Stratton v. Nashua CV-96-179-SD 09/22/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jerry B. Stratton, Jr., et al

v. Civil No. 96-179-SD

City of Nashua, NH, et al

O R D E R

This is a civil rights action,

,1 the

genesis of which is an altercation between and among the

plaintiffs and certain police officers employed by the City of

Nashua, New Hampshire. At this juncture, before the court for

^ n relevant part,

provides.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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. . . .

Plaintiffs also seek recovery for certain state common law claims pursuant to the pendent jurisdiction of the court.

(a). resolution are the issues raised by certain pending motions.2

1. Defendants' Motion in Limine to Take Judicial Notice of

Certified Records of Conviction, document 9

Invoking Rule 201(d), Fed. R. Evid.,3 defendants move the

court to take judicial notice of certified convictions of certain

of the plaintiffs4 in the Nashua District Court.

As a general rule, "federal courts may take judicial notice

of proceedings in other courts if those proceedings have

relevance to the matters at hand." Kowalski v. Gagne,

(1st Cir. 1990) (citations omitted). The problem with

this case arises from New Hampshire's "two-tier" system whereby a

party charged with a misdemeanor may appeal an adverse state

district court ruling to the superior court for a jury trial.

This right is granted by the state constitution, part I, article

15, Opinion of the Justices (DWI Jury Trials),

, 608

2The court does not here rule on the respective parties' reguests for voir dire guestions, their objections to exhibits, or their reguests for jury instructions, as these matters will be taken up at the time of trial.

3Rule 2 0 1 (d) provides, "A court shall take judicial notice if reguested by a party and supplied with the necessary information."

4These plaintiffs are Jerry Stratton, Vincent Stratton, Richard Stratton, Suzanne Wood, Thomas Dietrich, and Arnold Greene.

(1992), and also by a state statute. New Hampshire

Revised Statutes Annotated (RSA) 599:1 (Supp. 1996).

The effect of such appeal of a state district court order is

to vacate the judgment and transfer the entire proceeding to the

superior court for trial de novo. State v. Guv,

,

(1995); State v. Lambert,

,

(1984). In this instance, such appeals resulted in

acguittals or dismissals of each of the findings against

plaintiffs in the district court.

Accordingly, the motion in limine seeking judicial notice of

the state district court convictions must be and it is herewith

denied.

2. Defendants' Motion in Limine for Ruling of Law Regarding

Arguable Probable Cause, document 10

Relying on the findings of the state district court above

discussed, plaintiffs urge that this court rule as a matter of

law that the defendant police officers have proven arguable

probable cause for their arrests of plaintiffs. The plaintiffs

object. Document 18.

It is the general rule that probable cause to make an arrest

exists if the facts and circumstances of which the arresting

officer has knowledge are sufficient to lead an ordinarily

3 prudent officer to conclude that an offense has been, is being,

or is about to be committed, and that the putative arrestee is

involved in the crime's commission. Logue v. Pore,

(1st Cir. 1997). See also Hartqers v. Town of

Plaistow,

,

(1996). And while

an acquittal does not equate with absence of probable cause for

an arrest, for the standards for determination of probable cause

and for a criminal conviction markedly differ, Brumfield v.

Jones,

(5th Cir. 1988), any ruling on probable

cause made by this court at this stage of the proceedings would

be premature. This is so because the record currently before the

court is woefully inadequate to support any such ruling.5 The

motion is accordingly denied.6

5Even were this a motion for summary judgment with conflicting factual affidavits, it is doubtful the court would be in a position to rule on the issue. See

6This ruling is, of course, without prejudice to the defendants' right to move for judgment as a matter of law (JMOL) pursuant to Rule 50(a), Fed. R. Civ. P., at the close of the plaintiffs' case.

4 3. Defendants' Objection to Damage Evidence of Plaintiffs'

Attorney Fees Incurred in Defending the Underlying Criminal

Action, document 19

All plaintiffs but Jody Landry were charged with various

criminal offenses. The findings of guilty made at the state

district court level were vacated on appeal, which resulted in

either dismissals or acguittals. Plaintiffs seek to include as

elements of their damage the attorney fees incurred in defending

these criminal cases. Claiming lack of causation, the defendants

here move to bar evidence of such fees as elements of plaintiffs'

damages. The plaintiffs object. Document 25.

Again, it would be premature for the court to attempt to

rule on this issue at the present time. The thrust of

defendants' claim is that independent action on the part of the

prosecutor or state district court judge insulates them from

liability for such damages.

Ordinarily, reasonable attorney fees incurred by a plaintiff

in an underlying criminal action can constitute part of the

foreseeable economic damages unless the prosecutor's decision to

file charges is such an independent judgment that it must be

considered the proximate cause of the subseguent criminal

proceedings. Varlow v. Grow,

(9th Cir. 1991)

(citing Borunda v. Richmond,

(9th Cir.

5 1988)). But the chain of causation is broken only where all the

facts are presented to the alleged prosecutorial officer. Taylor

v. Gregg,

(5th Cir. 1994).

This court is unaware of what facts were here presented to

the prosecutor, whether the prosecutor was a fellow police

officer or an independent member of the bar, and what the

ultimate record was as presented to the state district court.

Under these circumstances, the motion must be and it is

herewith denied.7

4. Defendants' Objection to Plaintiffs' Exhibits and Evidence

Regarding Monell Claim for Municipal Liability and for Emotional

Distress, document 20

Contending plaintiffs have failed to name an expert witness

on the issues of police training and discipline, defendants move

that lack of such evidence bars further attempts to prove the

custom or policy reguirements of Monell v. New York Pep't of

Social Servs.,

(1978). The defendants object.

Document 26.

Inadeguacy of police training serves as a basis for

liability under

only where the failure to train

7Again, defendants retain the right to move for JMOL at the close of plaintiff's case.

6 amounts to deliberate indifference to the rights of persons with

whom the police come into contact. Canton v. Harris,

(1989). Liability under the statute is not satisfied by

merely alleging that the existing training program for a police

officer represents a policy for which the city is responsible.

at 38 9.

This does not mean that expert testimony is reguired to

prove the issue of deliberate indifference, for certain acts and

omissions are "so obvious" that such evidence is not reguired.

at 390 n.10. As the court is unable to determine on the

record currently before it whether such obvious acts or omissions

here exist, it must await the testimony at trial concerning the

reguirement, if any, that expert testimony be presented.

Similarly, the court cannot rule on the record before it

that expert testimony is reguired to prove the claims of

emotional distress. It appears that at least some of the

plaintiffs reguired medical treatment as a result of their

encounter with the police officers. The rule is that "when

damages for impact are not sought," expert testimony is reguired.

Thorpe v. State,

,

(1990). As

the court has no evidence before it as to which, if any, of the

plaintiffs fall within the reguirements of this rule, this

portion of the motion must also be denied.

7 The court does agree with the defendants that the potential

witnesses Sharon Parker and Kelly Dionne should not be permitted

to testify in this action.8 Not only were none of the officers

here charged as defendants involved in those actions, but in each

case the city and/or the Nashua Police Department as an entity

were found not liable. The testimony of Ms. Parker and Ms.

Dionne would not only be irrelevant, but would be substantially

outweighed by the danger of unfair prejudice. Rule 403, Fed. R.

Evid.

The motion is accordingly granted only to the extent that

the testimony of Ms. Parker and Ms. Dionne will be excluded at

the trial of this case. Otherwise, the motion is denied.

5. Conclusion

For the reasons stated, the court has denied all of the

motions herein considered with the exception of the last motion

discussed, wherein the motion is granted only to the extent that

8This judge presided over the Parker trial, see Parker v. Citv of Nashua,

(1st Cir. 1996), and accordingly may take judicial notice of the record of that case, as well as of the record of the magistrate judge who presided in the Dionne case.

proposed witnesses Sharon Parker and Kelly Dionne are to be

excluded from the trial of this case.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 22, 1997

cc: Steven L. Maynard, Esq. Thomas B.S. Quarles, Jr., Esq.