Giroux v . Town of Danbury CV-06-250-PB 01/15/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Philip Giroux

v. Civil N o . 06-cv-250-PB Opinion N o .

Town of Danbury, et a l .

MEMORANDUM AND ORDER

Philip Giroux brought this civil action pursuant to

and

(d) against Danbury Police

Chief Dale Cole and Danbury Police Officer Andrew Ware. Giroux

claims that Cook and Ware violated his rights under the First and

Fourth Amendments by arresting him without probable cause,

failing to hold a prompt probable cause hearing following his

arrest, and making the arrest to prevent him from engaging in

constitutionally protected speech. He also asserts supplemental

state law causes of action against the same defendants for

intentional and negligent infliction of emotional distress.

Defendants have moved for summary judgment. For the reasons

stated below, I grant summary judgment with respect to Giroux’s

false arrest and First Amendment claims, and I give defendants 30 days to supplement their motion to assert a summary judgment

argument regarding Giroux’s timely judicial determination of

probable cause issue. I defer consideration of Giroux’s state

law claims pending submission of defendants’ supplemental motion.

I. BACKGROUND1

Giroux is a resident of Danbury, New Hampshire, a town

governed by a Board of Selectmen. In 1995, the Board of

Selectmen established the Danbury Workshop, Inc., a nonprofit

organization created to manage and operate the Danbury Community

Center (“DCC”). The DCC employs a director, staff, and

volunteers. Giroux served as the DCC Facilities Manager, but he

resigned from the position on May 1 3 , 2003. (Compl. ¶ 22.)

Despite his resignation, Giroux wished to remain a volunteer at

DCC and to continue participating DCC functions.

1 The facts are drawn primarily from defendants’ motion for summary judgment. As required when reviewing a motion for summary judgment, I recite the facts in the light most favorable to Giroux, the non-moving party, and I note which facts are in genuine dispute. Latin Am. Music C o . v . Archdiocese of San Juan of the Roman Catholic & Apostolic Church,

2 , 38 (1st Cir. 2007). The facts upon which I base my decision are undisputed.

-2- A. Communications with DCC Board and Staff Members

Giroux called Terri Towle, the DCC executive director,

several times during late May and early June 2003. Towle

recorded Giroux’s attempts to contact her and submitted them to

the police. Officer Norman Daigneault of the Danbury Police

Department interviewed Towle about the calls and listened to nine

voicemail messages from Giroux. (Aff. of Daigneault ¶ 3 , Sept.

4 , 2007, Ex. B of Def.’s Mot. for Summ. J.; Aff. of Cook ¶ 3 ,

Sept. 4 , 2007, Ex. B of Def.’s Mot. for Summ. J.) Giroux does

not dispute the fact that he made these phone calls, but he does

dispute Towle’s characterization of the messages as threatening.

On June 4 , 2003, Sara Blay, the DCC treasurer, reported a

security concern about Giroux to her employer. (Incident and

Crime Report, J.Jill Group, June 4 , 2003, Ex. W to Pl.’s O b j . to

Mot. for Summ. J.) Specifically, Blay complained of a “stalking

situation with possible violent implications” and reported that

Giroux was making threatening phone calls to her house and

threatening her husband with physical harm.

Giroux does not

dispute the content of the report or the fact that Blay made the

report, although he does dispute the truth of Blay’s underlying

statement.

-3- Towle wrote a letter to Giroux on June 1 1 , 2003, thanking

him for his service and stating: “Given all that has happened,

we ask that you no longer visit or call the Center, or contact

its staff.” (Aff. of Daigneaut ¶ 6; Letter from Towle to Giroux,

June 1 1 , 2003, Ex. D. of Def.’s Mot. for Summ. J.) Officer

Daigneault hand-delivered the letter to Giroux on the same day.

(Aff. of Daigneaut ¶ 6.) Giroux does not dispute these facts,

although he argues that the letter’s language illegally banned

him from the DCC.

On June 1 9 , 2003, Giroux wrote a letter to Towle describing

some of his experiences with Towle and the DCC. (Aff. of Cook ¶

4 ; Letter from Giroux to Towle, June 1 9 , 2003, Ex. G of Def.’s

Mot. for Summ. J.) Giroux, Towle and Audrey Pellegrino, the

Chairman of the DCC Board, exchanged several letters and phone

calls over the course of July and August 2003. (Aff. of Cook ¶

4-14.) Towle and Pellegrino reported Giroux’s letters and phone

calls to the Danbury Police Department because they found them to

be threatening and harassing.

Giroux claims that his

communications were intended only t o : 1 ) clear his name with

respect to a rumor allegedly started by Thomas Blay, husband of

DCC Treasurer Sara Blay, suggesting that Giroux was a child

-4- molester, 2 ) find out when he would be permitted to return to the

DCC, and 3 ) express genuine concern about the safety conditions

of the DCC/Town Hall well and a sidewalk on DCC property.

On July 2 3 , 2003, Dale Cook, Chief of Police for the Danbury

Police Department, made an officer report regarding the “domestic

violence” problem at the DCC. (Aff. of Cook ¶ 1 2 ; Officer

Report, Dale Cook, Chief of Police, Danbury Police Department,

July 2 3 , 2003, Ex. J of Def.’s Mot. for Summ. J.) Cook noted in

his report that he called Pellegrino to find out why Towle had

not yet sought a restraining order against Giroux. Pellegrino

told him that Towle was afraid of Giroux and that Towle wanted

all of the DCC members to get restraining orders against Giroux,

but that Pellegrino would not personally seek a restraining

order. (Aff. of Cook ¶ 12-13.) Cook noted in his report: “At

this time, they are handling this themselves against my better

judgment.”

B. Complaints to the Board of Selectmen

Giroux attended a meeting of the Danbury Board of Selectmen

on August 2 6 , 2003, at which he requested the Selectmen’s help in

dealing with the DCC Board and also mentioned his concerns about

monitoring of the DCC/Town Hall well water. (Minutes from

-5- Selectmen’s Meeting, Aug. 2 6 , 2003, Ex. Q of Pl.’s O b j . to Mot.

for Summ. J.) The Selectmen told Giroux that they would not get

involved in Giroux’s conflict with the DCC because the running of

the DCC was not under the Selectmen’s jurisdiction.

At the

meeting, the Selectmen decided to request that the DCC Board

attend the next Selectmen’s meeting to resolve the conflict.

Following this meeting, Giroux came to Town Hall and made

various complaints to Christie Phelps, the Town Hall’s

administrative assistant. (Memos to File, Christie Phelps,

Administrative Assistant, Danbury Town Hall, Aug. 2 7 , 2003, Aug.

2 8 , 2003, Ex. K of Def.’s Mot. for Summ. J.) According to

Phelps’s file, on August 2 7 , Giroux requested more information

about his being banned from the DCC and asserted that he had

evidence to show that the Blays were evading property taxes.

On August 2 8 , he provided Phelps with a list of concerns

including issues about the DCC/Town Hall well and his

communication with various DCC personnel. Id.; Aff. of Cook ¶

14.

On August 2 9 , Giroux returned to Town Hall to get copies of

records involving the well water and requested that Chief Cook

perform a background check to help clear his name regarding the

-6- molestation rumors. (Memo to File, Christie Phelps, Aug. 2 9 ,

2003, Ex. B of Pl.’s O b j . to Def.’s Supplement to the Record.)

Giroux also told Phelps about his conflict with Thomas Blay and

mentioned that he was considering retaining a lawyer and making a

sign or doing a mass mailing to inform people about how

Pellegrino had misled the Selectmen.

C. Events of September 2 , 2003

The Board of Selectmen meeting with the DCC Board was

scheduled for September 2 , 2003. Earlier that day, Giroux came

to Town Hall twice, once to request an application to carry a

concealed weapon and once to drop off the completed application.

(Compl. ¶ 8 0 ; Memo to File, Christie Phelps, Sept. 2 , 2003, Ex. B

of Pl.’s O b j . to Def.’s Supp. to the Record.) Giroux’s

application for the gun permit mentioned his ongoing personal

conflict with Thomas Blay. (Compl. ¶ 85.)

On the afternoon of September 2 , Thomas Blay called the

police to report an altercation with Giroux. (Aff. of Cook ¶ 1 6 ;

Statement of Thomas Blay, Sept. 2 , 2003, Ex. S of Def.’s Mot. for

Summ. J.) Blay stated that he saw a sign on Giroux’s truck that

said “DCC Treasurer Sara Blay attempted possible tax fraud.”

(Statement of Thomas Blay, Sept. 2 , 2003; Compl. ¶ 85.) Blay

-7- reported that when he questioned Giroux about the sign, Giroux

grabbed him, poked him in the chest, and told Blay that he had

gotten a pistol and a permit that day and was going to the Town

Hall for the Selectmen’s meeting that night “to settle it.”

(Aff. of Cook ¶ 1 6 ; Statement of Thomas Blay, Sept. 2 , 2003.)

Giroux does not dispute the fact that Blay reported the above

statements to the police, although he does dispute the underlying

truth of Blay’s statements.

Blay called his wife, Sara, to report what had happened.

(Statement of Sara Blay, Sept. 9, 2003. Ex. P of Def.’s Mot. for

Summ. J.) Sara Blay, Terri Towle, and Audrey Pellegrino decided

to drive to the meeting as a group. (Statement of Terri Towle,

Sept. 4 , 2003, Ex. O of Def.’s Mot. for Summ. J.) When

Pellegrino and Sara Blay picked up Towle at her house, they saw

Giroux sitting in his truck, which was parked across the street

displaying the sign. (Statement of Sara Blay, Sept. 9, 2003;

Statement of Terri Towle, Sept. 4 , 2003.) Giroux does not

dispute these facts. (Compl. ¶ 126.)

Officer Daigneault received a call that Giroux could be on

his way to Town Hall, so he picked up Officer Andrew Ware, also

of the Danbury Police Department, and called for back-up of State

-8- Police and other available units. (Aff. of Daigneault ¶ 1 0 ; Aff.

of Ware ¶ 3 , Sept. 4 , 2007, Ex. Q to Def.’s Mot. for Summ. J.)

Chief Cook received the call and was met at the scene by Chief

Nason of the Bridgewater Police Department. (Aff. of Cook ¶ 16.)

Nason informed Cook that Giroux had been by Town Hall twice

already, that Thomas Blay had reported being assaulted by Giroux,

and that Giroux had told Blay that he was coming to Town Hall

with a pistol.

Chief Riley from the Hebron Police

Department confirmed that Giroux had purchased a handgun earlier

that day. (Aff. of Cook ¶ 1 8 ; Aff. of Ware ¶ 4.)

When Giroux arrived at Town Hall, he was arrested by Chief

Cook. (Aff. of Cook ¶ 1 9 ; Aff. of Daigneault ¶ 13.) Giroux gave

consent for the officers to search his car for a weapon, and no

weapon was found. (Aff. of Cook ¶ 1 9 ; Officer Report, Dale Cook,

Chief of Police, Danbury Police Department, Sept. 2 , 2003, Ex. M

of Def.’s Mot. for Summ. J.) Giroux was booked at the Bristol

Police Department and was released on $2500 personal recognizance

bail with the conditions that he have no contact with the Blays,

Towle, or their family members, avoid drugs and excessive use of

alcohol, and turn his weapons in to the police department. (Aff.

of Cook ¶ 1 9 ; Orders and Conditions of Bail, Franklin District

-9- Court, Sept. 2 , 2003, Ex. N of Def.’s Mot. for Summ. J.)

D. Subsequent Events

Based on the events of September 2 , 2003, and statements

from Towle and the Blays, Officer Ware prepared two complaints

for stalking and a complaint for simple assault. (Aff. of Ware ¶

5 ; see Criminal Complaints, Sept. 1 8 , 2003, Ex. R of Def.’s Mot.

for Summ. J.; Application for Arrest Warrant and Supporting

Affidavit, Sept. 1 8 , 2003, Ex. E-1 of Pl.’s O b j . to Mot. for

Summ. J.) The complaint for stalking was dismissed with

prejudice by a margin order on October 3 1 , 2003. (Motion to

Dismiss Stalking Complaints for Failing to State an Offense, Oct.

1 0 , 2003, Ex. C-1 of Pl.’s O b j . to Mot. for Summ. J.) Giroux was

convicted on the simple assault charge. (Aff. of Ware ¶ 7.)

There were additional legal proceedings involving Giroux and the

defendants in this case; none are relevant here.2

2 Giroux was later charged with harassment for making offensive phone calls to Towle in February 2004. (Application for Arrest Warrant and Supporting Affidavit, Feb. 2 7 , 2004, Ex. K of Pl.’s O b j . to Mot. for Summ. J.) These charges were dismissed in September 2004. (Transcript of Hearing, Franklin District Court, Docket N o . 04-CR-475-481, Sept. 1 7 , 2004, Ex. L of Pl.’s O b j . to Mot. for Summ. J.) Giroux also brought a Right to Know lawsuit in 2005 seeking the minutes from various Board of Selectmen and DCC Board meetings. (Transcript of Hearing on Right to Know Petitions, Merrimack Superior Court, Case N o . 05-E-

-10- II. STANDARD OF REVIEW

Summary judgment is appropriate when “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). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

Giroux alleges that his arrest on September 2 , 2003,

violated his Fourth Amendment right to be free from unreasonable

searches and seizures because: (1) Chief Cook, the arresting

146, Case N o . 05-E-14, Apr. 2 5 , 2005, Ex. Y of Pl.’s O b j . to Mot. for Summ. J.)

-11- officer, did not have probable cause to arrest him, and (2)

Officer Ware, the officer who prepared the complaints against

Giroux, failed to provide Giroux with a timely judicial

determination of probable cause following his arrest. Giroux

alleges that Chief Cook violated Giroux’s First Amendment rights

because he arrested Giroux as a pretext to stop Giroux from

displaying the sign on his truck, which contained protected

speech about a public figure. Finally, Giroux alleges that both

officers committed the torts of intentional and negligent

infliction of emotional distress when they arrested him without

probable cause, failed to provide him with a timely judicial

determination of probable cause, and imposed excessive bail

conditions. I address each of Giroux’s claims in turn.

A. Fourth Amendment: False Arrest

Giroux argues that he was falsely arrested because Chief

Cook lacked probable cause to arrest him. Cook contends that

there was adequate probable cause o r , in the alternative, that he

is entitled to qualified immunity. When government officials

assert the affirmative defense of qualified immunity, I begin by

examining whether the facts as alleged demonstrate a

constitutional violation. Jennings v . Jones,

, 11 (1st

-12- Cir. 2007). If I determine that there was no constitutional

violation, I need not proceed further because plaintiff’s claim

fails as a matter of law. Id.; Cox v . Hainey,

5 , 30

(1st Cir. 2004).

The Fourth Amendment guarantees the right of persons to be

free from unreasonable searches and seizures. U.S. Const. Amend.

IV. A warrantless arrest is reasonable under the Fourth

Amendment “where there is probable cause to believe that a

criminal offense has been or is being committed.” Devenpeck v .

Alford,

(2004); Beck v . Ohio,

9 , 91

(1964); Logue v . Dore,

(1st Cir. 1997).

Probable cause for an arrest exists “when the arresting

officer, acting upon apparently trustworthy information,

reasonably concludes that a crime has been (or is about to be)

committed and that the putative arrestee likely is one of the

perpetrators.” Acosta v . Ames Dep’t Stores, Inc.,

, 9

(1st Cir. 2004); see Cox,

1 ; Roche v . John Hancock

Mut. Life Ins. Co.,

(1st Cir. 1996). The

inquiry is objective, not subjective, asking whether there was a

reasonable likelihood that the arrestee committed the alleged

crime. See, e.g., Cox,

1 ; Roche,

.

-13- To determine whether probable cause existed for Giroux’s

arrest, I must first consider what Chief Cook knew at the time of

the arrest. See Beck, 379 U.S. at 91 (defining the inquiry a s :

“whether at that moment the facts and circumstances within their

knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing

that the petitioner had committed or was committing an

offense.”). I note that it is the collective knowledge of the

officers involved, not the individual knowledge of the arresting

officer, that is the subject of the probable cause inquiry. See

United States v . Pardue,

0 1 , 106 (1st Cir. 2004).

Giroux’s arrest is valid if the collective knowledge of all the

officers involved establishes probable cause for his arrest.

Chief Cook and other officers present at the time of

Giroux’s arrest were aware of the ongoing conflicts and

communications between Giroux and various DCC board members and

staff during the summer of 2003.3 Officer Daigneault and Chief

Cook knew that Towle had been receiving unwanted telephone calls

3 Giroux does not dispute any of the officers’ assertions regarding what the officers knew at the time of his arrest and what had been reported to police, although he disputes some of the underlying allegations made in the reports.

-14- from Giroux beginning in June 2003. (Aff. of Cook ¶ 4-14; Aff.

of Daigneault ¶ 1 2 ; Police Report, June 4 , 2003, Ex. C of Def.’s

Mot for Summ. J.) Both Cook and Daigneault also knew that, on

June 1 0 , 2003, Towle had requested that a police officer deliver

a letter to Giroux asking him to stay away from the DCC and avoid

contacting the staff. (Aff. of Daigneault ¶ 5-6; Aff. of Cook ¶

9; Police Report, June 1 0 , 2003, Ex. C of Def.’s Mot for Summ. J.

at 7.) Cook knew that Giroux had a personal conflict with Sara

Blay, and Daigneault indicated this fact in a police report.

(Aff. of Cook ¶ 1 0 ; Police Report, June 4 , 2003, Ex. C of Def.’s

Mot for Summ. J. at 4 , 5.) On July 2 3 , 2003, Chief Cook noted in

his report that there was a domestic violence problem at the DCC,

that Towle was scared of Giroux, that he had advised Towle to get

a restraining order on Giroux, and that the DCC staff members

were “handling this themselves against my better judgment.”

(Aff. of Cook ¶ 12-13; Officer Report, Dale Cook, Chief of

Police, Danbury Police Department, July 2 3 , 2003, Ex. J of Def.’s

Mot for Summ. J. at 2.)

Cook also had knowledge about Giroux’s activities on

September 2 , 2003, prior to his arrest. Based on communications

from Chief Nason of the Bridgewater Police Department, Cook knew

-15- that Thomas Blay had reported being assaulted by Giroux earlier

in the day. (Aff. of Cook ¶ 1 6 ; Aff. of Ware ¶ 3.) Cook knew

that Blay had reported that Giroux said that he had purchased a

handgun and that he was going to the Selectmen’s meeting that

night. (Aff. of Cook ¶ 1 6 ; Aff. of Daigneault ¶ 9; Officer

Report, Norman Daigneault, Danbury Police Department, Sept. 3 ,

2003, Ex. L of Def.’s Mot for Summ. J.) Prior to the arrest,

Officer Riley from the Hebron Police Department confirmed this

handgun purchase to Cook. (Aff. of Cook ¶ 1 8 ; Aff. of Ware ¶ 4.)

Finally, Cook knew that Towle and Sara Blay would be at the

Selectman’s meeting that evening. (Aff. of Cook ¶ 17.)

The offenses of stalking and simple assault are defined by

New Hampshire statutory law. The offense of simple assault is

defined in

-a, which states that a

person is guilty of simple assault if he purposely or knowingly

causes unprivileged physical contact to another. The offense of

stalking is defined in

, which

provides that a person commits the offense of stalking if he

“purposely, knowingly, or recklessly engages in a course of

conduct targeted at a specific person which would cause a

reasonable person to fear for his or her personal safety or the

-16- safety of a member of that person's immediate family, and the

person is actually placed in such fear.”

I ( a ) . A “course of conduct” is defined as two or more acts

evidencing a continuity of purpose, and the statute indicates

that phone calls and letters are acts that can establish a course

of conduct.

II(a)(7); see also N.H.

Rev. Stat. § 644:4 I I .

There is significant evidence in the record to support Chief

Cook’s reasonable belief that Giroux had committed the

misdemeanor crimes of both simple assault and stalking. Cook

knew that Thomas Blay had reported being assaulted by Giroux

prior to Giroux’s arrest, and: “The uncorroborated testimony of

a victim or other percipient witness, standing alone, ordinarily

can support a finding of probable cause.” Acosta,

. Blay’s credibility was bolstered by the fact that, prior to

Giroux’s arrest, officers were able to confirm Blay’s report that

Giroux had purchased a weapon earlier in the day. Cook also had

probable cause to believe that Giroux had committed the crime of

stalking because he knew that Giroux had engaged in many acts of

unwanted and intimidating communication including phone calls,

-17- letters, and in-person confrontations with Towle and other DCC

personnel despite having been notified that they did not desire

further communication.

The fact that the officers purported to be arresting Giroux

only for stalking, not simple assault, does not make the arrest

illegal. See Devenpeck,

(holding that the

“subjective reason for making the arrest need not be the criminal

offense as to which the known facts provide probable cause.”);

United States v . Jones,

4 , 41 (1st Cir. 2005)

(confirming that “the probable cause inquiry is not necessarily

based upon the offense actually invoked by the arresting officer

but upon whether the facts known at the time of the arrest

objectively provided probable cause to arrest.”) The objective

facts demonstrate that the officers had probable cause to arrest

Giroux for simple assault. The fact that he was booked on the

stalking charges alone is irrelevant. See Jones,

1 .

Under New Hampshire statutory law, a police officer may

arrest a person without a warrant on a charge of a misdemeanor or

a violation in a number of situations including when:

(c) He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if

-18- not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, or will cause further personal injury or damage to property.

(c).

In this case, Cook arrested Giroux when he arrived at the

Town Hall because he had good reason to believe that Giroux had

threatened Thomas Blay that he would be coming to the meeting

with a gun “and was going to settle it.” (Aff. of Cook ¶ 16.)

Based on their understanding of what Giroux had said to Thomas

Blay earlier, the officers had probable cause to believe that if

Giroux was not immediately arrested, he would cause further

personal injury to Towle, Sara Blay, or other DCC personnel who

were present at the meeting. See

(c).

In summary, I find that the facts and circumstances

described above were adequate to support the belief of a

reasonable police officer, standing in the shoes of Chief Cook,

that Giroux had committed a crime. Giroux has failed to allege

any evidence to suggest that the arrest was carried out in an

unreasonable manner. Because Giroux has failed to state adequate

grounds to establish that his arrest violated the Fourth

-19- Amendment, his false arrest claim fails as a matter of law. I

need not address the other qualified immunity prongs.

B. Fourth Amendment: Timely Judicial Determination of Probable Cause

Giroux also argues that Officer Ware violated his Fourth

Amendment rights by failing to facilitate a timely judicial

determination of probable cause following Giroux’s warrantless

arrest. In support of his claim, Giroux cites the New Hampshire

Attorney General’s Law Enforcement Manual, which states that a

person who is arrested must be brought before the court within 24

hours of the arrest. (N.H. Att’y Gen.’s Law Enforcement Manual,

Ex. J of Pl.’s O b j . to Mot. for Summ. J. at 61.) The Manual also

requires that an arresting officer prepare a “Gerstein” affidavit

if the person was arrested without a warrant.

Under

Gerstein v . Pugh,

(1975), a person suspected of a

crime whose liberty is restrained for more than the brief period

of detention necessary to administratively process the arrest

must be afforded a judicial determination of probable cause in a

timely manner. A Gerstein affidavit is a sworn statement filed

by the arresting officer to provide a proper basis for a judicial

determination of probable cause. In re Holloway,

,

-20- 1083 (D.C. Cir. 1993).

Chief Cook and Officer Ware fail to provide any facts or

legal authority to demonstrate why they are entitled to summary

judgment on this claim. Without additional facts regarding what

happened during the time Giroux was in police custody and during

the bail proceedings, I am unable to conclude that Giroux’s claim

lacks merit and I cannot grant summary judgment on this claim.

If defendants wish to seek summary judgment on this claim, they

may submit a supplement to their motion within 30 days,

describing the undisputed facts and legal authority that would

support summary judgment.

C. First Amendment Claim

Giroux brings a First Amendment claim, arguing that the sign

on his truck that stated “DCC Treasurer Sara Blay Attempted

Possible Tax Fraud” was a “motivating and substantial factor” in

his arrest. (Compl. ¶ 107.) Specifically, Giroux alleges that

Chief Cook interfered with Giroux’s First Amendment right when he

arrested Giroux with the intent to punish him and discourage him

from exercising his rights. (Compl. ¶ 114.) The only evidence

that Giroux provides to substantiate this claim is the fact that,

at the time of his arrest, his truck had a large sign containing

-21- protected speech. Giroux has presented no evidence, however, to

substantiate his claim that Cook arrested him for an

inappropriate or discriminatory reason or as a pretext to stop

Giroux from publicizing his message. Because I find that there

was adequate probable cause for Giroux’s arrest independent of

any consideration about the sign, Giroux’s First Amendment claim

also fails as a matter of law.

D. State Law Claims

Giroux also brings state law claims for intentional and

negligent infliction of emotional distress; defendants have moved

for summary judgment on both claims. Because the basis of

federal jurisdiction over these claims is solely grounded in

supplemental jurisdiction, I will defer ruling on these claims

until defendants provide a supplement to their motion for summary

judgment regarding Giroux’s timely judicial determination of

probable cause claim.

IV. CONCLUSION

For reasons stated above, defendants’ motion for summary

judgment (Doc. N o . 37) is granted in part and defendants are

-22- given 30 days to file a supplement to their motion for summary

judgment on the remaining claim. The clerk is ordered to enter

judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 1 5 , 2008

cc: Daniel J. Mullen, Esq. Philip Giroux, pro se

-23-