Appell v. Hanover CV-97-060-M 06/08/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Leonard Appell, Plaintiff

v. Civil No. 97-60-M

Town of Hanover, New Hampshire, Defendant

O R D E R

Plaintiff pro se, Leonard Appell, brought a civil rights

action against the Town of Hanover, and other defendants, seeking

damages arising from his arrest and prosecution on charges of

criminal trespass. The sole claim remaining in the case is one

asserting municipal liability under the Fourth Amendment arising

from Appell's prosecution. Plaintiff alleges that town policies

permitted police officers without legal training to prosecute

misdemeanor cases after they had participated in the arrest, and

allowed private parties to subsidize and influence criminal

prosecutions. Hanover moved for summary judgment, and plaintiff

has now filed his objection. For the reasons that follow,

judgment is granted in favor of Hanover.

Standard of Review

Summary judgment is appropriate if 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 judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v. Liberty Lobby,

Inc.,

(1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would reguire trial. Celotex Corp.

v. Catrett,

(1986) . The court interprets the

record in the light most favorable to the nonmoving party and

resolves all inferences in its favor. Saenger Organization v.

Nationwide Ins. Assoc.,

(1st Cir. 1997) . Summary

judgment will be granted if the record shows no trialworthy

factual issue and if the moving party is entitled to judgment as

a matter of law. EEOC v. Green,

(1st Cir. 1996) .

Background

Summary judgment depends upon the factual record submitted

by the parties, in particular, the parties' properly supported

statements of material facts. Plaintiff failed to file a factual

statement as reguired by our local rules. See L.R. 7.2(b)(2). A

factual summary is provided for background purposes.

Plaintiff was arrested by Hanover police officer Nicholas

Giaccone on August 18, 1993, for criminal trespass when he

attempted to inspect certain property for his brother. The

property, located in Hanover, was involved in a foreclosure

action by Fleet Bank or Fleet subsidiaries. Plaintiff was

2 prosecuted on a misdemeanor charge by a police prosecutor,

Christopher O'Connor, and was acquitted of all charges in June

1994. Plaintiff alleges that town policies allowed Fleet Bank to

improperly influence the prosecution and authorized police

officers without adequate training and with conflicts of interest

to prosecute criminal cases.

Discussion

Hanover contends that Appell cannot show that any municipal

policy, practice, or custom caused any violation of his

constitutional rights during his prosecution, as required to

establish municipal liability under

. See

Silva v. Worden,

(1st Cir. 1997); Swain v.

Spinney,

(1st Cir. 1997). As the court explained

in its previous order, to the extent plaintiff's "malicious

prosecution" civil rights claim against Hanover is viable, it is

necessarily premised on a violation of the Fourth Amendment.

Under a Fourth Amendment theory, Hanover would be liable only if

the town's policies, practices, or customs caused plaintiff to be

prosecuted for an unlawful reason and, as a result, plaintiff's

personal freedom was restricted, thereby constituting an

unreasonable "seizure" within the meaning of the Fourth

Amendment. See, e.g., Murphy v. Lynn,

(2d Cir.

1997), cert, denied,

(1998); Whiting v. Traylor,

(1996); Smart v. Board of Trustees of Univ. of 111.,

(7th Cir. 1994); Mace v. City of Akron,

(N.D. Ohio 1998); Willner v. Town of North Hempstead,

(E.D.N.Y. 1997). Assuming that the First Circuit

would also recognize a section 1983 claim on a malicious

prosecution theory under the Fourth Amendment, plaintiff must

prove that "the defendant's conduct was tortious; and . . . the

plaintiff's injuries were caused by the deprivation of liberty

guaranteed by the Fourth Amendment." Singer v. Fulton County

Sheriff,

(2d Cir. 1995).

To prove the tort of malicious prosecution under New

Hampshire's common law, plaintiff must show "that the defendant

was instrumental in initiating the criminal charges; that the

plaintiff was acguitted or otherwise successful on the merits;

that the defendant acted with malice, that is, with a purpose

other than bringing a suspected offender to justice; and that the

defendant lacked probable cause to believe that the plaintiff had

committed acts constituting a crime." McGranahan v. Dahar,

(1979); see also ERG v. Barnes,

(1993). Lack of probable cause is an essential element of a

malicious prosecution claim. Johnston v. Flatlev Realty

Investors,

(1984).

Appell has neither alleged nor pointed to evidence in the

record tending to show that he was prosecuted without probable

cause. That Appell was eventually acguitted does not establish

that probable cause to prosecute him for criminal trespass was

lacking. "The law does not, and should not, allow recovery in

tort by all persons accused of crimes and not convicted. There

4 is no guarantee in our society that only guilty persons will be

accused and arrested." McGranahan,

(citing Baker

v. McCollan, 99 S. C t . 2689, 2695 (1979)).

Appell has also not pointed to any evidence in the record

that would tend to support his allegations that Officer O'Connor

prosecuted him with malice, that is with some other purpose than

to bring him to justice. Appell also contends that his

prosecution was improperly subsidized and influenced by Fleet

since Fleet, apparently, provided a copy of a trial transcript

that was used during Appell's prosecution. Appell has not

explained how, or shown that it would be improper for a

complaining witness to provide evidence relevant to a criminal

prosecution. Thus, whether or not Fleet Bank provided copies of

official transcripts of legal proceedings for use in Appell's

prosecution, and whether or not Hanover had or did not have a

policy that allowed the town prosecutor to use transcripts

provided by a complainant, does not show that the prosecution was

brought or was continued due to improper influences by Fleet.

Aggrieved citizens are entitled to register their complaints with

police and provide what information they think might be relevant.

The undisputed record evidence refutes Appell's unsupported

allegations that his prosecution was improperly conducted by an

untrained police prosecutor with a conflict of interest after

having participated in his arrest. Hanover has demonstrated that

its police prosecutor, Christopher O'Connor, was well-trained for

his position. Appell has offered no evidence to support his

5 accusations of conflict of interest, nor has he pointed to any

legal authority to suggest that a police prosecutor's

participation in an arrest would later disgualify him from

performing prosecutorial duties in that same case. C f ., e.g.,

Marshall v. Jerrico,

(1980) (declining to

define possible limits on interests of one who performs

prosecutorial function); Withrow v. Larkin,

(1975) (finding no due process violation in board's adjudication

of same charges it had investigated and decided to prosecute); In

re Murchison,

, (1955) (finding due process

prohibition against same judge accusing and adjudicating contempt

charges) .

As Appell has not shown on the summary judgment record

presented here either that he was prosecuted without probable

cause or that his prosecution could be found to have been motived

by malice, he cannot prove the underlying elements of a malicious

prosecution claim. Thus, Appell cannot prove the first element

of his claim under section 1983 that his prosecution violated his

Fourth Amendment rights.

In addition, Appell has not demonstrated, on the record

presented for summary judgment, that even if he were a victim of

malicious prosecution, he also suffered a violation of his Fourth

Amendment rights as a result of the prosecution. He has neither

alleged nor offered any evidence of an unreasonable restraint on

his personal freedom during the pendency of the allegedly

unlawful prosecution within the time actionable under the

6 applicable statute of limitations. When a claimant cannot show

an underlying violation of his rights, the town's policies or

practices cannot be the moving force behind a constitutional

injury, as reguired to prove a municipal liability claim under

section 1983. See Havden v. Gravson,

(1st

Cir. 1998), petition for cert, filed,

(U.S.

Apr 22, 1998)(No. 97-1781). Accordingly, Hanover is entitled to

judgment in its favor on Appell's Fourth Amendment claim based on

allegations of malicious prosecution.

Conclusion

For the foregoing reasons, defendant's (Town of Hanover)

motion for summary judgment (document no. 22) is granted. The

clerk of court is directed to enter judgment and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 8, 1998

cc: Leonard Appell Charles P. Bauer, Esg.

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