Caughey v. Snow CV-94-226-JD 07/11/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Cauqhev

v. Civil No. 94-226-JD

Robert Snow, et al.

O R D E R

This case involves a January 18, 1992, physical altercation

between the plaintiff, Richard Caughey, and the defendant, Robert

Tetrault. The defendants Robert Snow and David Roode directed

the police investigation of the incident on behalf of their

employer, the defendant the town of Bartlett (collectively the

"Bartlett defendants"). The investigation resulted in the un­

successful criminal prosecution of the plaintiff in New Hampshire

state court. The plaintiff alleges that the prosecution was

improper and that the defendants are liable under federal civil

rights law and state tort law. Before the court are Tetrault's

motion for judgment on the pleadings (document no. 19) and the

Bartlett defendants' motion for judgment on the pleadings

(document no. 18).

Discussion

In their motion the Bartlett defendants assert that they are

entitled to judgment on the pleadings for the federal claims (Counts I - IV) and the state tort claims (Counts V - V I I ) . In

his motion the defendant Tetrault asserts that he is entitled to

judgment on the pleadings for the federal claim (Count I) and the

state malicious prosecution claim (Count VIII) in which he is the

sole defendant. In response, the plaintiff argues that his

complaint contains sufficient factual averments to allow him to

go forward with both the constitutional and pendent state law

claims.

Pursuant to Fed. R. Civ. P. 12(c), a motion for judgment on

the pleadings will be granted if, accepting all of the plain­

tiff's factual averments contained in the complaint as true, and

drawing every reasonable inference helpful to the plaintiff's

cause, "it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief." Rivera-Gomez v. de Castro,

(1st Cir.

1988). The court's Rule 12(c) analysis is governed by essen­

tially the same standard used when ruling on a Rule 12(b) (6)

motion. Republic Steel Corp. v. Pennsylvania Enq'q Corp.,

(7th Cir. 1986) . In both cases, the court's

inguiry is a limited one, focusing not on "whether a plaintiff

will ultimately prevail but whether [he or she] is entitled to

offer evidence to support the claims." Scheuer v. Rhodes,

(1974) (motion to dismiss under Fed. R. Civ. P.

2 12(b) (6)) . Great specificity is not required to survive a Rule

12(c) motion. "[I]t is enough for a plaintiff to sketch an

actionable claim by means of 'a generalized statement of facts.'"

Garita Hotel Ltd. Partnership v. Ponce Fed. Bank,

(1st Cir. 1992) (quoting 5A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (1990)).

I. Constitutional Claims

The plaintiff has asserted four federal claims under

, 1988. In Count I the plaintiff asserts that each

named defendant, acting in concert, violated the constitutional

protections afforded by the Fourth, Fifth and Fourteenth

Amendments. In Counts II, III, and IV the plaintiff asserts that

the defendants individually violated the same set of

constitutional rights.1__

In their respective motions and supporting memoranda

Tetrault and the Bartlett defendants argue, inter alia, that the

plaintiff cannot proceed under Counts I - IV because he has

failed to allege conduct sufficiently egregious or conscious-

shocking as to support a cognizable section 1983 substantive due

1The plaintiff asserts Count II against defendant Roode in his individual and official capacities; Count III against defendant Snow in his individual and official capacities; and Count IV against the defendant town of Bartlett.

3 process claim based on malicious prosecution. See Tetrault's

Memorandum of Law at 5, 9 (citing Torres v. Superintendent of

Police,

(1st Cir. 1990), cert, denied, 112

S. C t . 2323 (1992)); Bartlett Defendants' Memorandum of Law at 4-

5 (also citing Torres,

). Tetrault further argues

that, even if such egregious facts were established, the Supreme

Court's recent ruling in Albright v. Oliver, 114 S. C t . 807

(1994), has foreclosed such a substantive due process claim based

on malicious prosecution. Tetrault's Memorandum of Law at 9-10.

A. Substantive Due Process

Section 1983 provides that

[e]very person who, under color of [state authority] subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in eguity, or other proper proceeding for redress.

(West 1994). "Section 1983 is not itself a

source of substantive rights, but merely provides a method for

vindicating federal rights elsewhere conferred." Albright, 114

S. C t . at 811 (citations omitted). Notwithstanding the sweeping

language of the statute, section 1983 does not provide a remedy

for a violation of every protection guaranteed by the

constitution. See i d . at 813. In Albright a plurality of the

Supreme Court held that plaintiffs cannot maintain section 1983

4 malicious prosecution claims based on a due process violation

where the conduct complained of also contravenes a liberty

interest protected by one of the "specific guarantees of the

various provisions of the Bill of Rights."

The court

reasoned that

[w]here a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Graham v. Connor,

(1989).

I d . at 813-14; see Perez-Ruiz v. Crespo-Guillen,

(1st Cir. 1994) ("Albright would appear virtually to foreclose

reliance on substantive due process as the basis for a viable

malicious prosecution claim under section 1983"); Filion v.

Bellows Falls Foods, No. 93-641-SD, slip op. at 8-10 (D.N.H. June

1, 1995) (Under Albright, section 1983 plaintiffs must rely on

Fourth Amendment and not substantive due process where alleged

deprivations of liberty related to defendants' search and

seizure); see also Aveni v. Mottola,

(2d Cir.

1994), cert, denied, 115 S. C t . 1689 (1995) (Following Graham and

Albright, "it is doubtful that any plaintiff may pursue a Fifth

Amendment substantive due process claim based on the same facts

as alleged in a Fourth Amendment unreasonable search claim.").

5 It is clear from the plaintiff's response to the defendants'

Rule 1 2 (c) motion that his constitutional claims are grounded in

alleged violations of the Fourth Amendment. See, e.g..

Plaintiff's Response to Defendant's Motion for Judgment on the

Pleadings ("Plaintiff's Response") at 5-6 ("There are two

possible 'seizures' pleaded in the Complaint which give rise to

Fourth Amendment protections."). Indeed, at one point the

plaintiff even acknowledges that a "similar claim was brought in

Albright v. Oliver, in which the [Supreme Court] . . . held that

petitioner's claim was properly adjudged under the Fourth

Amendment." I d . at 4-5. Although at times characterized as

substantive due process violations, the conduct the plaintiff

complains of is inextricably linked to the reasonableness of the

criminal investigation and his voluntary "surrender to the

State's show of authority [], a seizure for purposes of the

Fourth Amendment." Albright, 114 S. C t . at 812. The recent

Supreme Court rulings and subseguent decisions of lower courts,

supra, compel the court to view the plaintiff's constitutional

claims through a "Fourth Amendment lens" and not under the more

generalized notions of substantive due process protected by the

Fifth and Fourteenth Amendments. Albright, 114 S. C t . at 814

(Ginsburg, J., concurring).

6 B. Search and Seizure

The plaintiff asserts that the defendants violated the

Fourth Amendment proscription against unreasonable seizures when

they ordered him to surrender on January 19 , 1992. Plaintiff's

Response at 6. The plaintiff also asserts that his subsequent

indictment and summons to appear for trial constituted an

unconstitutional seizure. I d . at 7.

The Fourth Amendment

entitles an individual to "the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Terry v. Ohio,

(1968) .

Veiga v. McGee,

(1st Cir. 1994). The Fourth

Amendment governs "all seizures of the person, including seizures

that involve only a brief detention short of traditional arrest."

United States v. Mendenhall,

(1980) (quotation

omitted); Beverly C. v. Hampstead Outlook, Inc., No. 93-307-L,

slip op. at 6-7 (D.N.H. July 12, 1994) . However, the amendment's

protections do not extend to each situation in which an

individual has contact with the police as a person is only

considered to have been "seized" where, under the totality of the

circumstances, a reasonable person would have believed that he

was not free to leave. E.g., Mendenhall,

.

Finally, "[s]eizure alone is not enough for § 1983 liability; the

7 seizure must be unreasonable." Brower v. County of Inyo, 109 S.

C t . 1378, 1382 (1989) .

The plaintiff has alleged that Tetrault and the Bartlett

defendants engaged in a variety of improper conduct relative to

the investigation of the January 18, 1992, melee at the Red Parka

Pub. E.g., Complaint at 55 20, 23 (Tetrault lied to police

during initial investigation); 5 29 (Bartlett defendants

coordinated police investigation with Tetrault's private attorney

and investigator); 5 30 (Bartlett defendant Roode erroneously

told plaintiff and plaintiff's former spouse that plaintiff had

mortally wounded Tetrault); 55 31, 39 (Bartlett defendants

avoided consideration of potentially exculpatory evidence by

refusing to investigate Tetrault and by refusing to interview

certain eyewitness). The plaintiff asserts that this wrongful

conduct resulted in his forced surrender to the Bartlett Police

on January 19, 1992, at which time the plaintiff was read his

Miranda rights.

The court finds that these factual allegations adeguately

sketch an actionable section 1983 claim based on a violation of

the Fourth Amendment. The plaintiff has alleged events which, if

proven, indicate that a reasonable person may have believed that

he was not free to leave the Bartlett police station on January

18, 1992. The fact that defendant Roode read the Miranda rights further suggests that the plaintiff was seized within the meaning

of the Fourth Amendment.2 Moreover, the complaint also contains

sufficient allegations of intentional wrongdoing on the part of

Tetrault and the Bartlett defendants to support a finding that

the investigation was conducted in such bad faith that any

resulting seizures were unreasonable. Accordingly, the court

finds that the claims advanced in Counts I through IV survive the

instant motion for a judgment on the pleadings to the extent they

are grounded in violations of the Fourth Amendment proscription

against unreasonable searches and seizures. To the extent the

claims allege a violation of substantive due process under the

Fourteenth Amendment they are dismissed.

II. State Tort Claims Against Bartlett Defendants

In Counts V, VI, and VII the plaintiff asserts common law

tort claims against the Bartlett defendants.3 Each count alleges

that the named defendant "negligently and/or recklessly caused

Mr. Caughey to be prosecuted, to suffer loss of property, and to

2Civen the ruling, supra, that the plaintiff's voluntary surrender may constitute a "seizure" for purposes of avoiding dismissal on the pleadings, the court need not consider whether the indictment and court summons would also satisfy this element of the prima facie section 1983/Fourth Amendment claim.

31he plaintiff asserts Count V against the defendant Snow; Count VI against the defendant Roode; and Count VII against the defendant Town of Bartlett. suffer significant anxiety, anguish, humiliation and expense

. . . ." Complaint at 55 65 - 67.

In their motion, the Bartlett defendants argue that the

plaintiff's state-law claims seek recovery for negligent

prosecution, a cause of action not recognized by New Hampshire

law. Bartlett Defendants' Memorandum of Law at 6 - 8

("Obviously, if there is no state tort for malicious prosecution

by public officials, then there cannot be a state tort for

'negligent' prosecutions.") (citing State v. Rollins,

,

(1987)). The plaintiff responds that Counts V,

VI, and VII advance two cognizable state law claims in that they

allege liability for negligence and for malicious prosecution.

Plaintiff's Memorandum of Law at 19.

A. Negligence

Under New Hampshire law a party seeking to recover for

negligence "must show that there exists a duty, whose breach by

the defendant causes the injury for which the plaintiff seeks to

recover." Goodwin v. James,

,

(1991) (guotations omitted); see Rounds v. Standex Int'l,

,

(1988). Moreover, the existence

and extent of a duty of care between the parties depends in part

on what risks are reasonably foreseeable from the allegedly

tortious conduct. E.g., Goodwin,

,

507 (citing McLaughlin v. Sullivan,

,

(1983)). "The test of due care is what reasonable

prudence would require under similar circumstances." Weldv v.

Town of Kingston,

,

(1986). New Hampshire plaintiffs may predicate a lawsuit on the

negligent breach of a police officer's duty of due care to

members of the public. See i d . at 331,

.4

The plaintiff has alleged a variety of facts which,

depending on how the record develops, indicate that he may be

able to make out a prima facie negligence action in each of the

three common-law counts asserted against the Bartlett defendants.

Moreover, the allegations concerning the violation of key police

procedures, such as the selective inclusion of information on the

police report and the improper dissemination of confidential

investigative materials to private attorneys contemplating civil

action, could also support a finding that one or more of the

Bartlett defendants breached a duty of care. Finally, the

plaintiff has adequately alleged a loss of property and personal

4The First Circuit has noted that in the context of a police investigation, an "initial finding of probable cause justifies not only arrest but a reasonable period of continued detention . . . ." Thompson v. Olson,

(1st Cir. 1986), cert, denied, 107 S. C t . 1354 (1987). However, a finding of probable cause to arrest does not necessarily place a police officer's conduct beyond the scope of a negligence lawsuit as "[p]robable cause does not suspend an officer's continuing obligation to act reasonably."

11 suffering which, if proven, could support a jury finding that the

defendants' conduct proximately caused a cognizable harm.

In light of the factual allegations included in the

complaint, the court finds that the plaintiff is entitled to move

forward and offer evidence in support of Counts V, VI, and VII to

the extent they are advanced under a common-law negligence

theory.

B. Malicious Prosecution

The plaintiff also asserts that Counts V, VI, and VII

constitute viable state-law claims for malicious prosecution.

Plaintiff's Memorandum of Law at 19.

The Bartlett defendants have correctly noted that "a

malicious prosecution claim against a public official in

performance of their public duty is not cognizable under New

Hampshire law." Tupick v. Gorham, 93-475-JD, slip op. at 16

(D.N.H. Oct. 13, 1995).

This jurisdiction recognizes the tort of malicious prosecution . . . . Since this rule of liability is generally understood to have no application "to public officials charged with the enforcement of the criminal law in their performance of their public duty", it is difficult to see what would be left of the cause of action if the [defendants] were to have absolute immunity.

Goss v. Hesler, No. 90-426-SD, slip op. at 15 (D.N.H. July 16,

1991) (guoting State v. Rollins,

,

(1987) ) .

12 The issue of governmental immunity has been raised by the

defendants but not briefed with specificity. The magistrate

judge's August 5, 1994, order indicates that this defense will be

advanced in the context of a motion for summary judgment.

Cauqhev v. Snow, No. 94-226-JD, pretrial order at 3 (D.N.H. Aug.

5, 1994). Because the viability of Counts V, VI, and VII as

state-law claims for malicious prosecution is inextricably linked

to the guestion of whether the defendants are entitled to

immunity, the court denies the motion without prejudice to renew

in the context of a motion under Rule 56.

III. State Tort Claim Against Tetrault

In Count VIII the plaintiff asserts a common law tort claim

for malicious prosecution against Tetrault. In his motion

Tetrault asserts that the plaintiff has not alleged and cannot

prove facts to support each element of the claim. Tetrault's

Memorandum of Law at 12.

In New Hampshire,

[t]o succeed in an action for malicious prosecution, the "plaintiff must prove that he was subjected to a criminal prosecution instituted by the defendant without probable cause and with malice, and that the criminal proceeding terminated in his favor."

Hogan v. Robert H. Irwin Motors, Inc.,

,

(1981) (guoting Stock v. Byers,

,

13 845,

(1980)); see Restatement (Second) of

Torts, § 653 (1977).

In the context of malicious prosecution claims advanced

under section 1983, courts have acknowledged that indictment by a

grand jury may insulate a defendant from liability.

[I]f the facts supporting the warrant or the indictment are put before an impartial intermediary such as a magistrate or grand jury, . . . the intermediary's independent decision breaks the causal chain and insulates the initiating party.

Hand v. Gary,

(5th Cir. 1988); see Tavlor v.

Gregg,

(5th Cir. 1994) (citing cases).

However, the grand jury's finding of probable cause to indict

does not bar an action for malicious prosecution in those cases

where the "malicious motive of the law enforcement officials

[results in the] withold[ing of] relevant information from the

independent intermediary." Hand,

; see Goodwin

v. Metts,

(4th Cir. 1989) ("a prosecutor's

decision to charge, a grand jury's decision to indict, a

prosecutor's decision not to drop charges but proceed to trial --

none of these decisions will shield a police officer who

deliberately supplied misleading information that influenced the

decision" to arrest) (guoting Jones v. City of Chicago,

(7th Cir. 1988)).

14 The plaintiff has included in the complaint allegations

which, if later proven, could support each one of the elements of

this tort. First, there appears to be no dispute that the

plaintiff was prosecuted and ultimately acquitted for his conduct

relative to the altercation with Tetrault. Second, the plaintiff

has set forth a variety of allegations concerning Tetrault's

involvement in the initiation and maintenance of those criminal

charges. For example, Tetrault directed his attorney and a

private investigator to collaborate with the Bartlett defendants

in order to bring criminal and civil charges against the

plaintiff. Third, the plaintiff has set forth facts which raise

doubt about the existence of probable cause for his prosecution

and further suggest that Tetrault acted with malice.

Specifically, the allegations that Tetrault, intoxicated and

vindicative from a prior altercation, initiated the incident with

threatening language and conduct indicates that the plaintiff may

have acted reasonably and legally by striking in self-defense,

thus vitiating any assertion that probable cause existed for his

prosecution. Likewise, the deeply acrimonious relationship

between Tetrault and the plaintiff, coupled with the allegations

that Tetrault actively participated in the bringing of criminal

charges, if substantiated, could satisfy the lack of probable

cause and malice elements of the tort. Finally, Tetrault's

15 conduct, along with that of his attorney, may have caused the

prosecution to withold relevant evidence and potentially

exculpatory evidence from the grand jury which indicted the

plaintiff.

The court finds that Count VII adeguately sketches an

actionable malicious prosecution claim under New Hampshire law.

Conclusion

The court's Rule 12(c) inguiry reveals that the plaintiff is

entitled to offer evidence in support of at least one claim

asserted in each of his counts. Accordingly, the motions of the

Bartlett defendants (document no. 18) and of Tetrault (document

no. 19) for judgment on the pleadings are denied.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge July 11, 1995

cc: Andrew L. Isaac, Esguire Robert E. McDaniel, Esguire Peter G. Beeson, Esguire

16