McGrath v. Guerin CV-096-JD 10/05/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul McGrath

v. Civil N o . 00-096-JD Opinion N o .

Daniel Guerin

REPORT AND RECOMMENDATION

Paul McGrath, proceeding pro s e , brings this

civil rights suit challenging actions taken by Manchester

Police Officer Daniel Guerin in effecting McGrath’s August 1 4 ,

1999 arrest and subsequent prosecution for Driving While

Intoxicated (document n o . 1 ) 1 . Because McGrath is proceeding

both pro se and in forma pauperis, the complaint is before me for

preliminary review. See

(e)(2); see also United

1 Two additional filings, documents n o . 6 and 9, will be construed as addenda to the complaint. Document n o . 6 is an “Internal Investigation Civilian Complaint Control Card” which indicates that the Manchester Police Department received a complaint from a “Libertina McGrath” regarding false testimony by Guerin where a formal investigation was recommended. Document n o . 9 is a series of questionnaires apparently distributed to and received from jurors who sat on McGrath’s Superior Court trial regarding their observations and opinions of the trial relative to the Driving While Intoxicated charge. States District Court for the District of New Hampshire Local

Rule (”LR”) 4.3(d)(1)(B). For the reasons explained below, I

conclude that McGrath has failed to state a claim upon which

relief may be granted and, therefore, recommend that this action

be dismissed.

Also before the court is a motion for transcripts (document

no. 8 ) . Because I recommend the complaint be dismissed, the

motion for transcripts is denied, without prejudice, as moot.

Standard

In reviewing a pro se complaint, this Court is obliged to

construe the pleading liberally. See Ayala Serrano v . Lebron

Gonzales,

, 15 (1st Cir. 1990) (following Estelle v .

Gamble,

7 , 106 (1976) to construe pro se pleadings

liberally in favor of that party). At this preliminary stage of

review, all factual assertions made by the plaintiff and

inferences reasonably drawn therefrom must be accepted as true.

See Aulson v . Blanchard,

, 3 (1st Cir. 1996)(stating the

“failure to state a claim” standard of review and explaining that

all “well-pleaded factual averments,” not bald assertions, must

2 be accepted as true). This review ensures that pro se pleadings

are given fair and meaningful consideration. See Eveland v .

Director of C.I.A.,

6 , 49 (1st Cir. 1988). Dismissal

of pro s e , in forma pauperis complaints is appropriate if they

are frivolous or malicious, fail to state a claim on which relief

may be granted, or seek monetary relief against a defendant who

is immune from such relief. See Prison Litigation Reform Act

(“PLRA”),

(e)(2)(B)(i), (ii) & (iii)(effective

April 2 6 , 1996).

Background

According to the complaint2, on August 1 4 , 1999 at 1:05

a.m., Officer Daniel Guerin, a fifteen year veteran of the

Manchester Police Department, was patrolling the streets of

Manchester in an unmarked patrol car. Guerin saw McGrath’s car

weaving within it’s travel lane, nearly colliding with several

parked cars on the side of the road. McGrath’s car then stopped

2 McGrath attaches a copy of an 80-page transcript of his bench trial in the Manchester District Court. The transcript has been considered as part of the complaint. See Fed. R. Civ. P. 10(c)(requiring that written instruments attached to a pleading be construed as part of the pleading “for all purposes”).

3 at a red light with it’s front end protruding into the travel

lane of the intersecting street. Guerin tried to stop the car,

which did not respond to the officer’s blue flashing lights, and

only pulled over after Guerin also activated his siren.

After the car was stopped, Guerin asked McGrath, who was the

driver, for his license and registration. McGrath did not have a

license. Guerin also observed that McGrath’s speech was slurred

and that there was a moderate odor of an alcoholic beverage

coming from McGrath’s breath. McGrath had to support himself on

the driver’s door when getting out of his car and was unsteady on

his feet. McGrath admitted to drinking one beer earlier in the

evening.

Officer Guerin had McGrath perform certain roadside field

sobriety tests. In the opinion of the officer, McGrath failed

each of the tests. Based on Guerin’s observations, he determined

that McGrath was under the influence of alcohol and therefore

unfit to safely drive a car. McGrath was arrested, brought to

the police station, and booked for Driving While Intoxicated.

4 On September 3 0 , 1999, a bench trial was held in the

Manchester District Court (Champagne, J . ) . McGrath was found

guilty by the judge and sentenced to a year in jail, and, through

counsel, immediately entered a request on the record for a de

novo trial in the Superior Court. On December 1 3 , 1999, a jury

trial was held in the Superior Court. McGrath was acquitted by

the jury.

McGrath does not specifically recount his bail status during

the pendency of his criminal case before the state courts, but as

he is alleging that his incarceration from the date of his arrest

until the date of his acquittal was illegal, I presume that he

was held on bail at his post-arrest arraignment for the pendency

of these matters 3 . At the time he requested a de novo trial,

McGrath’s bail was continued by the judge without objection from

McGrath or his attorney.

McGrath now brings this civil rights action seeking monetary

redress for his allegedly illegal incarceration between August

3 It appears that McGrath is currently incarcerated on an apparently unrelated matter.

5 1 4 , 1999 and December 1 3 , 1999, and for perjury and false

testimony he alleges was offered by Guerin during the two trials

in this matter.

Discussion

1. Illegal Incarceration

McGrath complains of “false incarceration” from the date of

his arrest until the date of his acquittal by a jury. Construing

this claim liberally, as I must, I find that McGrath alleges that

Guerin violated his right under the Fourth and Fourteenth

Amendments to be free from illegal seizure.

Any challenge to an illegal arrest is construed under the

Fourth Amendment. Albright v . Oliver,

(1994). To

give rise to an action under

for an illegal

arrest under the Fourth Amendment, the plaintiff must allege that

the defendant effected an unreasonable seizure of his person.

U.S. Const. amend. IV (“The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated and no Warrants

shall issue, but upon probable cause, supported by Oath or

6 affirmation...”). In order to be an unreasonable seizure, the

arrest must have been made without probable cause. Sheehy v .

Town of Plymouth,

5 , 19 (1st Cir. 1999)(citations

omitted). “Probable cause to arrest exists where ‘the facts and

circumstances within [the police officer’s] knowledge and of

which [he] had reasonable trustworthy information were sufficient

to warrant a prudent [person] in believing that the [arrestee]

had committed or was committing an offense.’”

(quoting Rivera

v . Murphy,

(1st Cir. 1992)); see also Alexis v .

McDonald’s Restaurants of Mass.,

4 1 , 351 (1st Cir. 1995)

(explaining that warrantless arrests may be made as long as the

officer is relying on objectively reasonable, trustworthy

information).

Here, McGrath offers as facts surrounding his arrest only

the testimony of the police officer at his District Court trial.

He has not offered any facts, other than his acquittal, to

suggest a lack of probable cause for his arrest. It is clear

based on the testimony of the officer that the arrest here was

supported by probable cause. After observing questionable

7 driving, the officer stopped the car and made further

observations of McGrath’s slurred speech, glassy eyes, “alcoholic

beverage” smell and inability to pass field sobriety tests.

These observations would lead a reasonable person in Guerin’s

position to believe that McGrath had committed the offense of

Driving While Intoxicated4. See Alexis,

; see also

RSA 265:83 (Supp. 1997) (authorizing arrests without a warrant if

the officer has probable cause to believe the driver has

committed the offense of Driving While Intoxicated). The fact

that the criminal charges ultimately resulted in a not guilty

finding by a jury does not alter the objective reasonableness of

Guerin’s actions at the arrest site.

Further, although a jury ultimately acquitted McGrath,

applying a “beyond a reasonable doubt” standard, it should be

noted that a judge at a bench trial first found him guilty beyond

a reasonable doubt based on Guerin’s testimony. Further, at

4 New Hampshire law makes it a crime to drive while under the influence of “intoxicating liquor or any controlled drug or any combination [thereof].” N.H. Rev. Stat. Ann. (“RSA”) 265:82, I(a).

8 least one of the jurors believed that McGrath was probably

guilty, but that the State in the Superior Court trial had not

met its burden of proof to convict at trial. These facts

demonstrate that probable cause to believe a crime has been

committed can lie where the proof is insufficient to convict

beyond a reasonable doubt.

Because the complaint cannot be construed to allege that

Guerin acted without probable cause when the challenged arrest

occurred, plaintiff has not stated a viable claim for a Fourth

Amendment violation. See Albright,

(although

not commenting on whether petitioner’s § 1983 action for alleged

prosecution without probable cause would survive Fourth Amendment

scrutiny, explaining that the Fourth Amendment’s protection

against pretrial deprivations of liberty arises if the seizure

was made without probable cause).

McGrath challenges not only the legality of his arrest, but

of his continuing incarceration until his acquittal. Once a

proper arrest based on probable cause has been made the Fourth

9 Amendment is not implicated. Brady v . Dill,

0 4 , 108

(1st Cir. 1999).

Once the Fourth Amendment ha[s] dropped out of the equation, the Court [should consider] whether [the plaintiff] ha[s] been deprived of any of the specific subset of procedural guarantees, incorporated into the Fourteenth Amendment’s Due Process Clause, that come into play after completion of an arrest (e.g., the prohibition against excessive bail, the guarantee of a speedy trial, and the like).

(citing Baker v . McCollan,

(1979)). After an

arrest is perfected, the determination of whether or not an

arrestee is to remain incarcerated is made by a judge or

magistrate5. A decision whether to prosecute is made by a

prosecutor and an ultimate determination of guilt or innocence is

5 In New Hampshire “[w]hen a person is arrested with or without a warrant he may be committed to a county correctional facility, to a police station or other place provided for the detention of offenders, or otherwise detained in custody; provided, however, that he shall be taken before a district or municipal court without unreasonable delay, but not exceeding 24 hours, Sundays and holidays excepted, to answer for the offense. RSA 594:20-a. RSA 597 provides for a justice to determine bail and recognizances for an arrestee pending arraignment, trial, sentencing or appeal.

10 made by a judge or jury. Therefore, Guerin cannot be held

responsible for McGrath’s post-arraignment detention.

Because “[t]he constitution does not guarantee that only the

guilty will be arrested,” Baker,

, there are

procedural protections provided to arrested persons by which they

can establish their innocence and safeguard their due process

rights. Brady,

. These post-arrest protections

are effectuated by the judicial officers of the legal system:

prosecutors, judges and juries, not police officers.

;

Thompson v . Olson,

5 2 , 556 (1st Cir. 1986) (“once the

arrest has been properly effected, 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.”).

McGrath’s suit against Guerin for alleged damages relating

to his continued incarceration after the time when his

incarceration was well out of Guerin’s hands cannot stand.

Because McGrath has failed to state a claim upon which relief may

be granted against Guerin, and has named no other defendant in

11 his suit 6 , I recommend that the “false incarceration” claim be dismissed7.

2. Perjury and False Swearing

McGrath next claims that Guerin has violated his rights by

committing criminal Perjury and False Swearing in the testimony

he offered at McGrath’s trials. The specific harm he is alleging

is unclear. McGrath was ultimately acquitted of Driving While

Intoxicated, in part as a result of the jury’s determination that

Guerin was not an entirely credible witness. He has not,

6 There is no question, however, that had McGrath elected t name either a judge or prosecutor as a defendant to this claim, those actions would have been barred by the absolute immunity enjoyed by persons holding those offices. See Stump v . Sparkman,

(1978); Imbler v . Pachtman,

(1976). 7 Further protecting Guerin from the Fourth Amendment claim is the doctrine of qualified immunity, which protects state officials from liability for damages in a civil rights action if “a reasonable officer could have believed [his actions] to be lawful, in light of clearly established law and the information the [ ] officer[] possessed.” Anderson v . Creighton,

(1987). Here, where the constitutional standard for arrests based on probable cause is clear, and where no facts ascertainable in the complaint suggest that Guerin failed to comply with that standard, his actions were apparently lawful and he would be protected by qualified immunity.

12 therefore, been falsely convicted as a result of Guerin’s

testimony. However, construing this claim liberally, I find that

McGrath is attempting to raise a claim that his Due Process right

to a fair trial under the Fourteenth Amendment has been violated

by Guerin’s perjured testimony.

Even construing, as I must, McGrath’s allegations of perjury

as true, I find that this suit cannot lie against Guerin because

witnesses, including police witnesses, have absolute immunity

from liability for civil damages under

for

giving perjured testimony at trial. Briscoe v . LaHue,

(1983); Franklin v . Terr,

(9th Cir.

2000); Scarpa v . Desmond,

(1st Cir. 1993).

Because McGrath has not alleged any theory upon which Guerin

can be held to answer for the violations alleged, I recommend

Guerin be dismissed as a defendant in this action.

Conclusion

For the reasons set forth above, I recommend that the

complaint be dismissed for failing to state a claim upon which

relief may be granted. See

(e)(2)(B)(ii)&(iii);

13 LR 4.3(d)(1)(B)(i). If approved, the dismissal will count as a

strike against the plaintiff under

(g).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Committee v . Gordon,

1 , 13-14 (1st Cir. 1992);

United States v . Valencia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: October 5 , 2000

cc: Paul McGrath

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