need not show “by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the defendant’s acquittal.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995); see also United States v. Avilés-Colón,
536 F.3d 1, 20 (1st Cir. 2008) (“There is a meaningful difference between the burden
of establishing the likelihood of a different result at a new trial and the burden of
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establishing a reasonable probability of a different outcome.”). Rather, evidence is
material if its suppression “undermines confidence in the outcome of the trial.”
Bagley, 473 U.S. at 678; see also Kyles, 514 U.S. at 434 (“The question is not
whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.”).
When assessing the materiality of impeachment evidence, courts must
consider “the effect of its suppression in the context of the entire record.” Conley v.
United States, 415 F.3d 183, 189 (1st Cir. 2005). For example, the materiality of
suppressed impeachment evidence is heightened when the witness to whom the
evidence pertains is “essential to the conviction.” Id. “The Supreme Court . . . has
found Brady violations where the Government failed to disclose impeachment
evidence that could have been used to impugn the credibility of the Government’s
‘key witness.’” Id. (citing Giglio v. United States, 405 U.S. 150, 154-55 (1972)).
Turning to the facts of this case, Officer Smolenski’s attack on the plausibility
of Traudt’s Brady claims is two-pronged. First, he asserts that any constitutional
obligation to disclose his disciplinary records belonged not to him but his
supervisors and the prosecutor. That argument is a nonstarter. The law is clear
that officers have an affirmative obligation to disclose to the prosecutor known
evidence that is favorable and material. E.g., Brady v. Dill, 187 F.3d 104, 114 (1st
Cir. 1999) (explaining that an officer may violate Brady “if he fails to apprise the
prosecutor . . . of known exculpatory information”); see also Moldowan v. City of
Warren, 578 F.3d 351, 381 (6th Cir. 2009) (collecting cases). The existence of this
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obligation is not triggered by a request from an officer’s supervisor or from a
prosecutor to disclose any evidence in the officer’s possession. Drumgold, 707 F.3d
at 38 (pointing out that officers have an “affirmative . . . obligation” to disclose
Brady material). Officer Smolenski is correct that Brady does not require the officer
to disclose such evidence directly to the criminal defendant. Id. However, construing
the allegations of the complaint in the light most favorable to Traudt and drawing
all reasonable inferences in his favor, the complaint plausibly alleges that Officer
Smolenski was aware of his own disciplinary records and that he failed to disclose
them to the prosecutor (who relied on the lack of any disciplinary record in her
closing argument). Assuming those records are favorable and material, Brady
obligated him to do so.
Officer Smolenski next contends that Traudt has failed to plausibly allege
facts which permit the inference that his disciplinary records were material.3
Construing the complaint’s factual allegations in the light most favorable to Traudt
and drawing all reasonable inferences in his favor, the court disagrees. The
complaint alleges that Traudt and Officer Smolenski presented starkly different
accounts of what transpired the night of Traudt’s arrest. Traudt alleged that the
3 Officer Smolenski also asserts in passing that the court’s order in the First
Federal Action concluding that the records were not discoverable has res judicata
effect on the Brady materiality question in this case. However, Officer Smolenski’s
assertion is insufficiently developed, and the court declines to construct his res
judicata argument for him. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to do counsel’s work
. . . .” (citations omitted)).
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officers brutally assaulted him when he inquired regarding his wife’s wellbeing,
while the officers claimed that Traudt was the assailant. The result of Traudt’s trial
therefore turned on whom the jury found believable. Officer Smolenski’s
disciplinary records showed that he had been suspended and placed on probation for
misusing his position to secure protection for a woman with whom he was having an
extramarital affair, and that he was using police resources to communicate with his
paramour regarding matters that were “not of a work nature.” As the Superior
Court recognized in its order vacating Traudt’s conviction, Traudt could have
attempted to use these records on cross-examination to attack Officer Smolenski’s
credibility and in support of Traudt’s defense that the officers were misusing their
official positions to assault Traudt without any justification.
Nor can the court ignore that the State’s closing argument specifically
highlighted the lack of evidence that Officer Smolenski had any history of
discipline. Even assuming Traudt could not have impeached Officer Smolenski with
the disciplinary records prior to the State’s closing argument, certainly the State’s
reliance on the lack of evidence that Officer Smolenski had any disciplinary records
could have opened the door to admission of those records as a matter of
fundamental fairness. See State v. Roman, 176 N.H. 367, 371 (2023) (explaining
that otherwise inadmissible evidence may be introduced when the other party
“creates a misleading advantage”). The disclosure of that evidence would also have
provided a basis for Traudt to object to the State’s closing argument.
Construing the allegations in the light most favorable to Traudt and drawing
all reasonable inferences in his favor, he has plausibly alleged facts which permit
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the court to reasonably conclude at this early stage that the failure to disclose
Officer Smolenski’s disciplinary records undermines confidence in the outcome of
his trial.
C. Qualified Immunity
Qualified immunity is a judicially created doctrine that often prevents
plaintiffs in § 1983 actions from holding police officers civilly liable for violating
their constitutional rights. Drumgold, 707 F.3d at 42. Under this doctrine, police
officers are immune from liability for violating a plaintiff’s constitutional rights
unless “the right was clearly established at the time of the violation.” Id. In
assessing whether the right at-issue was clearly established, a court asks both “(a)
whether the legal contours of the right in question were sufficiently clear that a
reasonable officer would have understood that what he was doing violated the right,
and (b) whether in the particular factual context of the case, a reasonable officer
would have understood that his conduct violated the right.” Mlodzinski v. Lewis,
648 F.3d 24, 32-33 (1st Cir. 2011).
Qualified immunity is not merely a defense to liability, but an immunity from
suit. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has
therefore “stressed the importance” of resolving qualified immunity as soon as
possible so as “to ensure that ‘insubstantial claims against government officials will
be resolved prior to discovery.’” Id. at 231-32 (brackets omitted) (first quoting
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam), and then quoting
Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). At the same time, when
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qualified immunity is raised at the Rule 12 stage or at summary judgment, the
court must assess the immunity’s applicability through the prism of the standard of
review that pertains to such motions. Morelli v. Webster, 552 F.3d 12, 18-19 (1st
Cir. 2009); see also Jakuttis v. Town of Dracut, 656 F. Supp. 3d 302, 318 (D. Mass.
2023) (“[C]ourts must maintain a balance between a defendant-official’s interest in
the early dismissal of claims as to which he is immune, and a plaintiff’s interest in
benefiting from the favorable standards afforded to him on a motion to dismiss or a
motion for summary judgment.”), aff’d in part and remanded in part on other
grounds, 95 F.4th 22 (1st Cir. 2024).
Oftentimes, “advancing qualified immunity as grounds for a motion to
dismiss is . . . a procedural mismatch,” as the court “will often lack the ‘robust
factual record’ it needs to decide whether an official is entitled to qualified
immunity at this stage.” Jakuttis, 656 F. Supp. 3d at 318-19 (first quoting
Chamberlain ex rel. Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir.
2020), then quoting Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018)). In other
words, a court faced with a qualified immunity analysis at the Rule 12 stage must
still assume the truth of the complaint’s well-pled factual allegations, construe
those allegations in the light most favorable to the plaintiff, and draw all reasonable
inferences in the plaintiff’s favor. See Morelli, 552 F.3d at 18-19. A court may
dismiss a plaintiff’s claim on qualified immunity grounds “when it is clear on the
face of the complaint, accepting all of the plaintiff’s well-pleaded factual allegations,
that either the right allegedly violated was not clearly established or the
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defendant’s alleged actions were objectively reasonable under the circumstances.”
Jakuttis, 656 F. Supp. 3d at 319.
Accepting the complaint’s factual allegations as true and drawing all
reasonable inferences in Traudt’s favor, the court finds at this early juncture that
Traudt has plausibly alleged that Officer Smolenski’s failure to disclose his
disciplinary record to the prosecutor was objectively unreasonable and in violation
of Traudt’s clearly established constitutional rights. By the time of Traudt’s state-
court criminal trial,4 it was clearly established that police officers have an
affirmative obligation to disclose to the prosecutor material impeachment evidence
regarding one of the State’s key witnesses. Moldowan, 578 F.3d at 381 (collecting
cases); accord, e.g., Dill, 187 F.3d at 114. Moreover, the complaint alleges that
Officer Smolenski was aware of Traudt’s request for his disciplinary records but
declined to provide them to the prosecutor. In light of the prosecutor’s closing
argument highlighting the lack of any disciplinary marks on Officer Smolenski’s
records, the court agrees with Traudt that it is reasonable to infer that the
prosecutor specifically inquired regarding Officer Smolenski’s disciplinary records,
and yet Officer Smolenski denied the existence of any such records. “[T]he law was
firmly settled at the time of [Traudt’s] criminal trial that a law enforcement officer
may not deliberately suppress material evidence that is favorable to a defendant.”
Drumgold, 707 F.3d at 43.
4 The precise date of Traudt’s trial is not clear from the complaint. He alleges
that he was arrested in January 2007, and released from prison in or about January
2010.
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Officer Smolenski protests that New Hampshire has established a database
for the uniform recording and disclosure to criminal defendants of information
regarding investigating officers’ credibility issues, that the decision to include a
particular officer’s disciplinary history in that database is not made by the officer
but by his supervisors, and that Officer Smolenski’s disciplinary records were not
(and still are not) included in that database. Officer Smolenski asserts that it was
objectively reasonable for him to rely on his supervisors’ determination that his
disciplinary record did not merit disclosure. However, Officer Smolenski’s factual
assertions are outside the four corners of the pleadings, and he fails to demonstrate
that the court may appropriately consider his factual contentions at this early
stage. See Jakuttis, 656 F. Supp. 3d at 318 (where resolution of qualified immunity
defense relies on “the objective reasonableness of a defendant’s conduct, based on
the information in the defendant’s possession at the time, . . . [f]actual disputes or
undeveloped facts relevant to qualified immunity may preclude an early decision in
such cases”). Officer Smolenski’s qualified immunity defense is more appropriately
addressed at summary judgment after the parties have had an opportunity to
develop the factual record; he may renew his qualified immunity defense at that
point.
For these reasons, the court cannot conclude at this early stage that Officer
Smolenski is immune from liability for the Brady violation Traudt has plausibly
alleged.
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II. Negligence
In addition to his Brady claims, Traudt asserts that Officer Smolenski’s
failure to disclose his disciplinary records constitutes negligence under New
Hampshire common law. Officer Smolenski contends that Traudt fails to allege a
plausible negligence claim. In his objection to Officer Smolenski’s Rule 12 motion,
Traudt failed to respond to Officer Smolenski’s argument regarding his negligence
claim.
To prevail on a negligence claim under New Hampshire law, the plaintiff
must show that: (1) the defendant owed him a duty; (2) the defendant breached that
duty; and (3) the breach proximately caused plaintiff’s injury. Coan v. N.H. Dep’t of
Env’t Servs., 161 N.H. 1, 7 (2010). “Whether a duty exists in a particular case is a
question of law.” Id. at 8.
Officer Smolenski contends that Traudt cannot show the existence of any
duty under New Hampshire common law for police officers to provide criminal
defendants or prosecutors with material impeachment evidence. The court is not
aware of any such duty under New Hampshire common law, and Traudt cites no
authorities—in New Hampshire or elsewhere—that support the existence of such a
duty. To the extent Traudt seeks an extension of New Hampshire common law,
“[f]ederal courts are not free to extend the reach of state law.” Doe v. Trs. of Bos.
Coll., 942 F.3d 527, 535 (1st Cir. 2019). For these reasons, the court finds that
Traudt has not alleged a plausible negligence claim against Officer Smolenski.
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CONCLUSION
Officer Smolenski’s motion for judgment on the pleadings (doc. no. 25) is
granted as to Traudt’s negligence claim (Count IV) but denied as to his Brady
claims (Counts I & II). The only claims remaining against Officer Smolenski are
Counts I & II.
SO ORDERED.
_______________________
Landya McCafferty
United States District Judge
June 30, 2026
cc: Counsel of Record
Case 1:23-cv-00500-LM-TSM Document 30 Filed 06/30/26 Page 19 of 19