Dodge v. City of Concord CV-99-217-B 12/15/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Raven Dodge

_____ v. Civil No. 99-217-B

City of Concord, et a l .

REPORT AND RECOMMENDATION

Pro se plaintiff Raven Dodge, a prisoner in the New

Hampshire State Prison, has filed this civil rights action

against the City of Concord and Concord police officers Roger

Baker, Eric Phelps, Kevin Partington, Jane Doe, and John Doe in

their individual and official capacities. Dodge initially filed

a complaint alleging he was arrested without probable cause in

connection with an attempted burglary. Plaintiff amended his

complaint on August 20, 1999. The amended complaint incorporated

his original one-count complaint and added a second count

indicating he was arrested for loitering and challenging that

arrest as merely a pretext to search for evidence relating to

another crime. Dodge was ordered to further amend the amended

complaint to clarify his lack of probable cause claim. The

second amended complaint is now before me for preliminary review.

See 28 U.S.C. § 1915A (authorizing review of prisoner's

complaints to determine whether they are frivolous, malicious,

fail to state a claim upon which relief may be granted, or seek

monetary relief from a defendant who is immune from such relief);

Rules of the United States District Court for the District of New Hampshire (LR) 4.3(d)(2)

Background

At 2:54 a.m. on March 16, 1996, the Concord police

department received a call from the manager of Harry's Steakhouse

reporting an attempted break-in. When the police arrived at the

scene, plaintiff was walking north on Phoenix Avenue. Officer

Roger Baker, who had not been provided a description of the

suspect, spotted plaintiff. At 3:12 a.m.. Officers Eric Phelps

and Kevin Partington placed Dodge under arrest for loitering in

violation of New Hampshire Revised Statutes Annotated (RSA)

644:6.1 Dodge was searched and items in his possession were

1In relevant part, RSA 644:6 states:

I . A person commits a violation if he knowingly appears at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity. Circumstances which may be considered in determining whether such alarm is warranted include, but are not limited to, when the actor: (a) Takes flight upon appearance of a law enforcement official or upon questioning by such an official. (b) Manifestly endeavors to conceal himself or any object. (c) Has in his possession tools or other property which would lead a reasonable person to believe a crime was about to be perpetuated. (d) Examines entrances to a structure which the actor has no authority or legitimate purpose to enter. II. Prior to any arrest under this section, unless flight or other circumstances make it impossible, a law enforcement official shall afford the actor the opportunity to dispel any alarm which would otherwise be warranted, by seized. The two officers then brought plaintiff against his will

to Harry's Steakhouse for identification by the witness to the

attempted burglary. The witness was unable to identify Dodge

positively as the burglar.

Dodge was never charged with loitering. The state, however,

used the evidence seized from him in a subseguent prosecution on

a different charge (presumably attempted burglary).

____________________________ Discussion

1. Standard of Review

_____ In reviewing a pro se complaint, a district court is obliged

to construe the pleading liberally. See Estelle v. Gamble,

(1976) . In evaluating whether a complaint states a

claim upon which relief may be granted, the court must take all

factual allegations in the complaint as true and must construe

all reasonable inferences in the plaintiff's favor. See

Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir.

1990). A pro se complaint "can only be dismissed for failure to

state a claim if it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief." Estelle,

(citation and internal

reguesting him to identify himself and give an account for his presence and conduct. Failure to identify or account for oneself, absent other circumstances, however, shall not be grounds for arrest.

3 quotation marks omitted).

2. Pretext

_____ The gravamen of Dodge's amended complaint is that the

officers never "intend[ed] to charge or proceed in the

prosecution of Plaintiff for any alleged violation of RSA 644:6;

Thus the arrest was in bad faith and a pretext and without

reasonable probable cause." Second Amended Complaint 5 4. The

Second Amended Complaint goes on to charge "[t]hat the actions of

Defendant's [sic] were calculated solely to [a]ffect an arrest of

Plaintiff for the express intention of searching his person

without the necessity of obtaining a warrant."

5 6.

The Fourth Amendment's prohibition against unreasonable

seizures, made applicable to the states pursuant to the

Fourteenth Amendment, requires an officer making a warrantless

arrest to have "'probable cause to believe that the suspect has

committed or is committing a crime.'" United States v. Bizier,

(1st Cir. 1997) (quoting United States v.

MartInez-Molina,

(1st Cir. 1995)). Probable

cause exists when, "'at the time of the arrest, the facts and

circumstances known to the arresting officers were sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense.'"

(quoting United

States v. Cleveland,

(1st Cir. 1997)). The

4 Fourth Amendment inquiry is strictly objective. See Bizier,

("subjective intentions play no role in a probable

cause analysis under the Fourth Amendment").

Dodge argues, nonetheless, that the defendants' bad faith

rendered the arrest invalid. See Amended Complaint 5 4. Any

doubts regarding the role of subjective intent in the Fourth

Amendment inquiry were laid to rest by the United States Supreme

Court's recent decision in Whren v. United States, U.S. ,

116 S. C t . 1769 (1996). In Whren, the Court considered whether a

stop for a traffic violation could violate the Constitution if

the purported purpose of the stop was really a pretext. See id.

at 1773. The Court held that the stop was proper provided a

reasonable officer could have deduced probable cause. In

rejecting Whren's argument, the Court emphasized the importance

of a strictly objective test. See id. at 1775. According to the

Court, "[s]ubjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis." Id. at 1774. Thus an

"arrest [based on probable cause] . . . would not be rendered

invalid by the fact that is was 'a mere pretext for a narcotics

search.'" Bizier,

(quoting Whren, 116 S. C t . at

1774) .

Further, it is of no legal moment that Dodge was never

charged with the offense for which he was originally arrested.

5 See Bizier,

. Probable cause exists if, at the

time of the arrest, the arresting officer has reason to believe a

crime is being committed; subseguent events have no bearing on

the existence of probable cause at the time of the arrest. Thus

"the probable cause justifying a lawful custodial arrest . . .

need not be for the charge eventually prosecuted."

Nor is there any merit to Dodge's contention that the

search made incident to the arrest was unconstitutional. "Once

authorized to make a lawful arrest, law enforcement personnel may

conduct a warrantless search of the person of an arrestee."

; see United States v. Robinson,

(1973)

("A custodial arrest of a suspect based on probable cause is a

reasonable intrusion under the Fourth Amendment; that intrusion

being lawful, a search incident to the arrest reguires no

additional justification. It is the fact of the lawful arrest

which establishes the authority to search, and we hold that in

the case of a lawful custodial arrest a full search of the person

is not only an exception to the warrant reguirement of the Fourth

Amendment, but is also a 'reasonable' search under that

Amendment."). Such a search is considered reasonable, regardless

of the officer's subjective intent. See United States v.

Proctor,

(1st Cir. 1998). "'The justification or

reason for the authority to search incident to a lawful arrest

6 rests [both] on the need to disarm the suspect in order to take

him into custody [and] on the need to preserve evidence on his

person for later use at trial.'" Bizier,

(quoting Robinson,

).

Thus the fact that the police officers' motive may have been

to investigate the attempted burglary has no bearing on the

legality of Dodge's arrest for loitering. Probable cause to

believe an offense has been committed is sufficient to justify an

arrest, regardless of the officers' subjective intent.

Accordingly, I find that Dodge's claim that his arrest for

loitering was pretextual fails to state a claim for violation of

the Fourth Amendment. Furthermore, because a lawful arrest is

all that is required to justify a body search, he also fails to

state a claim based on the subsequent search.

2. Lack of Probable Cause

_____ Dodge's remaining count alleges that he was arrested without

probable cause. Specifically, he contends that because he was

never charged with or prosecuted for loitering, his "arrest was

in bad faith and a pretext and without reasonable probable

cause." It is unclear whether Dodge directs the alleged lack of

probable cause at the arrest for loitering or the prosecution for

burglary; however, neither allegation states a claim for a Fourth

7 Amendment violation.2

On the one hand. Dodge seems to argue there was no probable

cause to arrest him for burglary. He contends that the arresting

officers had not received a description of the burglary suspect

when they apprehended him. This assertion is irrelevant,

however, because he was not arrested for burglary. As discussed

above, the arresting officers did not need probable cause to

arrest Dodge for the attempted break-in because they arrested him

for loitering, and Dodge has not alleged that the officers lacked

probable cause to arrest him for loitering.

On the other hand, assuming Dodge now intends to claim the

officers lacked probable cause to arrest him for loitering, which

is consistent with his contention that the officers abused their

power, that allegation also fails. Probable cause is based on

the facts and circumstances apparent to the officers at the time

of the arrest, not based on the clarity of critical hindsight.

See Bizier,

; Roche v. John Hancock Mut. Life

Ins. C o .,

(1st Cir. 1996) . It is an objective

inguiry, assessing what a reasonably prudent person would believe

2Dodge was ordered to further amend the complaint to clarify this specific allegation, which he failed to do. In the second amended complaint. Dodge added a paragraph alleging that "virtually every single person" seen the hour after the attempted burglary was reported was guestioned by the police. He argues that this fact substantiates his pretext claim, discussed and disposed of above in the analysis of count I. at the time. See

(explaining how "the existence of

probable cause is not a guarantor either of the accuracy of the

information upon which [the arresting officer] has reasonably

relied or of the ultimate conclusion that he reasonably drew

therefrom."). As alleged. Dodge was found within blocks of the

attempted burglary, only 15 minutes after it had been reported,

by himself, going nowhere in particular. Those allegations

demonstrate facts and circumstances uponwhich a reasonable

person could objectively suspect that Dodge "knowingly appear[es]

at a place, or at a time, under circumstances that warrant[ed]

alarm for the safety of persons or property in the vicinty." RSA

644:6,1 (defining loitering under New Hampshire law).

Accordingly, I find that Dodge has failed to establish even the

minimal facts which could be construed as showing an arrest for

loitering without probable cause.

Finally, although not explicit. Dodge appears to be

asserting a malicious prosecution claim, by asserting the police

abused their power when they arrest him. A federal malicious

prosecution claim actionable under § 1983, however, reguires a

Fourth Amendment violation, which, as discussed above. Dodge has

failed to adeguately allege.

3 . Municipal Liability

9 Plaintiff seeks to hold the City of Concord liable for the

alleged illegal seizure. 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. See McCabe v. Life-Line

Ambulance Service, Inc.,

(1st Cir.) (citing

Oklahoma City v. Tuttle,

(1985); Monell v.

Department of Soc. Servs.,

(1978)), cert.

denied

(1996). Because plaintiff has failed to

state a claim for violation of the Fourth Amendment by the

individual officers, there is no basis for holding the

municipality liable.

Conclusion

_____ For the abovementioned reasons, I recommend that the second

amended complaint (document no. 9) be dismissed in its entirety

for failure to state a claim upon which relief may be granted,

and that this action be dismissed. See 28 U.S.C. § 1915A(b)(1);

LR 4.3(d)(2)(A)(i). If approved, the dismissal will count as a

strike against the plaintiff under

(g). Also if

approved, I further recommend that the pending motion for

appointment of counsel (document no. 3) be denied as moot.

Any objections to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

10 an objection within the specified time waives the right to appeal

the district court's order. See Unauthorized Practice of Law

Committee v. Gordon,

(1st Cir. 1992); United

States v. Valencia-Copete,

(1st Cir. 1986) .

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: December 15, 1999

cc: Raven Dodge, pro se

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