McCarthy v . Milford, et a l . CV-02-372-M 02/18/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John C . McCarthy, Plaintiff

v. Civil N o . 02-372-M Opinion N o . 2004 DNH Town of Milford, Frederick G. Douglas, and James F. Mulla, Defendants

O R D E R

On August 1 , 2002, pursuant to a warrant issued by a state

court judge, plaintiff, John McCarthy, was arrested for

disorderly conduct (a violation) and making a false report to

police (a misdemeanor), stemming from an altercation in which he

was involved nearly a year earlier. Eventually, the charges

against McCarthy were dismissed: the prosecutor concluded that

the statute of limitations had run with regard to the disorderly

conduct charge, and the court dismissed the false report charge

on speedy trial grounds when the state’s chief witness was unable

to attend trial (as a result of his having been called to

military service). Thereafter, McCarthy brought this suit against the Town of

Milford, New Hampshire, its Chief of Police (Frederick Douglas),

and the officer who sought and obtained the warrant for his

arrest (James Mulla).

Plaintiff’s complaint advances two claims under federal law:

in count one, McCarthy alleges that Officer Mulla violated his

constitutionally protected right to be free from unreasonable

searches and seizures; and, in count three, McCarthy claims that

the Town and Chief Douglas maintained an unconstitutional custom

or policy by failing “to establish or communicate to the officers

of the said police department a policy of protecting the rights

of citizens to be secure against unreasonable searches and

seizures.” Complaint at para. 2 7 . McCarthy also advances three

state law claims (failure to supervise, malicious prosecution,

and respondeat superior), over which he asks the court to

exercise supplemental jurisdiction.

Defendants move for summary judgment on plaintiff’s federal

claims, and ask that the court decline to exercise its

2 supplemental jurisdiction over his state law claims. Plaintiff

objects.

Standard of Review

When ruling on 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.” Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “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). 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’l

Ass’n of Machinists & Aero. Workers v . Winship Green Nursing

Ctr.,

(1st Cir. 1996) (citations omitted).

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

3 be granted.” Anderson v . Liberty Lobby, Inc.,

4 2 , 249-

50 (1986) (citations omitted). As the Court of Appeals for the

First Circuit has observed, “the evidence illustrating the

factual controversy cannot be conjectural or problematic; it must

have substance in the sense that it limns differing versions of

the truth which a factfinder must resolve at an ensuing trial.

Conclusory allegations, improbable inferences, and unsupported

speculation will not suffice.” Cadle C o . v . Hayes,

5 7 ,

960 (1st Cir. 1997) (citations and internal quotation marks

omitted). See also Coyne v . City of Somerville,

4 0 ,

444-45 (1st Cir. 1992) (“[T]hough for pleading purposes the line

between sufficient facts and insufficient conclusions is often

blurred, we nonetheless require that it be plotted.”) (citation

and internal punctuation omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant’s ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

Fed. R. Civ. P. 56(e). Consequently, while a reviewing court

must take into account all properly documented facts, it may

4 ignore bald assertions, unsupported conclusions, and mere

speculation, see Serapion v . Martinez,

8 2 , 987 (1st

Cir. 1997), as well as those allegations “which have since been

conclusively contradicted by [the non-moving party’s] concessions

or otherwise,” Chongris v . Board of Appeals,

6 , 37 (1st

Cir. 1987).

Background

On August 6, 2000, plaintiff stopped at a Cumberland Farms

store in Milford, New Hampshire, to purchase gasoline. When the

self-service pump failed to activate, he went into the store,

told the cashier that he wanted $10 worth of gas, and asked that

she activate the pump. According to plaintiff, her response was

less cordial than he would have liked. Plaintiff, in turn,

angrily “told her to shove the gas” and offered a few other

pleasantries, using language that “wasn’t probably nice.” He

left the store to return to the pump. Exhibit A to defendants’

memorandum, deposition of John McCarthy at 57. 1 After he went

outside, plaintiff says another employee of the store (William

1 Exhibits submitted by defendants are referenced by letter, while those submitted by plaintiff are referenced by number.

5 Wheeler) “come up in back of me and shoved m e , whacked m e , shoved

me. I turned around, and he flipped the hot coffee in my face.

I went down with the - when the coffee hit m e , it was unexpected.

I went down, and I fell on my ass.”

. Plaintiff

described the subsequent events as follows:

And I couldn’t get up fast enough to get at him. He laughed. He had a rotten smirk on his yellow f-ing face, and I called him - it was [an] exchange of words. And I - the usual, whatever.

When I went down, I screwed up my knee and I couldn’t get up very easily. It was killing m e . I went after him. And he kept moving away from m e , and I couldn’t get him. . . . I called him a yellow prick. I told him he didn’t - whatever. I mean, it was all - it was - I flipped out. . . .

What happened next? I went after him. I was hobbling, trying to get him, trying to get a piece of him. And I couldn’t. He just kept moving. And I don’t know. From there, I went back to my truck, whatever. And then somebody called the cops, and two cops came.

.

Officer Mulla was one of the police officers who responded

to the altercation and spoke with plaintiff. Based upon his

conversation with plaintiff (and his observation that plaintiff

had coffee on his shirt), Mulla reported that:

6 Wheeler grabbed him from the rear by the left [shoulder], spun him around, and threw hot coffee in his face while saying, ‘Hey, you wise prick.’ McCarthy’s shirt was stained by what appeared to be coffee in the area of his left [shoulder], and he stated that this was from wiping his face with his shirt.

Exhibit 5 , Incident Report completed by Officer Mulla.

Mulla also interviewed Wheeler, who said he followed

plaintiff out of the store to speak with him, told him he had to

pump his own gas, made some gesture with his arms and, in the

process, some of his coffee spilled out of the cup he was holding

and landed on plaintiff. Wheeler denied that he ever had any

physical contact with plaintiff or that he intentionally threw

the coffee at him. Exhibit D, Uniform Statement Form completed

by William Wheeler.

Wheeler’s claim that he never touched plaintiff was

supported by one of the witnesses to the exchange - Annette

Gagnon, the cashier with whom McCarthy had exchanged words

earlier. In her hand-written statement to police, Gagnon said

she watched the men during their entire encounter and never saw

7 either man strike the other. Exhibit E , Uniform Statement Form

completed by Annette Gagnon. See also Exhibit F, Uniform

Statement Form completed by Alice Kauffman (a customer of the

store who witnessed the confrontation between McCarthy and

Wheeler, and said that plaintiff “just got in the face of the

assistant manager [who] was trying to get away from him by

walking away, but [plaintiff] just kept walking.”). 2

Although plaintiff claimed to have sustained injuries from

the altercation (as a result of having allegedly fallen to the

ground) and wanted to press charges, Officer Mulla explained that

absent the testimony of a witness who could corroborate

plaintiff’s version of the events, he would not file assault

charges against Wheeler.

2 At a subsequent deposition, M s . Kauffman testified that she never saw Wheeler throw a cup of coffee at McCarthy and that she never saw McCarthy fall to the ground. Exhibit G, Trial testimony of Alice Kauffman at 5-6. Kauffman also testified that, after the altercation, she asked Wheeler if everything was alright. “And he said that [plaintiff] said that he had [thrown] coffee in his face and so I looked at him and I looked at the cup [of] coffee and I said to M r . Wheeler, if you threw a cup [of] coffee in his face, how come your cup [of] coffee is almost full?”

.

8 Subsequently, McCarthy filed a civil suit against Wheeler

and his employer, Cumberland Farms, seeking damages for the

alleged assault. That case proceeded to trial, and a state jury

returned a verdict in favor of the defendants. See Exhibit Y .

Prior to trial, however, the case received some publicity in the

local newspaper. And, after reading an article about plaintiff’s

civil claims against Wheeler and Cumberland Farms, two additional

witnesses to the events of August 6, 2000, came forward.

On July 9, 2001, Joseph and Marcelle Oneail contacted Chief

Douglas and reported that they had witnessed the altercation

between plaintiff and Wheeler. In their written statements to

police (as well as their subsequent testimony at the civil trial

brought by plaintiff against Wheeler), the Oneails reported that:

(1) they witnessed the entire incident; (2) plaintiff, and not

Wheeler, had been the aggressor; (3) Wheeler had not thrown

coffee at plaintiff; and (4) plaintiff never fell to the ground.

See Exhibit J, Uniform Police Form completed by Marcelle Oneail;

Exhibit K , Uniform Statement Form completed by Joseph Oneail

(stating that he believed Wheeler’s coffee spilled on plaintiff,

as Wheeler responded in a defensive way, trying to withdraw from

9 plaintiff, who was “charging” at h i m ) . See also Exhibit G, trial

testimony of Marcelle Oneail at 10-14; Exhibit G, trial testimony

of Joseph Oneail at 16-23.

In the wake of the reports made by M r . and Mrs. Oneail,

Captain Winterburn of the Milford Police Department reviewed all

of the witness statements relating to the incident, including

those given by both plaintiff and Wheeler. He then concluded

that there was probable cause to believe that plaintiff had given

false statements to the officers and that he had engaged in

disorderly conduct. Exhibit L , Affidavit of John Winterburn at

para. 3 . Accordingly, he assisted Mulla in preparing an

affidavit in support of an arrest warrant. Milford District

Court Judge Drescher issued the warrant on August 1 , 2001.

Later that day, plaintiff was arrested, charged, and

released from custody. As noted earlier, prior to plaintiff’s

criminal trial the prosecutor dismissed the disorderly conduct

charge, concluding that the pertinent state statute of

limitations had run. And, when Officer Mulla was called to

active military duty to serve in support of Operation Enduring

10 Freedom, he became unable to testify at the trial. Because Mulla

was a critical witness to the government’s case against

plaintiff, the court dismissed the remaining charge (i.e., filing

a false police report). This litigation ensued.

Discussion

I. Plaintiff’s Federal Claims.

Plaintiff’s federal claims are brought under

, which subjects to civil liability any person who, acting

under color of state law, deprives another of “any rights,

privileges, or immunities secured by the Constitution and laws.”

All agree that Officer Mulla was, at all times relevant to this

proceeding, acting under color of state law. Accordingly, the

first question that necessarily arises is “whether the plaintiff

has been deprived of a right ‘secured by the Constitution and

laws.’” Baker v . McCollan,

3 7 , 140 (1979). Here,

plaintiff alleges that Officer Mulla deprived him of his Fourth

Amendment right to be free from unreasonable arrest or seizure -

that i s , an arrest or seizure not supported by probable cause.3

3 Plaintiff also claims that Officer Mulla’s conduct “deprived the plaintiff of his rights to freedom of speech [and] freedom to petition for the redress of grievances.” Complaint at

11 Obviously, then, in resolving defendants’ motion for summary

judgment, the court must determine whether Mulla had probable

cause to arrest plaintiff for filing a false police report and/or

disturbing the peace. Probable cause to believe that plaintiff

had committed either of the two offenses with which he was

charged would have been sufficient to justify his subsequent

arrest. See, e.g., Dowling v . City of Philadelphia,

, 142 n.7 (3d Cir. 1998) (finding consideration of whether

probable cause existed for arrest for criminal conspiracy

unnecessary where there was probable cause to arrest for defiant

trespass).

The court of appeals for this circuit has held that

“[p]robable cause to arrest exists i f , at the moment of the

arrest, the facts and circumstances within the relevant actors’

knowledge and of which they had reasonably reliable information

were adequate to warrant a prudent person in believing that the

object of his suspicions had perpetrated or was poised to

perpetrate an offense.” Roche v . John Hancock Mutual Life Ins.

para. 2 3 . Those claims are, however, frivolous. And, because they are not addressed in plaintiff’s memorandum, the court will assume that they have been waived.

12 Co.,

(1st Cir. 1996) (emphasis supplied). See

also Hartgers v . Town of Plaistow,

(1996)

(“Probable cause to arrest exists when the arresting officer has

knowledge and trustworthy information sufficient to warrant a

person of reasonable caution and prudence in believing that the

arrestee has committed an offense. The determination of probable

cause must be viewed in the light of factual and practical

considerations of everyday life on which reasonable and prudent

persons, not legal technicians, act.”) (citations omitted).

Here, when he sought an arrest warrant for plaintiff, Officer

Mulla had probable cause to believe that plaintiff had committed

both of the offenses with which he was charged.4

4 Parenthetically, the court notes that after Mulla obtained the arrest warrant and charges were filed against plaintiff, the attorney representing plaintiff in his civil suit against Wheeler and Cumberland Farms forwarded three witness statements to the prosecutor. Those statements, made by friends and/or business acquaintances of plaintiff, supported his version of the events of August 6, 2000. Importantly, however, prior to August 1 , 2001 (the date on which Mulla sought and obtained the arrest warrant), those witnesses never came forward to the police to report what they had observed, nor were the police aware that there had, at least allegedly, been additional witnesses to the events in question. Moreover, once he determined that there was probable cause to arrest plaintiff, even if Mulla subsequently became aware of those witnesses, he was under no constitutional obligation to interview them. See, e.g., Kompare v . Stein,

(7th Cir. 1986) (“[T]he police . . . have no constitutional duty to keep investigating a crime once they have established probable cause.”). See also Franco-de Jerez v .

13 While officer Mulla conceded that, on the day of the

incident, he did not believe there was probable cause to charge

plaintiff with any criminal offenses, see Exhibit 1 3 , Deposition

of James Mulla at 1 9 , circumstances changed once the Oneails came

forward and gave their eye-witness accounts of the events in

question. The statements given by those two additional witnesses

corroborated (and expanded upon) those taken from the other known

eye-witnesses: Annette Gagnon (the cashier) and Alice Kauffman (a

customer). Specifically, Officer Mulla then had statements from

four witnesses to the events in questions (not including

Wheeler), all of which supported the view that: (1) plaintiff,

and not Wheeler, was the aggressor; (2) Wheeler did not have any

physical contact with plaintiff; (3) Wheeler did not

intentionally assault plaintiff by throwing coffee on him but,

instead, accidentally spilled coffee on plaintiff; (4) plaintiff

did not fall to the ground, nor did he sustain any injuries as a

result of the confrontation with Wheeler; and (5) plaintiff

Burgos,

(1st Cir. 1989) (citing Kompare); Romero v . Fay,

(10th Cir. 1995). “[H]aving once determined that there is probable cause to arrest, an officer should not be required 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 squad car.” Thompson v . Olson,

(1st Cir. 1986).

14 shouted a steady stream of obscenities, first at the cashier, and

subsequently at Wheeler as he pursued Wheeler around the parking

lot.

Given the two new witness statements, particularly when read

in light of the original witness statements, Mulla had

“reasonably reliable information . . . adequate to warrant a

prudent person in believing that” plaintiff had committed the

offenses with which he was subsequently charged. Roche,

. Under New Hampshire law, a person engages in disorderly

conduct i f , among other things, he or she:

(a) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or

(b) Directs at another person in a public place obscene, derisive, or offensive words which are likel to provoke a violent reaction on the part of an ordinary person.

N.H. Rev. Stat. Ann. (“RSA”) 644:2 I I . Based on the information

before him on August 1 , 2001, Officer Mulla had more than

adequate reason to believe that plaintiff had engaged in both

forms of disorderly conduct identified above. In fact,

plaintiff’s own (subsequent) deposition testimony supports

15 Mulla’s earlier conclusion that plaintiff had engaged in

disorderly conduct. See Exhibit A , Deposition of John McCarthy

at 57-59 (describing the offensive, fighting words he directed at

Wheeler as he tried “to get a piece of him.”).

Similarly, with the benefit of the two additional eye-

witness accounts of the altercation, Mulla had probable cause to

believe that plaintiff had made false statements to the

responding officers about the events in question. Specifically,

he had probable cause to believe that plaintiff was not truthful

when he reported that Wheeler assaulted him (by grabbing his

shoulder), purposefully “threw” hot coffee in his face, and

caused plaintiff to fall to the ground, injuring his knee. See

generally RSA 641:4.

Because the court concludes that, as a matter of law, on

August 1 , 2001, Officer Mulla had probable cause to believe that

plaintiff had engaged in disorderly conduct and made a false

report to law enforcement officers, it need not address

plaintiff’s meritless claims that Mulla misled the judge who

issued the arrest warrant, by distorting (or omitting) relevant

16 facts from his affidavit in support of the arrest warrant.

Defendants’ are entitled to summary judgment on count one of

plaintiff’s complaint.

Alternatively, to the extent that count one of plaintiff’s

complaint (captioned “Unreasonable Search and Seizure”) actually

advances a federal claim for malicious prosecution, the

defendants are entitled to summary judgment on that claim as

well. See Complaint at para. 23 (asserting that Officer Mulla

“deprived the plaintiff of his rights to freedom of speech;

freedom to petition for the redress of grievances; freedom from

unreasonable arrest, search, and seizure; freedom from arrest

without probable cause; and freedom from malicious prosecution

. . . rights secured to the plaintiff by the First, Fourth, and

Fourteenth Amendments.”) (emphasis supplied). 5

First, to the extent plaintiff is seeking damages for

alleged violations of his Fourteenth Amendment rights, § 1983 is

generally not a proper vehicle by which to vindicate due process

5 Although his complaint invokes rights protected by the First and Fourteenth Amendments, plaintiff’s memorandum focuses exclusively on the Fourth Amendment - that i s , whether his arrest was supported by probable cause.

17 rights (whether procedural or substantive) in the context of a

malicious prosecution claim.

We note as an initial matter that [plaintiff’s] § 1983 malicious prosecution claim is not properly based on either a procedural or substantive due process violation. A § 1983 claim for malicious prosecution as a deprivation of procedural due process is barred where, as here, the state’s tort law recognizes a malicious prosecution cause of action. Further, there is no substantive due process right under the Fourteenth Amendment to be free from malicious prosecution.

Meehan v . Town of Plymouth,

5 , 88 (1st Cir. 1999)

(citations and internal quotation marks omitted). See also Roche

(“The law is settled that a garden-variety claim

of malicious prosecution garbed in the regalia of § 1983 must

fail. There is no substantive due process right under the

Fourteenth Amendment to be free from malicious prosecution, and

the availability of a plainly adequate remedy under [state] law

defeats the possibility of a procedural due process claim.”)

(citations omitted).

Accordingly, the court will assume that plaintiff is seeking

to vindicate his Fourth Amendment rights through the malicious

prosecution claim arguably set forth in count one. To prevail,

18 plaintiff must demonstrate that “criminal proceedings were

initiated against him without probable cause and for an improper

purpose and were terminated in his favor.” Landrigan v . City of

Warrick,

, 745 n.6 (1st Cir. 1980). See also Meehan,

(“Thus, a § 1983 malicious prosecution action

based upon a deprivation of Fourth Amendment rights requires a

showing of the absence of probable cause to initiate

proceedings.”). As noted above, however, the record establishes

that, as a matter of law, on August 1 , 2001, Officer Mulla did

have probable cause to seek an arrest warrant for plaintiff.

Consequently, even if plaintiff were advancing a “malicious

prosecution” claim against these defendants, such a claim would

necessarily fail. See Roche,

n.5.

Finally, because, as a matter of law, Officer Mulla did not

violate plaintiff’s Fourth Amendment rights, plaintiff’s

derivative claim against the Town and Chief Douglas (count three

- municipal liability) necessarily fails. Absent an underlying

constitutional violation, a plaintiff has no § 1983 claim against

a police officer’s municipal employer based upon an allegedly

unconstitutional municipal custom or policy, or based upon an

19 alleged failure to adequately train. See Los Angeles v . Heller,

(1986) (holding that “[i]f a person has

suffered no constitutional injury at the hands of the individual

police officer,” that person has no claim under section 1983

against the officer’s municipal employer). See generally Monell

v . Dept. of Social Servs.,

5 8 , 694-95 (1978); Canton v .

Harris,

7 8 , 385 (1989).

II. Plaintiff’s State Law Claims.

In counts two, four, and five of his complaint, plaintiff

advances several state common law claims, over which he asks the

court to exercise supplemental jurisdiction. Complaint at para.

2. See also

. Section 1367 provides that the

court may decline to exercise supplemental jurisdiction over a

plaintiff’s state law claim when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

20 (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(c). To assist district courts, the Court of

Appeals for the First Circuit has identified the following

additional factors that should be considered when determining

whether to exercise supplemental jurisdiction over state law

claims: (1) the interests of fairness; (2) judicial economy; (3)

convenience; and (4) comity. See Camelio v . American Fed’n,

(1st Cir. 1998). With regard to principles of

fairness and comity, the Supreme Court has observed:

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v . Gibbs,

(1966) (footnote

omitted).

Given that the court has dismissed all of plaintiff’s

federal claims, and in the interests of both comity and fairness

to the parties, the court declines to exercise supplemental

21 jurisdiction over the state law claims in counts two, four, and

five of plaintiff’s complaint.

III. Plaintiff’s Rule 56 Motion.

At the conclusion of his memorandum in opposition to summary

judgment, plaintiff suggests that, should the court be inclined

to grant defendants’ motion, it should instead afford him

additional time within which to take what he says is essential

discovery. That “motion” is denied. First, it fails to comply

with this court’s local rules. See L.R. 7.1(a) (“Motions, other

than those submitted during trial, shall be considered only if

submitted separately from other filings and only if the word

‘motion’ appears in the title.”). Moreover, having chosen to

submit an objection, a legal memorandum, and over one hundred

pages of exhibits in opposition to defendants’ motion for summary

judgment, plaintiff cannot attempt to fall back on the provisions

of Rule 56(f), should his efforts to defeat summary judgment

prove fruitless. See, e.g., C.B. Trucking, Inc. v . Waste

Management, Inc.,

1 , 44 (1st Cir. 1998) (“[O]rdinarily,

a party may not attempt to meet a summary judgment challenge

22 head-on but fall back on Rule 56(f) it its first effort is

unsuccessful.”).

Finally, on a more substantive level, plaintiff’s request

lacks merit. The discovery he seeks is either irrelevant to the

issue of probable cause (e.g., his desire to depose Police

Captain Winterburn) or has been available to him for a

substantial amount of time (e.g., the opportunity to depose M r .

and Mrs. Oneail, both of whom were witnesses who testified at

plaintiff’s civil trial against Wheeler and Cumberland Farms).

See generally Exhibit 2 0 , Affidavit of John McCarthy.

Conclusion

For the foregoing reasons, and for the reasons set forth in

defendants’ memoranda (documents n o . 13 and 2 0 ) , defendants are

entitled to judgment as a matter of law on counts one and three

of plaintiff’s complaint. With regard to the state law claims

advanced in counts two, four, and five of the complaint, the

court declines to exercise its supplemental jurisdiction and

those claims are dismissed without prejudice.

23 The Clerk of Court shall enter judgment in favor of

defendants in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 1 8 , 2004

cc: Donald E . Gardner, Esq. Thomas B . Merritt, Esq.

24