DAmour v. Burke CV-95-194-JD 04/18/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael A. D'Amour

v. Civil No. 95-194-JD

William Burke, et al.

O R D E R

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

and under various state law theories, seeking

damages related to his detention prior to and during trial for a

crime he did not commit. By order dated September 11, 1996, the

court dismissed the federal claims against defendants William

Burke, James Tucker, and the city of Portsmouth, declined to

exercise jurisdiction over the state law claims against these

defendants, and dismissed the federal conspiracy count against

Rockingham County. Before the court is the motion for summary

judgment of Rockingham County on the plaintiff's remaining claims

(document no. 45).

Background

The facts relevant to the instant dispute are set forth in

full in the court's September 11, 1996, order. Relying on

, the plaintiff alleges that his rights to due

process and to be free of unreasonable seizure under the United States Constitution were violated by (1) Rockingham County's

policy of permitting criminal charges to remain pending despite

the absence of probable cause; and (2) the county's failure to

provide adeguate training and supervision to assistant county

attorneys1 with regard to the handling and disclosure of

exculpatory evidence and in the dismissal of complaints when

probable cause no longer exists. The plaintiff also seeks to

hold Rockingham County liable under the New Hampshire

Constitution and under a variety of common-law theories.

Discussion

Rockingham County asserts that summary judgment is warranted

on the plaintiff's § 1983 claims because the county attorney's

office is not a final policymaker with respect to prosecutorial

decisions and thus is not subject to § 1983 liability therefor.

It further contends that the plaintiff's general allegations

concerning the county's failure to provide proper training and

supervision to its assistant county attorneys are insufficient to

form a basis for county liability.

The role of summary judgment is "to pierce the boilerplate

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

'Assistant Rockingham County Attorney Brian Kenyon prosecuted the case against the plaintiff.

2 determine whether trial is actually required." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (quoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992)). 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. See Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Roaue,

(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

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

(1st

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

(1st

Cir. 1990)). 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)).

3 A. Maintenance of Charges Against the Plaintiff

A municipality is subject to liability under § 1983 only if

its "polic[ies] or custom[s], whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent

official policy," cause the deprivation of a federally protected

right. Monell v. Department of Social Servs.,

(1978). "Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered," Pembaur v. City of

Cincinnati,

(1986), i.e., where the

decisionmaker's decisions are "'final and unreviewable and are

not constrained by the official policies of superior officials.'"

St. Louis v. Eldredge, No. 95-178-B, slip op. at 3-4 (D.N.H.

March 31, 1997) (quoting Feliciano v. Citv of Cleveland,

, 655 (6th Cir. 1993)); see also Citv of St. Louis v.

Praprotnik,

(1988) (plurality opinion) (whether

decisions are final and thus official policy is a question of

state law).

Judge Barbadoro recently considered the question of whether,

under New Hampshire law, a county attorney's decision to

prosecute a defendant is sufficiently "final" as to constitute

the official policy of the county. Relying on New Hampshire

statutory and case law. Judge Barbadoro concluded that, with

4 regard to decisions concerning the commencement of criminal

proceedings, "it is clear that the attorney general, and not

individual county attorneys, [is] the final policymaking

authority." St. Louis, 95-178-B, slip op. at 8; see N.H. Rev.

Stat. Ann. ("RSA") § 7:34 (1988) ("The county attorney of each

county shall be under the direction of the attorney general, and,

in the absence of the latter, he shall perform all the duties of

the attorney general's office for the county."); id. § 7:6 (Supp.

1996) ("The attorney general shall have and exercise general

supervision of the criminal cases pending before the supreme and

superior courts of the state, and with the aid of the county

attorneys . . . shall enforce the criminal laws of the state.");

id. § 7:11 (1988) (officers charged with enforcing criminal law

"subject to the control of the attorney general whenever in the

discretion of the latter he shall see fit to exercise the same");

Wyman v. Danais,

,

(1958)

(statutory scheme materially similar to one currently in place

evinced "legislative purpose to place ultimate responsibility for

criminal law enforcement in the Attorney General, and to give him

the power to control, direct and supervise criminal law

enforcement by the county attorneys in cases where he deems it in

the public interest").

The court finds Judge Barbadoro's reasoning persuasive, and

5 considers it applicable not only to a county attorney's decision

to commence a prosecution, but to the decision to terminate one.

Because Rockingham County is not a final policymaking authority

with respect to decisions to terminate prosecutions, the court

grants summary judgment in favor of the county to the extent that

the plaintiff § 1983 claim seeks recovery for permitting the

charges against him to remain pending.2

B. Failure to Train and/or Supervise

The plaintiff has neither responded to Rockingham County's

assertion that the plaintiff's failure-to-train claims are

conclusory in nature nor adduced any evidence suggesting that

Rockingham County's training of assistant county attorneys was so

inadeguate as to constitute deliberate indifference to the

plaintiff's rights and was the legal cause of the deprivation of

his rights. See generally Bordanaro v. McLeod,

(1st Cir. 1989). Having failed to meet his burden at

2Because the plaintiff in St. Louis chose not to pursue his failure-to-train claim under § 1983, Judge Barbadoro did not reach the issue of whether county attorneys have final policymaking authority with respect to the supervision and training of assistant county attorneys. See St. Louis, 95-178-B, slip op. at 9 n.l; see also Walker v. Citv of New York,

(2d Cir. 1992) (although state, not county, has final policymaking authority over decision to prosecute, district attorney is final policymaker for county with respect to training and supervision on Brady issues) .

6 this stage of the proceedings, the plaintiff cannot survive

summary judgment.

Conclusion

Rockingham County's motion for summary judgment (document

no. 45) is granted as to the plaintiff's claims under

. The court declines to exercise jurisdiction over the

plaintiff's remaining claims. See

(c)(3) (West

1993). The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

April 18, 1997

cc: Mark S. Gerreald, Esguire Brian T. Stern, Esguire

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