Lattime v. Seabrook, et al. CV-98-181-M 07/12/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Chastity Lattime, Plaintiff

v. Civil No. 98-181-M

Town of Seabrook, Seabrook Police Department, and Robert Granlund, Defendants

O R D E R

Plaintiff Chastity Lattime brought this action against the

Town of Seabrook ("Town" ) , Seabrook Police Department

("Department"), and Sgt. Robert Granlund alleging violations of

and New Hampshire law in connection with her

March 8, 1995, arrest for robbery, theft by unauthorized taking,

and criminal use of aerosol self-defense spray. The plaintiff's

writ1 alleges seven counts applicable to the various defendants

as noted: (1) False Arrest/Illegal Seizure/Battery and (2) Breach

of Duty to Investigate, against the individual defendant; (3)

Unconstitutional Custom, Policy and/or Official Act against

Defendant Town of Seabrook and its Seabrook Police Department;

(4) Negligent Hiring, Training and Supervision, against the Town;

(5) Pendant State Law Claim of Vicarious Liability, against the

Town and its police department; and claims for (6) Enhanced

Damages and (7) Punitive Damages, against the individual

1The action was originally brought in state court and then removed to this court pursuant to

and 1446. defendant. The defendants move for summary judgment on all

counts.

Standard of Review

Summary judgment is appropriate when the record reveals "no

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

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). When ruling upon a party's motion for summary judgment,

the court must "view the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party's favor." Griqqs-Rvan v.

Smith,

(1st Cir. 1990).

The moving party "bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett,

(1986). If the

moving party carries its burden, the burden shifts to the

nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. DeNovellis v. Shalala,

(1st Cir. 1997).

At this stage, the nonmoving party "may not rest upon mere

allegation or denials of [the movant's] pleading, but must set

forth specific facts showing that there is a genuine issue" of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial. I d . (guoting Anderson v.

2 Liberty Lobby, Inc.,

(1986)). In this context,

"a fact is ''material' if it potentially affects the outcome of

the suit and a dispute over it is 'genuine' if the parties'

positions on the issue are supported by conflicting evidence."

Intern'1 Ass'n of Machinists and Aerospace Workers v. Winship

Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Background

At approximately 3:42 p.m. on March 8, 1995, Defendant

Granlund and Sgt. Preston of the Seabrook Police Department were

dispatched to 56 Carolyn Avenue, Seabrook, New Hampshire to

investigate an alleged assault. Once there. Defendant Granlund

observed the victim, Cindy Andrews, being treated by Emergency

Medical Technicians for exposure to Oleo Capscium spray, also

known as "pepper spray." Sergeant Granlund also observed that

Andrews' skin and hair had an orange tint, which Granlund, having

been trained in the effects of Oleo Capscium spray, knew to be

consistent with recent exposure to it.

Andrews gave Sergeant Granlund an account of the assault,

which, in relevant part, follows. Andrews had been driving down

Carolyn Avenue when two women she did not recognize yelled at her

to stop. She backed up to speak to the women, who stated they

were lost and looking for Pine Street. She then saw plaintiff,

whom she knew, emerge from behind the two women. As Andrews put

her car in gear to leave, plaintiff sprayed her with a chemical,

3 reached into the car, grabbed her by the hair and pulled very

hard. Andrews put her car in park, and managed to get out. She

ran toward a mobile home. The two women chased her, punching and

kicking her in the process. Plaintiff told the women they should

kill Andrews, whereupon the women told Andrews they were not

through with her yet. Andrews reached the mobile home and, when

an elderly gentleman came to the door, her attackers fled.

Andrews told Defendant Granlund that she believed plaintiff

stole $200 from her pocketbook while assaulting her. She also

told Sergeant Granlund that she believed the necklace she was

wearing prior to the assault had been ripped from her neck while

plaintiff was pulling her hair. Granlund observed a large amount

of loose hair falling from Andrews' scalp and a reddening of her

face, which he thought to be consistent not only with having been

sprayed, but also with having been punched or kicked, although he

saw no blood. He also observed a small nick on Andrews' neck and

a reddening from one side of her neck to the other along the line

on which a necklace would rest. Granlund was aware of prior

disputes between the plaintiff and Andrews, and therefore

believed that Andrews' identification of the plaintiff was

reliable and that a motive existed for the assault.

Andrews went to the police station and gave written

statement, declaring that plaintiff "grabbed my pocket book and

took $200.00 dollars." Granlund applied for an arrest warrant

and prepared complaints against plaintiff charging robbery, in

violation of

; theft by unauthorized

4 taking, in violation of

; and

criminal use of an aerosol self-defense spray weapon, in

violation of

. An arrest warrant

was issued the same day.

At approximately 5:46 p.m. on March 8, 1995, Sergeant

Granlund and another officer arrested plaintiff at her residence.

Plaintiff was informed of the charges against her, transported to

the police station and was administratively processed. Plaintiff

denied committing the crimes with which she was charged, offered

an alibi, and gave the names of witnesses who could support her

alibi. Plaintiff alleges that she offered, to no avail, to let

the officers inspect her can of pepper spray and search her

vehicle, and she offered to take a lie detector test. Plaintiff

states that she was in custody from 5:46 p.m. on March 8, 1995,

until the evening of March 9, 1995.

Sergeant Granlund and others continued the investigation on

the evening on March 8 and thereafter. The victim was

reinterviewed and another written statement was obtained from

her. Plaintiff's alibi witnesses and others were also

interviewed. The charges were eventually nol prossed on April

12, 1995.

Discussion

Plaintiff's federal claims are brought under

, which subjects to civil liability any person who, acting

under color of state law, deprives a United States citizen or any

other person within the jurisdiction of the United States of "any

5 rights, privileges, or immunities secured by the Constitution and

laws."

(West Supp. 1999). "The first inguiry

in any § 1983 suit, therefore, is whether the plaintiff has been

deprived of a right 'secured by the Constitution and laws.'"

Baker v. McCollan,

(1979). Plaintiff alleges

that she was deprived of her right under the Fourth and

Fourteenth Amendments to be free from unreasonable arrest, or

seizure, specifically, from arrest and seizure made without

probable cause.

Defendants argue that they are entitled to summary judgment

because Defendant Granlund had probable cause to arrest plaintiff

for the crimes of robbery and theft by unauthorized taking.

While not conceding the point, defendants focus on the robbery

and theft by unauthorized taking charges to counter plaintiff's

argument that her arrest relating to criminal use of an aerosol

self-defense spray was unlawful and without probable cause

because the statute making such conduct criminal did not become

effective until July 1, 1995, after plaintiff was arrested.

Defendants argue that because plaintiff was arrested for several

offenses. Defendant Granlund is not liable for unlawful arrest if

he had probable cause with respect to any one of the offenses.

The court agrees, and will therefore address only the robbery and

theft by unauthorized taking grounds for plaintiff's arrest. See

Dowling v. City of Philadelphia,

, 142 n.7 (3d Cir.

1998) (finding consideration of whether probable cause existed

6 for arrest for criminal conspiracy unnecessary where there was

probable cause to arrest for defiant trespass).

Probable cause to arrest exists when "the facts and

circumstances within [the arresting officer's] knowledge and of

which [he] had reasonably trustworthy information were sufficient

to warrant a prudent man in believing that the [arrestee] had

committed or was committing an offense." Beck v. State of Ohio,

(1964); see also State v. Vachon,

(1987). With respect to the offense of theft by unauthorized

taking. New Hampshire law at the time of plaintiff's arrest

provided:

I . A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.

, I (1996).

With respect to the offense of robbery. New Hampshire law at the

time of plaintiff's arrest provided:

I. A person commits the offense of robbery if, in the course of committing a theft, he (a) Uses physical force on the person of another and such person is aware of such force; or (b) Threatens another with or purposely puts him in fear of immediate use of physical force.

, I (1996).

At the time Defendant Granlund applied for a warrant for

plaintiff's arrest, he had been told by the victim that the

plaintiff had sprayed her in the face with a debilitating and

painful chemical spray, had reached into her car and pulled her

hair, and while physically assaulting her, had stolen $200

7 dollars from her pocketbook and ripped a necklace from her neck.

Defendant Granlund observed a number of corroborating details on

the victim's person including an orange tint to her skin and

hair, a large amount of loose hair falling out of her scalp, and

a nick on her neck and reddening along the line where a necklace

would rest. Defendant Granlund reasonably believed that the

victim could identify the plaintiff as he knew the two had been

involved in disputes in the past. Defendant Granlund also

reasonably thought that the prior disputes between the victim and

the plaintiff could have provided a motive for the attack.

Plaintiff argues that the foregoing information did not

support a finding of probable cause because the information was

not reasonably trustworthy. First, plaintiff argues that

Defendant Granlund could not have relied on information provided

by the victim because "Andrews was known to the police as a

person with credibility problems." (Pl.'s Br. at 6.) The only

evidence plaintiff cites to support this statement is the

following notation by an unidentified police officer in a

supplementary investigation report dated March 22, 1995:

In essence, at this juncture, we have a victim who absolutely IDs LATTIME as her assailant and GERRISH and a juvenile female - both friends of LATTIME's who state that it wasn't LATTIME - it was GERRISH. GERRISH and LATTIME have been known to this P.D. as well as ANDREWS. There is a distinct credibility problem with all of them.

The court will assume that read in the light most favorable

to plaintiff, as is reguired on a motion for summary judgment,

this notation could be construed to mean that the victim was known to the police department, prior to this incident, as a

person with credibility problems.2 However, even if Defendant

Granlund knew this to be the case, he still had probable cause to

seek an arrest warrant as his independent observations

corroborated much of the victim's story. Cf. United States v.

Humphreys,

(8th Cir. 1992) (noting that

while defendant "may believe that the informants lacked

credibility, where the informants' information is at least

partially corroborated, attacks upon credibility and reliability

are not crucial to the finding of probable cause.") Under the

circumstances, a reasonably prudent officer in Granlund's

position could have believed that the charged offenses had been

committed and further, could have concluded that plaintiff

committed them. The alternatives would be to believe either that

the victim inflicted the injuries on herself in order to cause

plaintiff's arrest and prosecution or that the victim was

assaulted as described but, rather than assist in the

apprehension of the actual attacker, chose instead to accuse the

plaintiff. A reasonably prudent officer could rationally

discount the alternative explanations as improbable and accepted

and acted on the victim's account.

Plaintiff also argues that the police had reason to guestion

the victim's reliability because on the evening on March 8, 1995,

2An at least egually plausible reading is that subseguent investigation of the incident at issue revealed credibility problems specifically regarding this incident with all of the involved parties. she contradicted her earlier statements by saying that she could

not identify who stole her money or ripped the necklace off her

neck because she was being assaulted and could not see due to the

Oleo Capscium spray. This statement, however, was made after

plaintiff's arrest. It does not negate or diminish the probable

cause that existed before the arrest.

Plaintiff also argues, however, that once the police knew of

the victim's uncertainty as to the identity of the thief, the

charges against plaintiff should have been dismissed. To the

extent this argument advances a malicious prosecution theory, the

court notes that plaintiff's writ does not allege a malicious

prosecution claim. To the extent the argument challenges

plaintiff's continued detention on the ground that probable cause

had dissipated, it fails on the facts of this case. The First

Circuit Court of Appeals has held:

[A] police officer's initial finding of probable cause justifies not only arrest but a reasonable period of continued detention for the purpose of bringing the arrestee before a magistrate. Once the arrest has been made, it is the magistrate and not the policeman who should decide whether probable cause has dissipated to such an extent following arrest that the suspect should be released. Thus, although a police officer certainly has the discretion to release an arrestee immediately in light of certain post-arrest circumstances giving rise to doubts about the initial probable cause finding, we impose no absolute duty to do so absent the post-arrest discovery of evidence negating, beyond any reasonable doubt, the initial probable cause finding.

Thompson v. Olson,

(1st Cir. 1985) (state law

false imprisonment claim).

The post-arrest evidence here did not negate Defendant

Granlund's initial finding of probable cause beyond a reasonable

10 doubt. In her interview on the evening of March 9, 1995, the

victim positively identified plaintiff from a photo lineup as the

person who sprayed and assaulted her. She also said that because

she was being assaulted and could not see due to the Oleo

Capscium spray, she could not identify who took her necklace or

money. Nevertheless, plaintiff was still one of only three

potential suspects and reasonable inferences pointed to her as

the actual thief, and in any event an active participant and

accomplice. The victim's consistent testimony indicated that the

plaintiff reached into the victim's car while assaulting her.

There is no indication that either of the other women ever

entered the victim's car.3 Rather, they pursued the victim as

she ran away. Also, at the time of the March 8 interview, the

victim appears to have identified only plaintiff as having pulled

her hair, and stated her belief that the necklace had been ripped

off while her hair was being pulled.4 In light of the victim's

other testimony, her post-arrest inability to specifically

identify plaintiff as the person who stole her money and necklace

did not negate, beyond a reasonable doubt, the initial finding of

probable cause. Indeed it did not cast any doubt on plaintiff's

3The pocket book was retrieved from the car after the assault by the elderly gentleman to whose home the victim had fled. (Andrew's March 9 written statement at 3.)

4Later, in her March 9 written statement, the victim stated that the other two women also pulled her hair while chasing her, but stated that "[w]hen [plaintiff] pulled my hair she pulled my gold chain off and took it." (Andrew's March 9 written statement at 3 .)

11 participation as the principal, or aider and abetter, in the

commission of the charged offenses.

Plaintiff also argues in her brief that the police provided

false information to the Hampton District Court on March 9, 1995,

by neglecting to include in the offer of proof that the victim

could not identify who stole her necklace and money. This

argument is not only unsupported,5 it is irrelevant to any of

plaintiff's causes of action. She has not brought a claim for

malicious prosecution and the officer who testified at the

hearing is not a defendant in this case, and the reported

circumstances certainly described a joint attack and robbery by

three people, including the plaintiff.

Count II of plaintiff's writ alleges that Defendant Granlund

breached a duty to investigate. Plaintiff contends that

in light of the victim's credibility problems and inconsistencies

in her testimony. Defendant Granlund had a duty to conduct

further investigation before arresting her. Specifically,

plaintiff faults Defendant Granlund for failing to interview the

victim in detail until after the arrest, failing to interview

plaintiff's alibi witnesses, and failure to examine basic

evidence such as plaintiff's can of pepper spray.

5Plaintiff has offered no evidence of what transpired at the March 9, 1995, hearing other than the largely illegible back of the robbery complaint, which notes that Officer Frost testified, inter alia, that the victim picked the plaintiff out in a photo lineup. The victim did pick plaintiff out of a photo lineup as the person who sprayed and assaulted her. There is no evidence that this fact was misrepresented to the court.

12 The court has previously discussed the victim's alleged

credibility problems and notes that the inconsistencies in the

victim's testimony noted by plaintiff, such as whether the car

was in drive or reverse at the time of the assault, are trivial.

In addition, the court finds meritless plaintiff's argument that

Defendant Granlund failed to conduct an adeguate pre-arrest

investigation. "[T]he probable cause standard of the Fourth

Amendment reguires officers to reasonably interview witnesses

readily available at the scene, investigate basic evidence, or

otherwise inguire if a crime has been committed at all before

[making an arrest]." Romero v. Fay,

(10th

Cir. 1995) (summarizing holdings of cases cited by plaintiff).

Defendant Granlund's report indicates that he had taken a verbal

statement from the victim as well as brief statements from the

elderly couple in whose home the victim had taken refuge. These

statements, together with his own observations of the victim

justified his belief that a crime had been committed and provided

him with probable cause to seek an arrest warrant. There is no

indication that Defendant Granlund's interview of the victim was

incomplete or insufficient to establish probable cause, and the

court will not infer that it was simply because the police later

interviewed her again.

Nor was Defendant Granlund reguired to inspect, prior to

arresting plaintiff, evidence she claimed would be exculpatory.

"[T]he police . . . have no constitutional duty to keep

investigating a crime once they have established probable cause."

13 Kompare v. Stein,

(7th Cir. 1986); see also

Franco-de Jerez v. Burgos,

(1st Cir. 1989)

(citing Kompare) . Finally, Defendant Granlund had no duty to

interview plaintiff's proffered alibi witnesses prior to making

the arrest.

Once Defendant [Granlund] concluded based on the facts and information known to him that probable cause existed to arrest [p]laintiff . . . , his failure to guestion [p]laintiff's alibi witnesses prior to the arrest did not negate probable cause. Thus, Defendant [Granlund's] failure to investigate [p]laintiff's alibi witnesses prior to arrest did not constitute a constitutional violation.

Romero,

(footnote omitted); see also Thompson,

("[H]aving once determined that there is probable

cause to arrest, an officer should not be reguired to reassess

his probable cause conclusion at every turn, whether faced with

the discovery of some new evidence or a suspect's self-

exonerating explanation from the back of the sguad car.").

Plaintiff's federal claims against Defendant Granlund fail

because Defendant Granlund had probable cause to arrest and

therefore plaintiff has suffered no constitutional violation.

Defendant Granlund is entitled to summary judgment on the claims

against him.

The court notes, but need not discuss in detail, that even

if probable cause was found wanting. Defendant Granlund would

still be entitled to gualified immunity. The gualified immunity

doctrine provides that "government officials performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

14 established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald,

(1982). In this case. Defendant Granlund properly

applied for, and was issued, a warrant for plaintiff's arrest.

"Under Harlow's objective test, the question a court must ask is

whether another officer, standing in [Granlund's] shoes and

having the same information [Granlund] had, might reasonably have

come to the conclusion that he had probable cause to apply for

the arrest warrant." Hoffman v. Reali,

(1st

Cir. 1992); see also Flovd v. Farrell,

(1st Cir.

1985). For all of the foregoing reasons, the court finds that a

reasonable officer would come to that very conclusion.

Count III of plaintiff's writ alleges that in arresting

plaintiff without probable cause. Defendant Granlund was acting

pursuant to customs, usages and common policies of the Defendants

Town and Department. A municipality may be subject to civil

liability under

for a deprivation of

constitutional rights resulting from "official action taken

pursuant to a 'custom or usage' of the municipality." Mahan v.

Plymouth County House of Corrections,

(1st Cir.

1995). However, where there has been no deprivation of

constitutional rights by the municipality's agent, there

generally can be no liability on the part of the municipality.

See Hayden v. Grayson,

(1st Cir. 1998)

("Normally, ... a municipality cannot be held liable unless its

agent actually violated the victim's constitutional rights.")

15 Since, as discussed above. Defendant Granlund had probable cause

to arrest plaintiff, there is no constitutional deprivation for

which to hold either him or the Town or Department liable.

Count III of plaintiff's writ also appears to allege a

failure to train theory of § 1983 liability. To the extent that

such a theory requires separate consideration, see Havden,

(noting, after disposing of plaintiffs' custom or

policy argument, that " [a]iternatively, of course, the Town could

be held liable under section 1983 were it to appear that the

injury to plaintiffs was caused by the Town's failure to train

[the chief of police]"), it too fails because Officer Granlund

had probable cause to arrest plaintiff. Having suffered no

constitutional deprivation, plaintiff has no § 1983 claim. See

Roche v. John Hancock Mutual Life Ins. Co . ,

(1st

Cir. 1996) (noting that "liability under § 1983 requires not only

state action but also an unconstitutional deprivation of

rights").6 Defendants Town and Department are entitled to

summary judgment on Count III.

Having determined that defendants are entitled to prevail as

a matter of law on all of plaintiff's federal claims, the court

6Ihe First Circuit in Havden considered the question whether a municipality could be liable in a § 1983 action for a failure to train despite a finding that the municipality's agent had not violated the plaintiff's constitutional rights. Although expressing considerable doubt, the court assumed, arguendo, that the claim against the municipality could survive dismissal of the claim against the agent. Havden,

. This is not such a case, nor does plaintiff argue that it is. Here, the only constitutional deprivation plaintiff alleges, i.e., her arrest without probable cause, simply did not occur. Therefore, all of her § 1983 claims must fail.

16 must now decide whether to exercise supplemental jurisdiction

over plaintiff's remaining state law claims. See Camelio v.

American Federation,

(1st Cir. 1998).

Plaintiff's writ alleges state law claims of false arrest/illegal

seizure/battery; negligent hiring, training and supervision; and

vicarious liability against the Town and Department. Defendants

argue that the existence of probable cause to arrest precludes

all of plaintiff's state law claims. If so, remand to the state

court would be futile, as plaintiff would be collaterally

estopped by this court's determination that probable cause

existed.

Where plaintiff's arrest was based on probable cause, and

more particularly, on a warrant supported by probable cause, she

cannot prevail on her state law false arrest claim. C f . Welch v.

Bergeron,

(1975) (noting that "[a]n essential

element the offense [of false imprisonment] is the absence of

valid legal authority for the restraint imposed," and holding

that false imprisonment claim was properly dismissed where arrest

was made pursuant to a valid complaint); Hickox v. J. B. Morin

Agency,

(1970) (holding defendants entitled to

directed verdict on false arrest claim where "from the evidence

at the trial it appears the arrest was made upon a valid

complaint"). Thus, to the extent that Count I of plaintiff's

writ, captioned "False Arrest/Illegal Seizure/Battery," is based

on state law, the court exercises its supplemental jurisdiction

17 and finds that defendants are entitled to judgment as a matter of

law.7

Count IV of plaintiff's writ, alleging negligent hiring,

training and supervision must also fail because Defendant

Granlund had probable cause to arrest plaintiff. See Hartgers v.

Town of Plaistow,

(1996) (finding that trial

court correctly treated all of plaintiff's claims related to

arrest, including claim of negligent failure to train and

supervise, as contingent on whether police lacked probable cause,

and affirming grant of summary judgment for defendants where

probable cause did exist). Similarly, where no underlying tort

was committed by Defendant Granlund, plaintiff cannot maintain a

claim for vicarious liability against the Town or Department.

Accordingly, the court exercises supplemental jurisdiction with

respect to Counts IV and V, and grants defendants summary

judgment with respect to those claims. Counts VI and VII, are

merely claims for enhanced and punitive damages, and are moot

given the disposition of plaintiff's substantive claims.

7A s the battery component of Count I appears to be an integral part of the false arrest and illegal seizure claims, and based solely on the allegations of arrest without probable cause, the court treats it as part of an overall false arrest claim and finds that it too must fail on a determination that probable cause was present. While plaintiff states in her affidavit that at the time of arrest Defendant Granlund "grabbed [her] by the right arm and pushed [her] up against the wall," there is no claim in her writ of use of excessive force and the court does not read Count I's "battery" component to make such a claim.

18 Conclusion

For the foregoing reasons, defendants' motion for summary

judgment (document no. 6) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 12, 1999

cc: Kenneth D. Murphy, Esg. William G. Scott, Esg.

19