Vlack v. Rye, NH, et al. CV-98-271-M 05/28/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Laura Vlack, Plaintiff

v. Civil No. 98-271-M

Town of Rye, New Hampshire and Delton J. Record, Defendants

O R D E R

In April of 1998, plaintiff, Laura Vlack, initiated this

civil action in the Rockingham County (New Hampshire) Superior

Court, by filing a five count writ against defendants, Delton

Record and the Town of Rye. In counts 1 and 2, plaintiff raises

claims of negligence, false arrest, and malicious prosecution.

In count 3, she alleges that defendants, while acting under color

of state law, violated her civil rights. See

.

In essence, plaintiff alleges that defendant Delton Record filed

a false police report, charging that she had stalked him. She

also claims that police officers in the Town of Rye, acting in

concert with Record, failed to properly investigate that report

and, instead, arrested plaintiff without probable cause.

Finally, she claims that the Town's chief of police, acting in a

prosecutorial role and pursuant to an unconstitutional municipal

custom or policy, violated her federally protected rights by

pursuing her prosecution. The Town of Rye removed the action, asserting that this

court has federal question jurisdiction over plaintiff's section

1983 claims and supplemental jurisdiction over her state law

claims. Record moves for summary judgment as to plaintiff's §

1983 claims against him. The Town of Rye moves for summary

judgment with regard to all of plaintiff's claims against it.

Plaintiff objects.1

Background

Plaintiff and defendant Record were romantically involved

for approximately 12 years, until some time in 1995. In April of

1995, plaintiff went to Record's home to speak with him. Record

called the Rye Police Department and the responding officers

asked plaintiff to leave the premises. She complied. One of the

responding police officers, Brian Dejoy, completed an incident

report in which he stated that when he arrived at the scene,

plaintiff "appeared to be very nervous and extremely emotional."

Officer Dejoy reported that after he determined that plaintiff

was not carrying any weapons, she returned to her car, where she

attempted to telephone Record using her cellular phone. Officer

1 It is, perhaps, worth noting that in her memorandum in opposition to summary judgment, plaintiff repeatedly references her expectation that additional discovery will reveal evidence which further supports her assertions that Record and agents of the Town conspired to effect her unlawful arrest and prosecution and that Chief Loomis prosecuted her pursuant to some unconstitutional municipal custom or policy. She has not, however, filed any motion (or the required supporting affidavits) under Rule 56(f) seeking additional time within which to respond to the pending motions for summary judgment.

2 Dejoy says that he instructed her to have no further contact with

Record and told her to leave the premises. Plaintiff complied

and, as she was driving away, began yelling, "Del, you're a

coward."

Officer Dejoy then went into the home and spoke with Record,

who disclosed the nature of his extramarital relationship with

plaintiff and explained why he had been hesitant to reveal that

relationship and seek police assistance in the past. Record

insisted that Officer Dejoy arrest plaintiff immediately.

Officer Dejoy explained that he needed additional information

about plaintiff's conduct, without which, he said, an arrest was

unjustified. At that point, the phone rang. Record explained

that he believed it was plaintiff and, therefore. Officer Dejoy

answered. It was, in fact, plaintiff, who said that she needed

to speak with Record. Officer Dejoy reportedly told her that she

would be arrested if she placed any further calls to Record.

Record again reiterated his demand that plaintiff be arrested.

He told Officer Dejoy that plaintiff had repeatedly telephoned

him, after having been told not to do so, and that she also came

to his office and followed him to work sites in Rhode Island

after having been told not to do so. Record also told Officer

Dejoy that plaintiff was emotionally unstable and possibly

suicidal. Officer Dejoy asked if Record would prepare a written

witness statement and file a complaint and supporting affidavit

for the crime of stalking. Record said that he would.

3 Subsequently, Record filed a misdemeanor complaint against

plaintiff, alleging that she had engaged in criminal stalking.

In support of that complaint. Record submitted an affidavit, in

which he alleged: (1) on April 2, 1995, plaintiff arrived at his

home, shouting and pounding on the rear door until he contacted

the police, who arrived at the scene shortly thereafter; (2)

Record and plaintiff had been involved in a personal relationship

for several years; (3) On Monday, January 2, 1995, he informed

plaintiff that their relationship was over; (4) subsequent to

that date, plaintiff sent him balloons and candy, contacted him

by telephone, and was again told not to contact him any more; (4)

despite again having been told not to contact Record, plaintiff

appeared in Rhode Island (and contacted Record) while Record was

there on business; (5) plaintiff followed Record's wife to a

store in North Hampton, New Hampshire, during the evening of

March 10, 1995; (6) Record was concerned for the safety of

himself and his family and disclosed that plaintiff possessed

both a .357 caliber and a .38 caliber firearm.

At that point. Officer Dejoy was apparently satisfied that

probable cause existed to arrest plaintiff. After obtaining an

arrest warrant and emergency protective order through the

Plaistow District Court, Officer Dejoy contacted members of the

Exeter police department, to inform them that Rye police officers

would be serving the warrant on plaintiff (a resident of the Town

of Exeter). Upon their arrival at plaintiff's home, the officers

4 were unable to locate her. Accordingly, the matter was turned

over to the Exeter police, with instructions to notify Rye police

once they had located and arrested plaintiff.

The following day. Officer Dejoy was informed that the

Exeter police department had plaintiff in custody. Officer Dejoy

drove to Exeter, returned plaintiff to the Rye police station,

and processed her. Among other things. Dejoy reported that

plaintiff informed him that "sooner of later she was going to end

her life" and also discussed the means by which she planned to

kill herself. Officer Dejoy explained that he would like

plaintiff to check in to the Pavilion (a medical facility) for

psychiatric observation. Plaintiff revealed that she was already

seeing a doctor there and agreed to check in voluntarily.

Officer Dejoy and another officer then transported plaintiff to

the hospital. She was subseguently discharged from the emergency

room.

Later that day, plaintiff was charged with misdemeanor

criminal stalking, in violation of New Hampshire Revised Statutes

Annotated ("RSA") 633:3-a, and released on $1000 personal

recognizance bail. The case was prosecuted by Rye Police Chief

Brad Loomis. After reviewing the evidence against plaintiff,

Loomis reduced the charge against her to criminal trespass (a

violation, rather than a misdemeanor). A bench trial terminated

in plaintiff's favor, with a finding of not guilty.

5 Discussion

I. The Town of Rye, New Hampshire.

Plaintiff has not sued Officer Dejoy or Chief Loomis (in

either their official or individual capacities). Instead, she

claims only that the Town of Rye is liable for the injuries she

allegedly suffered as a result of Chief Loomis's decision to

prosecute her on the charge of criminal trespass. She also seems

to claim that the Town is liable for Officer Dejoy's (and

possibly Chief Loomis's) allegedly negligent failure to

investigate Record's claims prior to arresting her on the charge

of criminal stalking.

A municipal liability claim under section 1983 must allege

that a municipal policy, custom, or practice caused, or was a

moving force behind, a deprivation of the plaintiff's

constitutional rights. McCabe v. Life-Line Ambulance Service,

Inc.,

(1st Cir. 1996) (citing Oklahoma City v.

Tuttle,

(1985) and Monell v. Department of Soc.

Servs.,

(1978)). Thus, factual allegations

which, if proven, would show that a municipal policy caused a

violation of a plaintiff's constitutional rights, would state a

claim under section 1983. However, to maintain the claim where,

as here, "a plaintiff seek[s] to establish municipal liability on

the theory that a facially lawful municipal action has led an

employee to violate a plaintiff's rights[, the plaintiff] must

demonstrate that the municipal action was taken with 'deliberate

6 indifference' to its known or obvious consequences." Board of

Com'rs of Bryan County v. Brown,

(1997)

(emphasis added) (quoting City of Canton v. Harris.

(1989) )) .

Neither plaintiff's complaint nor her memorandum in

opposition to summary judgment provides much insight into what

she views as the unlawful municipal custom or policy which

allegedly caused a deprivation of her federally protected rights.

Instead, plaintiff relies almost exclusively upon general,

largely unhelpful allegations concerning the lack on any evidence

against her with regard to the charge of stalking (or,

eventually, the reduced charge of trespass):

In the present case the Chief of Police, Brad Loomis, represented, established, and enforced the official policy of the Town of Rye.

In the present case, it is evident from the affidavit of the Plaintiff that the criminal charge against her that was started on April 3, 1995 alleging "stalking" was without any basis whatsoever, and without any kind of investigation to substantiate same. The lack of substantiation for the charge is further borne out by the fact that same was ultimately nol prossed eight (8) months later. Nevertheless, the Town of Rye, acting through its Chief Prosecutorial Officer, Chief Loomis, substituted a charge of "criminal trespass" for which the Town further knew there was no basis whatsoever, and insisted upon going forward with the Plaintiff's trial, which resulted in her full acquittal on January 3, 1996. Under the circumstances that can be proven in this case, . . . a jury could reasonably conclude that the Plaintiff's injuries occurred as a direct and immediate consequence of the unconstitutional municipal actions of the Town of Rye.

7 Plaintiff's memorandum (submitted with documents 14 and 15) at 6-

7 (emphasis supplied).2

A. Plaintiff's Arrest.

In order to hold the Town of Rye liable for the conduct of

Officer Dejoy and/or Chief Loomis, and to prevail upon her

section 1983 claims for false arrest, negligent investigation,

unlawful seizure, and interference with her rights of free

speech, assembly, privacy, and egual protection, plaintiff must

demonstrate: (1) that those rights were, in fact, violated; (2)

as a result of a municipal custom or policy. In response to

defendants' motions for summary judgment, she has failed to

demonstrate that there is any genuine issue of material fact as

to either of those elements.

First, the record discloses that on April 2, 1995, Officer

Dejoy had a reasonable basis to believe that probable cause

existed for plaintiff's arrest for stalking, in violation of RSA

2 Plaintiff's use of the phrase "unconstitutional municipal actions" (as opposed to "unconstitutional municipal policy") suggests that she may be seeking to hold the Town of Rye liable on a theory of respondeat superior - that is, imposing liability on the Town exclusively for the actions of Officer Dejoy and Chief Loomis, without regard for the fact that she must first demonstrate that those actions were the product of an unconstitutional municipal custom or policy. She has, for example, not alleged that the Town had a custom of providing its law enforcement officers with inadeguate training or supervision, nor has she alleged that the Town made a practice of permitting police officers to file false criminal charges against citizens simply at the urging of a powerful or influential member of the community and without adeguate investigation, nor has she alleged that the Town engaged in negligent hiring practices. 633:3. See Roche v. John Hancock Mutual Life Ins. Co.,

(1st Cir. 1996) ("Probable cause to arrest exists if, at

the moment of the arrest, the facts and circumstances within the

relevant actors' knowledge and of which they had reasonably

reliable information were adequate to warrant a prudent person in

believing that the object of his suspicions had perpetrated or

was poised to perpetrate an offense."); Hartgers v. Town of

Plaistow,

(1996) ("Probable cause to arrest

exists when the arresting officer has knowledge and trustworthy

information sufficient to warrant a person of reasonable caution

and prudence in believing that the arrestee has committed an

offense. The determination of probable cause must be viewed in

the light of factual and practical considerations of everyday

life on which reasonable and prudent persons, not legal

technicians, act.") (citations omitted).

The New Hampshire criminal code defines "stalk" as any one

of the following:

(1) To follow another person from place to place on more than one occasion for no legitimate purpose with the intent to place such person in fear for his personal safety; or

(2) To appear on more than one occasion for no legitimate purpose in proximity to the residence, place of employment, or other place where another person is found with the intent to place such person in fear for his personal safety; or

(3) To follow another person from place to place on more than one occasion for no legitimate purpose under circumstances that would cause a reasonable person to fear for his personal safety; or

(4) To appear on more than one occasion for no legitimate purpose in proximity to the residence, place of employment, or other place where another person is found under circumstances that would cause a reasonable person to fear for his personal safety.

RSA 633:3-a 1(d). Even assuming that Officer Dejoy lacked any

evidence that plaintiff intended by her conduct to put Record in

fear for his personal safety, he still could have reasonably

concluded that plaintiff had violated section (d)(3) or (d)(4),

neither of which contains any reguirement that the defendant

intend to cause the victim to fear for his or her safety.

Prior to obtaining the arrest warrant. Officer Dejoy knew,

among other things, that: (1) on April 2, 1995, the Rye police

department had received a report of an "unwanted subject" on the

premises at Record's home; (2) plaintiff was that "unwanted

subject" and appeared to be in an agitated and emotional state;

(3) despite having been advised by the responding officer not to

contact Record, plaintiff telephoned Record from her car

immediately after driving off the premises (lending support to

Record's allegations that she had disregarded his earlier

instructions not to have any further contact with him); (4)

Record insisted that plaintiff be arrested and explained that she

had repeatedly made unwanted contact with him (after specifically

being instructed not to do so), had followed his wife to a store

in a neighboring town, was emotionally unstable and possibly

10 suicidal, and possessed at least two firearms; (5) plaintiff and

Record had been romantically involved in an extra-marital affair

for several years and Record claimed to have specifically told

plaintiff that their relationship was over and she was to have no

further contact with him; nevertheless. Record claimed that she

continued to contact him by telephone, appeared at his place of

work, directed gifts to his place of work, and even followed him

to Rhode Island when he traveled there on business.

Additionally, Record swore to an affidavit supporting the

criminal complaint, arrest warrant, and emergency protective

order, in which he reiterated his concerns for his own safety, as

well as that of his family members. And, finally. Record

provided Officer Dejoy with a number of letters written by

plaintiff and directed to Record (at least two of which arrived

after Record claimed to have instructed plaintiff to have no

further contact with him). While plaintiff may, as she asserts

in her affidavit, view those letters as loving expressions of her

devotion to Record, a detached police officer, particularly under

the circumstances of this case, could reasonably view those

letters as evidence that plaintiff had become obsessed with

Record and, in light of the other evidence known to the officer,

was stalking him and posed a potential danger to him and his

family members.

11 Although she vigorously denies many of the statements set

forth in the affidavit submitted by Record in support of the

criminal complaint, plaintiff has proffered no evidence which in

any way calls into guestion the officers' reliance (at the time

they sought the arrest warrant) upon those allegations. She

merely asserts that if the investigating officers had taken the

time to more fully investigate the situation, viewing the

circumstances from her perspective rather than Record's, they

would have (or, at a minimum, should have) understood that she

posed no threat to him and realized that she had committed no

crime. Perhaps plaintiff's explanation of the situation is

accurate. Perhaps not. The relevant guestion, however, is

whether a reasonable officer, armed with the information

reasonably available at the time, could have concluded that there

was probable cause to effectuate an arrest. The answer to that

guestion is simple and straightforward: there was probable cause

to support plaintiff's arrest. Notwithstanding plaintiff's

assertions that the officers should have (and, upon further

investigation, likely would have) viewed her conduct as benign

and entirely unthreatening, those officers certainly had ample

justification to be concerned for Record's safety and to conclude

that there was probable cause to believe that plaintiff had

violated the law, particularly since there is no evidence that

they had any reason to doubt Record's claims or his repeated

assertions that he was very much concerned for his family's

12 safety, and given plaintiff's erratic behavior when confronted by

the police at Record's home.

It is equally important to note that regardless of

plaintiff's intent, her conduct could have been perceived by a

reasonable person as threatening and, therefore, in violation of

New Hampshire's law against stalking. Plaintiff's assertion that

a more thorough investigation (involving primarily an interview

of plaintiff and consideration of her general denials of any

wrongdoing) does not undermine that fact. See, e.g., Romero v.

Fav,

(10th Cir. 1995) ("In sum, we reject

Plaintiff's contention that Defendant Fay's failure to contact

his alleged alibi witnesses in itself amounted to a

constitutional violation that rendered the arrest without

probable cause. Defendant Fay's failure to investigate

Plaintiff's alleged alibi witnesses did not negate the probable

cause for the warrantless arrest in the absence of a showing that

Defendant Fay's initial probable cause determination was itself

unreasonable."); Thompson v. Olson,

(1st Cir.

1986) ("Police officers hear many self-exonerating claims from

suspects and should not be required to give significant weight to

these statements in post-arrest determinations of whether

probable cause has dissipated to such an extent that the suspect

should be released").

13 Finally, it is noteworthy that plaintiff does not (nor could

she) claim that, prior to her arrest, the officers cavalierly

failed to examine physical evidence readily available to them or

interview potential alibi witness. Aside from the letters

plaintiff had written, the relevant evidence in this case was

limited almost exclusively to testimony from three sources: the

complaining witness/victim (Record), Officer Dejoy, and

plaintiff. Faced with Record's detailed description of

plaintiff's conduct (which, if true, would certainly support an

arrest and which Officer Dejoy had no reason to doubt) and

Officer Dejoy's personal interaction with, and observations of,

plaintiff, her protestations of actual innocence and lack of any

intent to threaten Record can hardly be said to have undermined

probable cause for her arrest.

Because there was, as a matter of law, probable cause for

her arrest, plaintiff cannot demonstrate that any of her

federally protected rights were violated as a result of that

arrest. See Roche

("Of course, liability under §

1983 reguires not only state action but also an unconstitutional

deprivation of rights. . . . At a bare minimum, if probable cause

to arrest and prosecute the appellant existed, no

unconstitutional deprivation occurred."). Thus, plaintiff's §

1983 claim against the Town (at least as it relates to her

arrest) necessarily fails. See Hayden v. Grayson,

(1st Cir. 1998) ("Normally, ... a municipality cannot be

14 held liable unless its agent actually violated the victim's

constitutional rights.").

B. Plaintiff's Prosecution.

With regard to her section 1983 malicious prosecution

claims, plaintiff asserts that Chief Loomis's decision to

prosecute her for criminal trespass violated her right to be free

from unreasonable searches and seizures, as well as her rights to

due process, privacy, free speech, freedom of assembly, and free

and unmolested travel. As a matter of law, however, § 1983 is

generally not a proper vehicle by which to vindicate due process

(whether procedural or substantive) rights in the context of a

malicious prosecution claim.

We note as an initial matter that [plaintiff's] § 1983 malicious prosecution claim is not properly based on either a procedural or substantive due process violation. A § 1983 claim for malicious prosecution as a deprivation of procedural due process is barred where, as here, the state's tort law recognizes a malicious prosecution cause of action. Further, there is no substantive due process right under the Fourteenth Amendment to be free from malicious prosecution.

Meehan v. Town of Plymouth,

(1st Cir. 1999)

(citations and internal guotation marks omitted). See also Roche

("The law is settled that a garden variety claim

of malicious prosecution garbed in the regalia of § 1983 must

fail. There is no substantive due process right under the

Fourteenth Amendment to be free from malicious prosecution, and

the availability of a plainly adeguate remedy under [state] law

15 defeats the possibility of a procedural due process claim.")

(citations omitted).

Accordingly, the court will assume that plaintiff is seeking

to vindicate her Fourth Amendment rights through her § 1983

malicious prosecution claim. To state a viable claim, plaintiff

must alleged that "criminal proceedings were initiated against

[her] without probable cause and for an improper purpose and were

terminated in [her] favor." Landrigan v. City of Warrick,

, 745 n.6 (1st Cir. 1980). See also Meehan,

("Thus, a § 1983 malicious prosecution action based upon a

deprivation of Fourth Amendment rights reguires a showing of the

absence of probable cause to initiate proceedings.").

Additionally, because her claims are exclusively against the Town

of Rye, plaintiff must again demonstrate that a municipal custom

or policy was the moving force behind her allegedly wrongful

prosecution.

Nevertheless, in support of her assertion that the Town is

liable for damages she sustained as a result of having been

wrongfully prosecuted for the events which transpired on April 2,

1995, plaintiff again fails to identify the nature of the

allegedly offensive municipal custom or policy which resulted in

that prosecution. Instead, she has chosen to focus on facts

which she claims demonstrate that Officer Dejoy and/or Chief

16 Loomis knew, or should have known, that she was innocent of

criminal stalking and the lesser charge of criminal trespass.

First, she points out that Chief Loomis chose to drop the

charge of criminal stalking and, instead, prosecuted her for the

lesser charge of criminal trespass (thereby demonstrating, at

least in plaintiff's view, his subjective knowledge that there

was insufficient evidence to support a conviction for stalking

and undermining any claim that there was probable cause to arrest

her on that charge). Next, plaintiff notes that she was actually

acguitted of the lesser charge of trespass. Based on these

facts, plaintiff claims that Chief Loomis knew or should have

known from the very inception of the prosecution that there was

no evidence that she had committed a crime. However, neither

Chief Loomis's decision to reduce the charge against plaintiff

nor her subseguent acguittal, standing alone, do much to advance

plaintiff's claims (particularly in the absence of any alleged

municipal custom or policy which acted as the driving force

behind her arrest and/or prosecution).

Chief Loomis's decision to reduce the charge against

plaintiff demonstrates nothing more than the exercise of

prosecutorial discretion — he may have decided there was

insufficient evidence to support a finding, beyond a reasonable

17 doubt, that plaintiff had engaged in criminal stalking,3 or, he

may have decided a lesser conviction would serve the public

interest. The decision to prosecute plaintiff on a lesser charge

does not call into guestion the validity of that prosecution nor

does it, without more, cast doubt on the legality of plaintiff's

arrest. Similarly, plaintiff's acguittal simply demonstrates

that the judge who presided over her trial determined that there

was insufficient evidence to prove, beyond a reasonable doubt.

3 In his affidavit. Chief Loomis testified as follows:

Prior to the trial of this matter, I was contacted by Ms. Vlack's defense attorney, who informed me that Mr. Record had continued to see Ms. Vlack on several occasions after they broke up in January of 1995 and that he had encouraged continued contact. I spoke with Mr. Record about the information I had received from Ms. Vlack's attorney and he denied the allegations of continued contact. Mr. Record also expressed a strong desire for the prosecution to proceed. I believe that it is important in potential domestic violence situations to take into account the complainant's wishes and in this case, Mr. Record made it very clear that he felt that Ms. Vlack posed a threat to him and his family and should be prosecuted. I subseguently decided to nol pros the stalking charge and proceed with the lesser charge of criminal trespass in light of the clear evidence in the case that M s . Vlack had gone onto the property in a highly emotional state and had made threats against Mr. Record.

Loomis affidavit at para. 4. With regard to the crime of trespass, the New Hampshire criminal code provides that, "A person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place." RSA 635:2. Plainly, Chief Loomis had probable cause to believe that plaintiff had violated the criminal statute, including evidence that she had appeared at Record's home after Record testified (in his affidavit) she had been specifically instructed not to do so. Chief Loomis also knew that plaintiff refused to leave Record's premises, thereby forcing him to contact the police to have her removed. See State v. Du p u v ,

(1978) (discussing the elements of the crime of trespass).

18 that plaintiff had engaged in criminal trespass. Standing alone,

it undermines neither the validity of plaintiff's arrest nor the

decision to prosecute her. See Roche,

("the fact

that a state court jury acguitted the appellant of the criminal

charges does not speak to the existence of probable cause.").

See also Rodriquez v. Ritchey,

(5th Cir.

1977) ("just because a person validly arrested is later

discovered to be innocent does not make the arrest 'unlawful,'

for Fourth Amendment purposes" nor does it give rise to a § 1983

claim against the arresting officers for failure to

investigate.) .

The fact remains that, notwithstanding the prosecutor's

inability to produce sufficient evidence to demonstrate

plaintiff's guilt beyond a reasonable doubt, both her arrest and

her prosecution were supported by probable cause. C f . Meehan,

(noting that when an individual was subjected

to a warrantless arrest and seeks to recover under § 1983 for

malicious prosecution, the proper inguiry is whether there was

probable cause to institute criminal charges). And, the record

is devoid of any evidence that Chief Loomis's decision to

prosecute plaintiff for trespass: (1) was supported by less than

probable cause; or (2) violated any of her federally protected

rights.

19 Moreover, like her claims relating to the allegedly unlawful

arrest, plaintiff's § 1983 claims arising out of her prosecution

for criminal trespass suffer from another fatal defect. Aside

from merely alleging that Chief Loomis was a Town policy-maker

and that he decided to prosecute plaintiff for a violation which

he knew (or should have known) she never committed, plaintiff has

failed to identify any municipal custom or policy which acted as

the "moving force" behind the alleged deprivation of her

federally protected rights. Plainly, absent evidence of such a

custom or policy, the Town cannot be held liable on a § 1983

claim for the conduct of its agent. Chief Loomis.

The Supreme Court has addressed this issue on several

occasions, and recently observed:

As our § 1983 municipal liability jurisprudence illustrates, however, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the reguisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. •k -k -k

Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.

20 Board of Com'rs of Bryan County v. Brown,

(1997) (emphasis in original). See also Bordanaro v. McLeod,

(1st Cir. 1989) ("[CJourts have established two

requirements for plaintiffs to meet in maintaining a § 1983

action grounded upon an unconstitutional municipal custom.

First, the custom or practice must be attributable to the

municipality. In other words, it must be so well-settled and

widespread that the policymaking officials of the municipality

can be said to have either actual or constructive knowledge of it

yet did nothing to end the practice. Second, the custom must

have been the cause of and the moving force behind the

deprivation of constitutional rights."). Because plaintiff has

failed to identify any municipal policy which allegedly caused

her injuries (and also failed to demonstrate that any of her

federally protected rights were actually violated as a result of

her prosecution), the Town of Rye is entitled to judgment as a

matter of law with regard to plaintiff's § 1983 claims.

II. Delton Record.

In support of her section 1983 claims against Record,

plaintiff alleges that he conspired with or otherwise acted in

concert with officers of the Rye Police Department in an effort

to have her wrongfully arrested (and ultimately prosecuted) for

conduct in which she never engaged. In support of her conspiracy

theory, plaintiff alleges that: (1) Record had a longstanding

relationship with the Rye Police Department, which began as early

21 as the 1970s, when Record was an officer with that department;

(2) Record told her that he had often performed "gratis"

polygraph examinations of suspects detained by the Rye Police

Department and/or potential employees (Record is the owner of a

private investigation agency and apparently is certified to

perform polygraph examinations); (3) in 1991-92, Record chaired a

board chosen by the Rye selectmen to hire a new police chief and

was instrumental in the hiring of current Police Chief Brad

Loomis; (4) Record provided free membership in his private tennis

club to Chief Loomis and was a social friend of Loomis; (5) in

1993, Record worked to secure funds for a new police station for

the Town of Rye and served on the planning committee for the

same; (6) Record and his son served on the Rye Highway Safety

Committee with Chief Loomis; (7) Record served as the president

of the Portsmouth New Hampshire Crime Line (which included the

area of Rye), which gave him further contact with the Rye Police

Department and Chief Loomis; and (8) in light of his close and

long-standing relationship with the Rye Police Department and

Chief Loomis, Record had substantial influence over them in

general and, more specifically, influenced them to arrest her and

pursue unjustified criminal charges against her stemming from the

April, 1995 incident. See Affidavit of Laura Vlack (attached to

document no. 15).

To succeed on her section 1983 claims against Record,

plaintiff must, among other things, demonstrate that he acted

22 under color of state law. There are, of course, rare occasions

on which private citizens may be deemed to have acted under color

of state law, by virtue of having conspired with or otherwise

acted in concert with state actors. See, e.g., Harvey v. Harvey,

(11th Cir. 1992) ("Only in rare circumstances

can a private party be viewed as a 'state actor' for section 1983

purposes."); Roche,

("Since § 1983 is aimed at

state action and state actors, . . . persons victimized by the

tortious conduct of private parties must ordinarily explore other

avenues of redress. To be sure, the rule is not absolute:

private actors may align themselves so closely with either state

action or state actors that the undertow pulls them inexorably

into the grasp of § 1983") . Plaintiff has, however, failed to

demonstrate that this is such a case.

Even crediting her factual allegations and assuming that

Record had a close personal relationship with Chief Loomis and

other members of the Rye police department, plaintiff has

produced nothing which even suggests that he conspired with those

state actors to violate plaintiff's federally protected rights

(or that her rights were violated). Thus, she has failed to

demonstrate that there is any trial-worthy issue as to whether

Record acted under color of state law when he reported

plaintiff's conduct to the police and subseguently filed a

criminal complaint (and supporting affidavit) against her. See,

e.g., Collins v. Womancare,

(9th Cir. 1989)

23 ("[W]e have held that merely complaining to the police does not

convert a private party into a state actor. Nor is execution by

a private party of a sworn complaint which forms the basis of an

arrest enough to convert the private party's acts into state

action.") (citations omitted); Hughes v. Meyer,

(7th Cir. 1989) ("[PJrivate parties are not state actors when

they merely call on the law for assistance, even though they may

not have grounds to do so; there must be a conspiracy, an

agreement on a joint course of action in which the private party

and the state have a common goal.") (citation and internal

guotation marks omitted); Lowe v. Aldridge,

(11th Cir. 1992) ("[I]n order to prove such a conspiracy [and

thereby demonstrate that a private citizen has acted under color

of state law], a plaintiff must show that the parties reached an

understanding to deny the plaintiff his or her rights. . . .

Thus, plaintiffs must provide some evidence of an 'understanding'

and 'willful participation' between the private and state

defendants toward the goal of procuring the [challenged]

warrant.") .

In fact, as noted above, plaintiff's arrest was supported by

probable cause and, therefore, she cannot demonstrate that any of

her federally protected rights were violated by that arrest.

And, as to plaintiff's claims relating to her allegedly wrongful

prosecution, there is nothing to suggest that her federally

protected rights were infringed by Chief Loomis's decision to

24 prosecute her for trespass. Thus, plaintiff has failed to

demonstrate that her federally protected rights were in any way

infringed by the Town, its agents, or Record. She has also

failed to demonstrate that Record acted under color of state law

when he reported plaintiff's conduct to the police and

subseguently sought her arrest by filing a criminal complaint

against her. Accordingly, she cannot, as a matter of law,

prevail on her § 1983 claim against Record.

III. Plaintiff's State Law Claims.

Having concluded that defendants are entitled to judgment as

a matter of law with regard to plaintiff's federal claims, the

court must next determine whether it should exercise supplemental

jurisdiction over her state claims or remand them to state court.

See generally, Camelo v. American Federation,

(1st Cir. 1998) .

To prevail with regard to her state law malicious

prosecution claim, 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). Lack of probable cause is an essential

25 element of a malicious prosecution claim. See Johnston v.

Flatlev Realty Investors,

(1984) . And, at

least with regard to the Town of Rye (and its agents) the court

has already determined that, as a matter of law, probable cause

existed for plaintiff's arrest and prosecution. Thus, if the

court were to remand plaintiff's state malicious prosecution

claim to state court, plaintiff would be precluded from

relitigating the issue of probable cause. Remanding her state

law claims against the Town of Rye would, therefore, serve no

viable purpose, would amount to a waste of judicial resources,

and would needlessly inconvenience and burden the Town and its

agents. The same is true with regard to plaintiff's state law

claim against the Town for false arrest. Accordingly, the court

exercises its supplemental jurisdiction over count 1 of

plaintiff's complaint and concludes that the Town of Rye is

entitled to judgment as a matter of law.

The issue is more difficult with regard to plaintiff's state

law claims against Record. In her affidavit, plaintiff alleges

that Record knew that there was no factual basis for him to

pursue criminal charges against her. Record denies plaintiff's

allegations. Nevertheless, the parties' dispute creates a

genuine issue of material fact. If, as plaintiff claims. Record

lied in his affidavit, knew that there was no basis for his

criminal complaint against her, and acted with malice when he

pursued that criminal charge against her, plaintiff might be

26 entitled to prevail as to one or more of her state law claims

against Record. Accordingly, having resolved all of plaintiff's

federal claims against her, the court declines to exercise its

supplemental jurisdiction over her state law claims against

Record, and remands the matter to state court. The Court of

Appeals for the First Circuit has observed:

A federal court exercising original jurisdiction over federal claims also has "supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."

(a) (West 1993). If, however, the court dismisses the foundational federal claims, it must reassess its jurisdiction, this time engaging in a pragmatic and case-specific evaluation of a variety of considerations that may bear on the issue. Roche v. John Hancock Mut. Life Ins. C o .,

(1st Cir. 1996). Among the factors that will often prove relevant to this calculation are the interests of fairness, judicial economy, convenience, and comity.

Comity is a particularly important concern in these cases. . . Accordingly, the balance of competing factors ordinarily will weigh strongly in favor of declining jurisdiction over state law claims where the foundational federal claims have been dismissed at an early stage in the litigation.

Camelo v. American Federation,

(emphasis

supplied).

Conclusion

Plaintiff's arrest on charges of criminal stalking was, as a

matter of law, supported by probable cause. That determination

effectively undermines most of plaintiff's claims against the

Town because it precludes any finding that her federally

27 protected rights were infringed by her arrest. As for her § 1983

claims against Record, even if plaintiff were able to produce

evidence of the alleged conspiracy between Record and law

enforcement officers (which she has not) , it is difficult to

imagine how Record might possibly have unlawfully "conspired"

with police officers to effectuate a lawful arrest.

With regard to the plaintiff's claims arising out of her

prosecution for criminal trespass, the Town of Rye is entitled to

judgment as a matter of law. As with the claims relating to her

arrest, plaintiff has simply failed to point to any evidence from

which a reasonable trier of fact might infer that: (1)

plaintiff's federally protected rights were in any way infringed

by the decision to prosecute her for criminal trespass; or (2)

the allegedly wrongful conduct of Chief Loomis (acting in his

prosecutorial capacity) was the product of any municipal custom

or policy.

For the foregoing reasons, defendants' motions for summary

judgment (documents no. 9 and 10) are granted. Counts 2 (state

law claims against Record) and 5 (plea for enhanced compensatory

damages) of plaintiff's complaint are hereby remanded to state

court. The Clerk of the Court is directed to enter judgment in

accordance with this order and close the case.

28 SO ORDERED.

Steven J. McAuliffe United States District Judge

May 28, 1999

cc: Brian F. McCaffrey, Esq. Richard J. Walsh, Esq. Dyana J. Crahan, Esq. Douglas J. Wenners, Esq.

29