Nesbitt v. USA; Graffam CV-96-594-SD 12/16/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James M. Nesbitt, III

v. Civil No. 96-594-SD

United States of America; Special Agent Gerald Graffam

O R D E R

Plaintiff James M. Nesbitt, III, brings this civil action

for damages against the United States of America under the

Federal Tort Claims Act ("FTCA"),

, et seer. , and

against Special Agent Gerald Graffam, individually, under Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971) ("Bivens"). These claims arise out of Agent

Graffam's alleged participation in and knowledge surrounding the

search, seizure, and arrest of plaintiff. Plaintiff forwards two

FTCA causes of action (Count I: false imprisonment, and Count II:

intentional or negligent infliction of emotional distress), and

one Bivens cause of action (Count III: unreasonable search and/or

seizure). Jurisdiction is invoked under

(b) and

. Before the court is defendants' converted

motion for summary judgment.1

Background

1. Facts2

The facts surrounding this litigation date back to 1994,

when the New Hampshire State Police began investigating the

suspected drug activities of plaintiff James Nesbitt. The police

used an informant, Samantha Medina, to arrange what they hoped

would be a drug sale leading to the arrest of Nesbitt, a

suspected cocaine trafficker. After several monitored phone

calls with plaintiff, the informant arranged a meeting with

plaintiff at the Cumberland Farms store in Milton, New Hampshire.

Five law enforcement officers were in place May 10, 1994, the day

of the arranged meeting between Nesbitt and the informant. Two

state officers. Sergeant Steven Demo and Trooper Russell Conte,

occupied a surveillance position to make the arrest at the

appropriate time. One state officer. Corporal Francis Lord, rode

1This order addresses: defendants' motion to dismiss, document 26; plaintiff's objection, document 28; defendants' memorandum in support of the converted motion for summary judgment, document 37; plaintiff's memorandum in opposition, document 42; and defendants' reply to plaintiff's opposition, document 4 6.

2The record is reviewed in the light most favorable to the plaintiff, and the following facts are gleaned from the parties' motions, including supporting documents. Disputed facts are noted as necessary.

2 with the informant posing as her acquaintance. One federal

officer, defendant Graffam, an agent with the Drug Enforcement

Administration (DEA), accompanied the remaining state officer.

Corporal Susan Forey, in a vehicle parked behind the Cumberland

Farms store. Due to a shortage of manpower, Forey had contacted

Graffam on May 9, 1994, to request DEA's assistance in the

surveillance and possible arrest of plaintiff.

Prior to departure, Forey strip-searched the informant to

check for any drugs or money. The officers thereafter outfitted

the informant with a wire transmitter, which did not work

correctly that day, and a $1,700 "flash roll" to show plaintiff.

After arriving at Cumberland Farms, the informant spoke briefly

with plaintiff, returned to Lord's pickup, and said that

plaintiff wanted her to go for a ride. Against Lord's

instructions, the informant got in plaintiff's car and they drove

up to the store. She got out of the car, briefly entered the

store, returned to plaintiff's car, and then came back over to

Lord's pickup and said that everything was "all set" and that

plaintiff was going to get "it." Demo and Conte followed as

plaintiff drove away. When Lord asked the informant where the

money was, she said that she gave it to plaintiff, which prompted

Lord to order Demo and Conte to stop plaintiff and recover the

money.

After driving away, plaintiff pulled into a parking lot

about one and one-half miles from Cumberland Farms, followed by

3 Demo and Conte. With guns drawn, they asked him where the money

was. He responded that he did not have it, and a pat search

confirmed that he did not have the money. Demo then saw a clear

bag of white powder that appeared to be cocaine on the floor of

plaintiff's car. Plaintiff was then arrested and brought to the

rear of the building for a strip search, which revealed nothing.

Officer Conte contacted Officer Keyes to transport plaintiff to

the police station, but he was never prosecuted because the

substance in the bag tested negative for the presence of cocaine.

In the meantime. Agent Graffam walked from Cumberland Farms

to the parking lot down the road where plaintiff's arrest took

place. After arriving and learning that the money had not been

found, he walked back along the road to see if plaintiff had

tossed out the money along the way. The officers also searched

the Cumberland Farms store for the money, but they found nothing.

Eventually the informant admitted to Forey that she had kept the

money hidden in her vagina, and she then produced the money.

Although both parties agree that the informant planted the

white powder in plaintiff's car, they dispute why she did so.

Plaintiff's theory all along has been that the informant planted

the bag as part of a conspiracy with the officers to create

pretextual probable cause. Plaintiff has to this date been

unable to produce an affidavit from the informant. He does

submit a copy of a transcribed interview between the informant, a

private investigator, and a lawyer representing plaintiff. In

4 the interview, the informant indicates that she planted the

evidence at the direction of the officers. Also, plaintiff

disputes a statement made by Forey in her declaration, wherein

Forey states the informant admitted to planting the bag under

plaintiff's seat days before the arrest. This cannot be true,

according to plaintiff, because he remembers cleaning his car at

some point after the informant claims to have planted the bag,

and he saw no such bag when he cleaned his car. Declarations

have also been provided by Forey, Lord, Conte, Demo, and Graffam

denying having provided the informant with any fake cocaine, and

denying any knowledge that the informant intended to plant any

fake cocaine.

Additional facts are noted as necessary.

2. Procedural History

Highlights of the procedural quagmire underlying this case

include the following. Plaintiff filed a complaint in state

court in August 1995 against the state and federal actors. After

the action was removed to federal court, plaintiff voluntarily

dismissed his claim against Agent Graffam, the only federal

defendant, and this court remanded the case back to the state

court in November 1995. On July 1, 1996, the Strafford County

(New Hampshire) Superior Court, Mohl, J., granted summary

judgment in favor of defendants on three of four counts. Count

III of plaintiff's state complaint, alleging that Officer Keyes

5 verbally threatened to break Nesbitt's legs while transporting

him to the station, survived summary judgment, but plaintiff

voluntarily dismissed this claim during trial.

Plaintiff then appealed the summary judgment decision to the

New Hampshire Supreme Court, and in the meantime filed this suit

against Agent Graffam on November 27, 1996. After the New

Hampshire Supreme Court summarily affirmed the summary judgment

on September 22, 1997, the United States and Agent Graffam moved

to dismiss this action based on qualified immunity and collateral

estoppel. Plaintiffs objected, and this court converted the

motion to dismiss to a motion for summary judgment on

November 26, 1997, to allow additional discovery and submissions.

On December 31, 1997, defendants filed a memorandum in support of

the converted motion for summary judgment, and on February 2,

1998, plaintiffs filed a memorandum in opposition. Defendants

then filed a rely brief on March 4, 1998.

Discussion

1. Standard of Review

Summary judgment is appropriate when "there is no genuine

issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law." Rule 56(c), Fed. R.

Civ. P. This familiar standard has a "rhythm of its own,"

described as follows:

6 The movant must put the ball into play, averring an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material. A genuine issue is one that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party. Put another way, a genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. A material issue is one that affect[s] the outcome of the suit, that is, an issue which, perforce, need[s] to be resolved before the related legal issues can be decided.

Maldonado-Denis v. Castillo-Rodriquez,

(1st Cir.

1994) (quotations and citations omitted).

When the nonmovant bears the ultimate burden of proof on an

issue, he may not defeat the motion "by relying upon mere

allegations or evidence that is less than significantly

probative."

(citing Anderson v. Liberty Lobby, Inc.,

(1986)). "Summary judgment likely will be

appropriate if the nonmovant elects to rest upon some combination

of 'conclusory allegations, improbable inferences, and

unsupported speculation.'"

(quoting Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990)).

Furthermore, the motion for summary judgment "must be decided on

the record as it stands, not on litigants' visions of what the

facts might some day reveal."

When a party pleads the affirmative defense of collateral

estoppel at the summary judgment stage, issue preclusion on

7 summary judgment is appropriate when all the requirements of both

issue preclusion and summary judgment are met. See 18 M o o r e 's

Federal Practice § 132.05 [7] (3d ed. 1998) ; c f . Lillios v. Justices

of the New Hampshire Dist. Ct.,

(D.N.H.)

(limited inquiry of motion to dismiss does not allow review of

previous action for preclusive effect).

2. Plaintiff's Evidentiary Arguments

Plaintiff argues for the admissibility of the informant's

unsworn, out-of-court statements. The statements are contained

in a transcribed copy of a recorded interview between the

informant, Sid Carlson (investigator for plaintiff), and Brian

Stern (attorney for plaintiff). According to plaintiff, the

statements are admissible as (1) statements against penal

interest, (2) vicarious admissions by a party-opponent, and (3)

co-conspirator statements. The statements are allegedly evidence

that law enforcement officers directed the informant to plant

fake drugs in plaintiff's car. The court finds that the

statements are inadmissible under any of plaintiff's theories and

therefore may not be considered in ruling on summary judgment.

Plaintiff first argues an exception to the hearsay rule

under Rule 804(b)(3), Fed. R. Evid., as a statement against penal

interest.3 By stating in the interview that she agreed to plant

3Rule 804(b)(3), Fed. R. Evid., Statement against Interest, provides: the fake drugs, the informant subjected herself to criminal

liability for falsifying evidence. The government argues that

the circumstances do not clearly indicate the trustworthiness of

the statement, as required under Rule 804(b)(3).

As with any hearsay exception, it is the trustworthiness and

reliability of certain statements that justifies their exception

from the hearsay rule. In the case of a statement against

interest, this guaranty of trustworthiness comes from the notion

that "a reasonable man in his position would not have made the

statement unless he believed it to be true."

Thus, unless a

declarant is aware when making a statement that it is against his

interest, the trustworthiness of the statement is called into

question. See United States v. Albert,

(1st

Cir. 1985); Roberts v. City of Troy,

(6th Cir.

1985). And where a declarant has a motive to misrepresent the

facts through self-serving statements, the questionable

reliability of the statement prevents its admission under Rule

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 804 (b) (3) . See

; 5 W e i n s t e i n 's

Federal Evidence § 804.06 [4] [d] [iii] (2d ed. Matthew Bender 1998) .

Here, the informant's unsworn interview, full of leading

questions, took place in front of the lawyer of the man whom she

framed by planting fake drugs. After already admitting to Forey

that she planted the evidence, the informant clearly had

motivation to exculpate herself by stating she planted the bag at

the direction of the officers. As far as the informant was

concerned, her self-serving statements were exculpatory rather

than against her own interest because they shift the blame to

others. Therefore, the unsworn interview lacks the necessary

indicia of trustworthiness to qualify for admissibility as a

statement against penal interest. See United States v. Mackev,

(1st Cir. 1997), cert, denied,

,

U.S. ___ (1997);

; United

States v. Zirpolo,

(1st Cir. 1983); United

States v. Barrett,

(1st Cir. 1976).

Plaintiff next argues that the informant's unsworn interview

is not hearsay because the informant's statements are a vicarious

admission of a party opponent under Rule 801(d)(2)(D).4 Relying

on Lippav v. Christos,

(3d Cir. 1993) (investigator

4Rule 801(d)(2)(D), Fed. R. Evid., provides that a statement is "not hearsay" if "[t]he statement is offered against a party and is . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship."

10 lacked sufficient supervisory control over informant to establish

agency relationship), plaintiff argues that Forey's long-standing

and supervisory relationship with the informant renders her an

agent acting under color of state law. The first flaw in this

argument is that it ignores the evidence indicating Agent

Graffam's exceedingly limited relationship to the informant. At

best, plaintiff can make an argument that Forey's lead

investigative role and prior relationship established an agency

relationship with the informant. Nothing, however, indicates

that Agent Graffam "personally directed [the informant's] work on

a continuing basis."

; see also Brookover v . Mary

Hitchcock Mem'l Hosp.,

(1st Cir. 1990) (no

proof that declarant was agent or employee of party against whom

statement was offered).

The second flaw in plaintiff's argument is that the

declarant's statement must be "made during the existence of the

[agency] relationship." Rule 801(d)(2)(D), Fed. R. Evid.

Plaintiff's arrest occurred on May 10, 1994, the date of the

arranged drug sale between plaintiff and the informant. The

transcription of the informant's taped interview is dated

December 21, 1994. See Plaintiff's Memorandum in Opposition

(document 42). The alleged agency relationship therefore

predates the informant's statements by over seven months. As

stated by Forey in her affidavit:

11 By the next day, I had reported the events of May 10, 1994 to my supervisors who debated whether or not to charge [the informant] with theft. It was ultimately concluded that criminal prosecution was not necessary because she would be blacklisted as an informant by the State Police, the Drug Task Force, and the DEA. Effectively, her service as an informant was ended.

See Defendants' Supplemental Memorandum, Exhibit A at 16

(document 37). Accordingly, there is no evidence that the

informant's statements were made during the existence of the

alleged agency relationship, and the statements are not

admissible as vicarious admissions of a party-opponent under Rule

801(d)(2)(D). See United States v. Pena,

(5th Cir. 1976) (declining to decide whether informant was an

agent, because statements were made after informant's

relationship with government ended), cert, denied,

(1976); see generally Woodman v. Haemonetics Corp.,

,

1094 n.4 (1st Cir. 1995); Union Mut. Life Ins. Co. v. Chrysler

Corp.,

(1st Cir. 1986).

Lastly, plaintiff argues that the informant's unsworn

interview is not hearsay because the statements are admissible

under Rule 801(d)(2)(E), Fed. R. Evid., as statements by a co­

conspirator.5 It is true that statements made by a government

informant may serve as co-conspirator statements, see United

5Rule 801(d)(2)(E) provides that a statement is "not hearsay" if "[t]he statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in the furtherance of the conspiracy."

12 States v. TSE,

(1st Cir. 1998), but the

"statement must be made during the course of and in furtherance of

that conspiracy."

(citing Rule 801(d)(2)(E), Fed. R. Evid.,

and United States v. Machor,

(1st Cir. 1989),

cert, denied,

(1990)).

Assuming Agent Graffam was a co-conspirator, which the

evidence does not support,6 plaintiff's argument must fail for the

same reasons that the vicarious admission theory fails. The

informant's statements were not made during the course of the

alleged conspiracy and are not in furtherance of that conspiracy.

See Rule 801(d)(2)(E), Fed. R. Evid.;

(noting that declarant and defendant must be members of

conspiracy when statement is made in furtherance of conspiracy);

United States v. Pelletier,

(1st Cir. 1988)

(same); c f . TSE, supra,

(contents of statement

showed that conspiracy had not ended).

Furthermore, the substance of the informant's unsworn

interview is insufficient to establish a trialworthy issue as to

Agent Graffam's objectively reasonable actions the day of the

arrest. The thirty pages of the interview contain many unclear

6The court recognizes that the substance of a co­ conspirator's out-of-court statement are probative of the existence of the alleged conspiracy. See Bournailv v. United States,

(1987); TSE, supra,

. The content of the informant's interview nevertheless would not tip the scales in favor of finding a conspiracy between the informant and Agent Graffam.

13 statements, often in response to leading questions by an attorney,

that fall short of creating a trialworthy issue as to whether

Agent Graffam acted objectively unreasonably. The informant

generally refers to being given a bag of cocaine to put under the

plaintiff's seat, but is unable to identify who gave her the bag

or who asked her to plant the bag. See Plaintiff's Memorandum,

Exhibit 2 at 16, 26 (document 42). Even if the informant's

unclear version of why she placed the drugs in plaintiff's car

were admissible. Agent Graffam's limited actions on the day of

plaintiff's arrest remain objectively reasonable.

3. Collateral Estoppel

a. State Court Proceedings

Due to the importance of the state court proceedings in

relation to defendants' collateral estoppel defense, the summary

judgment order is discussed in detail. Because plaintiff

previously dismissed Agent Graffam, the only named defendants were

the state law enforcement officers, including Francis Lord, Susan

Forey, Russell Conte, Steve Demo, and Elizabeth Keyes. The

complaint included four counts. Count I alleged that the

defendants "conspired together and acted in concert to cause the

arrest, imprisonment, and prosecution of plaintiff" in violation

of

.

The court dismissed the conspiracy theory because plaintiff

never submitted an affidavit from the informant, Medina, who

14 allegedly suggested during a taped interview that she was

instructed to plant the fake drugs in plaintiff's car. The court

went on to hold that:

The plaintiff's conspiracy theory (Count I) relies exclusively on Medina's alleged knowledge of specific facts to show that defendants participated in a scheme to unlawfully arrest and prosecute plaintiff. Plaintiff has failed to provide any other proof that defendants conspired to arrest and imprison him. . . . . . . The transcript of Medina's interview is an unsworn statement and is inadequate to contradict the affidavits provided by defendant.

Nesbitt v. Lord, No. 95-C-284 (N.H. Super. Ct. Jan. 18, 1997),

attached Defendants' Memorandum as Exhibit 4, at 6 (hereafter

"summary judgment order"). The court also dismissed Count II,

which alleged that defendants seized, searched, arrested, and

imprisoned plaintiff without probable cause. As to this claim,

the court ruled that even if plaintiff was arrested before

defendants saw the bag in his car, sufficient probable cause

existed to arrest based on the events leading to the arrest. Of

the two remaining counts, the court also dismissed Count IV

(issuing summons without probable cause) under the doctrine of

prosecutorial immunity.

b. Instant Proceedings

Defendants argue that plaintiff's Bivens and FTCA claims are

barred by collateral estoppel because (1) the same facts and

issues underlying the state conspiracy theory also underlie the

15 current federal claims, (2) the matter was actually litigated by

way of the summary judgment motions, and (3) the state court's

determination that there was no conspiracy was a necessary part

of the judgment. Plaintiff responds that the issues were not

identical between the state court proceedings and the current

proceedings.

The federal full faith and credit statute,

,

requires that the "records and judicial proceedings . . . [of any

State] shall have the same full faith and credit in every court

within the United States . . . as they have by law or usage in

the courts of such State . . . from which they are taken." This

statute requires federal courts to give the same preclusive

effect to state court judgments as would the courts of the state

rendering the decision. See Marrese v. American Academy of

Orthopaedic Surgeons,

(1985); Kremer v.

Chemical Constr. Corp.,

(1982) (state

court decisions have preclusive effect in subsequent Title VII

actions in federal court); Allen v. McCurry,

, 97-

99 (1980) (state court decisions have preclusive effect in

subsequent § 1983 actions in federal court); Kyricopoulos v. Town

of Orleans,

(1st Cir. 1992) (full and fair

opportunity to litigate probable cause in state criminal trial

precludes relitigation of probable cause under § 1983 in federal

court). The purpose of section 1738 is to ensure that federal

courts, not included within the constitution's full faith and

16 credit clause, are bound by state court judgments. See

n.24.

Thus section 1738 "embodies the view that it is more

important to give full faith and credit to state court judgments

than to ensure separate forums for federal and state claims."

Migra v. Warren City Sch. Dist. Bd. of Educ.,

(1984); see also Cuesnongle v. Ramos,

, 1497 n.8

(1st Cir. 1987) ("where a plaintiff neglects to raise a federal

claim in a state court action, that plaintiff is estopped from

raising the federal claim in federal court subsequent to a state

court decision"). Doctrines of preclusion in the state-to-

federal context "not only reduce unnecessary litigation and

foster reliance on adjudication, but also promote the comity

between state and federal courts that has been recognized as a

bulwark of the federal system." See

.

Therefore, the question is whether the courts of New

Hampshire would give preclusive effect to the issues raised in

this action. The three requirements of collateral estoppel are:

[1] [T]he issue subject to estoppel must be identical in each action, [2] the first action must have resolved the issue finally on the merits, and [3] the party to be estopped must have appeared as a party in the first action, or have been in privity with someone who did so. These conditions must be understood, in turn, as particular elements of the more general requirement, that a party against whom estoppel is pleaded must have had a full and fair opportunity to litigate the issue or fact in question.

17 Daigle v. City of Portsmouth,

,

(1987) (citations omitted). "While collateral estoppel does

not require an identity of the earlier and later causes of

action, it precludes the relitigation only of issues actually

raised and determined in the earlier litigation." Morgenroth &

Assoc's. Inc. v. State,

,

(1985) .

Here, plaintiff was clearly a party in the prior state

litigation, and summary judgment disposed of the issues on the

merits. See New Hampshire York Co. v. Titus Constr. Co.,

,

(1966); cf^ ERG, Inc. v.

Barnes,

,

(1993) (dismissal

for failure to state a cause of action is on the merits). Thus,

as evidenced by plaintiff's focus on the lack of identity of

issues, the critical question in this case is whether the issues

subject to estoppel are identical. More specifically, plaintiff

contends that conspiracy simply is not a necessary element or an

issue in this action,7 but, rather, the issue is whether Agent

Graffam "knew when he acted that probable cause did not exist

for his search and seizure, and/or that fake cocaine was being

7Plaintiff, seeking to avoid the bar of collateral estoppel, now seeks to distance himself from this conspiracy theory. Given Agent Graffam's minimal participation in the arrest, however, it is difficult to envision how he could be liable for the arrest, if not as a co-conspirator.

18 employed to provide pretextual probable cause." Plaintiff's

Memorandum at 6-7 (document 28).

The court therefore must examine the extent to which the

state court addressed issues that are identical to those

presented by this case. Plaintiff's current Bivens and FTCA

claims are each addressed in turn.

Under Bivens, an implied constitutional cause of action

exists for violations of Fourth Amendment rights by federal

actors. See

. The factual basis of

plaintiff's Bivens claim centers around whether there was an

unreasonable search and/or seizure under the Fourth Amendment.

As alleged by plaintiff:

Defendant Graffam acted to search and/or seize the person and property of the plaintiff when no probable cause to search and/or seize the defendant existed, as defendant acted with knowledge that facsimile cocaine was being used as a pretext to supply probable cause for the search and/or seizure that would not have otherwise existed.

Complaint 5 32. Plaintiff's current Bivens claim therefore will

be barred by collateral estoppel if issues decided adversely to

plaintiff in the prior section 1983 state litigation are

identical to issues necessary to prevail in this Bivens action.

Arrest without a warrant does not violate the Fourth

Amendment if the arresting officer has probable cause to believe

that the suspect is violating or has violated the law. See

Michigan v. DeFillippo,

(1979); Alexis v.

19 McDonald's Restaurants of Mass.,

(1st Cir.

1995). Probable cause exists when "the facts and circumstances

within a police officer's knowledge and of which the officer had

reasonably trustworthy information are sufficient in themselves

to warrant a person of reasonable caution to believe that a crime

has been committed or is being committed."

(quotations omitted). The officer's particular state

of mind is irrelevant to the legal justification for the

officer's action "as long as the circumstances, viewed

objectively, justify the action." Scott v. United States,

(1978). Thus the officer's actions are examined

"under a standard of reasonableness without regard to the

underlying intent or motivation of the officers involved." Id.;

see also Lewis v. Kendrick,

(1st Cir. 1991);

United States v. Ayres,

(1st Cir. 1984), cert

denied,

(1984).

Applying the objective legal standard of probable cause, the

state court found that the state officers had probable cause to

arrest plaintiff. Although the state court did not decide the

issue of Agent Graffam's subjective knowledge. Agent Graffam's

personal state of mind is irrelevant as long as the

circumstances, viewed objectively, support probable cause. See

;

;

. Distinguishing the issue as Agent

Graffam's subjective personal knowledge does not change the fact

20 that for collateral estoppel purposes the same legal standard is

at issue in this case. Of course, if there was evidence that

Graffam had information that undermined probable cause, the case

would be different. Here, however, there is no such evidence.

Viewing the record in the light most favorable to plaintiff,

the same objectively viewed circumstances supporting probable

cause in the state litigation are at issue here with respect to

Agent Graffam. See P I Enterprises, supra, 457 F.2d at 1013.

Therefore, since lack of probable cause is a necessary element of

plaintiff's Bivens claim, the collateral estoppel effect of the

state court judgment prevents plaintiff from prevailing on his

Bivens claim. Boiled down, plaintiff is seeking to relitigate

the same facts against a different defendant in a different

forum. Collateral estoppel, however, prevents relitigation of

these same issues under a different legal theory, see Morgenroth

& Assoc's , Inc., supra,

,

, even

though against a different defendant, see Cutter v. Town of

Durham,

,

(1980).

Additionally, policies of federalism underlying the Rooker-

Feldman doctrine are raised in this case. This jurisdictional

doctrine prevents lower federal courts from reviewing state court

judgments, and applies to claims that are "inextricably

intertwined" with a prior state proceeding. See District of

Columbia Court of Appeals v. Feldman,

, 483 n.16

(1983). When a plaintiff's claims may succeed "only to the 21 extent the state court wrongly decided the issues before it," the

Rooker-Feldman doctrine prevents a federal court from rehearing

the issue. Pennzoil Co. v. Texaco, Inc.,

(1987)

(Marshall, J . , concurring). It is well established that lower

federal courts may not sit in review of a state court's order,

see id.; Decker v. Hillsborough County Attorney's Office,

(1st Cir. 1988), and that the United States

Supreme Court has exclusive jurisdiction to review state court

judgments, see

.

Plaintiff submits in his supporting declaration that "my

preference in continuing the present litigation would be to

obtain grounds for the Court to set aside the prior summary

judgment, to add as defendants in this Court one or more of the

former state actor-defendants, and to hold them primarily

responsible and liable for the wrongful law enforcement actions

against me, and for my resulting injuries." Plaintiff's

Supporting Declaration 5 7 (attached to Plaintiff's Opposition

Memorandum) (document 42). Obviously, the court declines

plaintiff's sweeping "preference" to simply "set aside" the state

court judgment. See

. This court simply cannot

review whether the state court correctly or incorrectly decided

the issue of probable cause, and plaintiff's recourse is first

with the New Hampshire Supreme Court and then with the United

States Supreme Court. See

.

22 Accordingly, for the reasons discussed above plaintiff's

Bivens claim (Count III) must be dismissed.

The next question is whether the issues decided in the state

proceeding are identical to the issues necessary to prevail in

the instant FTCA claims. Unlike Bivens, which is an individual

action against federal officials, an FTCA claim is asserted

against the federal government for intentional torts caused by

federal officials. See

, et. seer. An action

under the FTCA only exists when the laws of the state where the

conduct occurred would permit the cause of action. See Carlson

v . Green,

(1980). New Hampshire clearly

recognizes an action for false imprisonment, which is defined as

the "unlawful restraint of an individual's personal freedom."

Welch v. Bergeron,

,

(1975).

Thus the alleged act must be unlawful, which requires the

"absence of valid legal authority for the restraint imposed."

As discussed above, the state court found probable cause

existed for plaintiff's arrest. Therefore, valid legal authority

existed for the arrest. See U.S. Con st, amend IV; State v.

Christy.

,

(1994); Kav v. New

Hampshire Democratic Party,

(1st Cir. 1987). The

fact that plaintiff was later released and charges were dropped

does not change the result. See Michigan v. DeFillippo,

(1979); United States v. Kozerski,

(D.N.H. 1981), aff'd ,

(1st Cir. 1984), cert, denied,

(1984). Plaintiff therefore has failed to establish

a trialworthy issue as to the false imprisonment claim, and Count

I accordingly is dismissed.

Plaintiff's other FTCA claim. Count II, alleges intentional

or negligent infliction of emotional distress. New Hampshire

recognizes the torts of intentional and negligent infliction of

emotional distress. See Morancv v . Morancv,

(1991); Thorpe v. State Dep't of Corrections,

, 303-

04,

(1990). It is clear from plaintiff's

complaint that his emotional distress theories are linked to his

allegedly unlawful arrest: "The acts or omissions of defendant

Graffam, by which he falsely imprisoned the defendant, constitute

intentional, extreme and outrageous conduct." See Complaint 5

27. Given the validity of plaintiff's arrest and the objectively

reasonable actions of Agent Graffam (see Qualified Immunity

discussion, supra) , plaintiff's emotional distress theories also

must fail. See Dean v. City of Worcester,

(1st

Cir. 1991) (under Massachusetts law, objectively reasonable

arrest prevents recovery for intentional infliction of emotional

distress). There is no evidence that Agent Graffam acted with

"extreme and outrageous conduct intentionally or recklessly

caus[ing] severe emotional distress." See Morancv, supra,

,

. Furthermore, there is no

evidence indicating plaintiff suffered any physical 24 manifestations from his alleged distress. See

,

;

,

.

Accordingly, Counts I and II are dismissed.8

4. Qualified Immunity

Even if the court did not give the state court judgment

preclusive effect. Agent Graffam would be entitled to the

affirmative defense of qualified immunity. This good-faith

defense shields government officials performing discretionary

functions "from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald,

(1982). The

scope of qualified immunity is broad, and protects "all but the

plainly incompetent or those who knowingly violate the law."

Hunter v . Bryant,

(1991) (quoting Mallev v.

Briggs,

(1986)). The defendant officer is

entitled to immunity "if the federal law allegedly violated was

not clearly established at the time of the alleged violation, or

if, at summary judgment, there is no genuine dispute of material

fact that would prevent a finding that the defendants' actions,

Notwithstanding the collateral estoppel effect of the state court probable cause finding, as set forth below in the qualified immunity discussion, the court also independently finds that probable cause existed for plaintiff's arrest.

25 with regard to applying or following such clearly established

law, were objectively reasonable." Vargas-Badillo v. Diaz-

Torres,

(1st Cir. 1997) (citing Stella v. Kelley,

63 F .3d 71, 73 (1st Cir. 1995)).

There is no question that clearly established Fourth

Amendment law at the time of plaintiff's arrest required probable

cause to support the warrantless arrest. See Beck v. Ohio,

(1964). The issue, therefore, is whether Agent

Graffam acted in an objectively reasonable fashion. Agent

Graffam's actions are "deemed objectively reasonable unless there

clearly was no probable cause at the time the arrest was made."

. This inquiry does not turn

on whether the facts supported "legally sufficient grounds for

[plaintiff's] warrantless arrest."

. Rather, the

question is if "the undisputed facts in this case preclude a

finding that there was clearly no probable cause, or that 'no

reasonably competent officer would have found probable cause.'"

(quoting Prokev v . Watkins,

, 72 n.4 (1st Cir.

1991)). Probable cause depends on whether at the time of arrest

the facts and circumstances within Agent Graffam's knowledge, of

which he had reasonably trustworthy information, were sufficient

to warrant a prudent officer's belief that plaintiff had

committed or was committing an unlawful act. See

;

.

26 The following undisputed facts could have led reasonable

officers to conclude, based on the facts and circumstances, that

plaintiff had committed or was committing a crime. Due to a

shortage of manpower. Corporal Forey contacted Agent Graffam to

assist in the surveillance and possible arrest of plaintiff

during an arranged meeting with the informant. Forey informed

Graffam that the informant would be wearing a wire and carrying a

$1,700 "flash roll" to show plaintiff for the purchase of

cocaine. Agent Graffam had received no other details regarding

the investigation into plaintiff. During the meeting between

plaintiff and informant, Graffam waited behind the building in

Forey's car along with Forey. After the informant met with

plaintiff in the parking lot of Cumberland Farms, she informed

Corporal Lord that she gave plaintiff the $1,700 flash roll and

he was leaving to get "it." At this point Lord ordered Demo and

Conte to stop the plaintiff and obtain the money. Based on the

prior telephone conversations between plaintiff and the

informant, and the informant's previous relationship with law

enforcement, the informant was considered reliable. Officer

Graffam remained at the Cumberland Farms parking lot. Demo and

Conte then followed plaintiff into a parking lot down the road.

After observing a bag of white powder that appeared to be

cocaine, they arrested plaintiff for possession of a controlled

27 substance.9 In the meantime, Graffam walked from the Cumberland

Farms parking lot down the road to where Demo and Conte arrested

plaintiff. Arriving after plaintiff was arrested, Graffam then

walked back to Cumberland Farms along the road to see if

plaintiff had discarded the money along the way.

Based on these facts, the court cannot conclude that there

clearly was no probable cause or that no reasonably competent

officer would have found probable cause. See

. The central disputed fact--why the bag of

white powder was placed in plaintiff's car--does not affect Agent

Graffam's objectively reasonable actions. A well-trained officer

in Agent Graffam's position could reasonably conclude that

probable cause existed to arrest plaintiff. As far as Agent

Graffam knew, a drug sale had been arranged and the informant

gave plaintiff money to go get drugs. After the informant told

Forey that she gave plaintiff the $1,700 to go get "it," a

reasonably competent officer would conclude that plaintiff

accepted the money for the purchase of drugs and would have

probable cause to arrest plaintiff.

9Plaintiff contends that Demo walked directly to plaintiff's car, opened the door, and removed the package of white powder. According to plaintiff, this creates a reasonable inference that Demo knew exactly where to look for the evidence ahead of time because he knew it was already planted. Aside from the stretched logic of this proposition, it still does not show that Agent Graffam acted in an objectively unreasonable manner.

28 Plaintiff also attaches importance to the informant's

explanation of events.10 Whether or not the informant is

"credible" does not create a reasonable inference that Forey

"fabricated" this version of events. Nor does the informant's

creative story shed any light on whether Officer Graffam's

actions were objectively reasonable. See

(only outcome determinative facts are material, and

irrelevant factual disputes are not counted). After concluding

that Forey "fabricated" the informant's story, plaintiff states,

"Given that conclusion concerning Corporal Forey, the person in

charge of the entire investigation, a factfinder would reasonably

infer that everyone involved knowingly participated in the

plaintiff's arrest on fabricated grounds." Plaintiff's

Memorandum in Opposition at 6 (document 42) (emphasis added).

This inferential leap is even more attenuated.

First, this statement assumes the conclusion that Forey's

report contains a fabricated version of the informant's story.

Second, by meeting with the entire team prior to the operation

and accompanying Forey in her car, plaintiff assumes Agent

Graffam must have "knowingly participated" in the alleged scheme

10A1though somewhat hard to follow, the informant told Forey she planted the bag of fake drugs a few days earlier so that, on the day of the meeting, she could keep the money and plaintiff would be arrested. The money would then be used to buy drugs from and pay off an existing debt with another dealer. Then the informant would notify the police of the sale, leading to the arrest of the dealer.

29 to violate plaintiff's Fourth Amendment rights. See

However, this inference is not reasonable in light of (1) the

undisputed facts demonstrating Agent Graffam's limited

participation in the operation, (2) Agent Graffam's sworn

affidavit denying any knowledge that evidence would be planted to

create pretextual probable cause, also confirmed by Forey's sworn

declaration, and (3) plaintiff's failure to produce a sworn

affidavit from the informant controverting Agent Graffam's sworn

testimony. See Favorito v. Pannell,

(1st Cir.

1994) (nonmoving party's "bare assertion" that moving party's

uncontroverted evidence might be disbelieved is insufficient to

overcome summary judgment). Accordingly, the court "cannot say

that there clearly was no probable cause from the point of view

of reasonable persons standing in [Agent Graffam's] shoes."

.

Plaintiff also submits a personal affidavit denying that the

informant could have planted the bag days earlier, because he

recalls cleaning his car at some point after the informant

allegedly planted the bag. This also does not raise a

trialworthy issue because it is not material to whether Agent

Graffam acted to violate plaintiff's Fourth Amendment rights.

See

. At best, this disputed

fact means that the informant planted the bag the day of the

arrest, but this still does not create a trialworthy issue as to

Agent Graffam's objectively reasonable actions.

30 Furthermore, Agent Graffam did not arrest plaintiff, nor did

he participate by ordering plaintiff's arrest. This further

calls into question plaintiff's theory that Agent Graffam

violated plaintiff's Fourth Amendment rights. As plaintiff

concedes, the state court decided the issue of whether Agent

Graffam entered into any agreement with the other officers to

violate plaintiff's rights. Without a conspiracy between Agent

Graffam and the state actors who ultimately effected plaintiff's

arrest, and without actually arresting or ordering plaintiff's

arrest, it is difficult to see how Agent Graffam is liable for

plaintiff's alleged violations.

Conclusion

For the reasons stated above, the collateral estoppel effect

of the prior state court judgment precludes plaintiff from

prevailing in his instant suit against Agent Graffam.

Additionally, Agent Graffam is entitled to qualified immunity.

Summary judgment is granted in favor of defendants, and all

counts are herewith dismissed. The clerk shall enter judgment

accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 15, 1998 cc: Gordon R. Blakeney, Jr., Esq. T. David Plourde, Esq.

31