D'Amour v. Burke CV-96-194-JD 09/11/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael A. D'Amour

v. Civil No. 96-194-JD

William Burke, et al.

O R D E R

The plaintiff, Michael D'Amour, brought this action under

and various state law theories, seeking damages

related to his detention prior to and during trial for a crime he

did not commit. Before the court is the motion for summary

judgment of defendants Tucker, Burke, and the city of Portsmouth

(document no. 29).

Background1

On April 13, 1991, a robbery took place at the Demoulas

Market Basket supermarket in Portsmouth, New Hampshire.

Witnesses to the robbery informed the police that two

individuals, one of whom was wearing a band-aid across his nose

and the other a blue jacket, had committed the robbery.

Witnesses also identified the plaintiff as the person holding the

gun during the robbery and claimed that they had seen the

1The facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. plaintiff searching through the trash at the shopping mall in

which the supermarket is located on the night after the robbery.

Subseguent investigation of the plaintiff revealed that the

plaintiff had asked an acguaintance for a band-aid on the evening

of the robbery and that the person the plaintiff was with on the

night of the robbery was wearing a blue windbreaker at the time.

On April 21, 1991, the plaintiff was charged with armed

robbery and with being a felon in possession of a firearm, and a

probable cause hearing was held in Portsmouth District Court.

Probable cause was found and the matter was presented to the

grand jury, which returned an indictment against the plaintiff.

The plaintiff was detained initially at the Rockingham County

House of Correction pending trial. On July 29, 1991, the

plaintiff was found, based on his alleged involvement in the

Demoulas robbery, to have violated his probation on another

charge and was placed in the New Hampshire State Prison.

In preparation for trial, the plaintiff, through counsel,

reguested all exculpatory evidence in the state's possession. At

some point prior to trial plaintiff's counsel became aware that

on two different occasions one of the eyewitnesses to the

robbery, Kimberly Schultz, had been unable to identify the

plaintiff in a photographic lineup. Prior to trial, counsel

moved to exclude as unduly suggestive any testimony by Schultz

2 identifying the plaintiff as one of the robbers. The motion was

denied. Trial commenced at some point in December 1991 and ended

in a mistrial on December 18, following which the plaintiff was

transported to the Rockingham County House of Correction.

Shortly after the mistrial was declared, the Portsmouth

police department received a call from agent Sean Rafferty of the

Portsmouth office of the Federal Bureau of Investigation.

Rafferty informed defendant James Tucker, a Portsmouth police

department detective who had been assigned to the case, that the

robbery "may have been committed by a gang from the Charlestown,

Massachusetts area known as the Flynn gang," Affidavit of James

Tucker 5 14, of which the plaintiff was not a member. Tucker

told Rafferty to contact Brian Kenyon, the assistant county

attorney from Rockingham County who was prosecuting the case. On

December 20, 1991, Tucker and Kenyon were informed by two state

police officers that the state police "were working with the

[FBI] in investigating a gang who had been committing armed

robberies with a similar method" as that employed in the robbery

for which the plaintiff had been charged.

5 16. After

hearing this information, Kenyon stated that he would arrange to

have the plaintiff released on his own recognizance but that he

would not drop the charges against the plaintiff until federal

authorities charged someone else with the robbery. The plaintiff

3 was released the following day but was not informed of the

information that the federal and state authorities had gained

through their investigation.

On February 5, 1992, Sergeant Francis Breen of the New

Hampshire State Police informed Tucker that Kimberly Schultz, the

eyewitness to the DeMoulas robbery who had been unable to

identify the plaintiff as the gunman, had identified a Richard

Ferguson as the gunman in the robbery. The plaintiff was not

made aware of this information.

On April 16, 1992, federal authorities charged Richard

Ferguson and Charles Flynn with the Demoulas robbery. Ferguson

later plead guilty to certain charges and Flynn was found guilty

of the Demoulas robbery. Charges against the plaintiff were

dropped on April 21, 1992.

The plaintiff commenced the instant action on April 14,

1995. In his first amended complaint, he alleges that the

individual defendants and the municipal and county defendants

violated and conspired to violate the plaintiff's right to be

free from unreasonable searches and seizures by charging him and

allowing him to remain charged without a continuing reasonable

basis to believe that he had committed a crime; violated and

conspired to violate the plaintiff's right to due process by

failing to disclose exculpatory evidence to the plaintiff; and

4 committed the torts of abuse of process, intentional infliction

of emotional distress, and negligent infliction of emotional

distress.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert. denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992) . The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

5 favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (quoting Griqqs-Rvan v. Smith,

(1st

Cir. 1990)), cert, denied,

(1992). However, once

the defendant has submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)).

I. Defendant Tucker

Defendant Tucker seeks summary judgment on the plaintiff's

claims arising under

on the ground of qualified

immunity. The plaintiff claims that qualified immunity is not

available to Tucker because a reasonable person possessing the

facts available to Tucker would have known that (1) there was no

continuing basis for believing probable cause existed to arrest

and detain the plaintiff; and (2) the plaintiff was entitled to

disclosure of exculpatory evidence.

To the extent the plaintiff seeks relief for Tucker's role

in arresting the plaintiff. Tucker is entitled not only to

summary judgment based on qualified immunity for his actions, but

also to summary judgment based on the merits of the plaintiff's §

6 1983 claim. "Probable cause to make an arrest exists where the

facts and circumstances of which the arresting officer has

knowledge would be sufficient to permit a reasonably prudent

person to conclude that an offense has been committed by the

person arrested." Hoffman v. Reali,

(1st Cir.

1992); Floyd v. Farrell,

(1st Cir. 1985). Here,

the undisputed record indicates that several witnesses had

identified the plaintiff as the gunman in the robbery and claimed

that they had seen the plaintiff engaging in suspicious activity

near the site of the robbery on the night after the robbery. In

addition, the evidence gathered through subseguent investigation

of the plaintiff -- including his reguest for a band-aid and his

presence on the night in guestion with a companion wearing a blue

windbreaker -- corroborated the witnesses' testimony. The court

finds that a reasonably prudent person in Tucker's position could

have concluded that the plaintiff had committed a crime and rules

that Tucker had probable cause to arrest the plaintiff.

To the extent that the plaintiff seeks relief against Tucker

because the charges against him remained pending following the

receipt of exculpatory evidence, the court finds that his claim

is without merit. The plaintiff has offered, and the court has

found, no authority for the proposition that, under New Hampshire

law, anyone other than the prosecutor has the authority to drop

7 charges against a defendant after a grand jury has returned an

indictment.

As to the plaintiff's claims concerning disclosure of

exculpatory evidence, the court notes that "there is no

independent duty of a police officer or investigative officer to

disclose exculpatory evidence to a [criminal] defendant."

Campbell v. Maine, 632 F. Supp. Ill, 121 (D. Me. 1985), aff'd ,

(1st Cir. 1986). Thus, "the failure to reveal such

information to the plaintiff in this case does not amount to a

constitutional violation."

Although a police officer in

possession of exculpatory evidence has a duty under Brady v.

Maryland,

(1963) to turn that evidence over to the

prosecutor, Campbell, 632 F. Supp. at 121, it is undisputed that,

upon being notified of potentially exculpatory information by the

FBI following the declaration of a mistrial. Tucker directed the

FBI to Brian Kenyon, the prosecutor in charge of the case.

Further, the record indicates that Schultz's identification of

Richard Ferguson occurred as part of an investigation in which

Tucker was not involved and of which Kenyon was aware. Under

these circumstances, the court finds that Tucker had no personal

obligation to pass along the information to Kenyon.2

2At a minimum, Tucker's duty under Bradv to pass along information concerning the identification was not, under the circumstances of this case, a clearly established obligation of The court grants summary judgment to defendant Tucker on the

plaintiff's § 1983 claims.

II. Defendant Burke

Since it is undisputed that defendant Burke's involvement in

the instant action stems solely from his role as chief of the

Portsmouth Police Department, the court interprets the

plaintiff's claim as an action for supervisory liability under §

1983.

To establish supervisory liability for the acts of a

subordinate, a plaintiff must show that the supervisor's conduct

"amounted to a reckless or callous indifference to the

constitutional rights of others" and must demonstrate "an

'affirmative link' between the street-level misconduct and the

action, or inaction, of government officials." Gutierrez-

Rodriquez v. Cartagena,

(1st Cir. 1989);

Raineri v. Hillsborough County Pep't of Corrections, No. 93-118-

JD, slip op. at 16 (D.N.H. Jan. 9, 1996). Supervisory liability

attaches "'only if it would be manifest to any reasonable

which a reasonable person would have been aware. As such. Tucker is entitled to gualified immunity for his conduct with respect to this information. See St. Hiliare v. City of Laconia,

(1st Cir. 1995) (defendant entitled to gualified immunity unless contours of right alleged are sufficiently clear so that a reasonable official would understand what he is doing violates that right), cert, denied, 116 S. C t . 2548 (1996). official that his conduct was very likely to violate an

individual's constitutional rights,'" Hegartv v. Somerset

County,

(1st Cir.) (quoting Febus-Rodriquez v.

Betancourt-Lebron,

(1st Cir. 1994)), cert, denied,

116 S. C t . 675 (1995), and the supervisor's actions "led

inexorably to the constitutional violation,"

As noted supra, the plaintiff has failed to establish that

Tucker, or any of the employees that Burke supervised, committed

a constitutional violation. Moreover, the record indicates that

Burke had no involvement in the investigation of the plaintiff.

It follows that Burke's conduct could not have "led inexorably"

to a constitutional violation. The court grants summary judgment

to defendant Burke on the plaintiff's § 1983 claims.

III. Municipal Liability Against the City of Portsmouth

A municipality can be liable under

for a

constitutional violation only if its policies or customs cause

the deprivation of a federally protected right. Monell v.

Department of Social Servs.,

(1978); see

also Rubin v. Smith,

(D.N.H. 1996) (municipal

liability cannot attach absent deprivation of constitutionally

protected right). Flagrant deficiencies in the hiring, training,

supervision, and discipline of police officers can constitute

10 municipal policy, and thus serve as the basis for § 1983

liability, if those responsible for making policy for the police

department are deliberately indifferent to these deficiencies.

Bordanaro v. McLeod,

(1st Cir.), cert, denied,

(1989) .

The plaintiff's claim against the city of Portsmouth is

founded on his assertion that the city's failure to train or

supervise its employees constituted a policy or custom that

caused the deprivation of his rights under the Fourth and

Fourteenth Amendments. However, the plaintiff's failure to

establish that city employees deprived him of a federally

protected right belies his assertion that a city policy or custom

caused this deprivation. In addition, the plaintiff has adduced

no evidence that policymaking by any city officials amounted to

deliberate indifference to the alleged deficiencies in the city's

training or supervision of its law enforcement agents. The court

grants summary judgment to the city of Portsmouth on the

plaintiff's § 1983 claim.

IV. Conspiracy to Violate Civil Rights

In count VIII of his amended complaint, the plaintiff

alleges that the defendants "engaged in a conspiratorial

agreement, the essential nature of which was known to each, to

11 deprive the Plaintiff of his civil rights and/or to conceal a

violation of those rights" in violation of

.

"[F]or a conspiracy to be actionable under section 1983 the

plaintiff has to prove that "there [has] been, besides the

agreement, an actual deprivation of a right secured by the

Constitution and its laws.'" Earle v. Benoit,

(1st

Cir. 1988) (guoting Landrigan v. City of Warwick,

(1st Cir. 1980) (alteration in original)). The court has

found, supra, that neither Burke, Tucker, nor the city of

Portsmouth deprived the plaintiff of a federally protected right.

Thus, to the extent that the plaintiff alleges a conspiracy

solely among these three defendants, summary judgment is

warranted.

To the extent the plaintiff alleges a conspiracy between

defendants Burke, Tucker, and the city of Portsmouth, and

defendant Rockingham County, this claim is without merit.

Although a municipality may be liable under § 1983 for its

policies or customs, Monell,

; see Stone v.

Holtzberger,

(S.D. Ohio 1992)

(municipality can be liable for conspiracy where municipal

policymaker agrees with individuals to violate constitutional

rights), aff'd ,

(6th Cir. 1994), the plaintiff has

12 failed even to allege that a Rockingham County policymaker

conspired with Burke or Tucker. Therefore, the plaintiff is

unable to prove a conspiracy among these defendants.

The court grants summary judgment to defendants Burke,

Tucker, and the city of Portsmouth on the plaintiff's conspiracy

claim. Based on this ruling, it is evident that no conspiracy

claim remains against Rockingham County. Accordingly, count VIII

of the plaintiff's amended complaint is dismissed as to

Rockingham County.

Conclusion

The motion for summary judgment of defendants Burke, Tucker,

and the city of Portsmouth (document no. 29) is granted as to the

plaintiff's claims under

. As the remaining

claims against these defendants seek relief under state law only,

the court declines to exercise its supplemental jurisdiction and

dismisses the action as to these defendants. See

(c) (3) (West 1993) .

13 Count VIII of the plaintiff's amended complaint is dismissed

as to the defendant Rockingham County.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

September 11, 1996

cc: Brian T. Stern, Esguire William G. Scott, Esguire Robert B. Gainor, Esguire Mark S. Gearreald, Esguire

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