Breen v. Salem, NH CV-95-439-M 09/25/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Martha Breen and Kevin J. Breen, Plaintiffs,

v. Civil No. 95-439-M

Fred A. Rheault; Mark F. Cavanaugh; Richard Dunn; Alan Gould; James E. Ross; Barry M. Brenner; and the Town of Salem, New Hampshire, Defendants.

O R D E R

Though plaintiffs' complaint seems to assert multiple causes

of action, this is basically a civil rights case, brought under

. Plaintiffs seek redress for an alleged

violation of Kevin Breen's right under the Fourth Amendment not

to be arrested except upon probable cause, and assert various

state law causes of action as well. All the named defendants

have moved for summary judgment on essentially two grounds:

1) Plaintiff Kevin Breen's arrest was based on probable cause,

and 2) even if it wasn't, the police officers obtained an arrest

warrant and are entitled to gualified immunity (and the other

defendants are otherwise not liable as a matter of law). As

explained below, all defendants are entitled to entry of summary judgment in their favor on the federal causes of action asserted

by plaintiffs.

Background

The opposing pleadings and supporting affidavits and

documents show that on September 13, 1993, Plaintiff Kevin Breen,

a Salem Fire Department lieutenant, attended a Boston Red Sox

game at Fenway Park with three friends: Glenn Milner, an

attorney who represented the Salem firefighters' union, Dennis

Covey, a Salem firefighter, and Jay Crooks. The group drove to

Boston in Milner's car, which was eguipped with a cellular

telephone. After the game, the group set out for the "Golden

Banana," a nightclub of sorts in Saugus, Massachusetts.

Apparently the group had been drinking (Breen, however, denies

that he was drinking, claiming to have been the "designated

driver").

On the way to the Golden Banana, at about 11:30 p.m., two

calls were placed from Milner's car phone to the Salem Fire

Department. The first call was apparently made for the purpose

of harassing Salem Fire Captain Kevin Kimball, who was on duty at

the station that night, and the second was made by Milner to

disassociate himself from the first call. Captain Kimball failed

2 to appreciate either the sentiments expressed or the humor

apparently shared by those in the car. He took the matter

seriously, directing the dispatcher, Cheryl Ritchie, to record

both calls in the department phone log, with details. He also

reported the matter to the Fire Chief and to the Salem Police

Department.

The Salem Police responded to Kimball's complaint by

initiating an investigation. Detectives Cavanaugh and Rheault

were assigned to look into the incident. Cavanaugh and Rheault

interviewed Ritchie, Captain Kimball, and two Methuen

(Massachusetts) police officers who had had contact with the

revellers following their involvement in an unrelated disturbance

that same night at a gas station. Based on their initial

investigation, on September 21, 1993, Detective Cavanaugh applied

for and obtained a warrant to arrest Plaintiff Breen on a

misdemeanor charge of telephone harassment in violation of N.H.

Rev. Stat. Ann. ("RSA") 6 4 4 : 4.1 Covey was also charged, and

1 RSA 644:4 (1971), the misdemeanor statute in effect at the time provided:

A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the telephone call originated or was received, if, with a purpose to annoy or alarm another, he:

I. Makes a telephone call, whether or not a

3 charges were drafted but, as explained later, never lodged

against Milner. Breen and Covey turned themselves in for arrest

on the warrant on September 23, 1993.

Focusing on what information the police officers had at the

time the arrest warrant was obtained, the following facts appear

undisputed (plaintiffs have offered no contradictory evidence).

On September 14, 1993, the Fire Department's dispatcher, Cheryl

Ritchie, told the police investigators that at about 11:20 p.m.

the previous evening a phone call came in to the Fire Department

on the non-emergency number, 888-9775. The call struck Ritchie

as odd because the published number is 888-9774. If the 9774

line is busy then an incoming call is automatically switched to

the 9775 line. The 9774 line was not busy, so Ritchie assumed

the caller was familiar with the Salem Fire Department. When

Ritchie answered the phone she was greeted with, " [Y]ou fucking

asshole, get me Kevin." See Continuation of Investigation

Report, p.2, September 15, 1993, appended to Defendants' Motion

conversation ensues, without purpose of lawful communication; or II. Makes repeated communications at extremely inconvenient hours or in offensively coarse language; or III. Insults, taunts or challenges another in a manner likely to provoke a violent or disorderly response.

4 for Summary Judgment. In the background she heard several people

laughing and bantering about "Kevin" or "Kimball." Ritchie

assumed the caller or callers were drunk. Ritchie dutifully

transferred the call to Captain Kimball, who by that time was in

bed, having retired at the station due to his overnight on-call

status. A few minutes later, a second call came in on the same

line, 9775. Ritchie answered it and a person she thought she

recognized as Attorney Milner stated that he wanted nothing to do

with the prank regarding [Captain] Kevin Kimball. The caller

then identified himself as Milner, and Ritchie asked Milner if he

made the earlier call to the station. Milner denied having made

the first call. Ritchie then asked Milner who was in the car

with him. Milner identified Plaintiff Breen and Dennis Covey,

both Salem firefighters. During the first and the second call

Ritchie heard laughter and profanity in the background, with

references to Captain Kimball. Ritchie asked to speak to L t .

Breen. Breen took the phone and Ritchie asked him about the

prior call to the station. Breen denied any knowledge of any

calls and ended the conversation by saying he had to "take two

guys home."

. Ritchie also told the police that

Captain Kimball was monitoring this second call, and at its

conclusion directed Ritchie to log both calls and their nature.

5 Kimball also asked Ritchie if she knew the callers and she told

Kimball that they were Milner and L t . Breen.

On September 15, 1993, the police interviewed the

complainant. Captain Kimball. He told Detective Rheault that on

September 13 he was awakened by Dispatcher Ritchie's referral of

a phone call, said by the caller to be an emergency. Kimball

picked up the phone and heard what sounded like a conversation

over a car phone (because the sound was fading in and out). When

the sound became clear, Kimball recognized the voice of Salem

Fireman Dennis Covey, who made the following statements: "What a

fucking asshole you are, you dick sucker fucking asshole, you

need to be taught a fucking lesson and I'm going to stick it up

your fucking ass, fuck him and fuck her." Police Investigation

Report, Kimball Interview, p. 3, appended to Defendants' Motion

for Summary Judgment. Kimball also heard general laughter and

yelling on the other end. Kimball told the police that the line

became unclear again and when it cleared the person speaking was

no longer Covey. The new speaker talked of calling Kimball's

wife. Kimball told the police that at that point he became

concerned, felt threatened, and feared for his family's safety.

There continued to be yelling over the phone, then Kimball heard

"Kevin, Kevin" and "[Y]ou['re] a fucking asshole."

Captain

6 Kimball told the police that those comments were definitely made

by Plaintiff Breen, whose voice Kimball knew. Kimball told the

police that he was "100% sure" that the person speaking was

Breen. I d ., p.4. According to Captain Kimball, laughter,

raucous yelling, and profanity continued among the vehicle

occupants, then the phone went dead. Kimball said he was

dumbfounded, and while pondering his options, another call came

in on the 9775 line. Kimball picked up the line to monitor the

call and heard the second call from Milner, as reported by

Ritchie in all material respects.2 That is essentially what the

police knew about the September 13 incident when they sought and

obtained the warrant for Breen's arrest.

As it is somewhat relevant to plaintiffs' claims, as he

perceives them, a brief review of additional information obtained

by the police after Breen's arrest is warranted as well. On

September 30, a week after Breen's arrest, the police interviewed

Jay Crooks, a passenger in the car, who generally told them that

2 The police later learned (on September 30) that at least one, and more likely two, additional calls was made to the station that evening, at 2:30 a.m. on September 14, by Covey, who said he was with Breen. The dispatcher then on duty, Brian Chevalier, heard Breen in the background telling Covey to get off the phone. Investigative Report, Chevalier Interview, appended to Defendants' Motion for Summary Judgment. According to Milner' subseguent statement, the party had moved to a Denny's restaurant by that time.

7 the men were horsing around with the phone, calling wives and

girlfriends, etc., when Covey suggested calling Captain Kimball.

Crooks denied any knowledge of Breen or Milner interceding and

telling Covey not to call Kimball (as was later contended by

Milner). Crooks said Covey actually dialed the number and then

handed the phone to him, telling him to ask for Kevin Kimball and

stating that he (Covey) did not want Kimball to recognize his

voice. Crooks demurred, so Covey spoke into the phone. Though

Crooks claimed not to remember what Covey said, he did

acknowledge "There was a lot of swearing and yelling going on."

Crooks told the police that the next day he saw Attorney

Milner, who told him "the firemen [Breen and Covey] are in

trouble and are going to blame you for the call."

Crooks

denied knowing a fire station had been called and said Covey

initiated the whole thing.

Also on September 30, the police interviewed Attorney

Milner, but only after Milner's own lawyer arranged a cooperative

deal — Milner would talk so long as he was not charged (the

police had already drafted charges against him based on his

alleged participation). Milner also said the call to Kimball was

Covey's idea, that he (Milner) tried to dissuade Covey, and that

there was a great deal of joking, laughing, and swearing going on. Continuation of Investigation/Arrest Report, dated September

30, 1993, Milner Interview, p.l, appended to Defendants' Motion

for Summary Judgment. The police thought Milner was trying to

avoid telling them what Breen had been saying or doing.

In

an affidavit filed in this case, however, Milner says he made it

clear to the police that he and Breen tried to dissuade Covey,

and points out that Fire Chief Nadeau wrote to Defendant Gould on

September 23, 1993, to report the contents of a call Milner

placed to the Chief within two days of the incident in which

Milner put the blame on Covey and said Breen had advised Covey

"not to do it." See Letter, Nadeau to Gould, dated September 23,

1993, appended to Defendants' Motion for Summary Judgment.

Milner acknowledged making the second call in which he sought to

disassociate himself from the first call. Milner also told the

police that at about 2:00 to 2:30 a.m. the group was at a Denny's

restaurant, but he had no explanation for two additional calls

his phone records showed were made around that time to the fire

station from his car phone.

Plaintiffs' Claims First, plaintiffs, Breen and his wife,3 cast most of their

causes of action in terms of denials of both "substantive due

process" and "due process," and violations of his rights under

the Fourth, Fifth and Fourteenth Amendments. The Supreme Court

has made it abundantly clear that § 1983 claims alleging

unconstitutional arrest are properly brought only under the

Fourth Amendment. See Albright v. Oliver,

(1994); Graham v. O'Connor,

(1989). Accordingly,

the court will assume that Breen's federal causes of action

brought pursuant to

are based on his claimed

deprivation of his right under the Fourth Amendment not to be

arrested except upon a warrant supported by probable cause.

The defendants raise a number of issues in their dispositive

motion, but particularly stress that no constitutional violation

has been shown to have occurred, and even if such a violation did

occur, gualified immunity and other defenses preclude liability.

Of course, public officials, like police officers, who perform

discretionary functions are entitled to gualified immunity from

suit for violations of federal law "insofar as their conduct does

not violate clearly established statutory or constitutional

3 Mrs. Breen's claims involve alleged loss of consortium and damages related to state causes of action.

10 rights of which a reasonable person would have known." Harlow v.

Fitzgerald,

(1982). The qualified immunity

analysis in this circuit is two-pronged: (1) "the court must

establish whether the constitutional right asserted by the

plaintiff was 'clearly established' at the time of the alleged

violation," and (2) "the court must ask whether 'a reasonable

official situated in the same circumstances should have

understood that the challenged conduct violated that established

right.'" St. Hilaire v. City of Laconia,

(1st

Cir. 1995) (quoting Burns v. Loranger,

(1st

Cir. 1990)), cert, denied, 116 S. C t . 2548 (1996). "The ultimate

question of whether a defendant is entitled, on a given set of

facts, to the protection of qualified immunity is a question of

law for the court to decide." Wood v. Clemons,

(1st C i r . 1996).

A "necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is 'clearly

established' at the time the defendant acted is the determination

of whether the plaintiff has asserted a violation of a

constitutional right at all." Siegert v. Gilley,

(1991). If the plaintiff has failed to show a constitutional

violation, the court may bypass the qualified immunity analysis

11 and address the merits of the claim. Brown v. Hot, Sexy and

Safer Productions, Inc.,

(1st Cir. 1995). The

burden is on the plaintiff to provide sufficient support for his

federal claim to show infringement of a federal right, and if he

fails to do so, the defendant is necessarily entitled to summary

judgment. See Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992).

Here, Breen faces two major difficulties. First, although

the Fourth Amendment right not to be arrested except upon

probable cause was clearly established at the time of his arrest,

the information developed by Detectives Rheault and Cavanaugh

before applying for the warrant was, as a matter of law, more

than adeguate to establish probable cause to arrest him for

harassing Captain Kimball in violation of New Hampshire's

criminal law. So, Breen's Fourth Amendment rights, though

clearly established, were not violated. Second, even if the

police officers did not have probable cause (that is, even if a

Fourth Amendment violation is assumed), a reasonable police

officer possessing the same information they had, could have

reasonably believed that probable cause existed. So, the

officers' conduct in obtaining the warrant and effecting Breen's

12 arrest was objectively reasonable, entitling them to qualified

immunity from suit and from liability.

Rheault and Cavanaugh had reasonably trustworthy information

from Captain Kimball, the direct victim, and from Dispatcher

Ritchie that: On September 13 a phone call was made to the Salem

Fire Department; the caller or callers wanted to speak to Captain

Kimball; when Kimball was notified and put on the line, at least

two people abused him directly, using insulting, vulgar language,

and at least implicitly suggested that his wife would likely be

abused in a similar fashion; the language, content, and general

moronic tenor of the call attested to its obvious purpose to

annoy or alarm Kimball; the nature and context of the call easily

supported an inference that it was a group effort; the call was

made from Milner's car phone; Lieutenant Breen was in Milner's

car when the call was placed; Kimball positively identified Breen

as one of the callers who clearly spoke over the phone and who

directed vulgar and insulting language toward him (the other

clearly identified speaker being Covey, the other Salem

firefighter and the alleged mastermind); and of course Ritchie

confirmed that the calls were in fact received, and that Breen

was in the car when the obviously harassing call was made.

13 Any reasonable officer armed with that information, could

readily and reasonably conclude that there was probable cause4 to

believe that the call was harassing within the meaning of RSA

644:4; that Breen associated himself with and participated in the

harassing call; that Breen spoke the specific vulgarities

attributed to him by Captain Kimball; that Breen directed his own

vulgar comments to Captain Kimball for the purpose of annoying or

alarming Kimball; and that Breen joined in Covey's vulgar

comments to Captain Kimball, all in violation of RSA 644:4. That

Breen denied making the first call when Ritchie asked him about

it hardly served to undermine probable cause.

Subseguent investigation, after the arrest warrant was

issued but before Breen surrendered himself at the police

station, did not develop any information that effectively

undermined the officers' reasonable conclusion as to the

probability that Breen did exactly what Kimball said he did.

4 "Probable cause exists if 'the facts and circumstances within [a police officer's] knowledge and of which [the officer] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution' to believe that a crime has been committed or is being committed." Alexis v. McDonald's Restaurants of Mass. Inc.,

(1st Cir. 1995) (guoting Carroll v. United States,

(1925)). A probable cause determination is based on a reasonable probability that the suspect committed a crime and does not reguire sufficient evidence to convict. Rivera v. Murphy,

(1st Cir. 1992).

14 And, that various other suspects later began giving self-

exculpatory statements, or placed the entire blame on Covey (the

only other Salem firefighter in the car) also did not undermine

probable cause, given Captain Kimball's direct statement

implicating Breen. The police are not reguired, nor are they

expected, to anticipate or resolve defenses likely to be asserted

by criminal suspects, nor are they reguired to determine a

suspect's guilt beyond a reasonable doubt before seeking an

arrest warrant. Here, the information the police had on

September 21 and 23, 1993, made it more than "probable" that

Breen violated RSA 644:4. Thus, the arrest warrant was supported

by probable cause and there was no constitutional violation.

However, even if probable cause were found to be lacking and

a Fourth Amendment violation is assumed, these officers would

still be entitled to gualified immunity. While plaintiff seems

to make much of perceived animosity or bias on the part of the

police officers — supposedly arising from past investigations or

competing union interests (Breen served as an officer of the

firefighter's union), or friendship between the police officers

and Captain Kimball,

"[u]nder the Harlow standard . . . an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner."

15 Mallev v. Briggs,

(1986). Seeking an arrest warrant is 'objectively reasonable1 so long as the presence of probable cause is at least arguable, [citation omitted] Police officers "will not be immune if, on an objectively reasonable basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue immunity should be recognized." Mallev,

. Thus, in cases where law enforcement officials reasonably but mistakenly conclude that probable cause is present, those "officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable. Anderson v. Creighton,

(1987).

Prokev v. Watkins,

, 72 (1st Cir. 1991).

Plaintiff does not dispute that Captain Kimball told the

police that Breen made the referenced statements to him during

the first call, and does not dispute that Ritchie told the police

what they say she told them. What the police knew prior to

obtaining the arrest warrant and prior to effecting the arrest is

not in genuine dispute. Therefore, whether a reasonable police

officer could have believed there was probable cause to arrest

Breen based on the information known to the police in this case

at the time they obtained the warrant and effected the arrest is

a guestion of law for the court to resolve. Prokev v. Watkins,

942 F.2d at 73. There can be no doubt that probable cause in

this case was "at least arguable." Beyond that very low

standard, however, it is clear that the officers did act with

16 objective reasonableness in seeking the warrant to arrest Breen.

So, even if they were mistaken as to probable cause, in this case

the officers would still be entitled to qualified immunity.

There are one or two other sub-themes running through

Breen's complaint and summary judgment response that ought to be

addressed. One is that the police "jumped the gun," that is,

they were obligated to investigate further before they applied

for Breen's arrest warrant. The implication seems to be that had

they first interrogated Milner or Covey or Crooks or Breen

himself (i.e. the people in the car), they would have had no

cause to believe Breen was involved, much less a direct

participant in the harassing call, because they would have known

only Covey was criminally liable. That argument fails.

While police are obligated to conduct fair investigations,

they have no constitutional duty to investigate any particular

information and no duty to investigate after determining that

probable cause exists to arrest a suspect. See Baker v.

McCollan,

(1979) (Police have no duty to

investigate every claim of innocence); Franco-DeJerez v. Burqor,

(1st Cir. 1989) (no duty to investigate after

a determination of probable cause to arrest); see also Romero v.

17 Fav,

(10th Cir. 1995) (collecting cases

discussing police duty to investigate prior to arrest).

This is not to say that the information the police had at

the time of Breen's arrest proved Breen's guilt by any means.

Breen could well have not said what Kimball attributed to him; he

could well have been the sobering influence seeking to restrain

his inebriated companions. Indeed, Breen was later acguitted in

a bench trial. But Breen's actual guilt or innocence is not the

issue — the issue is whether probable cause existed to believe

Breen committed the offense of harassment at the time of his

arrest, or whether an objectively reasonable police officer could

arguably have thought probable cause existed based on the

information the police had at that time.

Another theme permeating plaintiffs' complaint and summary

judgment response is the notion that at some point the police

should have realized that Captain Kimball was wrong; that Breen

did not participate in the harassing call; that Covey alone was

responsible; that in fact Breen interceded (with Milner) to try

and dissuade Covey; and, therefore, the police should have

dropped the prosecution.5 Plaintiff makes no claim or assertion

5 Plaintiff also seems to base part of his complaint on an assertion that Defendants Gould, Dunn, Rheault and Cavanaugh (all Salem police officers) unlawfully sought to present evidence

18 that the police failed to turn over any exculpatory or

impeachment evidence to the state's prosecutor. See e.g.

MacMilliam v. Johnson,

, 1566-67 (11th Cir. 1996)

(collecting cases); Walker v. City of New York,

(2d Cir. 1992) (collecting cases), cert, denied,

(1993). The state's prosecutor, Diane M. Gorrow, Esq., filed an

affidavit in support of summary judgment in which she attests

that she was the prosecutor for the Salem Police Department, not

any of the named defendants, and the exhibits filed by plaintiff

confirm that Attorney Gorrow presented the criminal case.

So, to the extent plaintiff seeks to impose liability on

defendants for his continued prosecution, it would seem that

Attorney Gorrow and not the police defendants made the

prosecutorial decisions. As a state prosecutor. Attorney Gorrow

would enjoy absolute immunity for any acts related to the

initiation and conduct of Breen's criminal prosecution. Imbler

supporting a charge of felony witness tampering against Breen to a grand jury. While it appears uncontroverted that such a charge was referred by the police to the local county attorney, the charge was not presented to the grand jury. The county prosecutor believed an indictment would likely be returned but a conviction, requiring proof beyond a reasonable doubt, would not likely result. So, he exercised his prosecutorial discretion not to present the case. Whether to charge a suspect, whether to present a case to a grand jury, and whether to decline to prosecute a case are all prosecutorial functions for which the actor(s) enjoy absolute immunity. Imbler v. Pachtman, infra.

19 v. Pachtman,

(1976). Moreover, courts employ a

functional approach when evaluating the availability of absolute

prosecutorial immunity. See Butz v. Economic,

(1978). Therefore, the police officer defendants also would be

entitled to prosecutorial immunity to the extent that they

performed prosecutorial functions as "advocate[s] for the state."

Guzmen-Rivera v. Rivera-Cruz,

(1st Cir. 1995)

(quoting Burns v. Reed,

(1991)); see also

Malachowski v. City of Keene,

(1st Cir.), cert.

denied,

(1986). The decision not to dismiss a

criminal case (or to continue to pursue it) "lies at the heart of

the prosecutorial function." Guzman v. Rivera,

.

Accordingly, although it is by no means clear that plaintiff

is asserting a federal claim related to his continued

prosecution, to the extent he is, such a claim would be and is

precluded by prosecutorial immunity.6

Parenthetically, while plaintiff does assert a state law claim based on "malicious prosecution," New Hampshire law also provides absolute immunity from liability for any acts that are "functionally related to the initiation of criminal process or to the prosecution of criminal charges." Belcher v. Paine,

(1992).

20 Supervisory Liability and Municipal Liability

A plaintiff suing a supervisor under § 1983 must show that

(1) a subordinate violated his constitutional rights; (2) the

supervisor's acts or omissions caused the subordinate's

unconstitutional conduct; and (3) the supervisor was deliberately

indifferent to the constitutional rights of others in acting or

failing to act. Febus-Rodriquez v. Betancourt-Lebron,

(1st Cir. 1994); Manarite, 957 F.2d at 955-56. A

supervisor displays deliberate indifference only if "it would be

manifest to any reasonable official that his conduct was very

likely to violate an individual's constitutional rights." Febus-

Rodriquez ,

. To avoid summary judgment on a claim

of supervisory liability, a plaintiff must "proffer sufficient

evidence to create a trial issue as to whether the actions" of

the supervisory defendants violated the plaintiffs'

constitutional rights. I d . at 94. As is always true in opposing

summary judgment, the plaintiff cannot rely on " [o]ptimistic

conjecture, unbridled speculation, or hopeful surmise" to meet

his burden of establishing a triable issue as to every element of

his claim. See Vega v. Kodak Caribeean, Ltd.,

(1st C i r . 19 93).

21 Plaintiff has utterly failed to present any evidence, or

even to allege any facts, sufficient to create a trial issue as

to whether the actions of any of the supervisory defendants

violated plaintiffs' federal rights. Conjecture and surmise is

not enough; saying it does not make it so. In reality, plaintiff

merely asserts that police supervisors also should have

recognized that probable cause was lacking and intervened to

prevent Breen's arrest, without providing sufficient factual

support to establish the elements reguired for supervisory

liability. In addition, probable cause was not lacking, and the

supervisory defendants, like the arresting officers, could have

believed, with objective reasonableness, that probable cause

existed and so are entitled to gualified immunity.

Municipal Liability

A claim of municipal liability under § 1983 must be based on

a municipal policy, custom, or practice that caused, or was a

moving force behind, a deprivation of the plaintiffs'

constitutional rights. Monell v. Department of Social Servs.,

(1978). Although a single incident of

significant magnitude can provide some proof of a municipal

policy or custom to act in a manner consistent with the incident.

22 it is insufficient standing alone to prove an underlying policy

or custom. Bordanaro v. McLeod,

(1st

Cir.), cert, denied,

(1989). In addition, a single

action by a municipal official may gualify as a policy, but only

if the decision was "made by the official charged with the final

responsibility for making it under local law." Harrington, 977

F.2d at 45; St. Louis v. Praprotnik,

(1988); Pembaur,

. If the plaintiff can establish

the existence of a municipal policy or custom, he must then show

that the policy caused or was the moving force behind a

deprivation of his constitutional rights. See McCabe v. Life-

Line Ambulance Serv.,

(1st Cir.), Petition for

cert, filed,

(May 29, 1996) .

Although plaintiff employs the right terms — "policy,"

"custom," etc. — he has failed to present any evidence or even to

allege any facts from which a jury could find that some municipal

policy or custom served as the moving force behind a deprivation

of his federal rights. First, his federal rights were not

violated. Second, he does not assert, for example, that it was

the policy or custom of Salem or the Salem Police Department to

effect arrests without probable cause, or to target Salem

firefighters for unlawful arrest, or to fail to train police

23 officers in the Fourth Amendment's requirement of probable cause

to arrest. Plaintiffs' only point seems to be that better

trained investigators would have gone further with the

investigation before seeking an arrest warrant. That is not

sufficient to show the existence of a policy or custom likely to

cause violations of citizens' constitutional rights.

Plaintiff also includes the Town of Salem, the Town Manager

and various supervising police officials as defendants in their

respective official capacities. Because Breen was arrested

pursuant to a warrant that was supported by probable cause, and

no violation of any of his federal rights occurred, these

defendants are of course entitled to summary judgment on his

federal causes of action. They are also entitled to summary

judgment because, even in the absence of probable cause, no basis

for supervisory or municipal liability exists, and because to the

extent they are sued in their official capacities, those claims

are simply claims against the municipality. See, e.g., Kentucky

v. Graham,

(1985); Monell v. New York P e p 't of

Social Servs.,

, 590 n.55 (1978).

Conclusion

24 Summary judgment is entered in favor of all defendants on

all federal claims asserted by plaintiffs. The court declines to

exercise its supplemental jurisdiction over the causes of action

asserted by plaintiffs under state law, and those claims are

dismissed without prejudice. See,

3 6 7 (c)(3). The

clerk shall close this case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 25, 1996

cc: Donald E. Mitchell, Esg. William G. Scott, Esg. Diane M. Gorrow, Esg.

25