Collins v . City of Manchester, et a l . CV-01-409-JM 07/08/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Craig Collins

v. Civil N o . 01-409-JM Opinion N o .

City of Manchester and Jean Roers, Individually

ORDER

In this action, the plaintiff, Craig Collins (“Plaintiff” or

“Collins”), alleges that Manchester Police Officer Jean Roers

(“Defendant” or “Roers”), accompanied by her K-9 partner Cody

(“K-9 Cody”), arrested Plaintiff on November 8 , 1998 without

probable cause. Plaintiff filed this action on October 3 1 , 2001

against the City of Manchester, New Hampshire (the “City”), and

Roers pursuant to

for violation of his right to

be free from unreasonable seizure secured by the Fourth and

Fourteenth Amendments to the U.S. Constitution. Additionally,

Plaintiff brings various pendant State law claims in this

action.1 The Defendants have moved for summary judgment under

Rule 56 of the Federal Rules of Civil Procedure (document n o . 7 ) .

1 Plaintiff’s state law claims are based on false imprisonment, malicious prosecution, battery, assault, negligence, and violation of N.H. Rev. Stat. Ann. (“RSA”) 466:19 (Remedies and Penalties for Injuries Done by Dogs). For the reasons articulated below, Defendants’ motion is granted

with respect to Plaintiff’s federal claims.

Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

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

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

56(c); see Lehman v . Prudential Ins. C o . of Am.,

, 327

(1st Cir. 1996). A genuine issue is one “that properly can be

resolved only by a finder of fact because [it] . . . may

reasonably be resolved in favor of either party.” Anderson v .

Liberty Lobby, Inc.,

(1986). A material fact

is one that affects the outcome of the suit. See

.

The moving party bears the initial burden of establishing

that there is no genuine issue of material fact. See Celotex

Corp. v . Catrett,

(1986). If that burden is

met, the opposing party can avoid summary judgment only by

providing properly supported evidence of disputed material facts

that would require trial.

.

In ruling on a motion for summary judgment, the court

2 construes the evidence in the light most favorable to the non-

movant, resolving all inferences in its favor, and determines

whether the moving party is entitled to judgment as a matter of

law. See Saenger Org. v . Nationwide Ins. Licensing Assocs.,

5 , 57 (1st Cir. 1997). The undisputed facts, viewed in the

light most favorable to Plaintiff, are recited below.

Background

A. Initiation of the Search

At 8:15 p.m. on November 8 , 1998, Roers and K-9 Cody

responded to a call from the Hesser College Campus in Manchester,

New Hampshire. Upon arriving at the college, campus security

informed Roers that they were searching for an individual

identified as Hide Inga (“Inga”). Inga was allegedly a heavy

supplier of marijuana and cocaine at the college. According to

campus security, Inga was present when one of Inga’s roommates

gave campus security permission to search the room. When campus

security came across a black bag, Inga grabbed the bag and fled.

Roers began searching for Inga in the vicinity of the

college. At 8:55 p.m., Roers stopped a car on West Mitchell

Street, about one-half mile south of the campus, and spoke with

two Hesser College students. Those students informed Roers that

3 they were also looking for Inga. The students believed that Inga

was hiding in a wooded area near railroad tracks that are

situated to the west of Hesser College. Roers began walking

north near the railroad tracks with K-9 Cody, who Roers had on a

six-foot lead.2

Roers detected a strong odor of marijuana when she reached

Sundial Avenue. The area where the railroad tracks intersect

Sundial Avenue is located just southwest of the Hesser College

campus. At that time, K-9 Cody began indicating to Roers that a

person or persons was nearby. While checking the area north of

Sundial Avenue between the railroad tracks and the campus, K-9

Cody began to pull Roers to the west. Roers followed K-9 Cody

and was led down a five-foot drop off a cement wall to a wooded

area between the railroad tracks and the campus. K-9 Cody then

gave Roers an even stronger indication that persons were present

in the area. Based on K-9 Cody’s indication, Roers was convinced

that one or more people were in the immediate area.

2 Officer Roers testified at Collins’ criminal trial that K-9 Cody is a certified tracking dog. See Transcript of Collins’ Criminal Trial for Docket N o . 98-CR-09497 (“Collins Trans.”) at 6:1-2. She further testified that Cody attended 14 weeks of training, and that she and K-9 Cody were tested annually certified to work together as a team. Id. at 27:19-28:12.

4 B. Collins and Santos

At this time, Plaintiff, a first-year student at Hesser

College, and his friend Daniel Santos (“Santos”) were sitting and

talking on a large rock located about forty feet away from the

parking lot of a Hesser College dormitory. This rock, which is

approximately four feet high and three feet wide, is located in

an area of heavy brush southwest of the campus.

Roers and K-9 Cody had passed the area where Plaintiff and

Santos were sitting when she crossed Sundial Avenue and proceeded

north. According to the testimony at the criminal trial, Roers

and K-9 Cody passed within approximately 20 feet of Plaintiff and

Santos. However, Roers and K-9 Cody gave no indication that they

knew that Plaintiff and Santos were there. Similarly, Plaintiff

and Santos were unaware that Roers and K-9 Cody had passed by.

Plaintiff first saw Roers and K-9 Cody walking south when

they were approximately sixty to seventy feet north of his

location. Plaintiff recognized Roers to be a police officer in

full uniform. When Roers and K-9 Cody reached a point

approximately forty to fifty feet north of where Plaintiff and

Santos were located, K-9 Cody began to pull Roers toward the

western woods. Plaintiff observed K-9 Cody straining at the

5 leash and attempting to run into the woods away from Collins’

location. Roers was facing into the woods west of the tracks and

shining a flashlight in that direction.

C. The Arrest

As Roers faced west looking into the woods, she announced

that she was a Police Officer and that she had a police K-9 with

her. She then stated that she knew that they were there and

advised them that they should come out or she would release her

K-9. She further advised that the dog would find them and

apprehend them. Roers did not know who or how many people were

in the woods when she made these announcements. She also did not

know exactly where the suspects were.

Plaintiff heard Roers’ announcements from his location. At

no time did Roers or K-9 Cody face in Plaintiff’s direction.

Roers and K-9 Cody were directed toward the woods to the west of

the railroad tracks. Plaintiff and Santos were east of the

railroad tracks sitting on the rock. Neither Plaintiff nor

Santos responded to Roers’ announcements.

After seeing no response to her warnings, Roers released K-9

Cody from the lead to search the wooded area. K-9 Cody ran into

the woods west of Roers’ position. Within a few moments K-9 Cody

6 circled around, crossed over the railroad tracks, and

“apprehended” Plaintiff by means of biting and holding onto his

left calf. K-9 Cody also bit Collins on his right knee. Roers

heard Collins yell, and then spotted K-9 Cody, Collins and Santos

behind the rock. Roers grabbed K-9 Cody by the collar and

commanded the dog to release Collins. K-9 Cody did not

immediately respond to Roers’ command to release Collins.3 But

eventually Roers did get K-9 Cody to release him.

Roers escorted Collins and Santos out of the woods and onto

Sundial Avenue. When back-up officers arrived, Collins and

Santos were searched. Neither Collins nor Santos had any illegal

drugs in their possession. Collins had rolling papers. When

asked why he did not come out of the woods, Collins stated “I

don’t know.” Collins acknowledged that he heard Roers’ warnings.

Santos allegedly admitted at the scene that he had been smoking a

joint and was scared.4 Collins denied having smoked any

marijuana that evening. Collins and Santos were charged with

3 Plaintiff claims that Roers had to hit K-9 Cody with her flashlight to get K-9 Cody to release him, which is an allegation disputed by Roers. Collins Trans. at 40:4-13. 4 Collins testified at his criminal trial that Santos was smoking marijuana. See Collins Trans. at 43:5-7.

7 Resisting Arrest, a violation of RSA 642:2,5 for refusing to come

out of the woods when commanded by Roers. Collins was brought

to Elliot Hospital in Manchester for treatment of the injuries he

sustained while being apprehended by K-9 Cody.

D. Collins’ Criminal Case

Collins was prosecuted for the crime of Resisting Arrest in

the Manchester District Court. His case was tried on April 1 5 ,

1999 before the Honorable William H. Lyons. After the State

rested, Collins moved to dismiss. The court ruled that, taking

the evidence in the light most favorable to the State, Collins’

motion was denied at that time. Collins Trans. at 34:20-23.

After the close of the evidence, the court took the matter under

advisement. The next day the court issued an order finding that

“the State has failed to satisfy its burden of proof as to each

and every element of the offense,” and thereby finding Collins

not guilty of the crime charged. See Manchester District Court

Order dated April 1 6 , 1999 (Docket Number 98-CR-09497).

5 RSA 642:2 provides that:

A person is guilty of a misdemeanor when the person knowingly or purposely physically interferes with a person recognized to be a law enforcement official . , seeking to effect an arrest or detention of the person or another regardless of whether there is a legal basis for the arrest.

8 Discussion

A. Elements of a

Action

“The essential elements of a claim under section 1983 are:

first, that the defendants acted under color of state law; and

second, that the defendants’ conduct worked a denial of rights

secured by the Constitution or by federal law.” Rodriguez-Cirilo

v . Garcia,

0 , 52 (1st Cir. 1997). “The second element

requires the plaintiff to prove not only a deprivation of federal

right, but also that the defendant’s conduct was a cause in fact

of the alleged deprivation.” Soto v . Flores,

(1st Cir. 1997).

There is no dispute that the Defendants were acting under

color of state law in this case. By alleging that Roers arrested

Collins without probable cause, Collins has sufficiently alleged

facts that, if proven, caused Collins to be deprived of his

constitutional right to liberty under the Fourth Amendment. See

Santiago v . Fenton,

(1st Cir. 1989) (“The

Fourth Amendment right to be free from unreasonable seizures of

the person demands that an arrest be supported by probable

cause”). These allegations, together with Collins’ prayer for

money damages, adequately state a Section 1983 false arrest

9 claim. See Iacobucci v . Boulter,

4 , 19 (1st Cir.

1999).

B. Qualified Immunity

In this case the Defendants have raised the doctrine of

qualified immunity as a defense. The doctrine of qualified

immunity “strives to balance [the] desire to compensate those

whose rights are infringed by state actors with an equally

compelling desire to shield public servants from undue

interference in the performance of their duties and from threats

of liability which, though unfounded, may nevertheless be

unbearly disruptive.” Buenrostro v . Collazo,

9 , 42

(1st Cir. 1992). In an action brought pursuant to

, “government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Harlow v . Fitzgerald,

(1982); Vargas-

Badillo v . Diaz-Torres,

, 5 (1st Cir. 1997). In

appropriate circumstances, government officials are entitled to

“an immunity from suit rather than a mere defense to liability.”

Hunter v . Bryant,

(1991) (per curiam).

10 Therefore, the issue of qualified immunity should be decided at

the earliest possible stage.

In the context of Section 1983 claims based on alleged

violation of Fourth Amendment rights, police officers are

“entitled to immunity if a reasonable officer could have believed

that probable cause existed.” Rivera v . Murphy,

(1st Cir. 1992). Officers are entitled to immunity even if

it is later determined that there was no probable cause. Hunter,

; Rivera,

. Courts must evaluate

whether the officer’s belief that probable cause existed was

“objectively reasonable.” Vargas-Badillo,

;

Santiago,

; Bryant v . Noether, 163 F. Supp. 2d at

109. Police officers are entitled to immunity for arrests “so

long as the presence of probable cause is at least arguable.”

Floyd v . Farrell,

, 5 (1st Cir. 1985) (qualified

immunity is unavailable only if it is clear that there was no

probable cause at the time of the arrest). The key issue in this

case then is whether probable cause existed for Collins’ arrest.

C. Probable Cause

Probable cause exists when the “facts and circumstances

within the police officers’ knowledge and of which they had

11 reasonably trustworthy information were sufficient to warrant a

prudent person in believing that the defendant had committed or

was committing an offense.” Rivera v . Murphy,

(internal citations, alterations, and quotes omitted); Fletcher

v . Town of Clinton,

1 , 53 (1st Cir. 1999). The facts

and circumstances within the officer’s knowledge need not

establish guilt beyond a reasonable doubt, make out a prima facie

case, or even show that guilt is more probable than not. Bryant

v . Noether,

8 , 107 (D.N.H. 2001), quoting State

v . Thorp,

(1976). “[I]f there are no factual

disputes, or if the issue can be resolved based on the undisputed

facts, the determination of whether probable cause existed is a

question of law for the court to answer.” Bryant v . Noether,

; see also, Martin v . Applied Cellular Tech.,

Inc.,

, 7 (1st Cir. 2002) (“While the determination of

facts relevant to probable cause is left to a factfinder, the

existence of probable cause is ultimately a question of law to be

decided by the court.”); Topp v . Wolkowski,

5 , 48 (1st

Cir. 1993) (reversing a district court’s denial of a motion for

summary judgment because the undisputed facts demonstrated that

the defendant officers “could easily have believed that they had

12 probable cause” to arrest).

The undisputed facts include the following: (1) Roers was

searching for a suspected drug dealer in a wooded area near the

Hesser College campus; (2) Roers searched the area near the

campus with K-9 Cody at nighttime; (3) Roers detected a strong

odor of marijuana in the immediate vicinity where Plaintiff and

Santos were found; (4) Roers did not know how many people were in

the woods at that time or their precise location; (5) Roers

warned whoever was in the woods to come out; (6) Plaintiff heard

Roers’ warning; (7) K-9 Cody located Collins and Santos within

moments after Roers released him from the lead; (8) Collins

stated “I don’t know” when asked why he did not come out of the

woods; (9) Santos had been smoking marijuana; and (10) Collins

was found with rolling papers. These undisputed facts are

sufficient to support a finding that Roers had an objectively

reasonable basis to believe that probable cause existed to arrest

Plaintiff. It is at least arguable, based on the foregoing, that

Collins did not respond to Roers’ announcements because Collins

did not want to be discovered while engaged in drug activity.

Collins places much emphasis on his testimony at his

criminal trial that K-9 Cody was “going crazy” and was “out of

13 control” on the night of his arrest. I find that these facts are

not material to the probable cause inquiry. Even if Collins’

assertions are taken as true,6 that would not vitiate Roers’

objective belief that probable cause existed for Collins’ arrest.

Roers smelled a strong marijuana odor in the area. She commanded

whoever was in the woods to come out. She realized that Collins

and Santos were located close enough to her that individuals with

normal hearing would have heard her warnings. She heard Collins

respond “I don’t know” when asked why he did not come out of the

woods. And she heard Santos’ admission that he smoked marijuana

that night. Even if the reliability of Cody’s training or

condition is in dispute, that does not detract from the

independent facts available to Roers.

Similarly, Collins’ argument that there was no reason for

him to respond to Roers’ commands to “come out” because all of

Roers’ attention was directed away from his location does not

eliminate probable cause to arrest. The plaintiff’s subjective

view of the facts is not the test of whether the officer’s

actions were objectively reasonable. Fletcher,

1 .

I find, based on the undisputed facts, that Roers had an

6 No evidence was presented pertaining to the manner in which a Manchester Police K-9 is trained to apprehend a drug suspect.

14 objectively reasonable basis to believe that probable cause

existed for Collins’ arrest.7 Therefore, I further find that

Roers is entitled to qualified immunity and is immune from

liability on Plaintiff’s Section 1983 claim.

D. Municipal Liability Under

In paragraph 34 of the Amended Complaint, Plaintiff states:

the Defendants, jointly and severally, violated his right to remain free from unreasonable seizure, as guaranteed by the Fourth and Fourteenth Amendments to the Constitution of the United States of America and Title

[sic], by their conduct causing and effectuating his warrantless arrest on November 8 , 1998 without probable cause to take such action.

Plaintiff alleges that the City is liable under Section 1983

because the City “negligently, or with deliberate indifference to

the rights of the Plaintiff” trained Roers and K-9 Cody, and

“negligently supervised and certified” Roers and K-9 Cody causing

the unconstitutional attack on and arrest of the Plaintiff. Am.

Compl. Paras. 29-30. The Defendants contend that the City is

7 Although the precise issue of whether there was probable cause for Collins’ arrest was not litigated at Collins’ criminal trial, Defendants contend that Collins should be collaterally estopped from re-litigating the issue of probable cause because the Manchester District Court denied Collins’ motion to dismiss. In response, Collins argues that the doctrine of collateral estoppel does not apply in this context. I do not need to reach this issue since I find that the undisputed facts show the existence of probable cause to arrest.

15 entitled to summary judgment on Plaintiff’s Section 1983 claim

because there is no evidence that there was a policy or custom of

failing to train or supervise officers. Defs. Mem. at 1 0 .

“[A] municipality cannot be held liable solely because it

employs a tortfeasor --or in other words, a municipality cannot

be held liable under § 1983 on a respondeat superior theory.”

Monell v . New York City Dept. of Soc. Servs.,

(1978); City of Canton, Ohio v . Harris,

(1989).

A municipality may be found liable under

only if

the plaintiff’s harm was caused by a constitutional violation and

the municipality itself is responsible for that violation.

Collins v . City of Harker Heights,

(1992). In

a Section 1983 action based on failure to train, the municipality

may be liable if “it had a policy or custom of failing to train

its employees and that failure caused the constitutional

violation.”

Inadequate training is only considered the

cause of a constitutional tort if “the failure to train amounted

to deliberate indifference to the rights of persons with whom the

police come into contact.” Id.; City of Canton,

.

Plaintiff put forth no evidence in his Answer that would

16 support his Section 1983 claim against the City.8 A party cannot

rest on conclusory allegations in response to a motion for

summary judgment. If the moving party meets its initial burden

of establishing that there is no genuine issue of material fact,

the opposing party can avoid summary judgment only by providing

properly supported evidence of disputed material facts that would

require trial. Celotex Corp.,

; LeBlanc v . Great

Am. Ins. Co.,

(1st Cir. 1993) (nonmoving party

may not rest upon mere allegations or denials in the pleadings in

opposition to a motion for summary judgment). There is no such

evidence here. Accordingly, I find that the City is entitled to

summary judgment on Plaintiff’s Section 1983 claim.

8 In fact, Plaintiff does not address the merits of his Section 1983 claim against the City at all in his Answer.

17 Conclusion

Defendants’ motion for summary judgment (document n o . 7 ) is

granted with respect to Plaintiff’s federal claims. The Court

declines to exercise supplemental jurisdiction over Plaintiff’s

pendant state law claims. The Clerk of Court shall enter

judgment in accordance with this Order and close the case.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: July 8 , 2002

cc: Robert J. Meagher, Esq. Bruce E . Kenna, Esq.

18