Appell v. Giaccone, et al. CV-96-060-M 05/18/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Leonard Appell, Plaintiff

v. Civil No. 97-60-M

Nicholas Giaccone, Christopher O'Connor, and Town of Hanover, New Hampshire, Defendants

O R D E R

In a previous order, dated December 11, 1997, the court

granted judgment on the pleadings in favor of defendants,

excepting plaintiff's civil rights and state law respondeat

superior claims against the Town of Hanover arising from

defendant O'Connor's prosecution of plaintiff. The Town of

Hanover has now filed a motion for judgment on the pleadings on

Appell's state law respondeat superior claim, as well as motions

for judgment on the pleadings and for summary judgment on his

civil rights claim. The motions and plaintiff's objections are

addressed as follows.

A. Motion for Judgment on the Pleadings: State Law Claim

A motion for judgment on the pleadings pursuant to Federal

Rule of Civil Procedure 1 2 (c) challenges the sufficiency of a

claim under the same standard used for a motion under Rule

1 2 (b) (6) . See Roaan v. Menino,

(D. Mass.

1997); Prever v. Dartmouth College,

(D.N.H.

1997). Thus, all material allegations in the complaint are taken as true and are construed in the light most favorable to

plaintiff, and dismissal will not be granted unless plaintiff

cannot prove facts that would entitle him to relief. Gaskell v.

Harvard Cooperative Society,

(1st Cir. 1993).

Appell's only remaining state law claim against Hanover

alleges respondeat superior liability for Christopher O'Connor's

prosecution of him. In support of his claim, Appell alleges that

on August 18, 1993, he attempted to inspect certain property for

his brother. When he arrived, he was met by a Hanover police

officer. Officer Giaccone, who, acting under the direction of

Officer O'Connor, another Hanover police officer, arrested Appell

for trespass in violation of a court order. O'Connor prosecuted

Appell on the trespass charge, and in the course of the

prosecution allowed the complaining witness (Fleet Bank) to

subsidize the costs of the prosecution. Appell was acguitted in

June of 1994.

Hanover argues that municipal immunity as well as vicarious

imputation of prosecutorial immunity protect Hanover from

liability on Appell's state law claims based on O'Connor's

prosecution. Appell counters that Hanover's motion is premature,

because the court should first determine whether his federal

civil rights claim will survive summary judgment, and, if not,

the court should remand the state claim to state court. Because

Appell's federal claims remain unresolved, the court's

supplemental jurisdiction over Appell's state law claims pursuant

to

(a) continues, and the court finds no reason

2 pursuant to § 1367(c) to decline to exercise its jurisdiction.

C f . Camelio v. American Federation,

(1st Cir.

1998) (court must reassess supplemental jurisdiction after it

dismisses claims providing jurisdictional foundation).

By statute. New Hampshire provides that "[n]o governmental

unit shall be held liable in any action to recover for bodily

injury, personal injury or property damage except as provided by

this chapter or as provided or may be provided by other statute."

-B:5 (1997) . A claim for malicious

prosecution is included in the definition of "personal injury."

-B:l, III(a). The liability provided

in section 507-B:2 (negligence in maintenance and operation of

town's vehicles and premises) does not apply to the facts of

Appell's claims against Hanover. Alternatively, although the

pleadings do not include the necessary information, it may be

that Hanover waived its statutory immunity to the extent of

insurance coverage for plaintiff's claims. See

(Supp. 1997).

Even if Hanover waived statutory immunity to the extent of

insurance coverage applicable to Appell's claim, the town would

nevertheless retain "protection from tort actions when the injury

is the result of the exercise of a legislative or judicial

function, or a planning function involving a basic policy

decision that is characterized by a high degree of official

judgment or discretion." City of Dover v. Imperial Cas. & Indem.

C o .,

(1990); accord Gardner v. Citv of Concord,

3

(1993). Absolute immunity is afforded the

prosecutorial function, as a part of the judicial function, to

protect a prosecutor's exercise of independent judgment and

discretion. See Belcher v. Paine,

(1992) .

Thus, because the actions of a prosecutor are both part of the

judicial function and require a high degree of official

discretion, a municipality retains its immunity from liability

for acts taken in the exercise of the prosecutorial function.

In addition, " [h]olding the governmental employer liable

would not be consistent with the policy underlying the doctrine

of prosecutorial immunity, that of shielding a prosecutor from

the 'deflection of [his] energies from his public duties and the

possibility that he would shade his decisions instead of

exercising the independence of judgment required by his public

trust.'" State v. Dexter,

(1993) (quoting

Belcher,

). Therefore, Hanover is immune and

cannot be held vicariously liable for O'Connor's actions (which

have previously been determined to have been protected by

prosecutorial immunity). See Dexter,

.

B. Motion for Judgment on the Pleadings: Civil Rights Claim

Appell alleges that Hanover adhered to an informal policy or

practice that violated his right to be free of unlawful or

malicious prosecution. He says the policy or practice permitted

police officers to prosecute misdemeanor cases despite their

alleged conflict of interest in conducting an independent review

4 of actions by their own police department, and allowed a

complaining witness to subsidize the costs of a prosecution.

Hanover moves for judgment on the pleadings on grounds that the

Fourteenth Amendment does not afford relief for unlawful or

malicious prosecution. The plurality in Albright v. Oliver,

(1994) precluded a civil rights malicious prosecution

claim brought under the Fourteenth Amendment, but left open the

possibility that such a claim might be viable under the Fourth

Amendment.

; see also Washington v.

Summerville,

(7th Cir. 1997), cert, denied,

(April 20, 1998); Murphy v. Lynn,

(2d Cir. 1997), cert, denied, 118 S. C t . 1051 (1998); Britton v.

Maloney,

(D. Mass. 1997) .

Appell alleges that Hanover's actions violated his Fourth

and well as his Fourteenth Amendment rights. Although his Fourth

Amendment claims for false arrest were dismissed in the court's

previous order as untimely, the malicious prosecution claims

against Hanover survived. Thus, while judgment may be granted on

the pleadings in favor of defendants as to plaintiff's malicious

prosecution claims under the Fourteenth Amendment, to the extent

those claims allege Fourth Amendment violations they remain

legally viable.

C. Motion for Suramary Judgment

Hanover also moves for summary judgment with respect to

Appell's malicious prosecution claims on grounds that he cannot

5 show that the town had a policy or practice pertaining to

prosecuting misdemeanors that operated to violate his

constitutional rights or that the town acted with deliberate

indifference to his constitutional rights. Appell responds that

the affidavits submitted by the town in support of its motion

were submitted in bad faith and should be stricken, and he also

asks that the motion be denied to allow further discovery

pursuant to Federal Rule of Civil Procedure 56(f).

1. Affidavits submitted by Hanover.

Affidavits submitted in support of or in opposition to a

motion for summary judgment must be based on the affiant's

personal knowledge and on facts that would be admissible in

evidence, and must show that the affiant is competent to testify

to the statements in the affidavit. Fed. R. Civ. P. 56(e); Casas

Office Machines, Inc. v. Mita Coovstar America, Inc.,

(1st Cir. 1994). Affidavits that offer statements

based on an affiant's "information and belief," rather than

personal knowledge, are not entitled to weight in considering

summary judgment. Cadle Co. v. Haves,

(1st

Cir. 1997). In addition, if the court should determine that

affidavits were submitted in bad faith or only to delay the

proceeding, the court will order the submitting party to pay the

attorney's fees incurred by the other party in responding. Fed.

R. Civ. P. 56(g). Appell contends that the affidavits submitted

6 by Hanover were submitted in bad faith, and he seeks attorney's

fees.

a. Affidavit of Marilyn Black

Ms. Black, who states that she was chair of Hanover's Board

of Selectmen during the time Appell was prosecuted (August 1993

through June 1994), names the chief and acting chief of police

during the period, and explains the operation of police

prosecutions. She states that "a specially designated Hanover

police officer, who was trained in criminal prosecution matters,

prosecuted misdemeanors in district court as authorized and

permitted by state law." She also says that "private parties or

entities were not to subsidize the cost of, or exert improper

influence over, criminal prosecutions by the Hanover police

prosecutor." Those statements, presumably, are based upon her

personal knowledge gleaned from her position on the Board of

Selectmen. Her next statements, however, undermine her previous

statements by repeating essentially the same information but

gualifying the basis of her knowledge as "the best of my

knowledge and belief." Because statements based on "information

and belief" are not competent to support a motion for summary

judgment, and the basis of Ms. Black's knowledge of the town's

policy and practice pertaining to police prosecutors is unclear,

her affidavit, in its present form, will not be considered.

Appell contends that the affidavit was submitted in bad

faith because elsewhere Hanover has admitted that Fleet Bank paid

7 for a transcript of a state court proceeding that was used in his

prosecution. Ms. Black's statements are not sufficiently

contrary to statements that Fleet provided a copy of the

transcript to suggest bad faith. The court finds that the

affidavit was not submitted in bad faith.

b. Affidavits of Nicholas J. Giaccone, Jr. and Christopher O'Connor

Appell contends that both Giaccone's and O'Connor's

affidavits providing statements about O'Connor's training and

experience as a police prosecutor do not pertain to the time when

O'Connor prosecuted him or are otherwise vague or irrelevant.

Appell is simply wrong. O'Connor and Giaccone describe

O'Connor's prosecutorial training in six different programs held

between 1986 and April 1992. Appell was prosecuted in 1993 and

1994, so O'Connor's prior training is relevant to his competence

at the time of Appell's prosecution. Appell's remaining

objections to the affidavits are also meritless.

2. Rule 56(f) Recruest

Rule 56(f) allows additional time for a party to conduct

discovery before filing an objection to a motion for summary

judgment, but only when specific reguirements are met. C .B .

Trucking, Inc. v. Waste Management, Inc.,

(1st

Cir. 1998). To invoke the protection of Rule 56(f), a party must

show that he was diligent in pursuing discovery before the

summary judgment motion was filed and demonstrate a "plausible basis" for the court to conclude that specific facts, capable of

influencing the outcome of the pending motion, exist and may be

discovered within a reasonable amount of time.

(citing

Resolution Trust Corp. v. North Bridge Assoc., Inc.,

(1st Cir. 1994) ) .

In support of his Rule 56(f) reguest, Appell asserts that

all of his discovery reguests remain unanswered. It appears,

however, that Hanover objected to Appell's discovery attempts

although he included only one of Hanover's objections with his

response. Appell also says Hanover refused to comply with his

discovery reguests related to "the officers" (apparently

referring to police officers Giaccone and O'Connor) because they

had been dismissed from the suit. The only discovery submitted

with Appell's response to the motion for summary judgment are his

reguest for admissions from O'Connor, dated October 9, 1997, an

undated reguest to Hanover for production of documents (received

by Hanover on October 17, 1998), and Hanover's objection to the

reguest for production. Despite his complaint that Hanover never

answered his discovery reguests, Appell never moved to compel

answers or responses to his reguests.

Since the court's order in December 1997 granting

defendants' motion to dismiss, excepting only the present claims

against Hanover, Appell has been on notice of the issues

remaining in his suit. He apparently engaged in no discovery

efforts following the court's December order, nor did he attempt

to compel answers to his prior reguests. Appell was granted an extension of time to respond to Hanover's present motions, but

still did not pursue further discovery or seek court assistance

to compel responses to his prior discovery requests. Thus,

Appell fails to meet the first requirement for Rule 56(f) relief

because he has not shown that he was diliqent in pursuinq

discovery before Hanover's motion for summary judqment.

_____ In addition, the discovery requests Appell included with his

response are not material to the present motion for summary

judqment. Appell seeks personal information about Officers

Giaccone and O'Connor (who are no lonqer defendants in this case)

unrelated to his claims here that the town had a practice or

policy with respect to the prosecution of misdemeanors that

violated his constitutional riqhts. Instead, Appell seems to

seek information, unrelated to his current dispute with the town,

perhaps to use in yet another suit (Appell has participated in

approximately six suits in this court durinq the past five

years). Accordinqly, even if Appell could show that he

diliqently pursued discovery, he could not show that the

discovery he seeks would likely produce facts capable of

influencinq the outcome of this case.

Appell's Rule 56(f) request is denied.

____________________________ CONCLUSION

For the foreqoinq reasons, defendant Hanover's motion for

judqment on the pleadinqs (state law claims) (document no. 23) is

qranted. Defendant's motion for judqment on the pleadinqs (civil

10 rights claims) (document no. 20) is denied. Defendant's motion

for summary judgment on the civil rights claims (document no. 22)

remains pending, and plaintiff is granted ten days from the date

of this order to file an appropriate and properly supported

response. No further extensions of time will be granted absent

extraordinary circumstances.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 18, 1998

cc: Leonard Appell Charles P. Bauer, Esg.

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