Ramsay v. McCormack CV-98-408-JD 06/29/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald G. Ramsay

v. Civil No. 98-408-JD

David S. McCormack, et al.

O R D E R

The plaintiff, Ronald Ramsay, brought this action asserting

claims under state law and

. Before the court

is the motion of defendants Grafton County and Kenneth Anderson,

in his official capacity, for judgment on the pleadings (document

no . 16) .1

Standard

A motion for judgment on the pleadings will be granted if,

accepting all of the plaintiff's factual averments contained in

the complaint as true, and drawing every reasonable inference

1The complaint alleges that the county was the employer of Anderson and the plaintiff has sued Anderson in his official and individual capacity. There are no direct claims against the county. "[A] suit against a government officer in his official capacity is the same as a suit against the entity of which the officer is an agent." McMillian v. Monroe County,

, 785 n.2 (1997) (citations and guotations omitted). In this regard, therefore, the complaint is redundant, and the motion is properly construed as a motion by the county, not Anderson, for judgment on the pleadings. See infra. helpful to the plaintiff's cause, "it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Rivera-Gomez v. de Castro,

(1st Cir. 1988). The court's inquiry is a

limited one, focusing not on "whether a plaintiff will ultimately

prevail but whether [he] is entitled to offer evidence to support

the claims." Scheuer v. Rhodes,

(1974) (motion

to dismiss under Fed. R. Civ. P. 1 2 (b)(6)).

Background

The events described herein are allegations asserted by the

plaintiff in his amended complaint and do not constitute findings

of fact of the court.

On July 4, 1995, defendants Lieutenant Davis and Officer

Gilpatric, both of the Bridgewater Fire Department, entered the

private property of the plaintiff's son and approached the

plaintiff's camp on the property. They confronted the plaintiff

and insisted that the plaintiff produce a campfire permit for

their inspection. Although the plaintiff initially refused to

produce the permit as there was no fire on the property, nor had

there been one that day, the plaintiff ultimately complied with

the fire officers' demand. Davis and Gilpatric then left,

although they stated that they would return with a police

2 officer.

Davis, Gilpatric, and Officer McCormack, a New Hampshire

State Police officer, then returned to the property. The three

men entered the property, allegedly without probable cause, to

subdue and arrest the plaintiff, whom they found driving a truck

across the property. After the plaintiff refused to produce his

driver's license for McCormack, he was arrested for disobeying an

officer. An altercation then ensued wherein McCormack pulled the

plaintiff from his truck, handcuffed him, pushed him face forward

against the truck, and sprayed pepper spray in the plaintiff's

face. The plaintiff, who suffered from a heart condition, began

experiencing chest pains and collapsed. The defendants laughed

at the plaintiff while a guest of the plaintiff administered

nitroglycerin pills. The plaintiff was then placed in defendant

Davis's pickup truck and taken from the property.

As a result of the events of July 4, 1995, the plaintiff was

charged with interference with fire control personnel, simple

assault, disobeying an officer, and resisting arrest. The

charges were brought with malice, in the absence of probable

cause, and for purposes other than bringing the plaintiff to

justice. The plaintiff was booked, fingerprinted, and jailed for

an extended time, and reguired to appear before the Plymouth

District Court on January 19, 1996. The plaintiff entered pleas

3 of not guilty to the charges pending against him.

Grafton County prosecutor Kenneth Anderson assumed

responsibility for the plaintiff's prosecution. In the process

of prosecuting the unfounded and malicious charges, McCormack,

Gilpatric, Davis, and Anderson conspired to fabricate factual

evidence and testimony. Blatant testimonial misrepresentations

were made in an attempt to influence the court's opinion and

impugn the plaintiff's character. Moreover, defendant Anderson

allegedly misstated the law to the court, mis-characterized

precedent, introduced evidence which he knew to be false, and

repeatedly advanced arguments or adopted positions that were not

reflective of the law.

The plaintiff's first trial in Plymouth District Court on

October 11, 1996, ended in a mistrial. Anderson, who was

instrumental in initiating the charges against the plaintiff,

initially chose not to indict him on any felony charges.

However, Anderson sought a felony indictment against the

plaintiff after the mistrial. Ultimately, the plaintiff was

found not guilty of every charge presented to a jury.

On July 1, 1998, the plaintiff brought this action against

the defendants asserting violations of his constitutional rights

and claims under state law. Relevant to the present motion, the

plaintiff asserts that the prosecution was done with malice, was

4 wholly unfounded and without probable cause, employed, inter

alia, false evidence and testimony, and was in violation of his

substantive and procedural due process rights under the

Fourteenth Amendment. Similarly, the plaintiff alleges that the

defendants' conduct in distorting and corrupting the process of

law violated his Fourteenth Amendment rights.

Discussion

The county contends that it is entitled to judgment on the

pleadings as to any claims brought against Anderson, in his

official capacity, asserting that while the county employed the

defendant as county attorney during the prosecution of the

plaintiff, Anderson's prosecutorial duties were undertaken at the

direction of the attorney general. Therefore, it contends,

Anderson was acting as a "state actor" and the county is not a

proper party to the action, citing McMillian v. Monroe County,

(1997) . The defendant also argues it is entitled to

judgment on the grounds that section 1983 does not afford

monetary relief against state officials acting in their official

capacities.

As a preliminary issue, the court addresses the defendant's

contention that it is entitled to judgment as the plaintiff has

asserted a violation of his Fourteenth Amendment rights in

5 support of his section 1983 malicious prosecution claim in count

six.2 In Albright v. Oliver the Supreme Court held that there

was no substantive due process claim under the Fourteenth

Amendment for malicious prosecution. See

(1994). Moreover, because an adequate state law remedy for

malicious prosecution exists, there is no section 1983 procedural

due process claim for such a prosecution. See Reid v. State of

New Hampshire,

, 336 n.8 (1st Cir. 1995).

Nonetheless, the plaintiff's reliance upon the Fourteenth

Amendment is not fatal to his section 1983 claim of malicious

prosecution. Under Garita Hotel Ltd. v. Ponce Federal Bank, the

court may only grant a motion to dismiss under Rule 12(b)(6) "'if

it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'" Garita,

(1st Cir. 1992) (quoting Correa-Martinez v.

Arrillaga-Belendez,

(1st Cir. 1990)). The

standard for a Rule 1 2 (c) motion is the same as for a Rule

12(b)(6) motion. See Republic Steel Corp. v. Pennsylvania Enq'q

Corp.,

(7th Cir. 1986) . As indicated by First

Circuit jurisprudence, a section 1983 claim may lie on the basis

2The court notes that the defendant did not raise this argument properly in its motion for judgment on the pleadings, but instead the issue was raised in the plaintiff's opposition to the defendant's motion, to which the defendant responded.

6 of a prosecution in derogation of the Fourth Amendment. See

Meehan v. Town of Plymouth,

(1st Cir. 1999) .

Therefore, for the purposes of this order, the court construes

the plaintiff's claim as one asserting a violation of the Fourth

Amendment.

I. Official Capacity Liability

In Monell v. Department of Social Services,

(1978), the Supreme Court established that under

, municipalities cannot be held liable on a theory

of respondeat superior, although they can be liable for injuries

inflicted pursuant to an official government policy or custom.

"It is when execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983." Id.

Such liability may be incurred as the result of a single decision

where "a deliberate choice to follow a course of action is made

from among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in guestion." Pembaur v. City of Cincinatti,

(1986). However,

7 the fact that a particular official--even a policy­ making official--has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. See, e.g., Oklahoma City v. Tuttle,

(1985). The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.

Id. at 482-84 (emphasis added).

The court's inguiry into whether an official was acting as a

policymaker is a specific inguiry targeting "a particular area,

or on a particular issue" of government business implicated by

the suit. McMillian,

. Necessarily, the court

must also determine for which governmental entity, if any, the

official made policy. See

These inguiries are dependent

upon state law. See McMillian,

. Finally, the

court's analysis into these issues is a functional one. See,

e.g., Owens v. Fulton Countv,

(11th Cir. 1989).

Grafton County moves for judgment on the pleadings asserting

that Anderson, in prosecuting the plaintiff, was not setting

policy for the county, but was instead fulfilling his duties to

the state attorney general. Its argument, therefore, is not

predicated upon whether Anderson was a policymaker. Instead, it

focuses on whether, if Anderson was a policymaker in fulfilling

his criminal prosecutorial duties, he was a policymaker for the

state or for the county. In other words, the county argues Anderson was not "speak[ing] with final policymaking authority

for the [county]" in his criminal prosecutorial role as county

attorney. Jett v. Dallas Independent School Dist.,

(1989) .

New Hampshire Revised Statutes Annotated ("RSA") § 7:34

(1988) defines the duties of the county attorney under New

Hampshire law:

The county attorney of each county shall be under the direction of the attorney general, and, in the absence of the latter, he shall perform all the duties of the attorney general's office for the county. Under the direction of the county commissioners he shall prosecute or defend any suit in which the county is interested. He shall tax all costs arising in state or county suits in his county for the consideration of the court.

Pursuant to this section, therefore, the county attorney acts at

the direction of the attorney general and performs the attorney

general's duties in his absence. Indeed, county attorneys "have

been considered as the attorney general's 'deputies, so far as

local criminal proceedings are concerned,'" for over half a

century. Wyman v. Danais,

(1958) (guoting

Fletcher v. Merrimack County,

(1901)). However,

he also represents the county in civil suits in which it is

interested. See New Hampshire Bar Ass'n v. La Belle,

(1968) ("Although the county attorney, however

described, may be engaged primarily in criminal prosecutions, hi duties and functions also include civil litigations for the

county (RSA 7:34) and other miscellaneous civil matters.").

Other statutory provisions and their subsequent

interpretation by the New Hampshire Supreme Court also place the

county attorney, in his role as criminal prosecutor, subordinate

to and under the control of the attorney general. RSA § 7:11

(1988) provides that law enforcement officers "shall be subject

to the control of the attorney general whenever in the discretion

of the latter he shall see fit to exercise the same." In

construing RSA §§ 7:6, 7:11, and 7:34, the New Hampshire Supreme

Court determined that the statutes "place ultimate responsibility

for criminal law enforcement in the attorney general, and give

him the power to control, direct and supervise criminal law

enforcement by the county attorneys in cases where he deems it in

the public interest." See Wyman,

.3

3RSA 7:6 (1998), titled "Powers and Duties as State's Attorney," provides:

The attorney general shall act as attorney for the state in all criminal and civil cases in the supreme court in which the state is interested, and in the prosecution of persons accused of crimes punishable with death or imprisonment for life. The attorney general shall have and exercise general supervision of the criminal cases pending before the supreme and superior courts of the state, and with the aid of the county attorneys, the attorney general shall enforce the criminal laws of the state.

10 Funding and removal powers are also relevant to the court's

considerations. See McMillian,

. Although the

county attorney is elected by the people of the county, see N.H.

Const. Part 2, Art. 71, and is paid from the county treasury as

determined by the county commissioners, see RSA § 23:5, the power

to temporarily suspend the county attorney lies with the attorney

general and the power to remove him lies with the superior court.

See Fames v. Rudmond,

(1975) (citing RSA

§ 64:7) .

The fact that the county attorney is an employee of the

county, while material, is not dispositive. As the Supreme Court

stated in McMillian,

This is not to say that state law can answer the guestion for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law.

502 U.S. at 786. Further factual development is not necessary to

determine the county attorney's role in the context of this case.

As is evident from the above discussion, the issue is one that

turns on state law. See McMillian,

; Praprotnik,

485 U.S. at 124-25. Moreover, the motion is one for judgement on

11 the pleadings. See Federal Rule of Civil Procedure 12(c).4

The plaintiff argues, without authority, that there must be

some affirmative act by the attorney general to control the

prosecution of the case. However, the fact that the county

attorney is granted some discretion in prosecuting a case, and

that his decisions in a particular case may not be reviewed by

the attorney general, does not change the authority under which

he acts, or the governmental entity for which he acts. The

Supreme Court has made clear that even in cases where an official

has discretion to act, if he is not the final authority he is not

the policy maker of the local governmental entity. See Pembaur,

; see also, Feliciano v. City of Cleveland,

(6th Cir. 1993) ("the official's decisions [must

be] final and unreviewable and . . . not constrained by the

official policies of superior officials.").5

4In any event, the court does not understand the plaintiff to maintain his objection on the basis of inadeguate discovery given his receipt of previously outstanding interrogatories underlying the discovery argument, the fact that he did not maintain the discovery argument in response to the defendant's reply, and the lack of an attempt to further supplement the record as discovery progressed over the past five and a half months.

5The plaintiff's reliance on cases from other circuits, while appropriate for determining the applicable legal standards, are otherwise unpersuasive as the outcome of those cases is dependent upon the various state laws that control the officials. The plaintiff relies in particular upon Crane v. State of Texas,

(5th Cir. 1985). Crane is readily

12 Finally, the plaintiff argues that the prosecution of the

plaintiff in Plymouth District Court was not under the attorney

general's supervision, relying upon RSA § 7:6.

The attorney general shall have and exercise general supervision of the criminal cases pending before the supreme and superior courts of the state, and with the aid of the county attorneys, the attorney general shall enforce the criminal laws of the state.

RSA § 7:6 (1998). New Hampshire Supreme Court jurisprudence

construing section 7:6 in the context of other relevant statutory

sections, particularly section 7:11, does not support the

plaintiff's argument.

In Wyman, the New Hampshire Supreme Court rejected the

argument, premised upon section 7:6, that the attorney general

only had supervisory control over the prosecution of the crime of

embezzlement, which carried a maximum term of five years

imprisonment.6 The court, relying in part on section 7:11 and

guoting Fletcher, explicitly reaffirmed the status of county

attorneys as deputies of the attorney general in "local criminal

distinguishable in that a district attorney in Texas is responsible for "the prosecution of serious crimes," the authority for which "he exercises alone and without responsibility to the State attorney general, who has no general prosecutorial powers." Id.

6Ihe court notes the amendment of RSA § 7:6 in 1996, although the parties do not argue the amendment is material to the issue before the court.

13 proceedings." Wyman,

(quoting Fletcher,

). This is consistent with the broad language in Wyman

that the attorney general has "ultimate responsibility for

criminal law enforcement" and "the power to control, direct and

supervise criminal law enforcement by the county attorneys in

cases where he deems it in the public interest." Wyman,

. Similarly, in In re Ash,

(1973), the court

expansively defined the authority of the county attorney as it

derives from his role as a deputy of the attorney general, and

therefore implicitly defined the attorney general's authority as

well:

Since RSA 7:11 recognizes prosecutorial discretion in the attorney general and subjects all law enforcement personnel to his control, see Wyman v. Danias, supra, it is reasonable to conclude that the county attorney as his deputy has authority over the sheriff. The same is true concerning the relationship between the county attorney and local police in that the latter as law enforcement personnel receive their authority by virtue of State law. See RSA 105:3. Thus, both the sheriff and the local police have a duty to act in accordance with the county attorney's concept of law enforcement.

In re Ash,

. The court concludes that New

Hampshire Supreme Court precedent concerning the authority of the

attorney general, establishing the county attorney as the deputy

of the attorney general in local criminal proceedings, its

expansive interpretation of section 7:11, and the second clause

of section 7:6 which broadly states "the attorney general shall

14 enforce the criminal laws of the state," compels the conclusion

that the county attorney functions under the authority of the

attorney general in criminal prosecution in the district courts.

Therefore, the court rules that in fulfilling his criminal

prosecutorial duties, the county attorney acts pursuant to

authority vested by state law in the attorney general and under

the control of the attorney general, and does not function as a

final policy maker for the county.7 Moreover, it has previously

been determined by this court that county attorneys, when

fulfilling their criminal prosecutorial duties under the

direction and control of the attorney general, do not act as

final policymakers for section 1983 liability purposes. See St.

Louis v. Eldredae, CV-95-178-B slip op. at 8-9 (D.N.H. March 31,

1997) ("it is clear that the attorney general, and not individual

county attorneys, are the final policymaking authority, for the

attorney general's office retains the power at all times to

intervene and prevent a prosecution commenced in violation of a

defendant's constitutional rights"); see also, D'Amour v. Blake,

CV-95-194-JD slip op. at 6 (D.N.H. April 18, 1997). Claims

7Nor are the dual hats worn by the county attorney for varying responsibilities incongruous. See, e.g., Owens, 877 at 952 ("We have previously acknowledged that an official may simultaneously exercise county authority over some matters and state authority over others.").

15 against Anderson in his official capacity premised upon his

alleged policy making authority therefore must fail.

Conclusion

In light of the above discussion, the court grants the

county's motion for judgment on the pleadings on the plaintiff's

section 1983 claims and dismisses all claims against defendant

Anderson in his official capacity (document no. 16).

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

June 29, 1999

cc: Peter G. McGrath, Esguire Martha A. Moore, Esguire Douglas N. Steere, Esguire R. Matthew Cairns, Esguire

16