Scrocca v. Alton Police Dept., et al. CV-08-42-JL 7/28/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Russell Scrocca et. al

v. Civil No. 1:08-cv-0042-JL Opinion No.

Alton Police Department et. al

O R D E R

This case involves, among other things, the constitutional

due process reguirements of short-term school suspensions. The

plaintiffs, Russell Scrocca and his son Corey Scrocca, brought

this § 1983 civil rights action after Corey's three-day

suspension from Prospect Mountain High School1 and Russell's

subseguent arrest for his conduct at the school challenging the

suspension. See generally

(2000 & Supp. 2005) .

The defendants are Prospect Mountain High School and a former

vice principal, Arthur W. Abelmann (the school defendants), the

Alton Police Department, and Alton Detective Grant Nichols (the

town defendants). The plaintiffs also allege common law

malicious prosecution against Abelmann. Before the court are all

1_See generally N.H. Rev. Stat. Ann. 193:13 (2008) (granting schools the authority to suspend students from school for periods under ten days). the defendants' motions for summary judgment.2 See generally

Fed. R. Civ. P. 56. This court has jurisdiction under

(federal guestion) and 1367 (supplemental jurisdiction) .

After oral argument, the court grants summary judgment in

favor of the defendants. The suspension procedure in guestion

afforded Corey due process under the Fourteenth Amendment as a

matter of law and Russell's arrest was supported by probable

cause under the Fourth Amendment. Finally, the sound basis in

probable cause is also fatal to the malicious prosecution claim.

I. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate if, viewing the record in a

light most favorable to the non-moving party, "the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c); see Fiacco v. Sigma Alpha Epsilon

2The school defendants' motion is alternatively styled as a motion to dismiss, but the best course is to consider materials submitted outside the pleadings. The court, therefore, will consider the school defendants' motion as one for summary judgment. See Fed. R. Civ. P. 12(d) (2009); Trans-Spec Truck Service, Inc. v. Caterpillar, Inc.,

(1st Cir. 2008) (district court has discretion to convert a motion to dismiss to a motion for summary judgment if it chooses to consider materials outside the pleadings).

2 Fraternity,

(1st Cir. 2008). In ruling on a

motion for summary judgment, the court must view all facts in the

light most favorable to the non-moving party, drawing all

reasonable inferences in that party's favor. Estate of Bennett

v. Wainwright,

(1st Cir. 2008) .

The non-moving party "may not defeat a properly focused

motion for summary judgment by relying upon mere allegations or

evidence that is less than significantly probative." Maldonado-

Denis v. Castillo-Rodriguez,

(1st Cir. 1994) .

Accordingly, even "where elusive concepts such as motive or

intent are at issue, summary judgment may be appropriate if the

nonmoving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation." Goldman v.

First Nat'l Bank of Boston,

(1st Cir.

1993)(decided under prior version of the rule)(guotations

omitted); see Estate of Bennett,

; Fiacco, 528

F .3d at 98 .

II. BACKGROUND

Viewed under the summary judgment standard, the record

reveals the following facts. See Fed. R. Civ. P. 56(c). On

3 Wednesday, February 2, 2005,3 a student at Prospect Mountain High

School reported to Vice Principal Abelmann that the student's car

had been vandalized in the school parking lot. According to the

student, Cory Scrocca and another student packed snow in the gas

cap of his car and inserted it back into the vehicle. Abelmann

guestioned Corey and the other student. Both denied the

vandalism. The following morning, after two students reported to

Abelmann that Corey had bragged about the incident, Abelmann met

again with Corey and accused him of lying a day earlier. This

time, Corey admitted lying about his conduct the day before, and

admitted that he had removed the other student's gas cap, but

that it slid into the snow and had to be retrieved from the snow

bank before reinserting it into the car.

Abelmann decided to suspend Corey from school for three

days. He then asked Corey to telephone his mother to pick him up

from school. When she arrived, Abelmann explained the situation

to Mrs. Scrocca, who insisted that Corey had witnessed, but not

participated in, "the prank." During this meeting, Corey neither

admitted nor denied intentionally placing snow in the car.

3The court notes some confusion shared by all parties about the exact calendar dates of the events underlying this case. At the hearing, all concurred that the initial report of vandalism occurred on February 2, 2005 and the suspension took place on February 3, 2005.

4 The next day, Corey's father, Russell Scrocca, telephoned

Abelmann to complain that the three day punishment was too harsh,

and arranged to meet with Abelmann the following Monday. Russell

believed "that Corey had not done anything wrong and that the

discipline was too harsh for [the] conduct alleged -- allowing a

gas cap to fall in snow and allegedly lying to Abelmann."

Abelmann claims that at their Monday meeting, Russell became

agitated and acted in such an "unpleasant" and threatening manner

that he asked Russell to leave. After a brief "discussion" in

the hallway, Russell Scrocca left the school building.

Russell's summary judgment affidavit states only that

"Abelmann then accused me of being loud. I told Abelmann I was

not being loud." Abelmann, however, reported to the Alton Police

Department's on-campus "school resource officer" that during the

course of their meeting, Russell became "louder and more

irritated with me and my decision." According to Abelmann,

Russell became "more loud and more agitated and insisted that he

could and would take care of physically punishing his son and

that I should not have removed him from school for three days."

Abelmann claims that Russell continued to "speak loudly," "yell"

and "threaten" him as he escorted Russell out of the school.

Russell threatened to complain to the superintendent and the

local television media, and told Abelmann that he "better look

5 for another job." A number of office workers reported4 that

while standing in the school office, Russell "was looking for a

fight," and further raised his voice, asking Abelmann, "What are

you going to do ... are you going to put your hands on me?"

Abelmann replied that he was not going to touch Russell and

simply asked him to leave the building.

Defendant Grant Nichols, an Alton police detective,

investigated Abelmann's report of the incident. Detective

Nichols took Abelmann's statement, interviewed witnesses at the

school, spoke with the school superintendent, contacted the

family of the alleged victim of the vandalism, and had a

telephone conversation with Russell Scrocca. Witness reports

collected from three office workers at the high school shortly

after the incident describe Russell's behavior as agitated,

threatening, and loud. One worker told Detective Nichols that

she feared for Abelmann's safety.

At one point, Russell went to the police department to

complain about the investigation to Detective Nichols' superior.

Captain Anderson. Nichols himself eventually joined the meeting,

and suggested that the entire matter could be dropped if Russell

apologized to Abelmann. Russell refused and left the station.

41he reports were made during the police investigation described infra.

6 After Detective Nichols consulted with an assistant county

attorney on the drafting of an affidavit, and presented the

affidavit and warrant application to a neutral and detached

magistrate5 who found probable cause, a criminal complaint and

warrant issued for Russell Scrocca's arrest for creating a

disturbance at school. See N.H. Rev. Stat. Ann. 193:11 (2008) .

The charge was later amended to disturbing the peace, see N.H.

Rev. Stat. Ann. ch. 644 (2008), and eventually was placed on file

and dismissed by the County Attorney. The Laconia District court

granted Russell's subseguent motion to annul the arrest.6

The plaintiffs filed this action, alleging: (1) that the

school defendants violated Corey's constitutional rights by

suspending him without sufficient due process (Count 1), see U.S.

Const. Amend. XIV;

; (2) that the town defendants

arrested Russell without probable cause (Count 2), see U.S.

Const. Amend. IV;

; and (3) common law malicious

prosecution against Abelmann (Count 3) .

5Although they allege a conspiracy between the Alton police and the Prospect Mountain school administration, the Scroccas do not challenge the impartiality of the Justice of the Peace that issued the arrest warrant.

6See Town Defendants' Answer, Ex. A. Under state law, the arrest is thus treated as never having occurred. See N.H. Rev. Stat. Ann. 651:5 (2008 & Supp. 2009).

7 III. ANALYSIS

The defendants' motions raise various immunity defenses:

discretionary function, qualified, and official immunity.

Because there are no genuine issues of material fact creating

legitimate constitutional questions as to the defendants'

conduct, however, it is not necessary to analyze the case through

the lens of the various immunities. Nor does the court address

the school defendants' statute of limitations defense. The

school, the police department, and their respective employees are

entitled to judgment as a matter of law because their conduct

unquestionably did not violate the plaintiffs' constitutional

rights.

A. Due process violation (Count 1)

The school defendants contend that summary judgment is

appropriate because Corey Scrocca was suspended after having

received due process, including notice and an opportunity to be

heard. The court agrees.7

7Although the court exercises its discretion to decide this motion under the summary judgment standard, see generally, Trans- Spec Truck Service, Inc.,

, the school defendants also would prevail under the Rule 12(b) (6) dismissal standard because the allegations in the complaint describe events which afforded Corey due process as a matter of law.

8 In the context of school suspensions of less than ten days,

the Fourteenth Amendment entitles a student to "oral or written

notice of the charges against him, and, if he denies them, an

explanation of the evidence . . . and an opportunity to present

his side of the story."8 Goss v. Lopez,

(1975); Donovan v. Ritchie,

(1st Cir. 1995); U.S.

Const, amend. XIV. The process need not be particularly lengthy

or formal.

"In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. In order for the student to explain his version of the facts at this discussion, he should first be told what he is accused of doing and what the basis of the accusation is."

Donovan,

(guotations, citations, and brackets

omitted) ("Reguiring that there be at least an informal give-and-

take between student and disciplinarian, . . . would at least

give the student the opportunity to characterize his conduct and

put it in what he deems the proper context."); see, also, Martin

v. Shawano-Gresham Sch. Dist.,

, 706-07 (7th Cir.

2002). As the Eleventh Circuit Court of Appeals put it, "[t]he

8The school does not dispute that Corey was entitled to a measure of due process rather, it asserts that Corey was afforded sufficient due process. See, e.g., Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,

(3rd Cir. 2005) (Fourteenth Amendment implicated when state provides entitlement to a public education).

9 dictates of Goss are clear and extremely limited: Briefly

stated, once school administrators tell a student what they heard

or saw, ask why they heard or saw it, and allow a brief response,

a student has received all the process that the Fourteenth

Amendment demands." C.B. By and Through Breeding v. Driscoll,

(11th Cir. 1996); see S.G. v. Sayreville Bd. of

Educ.,

(3rd Cir. 2003)(upholding suspension

of kindergarten student after informal discussion between student

and administrator); Martin, 295 F.3d at 706-07.

Corey received due process under the circumstances. He had

two discussions with Abelmann: one on the afternoon of the

incident, another the next day. He had an additional meeting

with Abelmann after his mother arrived at school to pick him up.

In each discussion, Abelmann provided notice to Corey of the

nature of the allegations against him - initially vandalism and

then lying to Abelmann - and their basis in the form of firsthand

accounts provided by other students. In each discussion, Corey

offered his explanation of the events.9 Under Goss, as

9Much of the Scroccas' apparent displeasure stems from a belief in the unfairness of Abelmann's apparent rejection of the contention that the other student involved was more culpable or that suspension was unwarranted because this was merely a "prank." This court, however, concerns itself only with the guestion of whether Corey was notified of his alleged offense and given a sufficient opportunity to present his version of the facts in guestion. C f . Goss,

("Judicial

10 interpreted by Donovan, neither Abelmann nor Prospect Mountain

High School violated Corey's due process rights.10

interposition in the operation of the public school system of the Nation raises problems reguiring care and restraint." (Quotations omitted)). It is worth also mentioning, without deciding (because it is unnecessary, see supra at 8), that the doctrine of discretionary immunity would likely shield the school defendants in this decision making context. See, e.g., Brodeur v. Claremont Sch. Dist., ___ F. Supp.2d ____,

at *2 0 (D.N.H. June 12, 2009); Tarbell Adm'r Inc. v. City of Concord,

(N.H. 2008).

10The plaintiffs attach and cite Abelmann's report regarding the suspension to claim that Abelmann decided to suspend Corey before hearing his side of the story, but the report does not support this claim. It states that Corey was suspended on a Thursday. The incident was reported by a student the prior afternoon (Wednesday) and Abelmann spoke to Corey as he "returned from the parking lot that day." The following morning (Thursday), Corey was called to Abelmann's office after two students reported Corey's alleged "bragging." Abelmann's report states that at that meeting, Corey admitted lying about the incident the prior afternoon. It was at that point that Abelmann asked Corey to call his mother to remove him from the school building, initiating the suspension. Certainly, Corey had at least two opportunities to present his side of the story (Wednesday afternoon and Thursday morning) before his suspension.

Further, the plaintiffs also fault Abelmann for deciding to suspend Corey before meeting with both Corey and his mother. Where short term suspensions are involved, due process does not reguire parental presence or participation during the informal give-and-take between students and administrators. See, e.g., S .G .,

(upholding suspension of kindergarten student despite the fact that discussion was between student and administrator only); Martin, 295 F.3d at 706-07 (suspension discussions took place without parent present).

11 B. Unlawful arrest (Count 2)

The town defendants, the Alton Police Department and

Detective Nichols, contend that the undisputed facts demonstrate

that they had probable cause to arrest Russell Scrocca, thus

negating the possibility of a constitutional violation.11 Even

viewing the facts in a light most favorable to the plaintiffs,

Russell's arrest did not violate his Fourth Amendment rights.12

The Fourth Amendment reguires that an arrest be supported by

nThe plaintiffs also allege something of a conspiracy between Abelmann and Nichols to use the arrest to coerce Russell Scrocca to "drop raising the issue of his son's . . . suspension . . . ." Compl. 524. A party cannot rely on "unsupported speculation" or "improbable inferences" at summary judgment. Estate of Bennett,

. The basis of the conspiracy allegation is Detective Nichols' suggestion that the entire matter might be dropped if Scrocca would apologize to Abelmann. This far-fetched theorizing is insufficient. C f . Nat'1 Amusements, Inc., v. Town of Dedham,

(1st Cir. 1995); Goldman,

.

12Having concluded that there was no constitutional violation, the court need not engage in a separate gualified immunity analysis. The test established by the Supreme Court asks: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was clearly established at the time of the defendant's alleged violation such that a reasonable officer would have understood that his or her conduct violated that right. Pearson v. Callahan, 129 S. C t . 808, 815-16 (2009); see also, Maldonado v. Fontanes,

(1st Cir. 2009) (specifically abandoning substantively identical three-part test in favor of Pearson's two part test). Again, while a full-blown application of the doctrine is unnecessary, and is therefore not undertaken here, the defense seems to have a sound basis in the facts of this case.

12 probable cause. See U.S. Const, amends. IV, XIV; Wilson v. City

of Boston,

(1st Cir. 2005). "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." Wilson,

(guotations and brackets omitted).

Russell was arrested for creating a disturbance in school in

violation of

, which provides:

"Disturbance. Any person not a pupil who shall willfully

interrupt or disturb any school shall be guilty of a

misdemeanor." Thus, the issue, stated in terms of the probable

cause standard as applied to the criminal statute, is whether the

police could have reasonably concluded, based upon trustworthy

information, that Russell Scrocca "interrupted or disturbed" the

school.13

13The plaintiff recognizes in his objection that the arrest warrant alleges that the administrative staff of the school were disturbed by Russell Scrocca's alleged behavior. Pis.' Obj. to Town Defs.' Mot. for Summ. J. at 5. He contends, however, that there were no facts to support the conclusion that the statute was violated because "Not the school or any pupils at the school were disturbed."

This argument is without merit. "Wherever possible, statutes should be construed in a commonsense manner, honoring plain meaning, and avoiding absurd or counter-intuitive results." U.S. v. Carroll,

(1st Cir. 1997) (citations omitted). Although the statute is not drafted with great precision, it would be absurd to read the statute as reguiring an entire building to be disturbed, or allowing for

13 Probable cause supported Russell's arrest. Detective

Nichols interviewed Abelmann, who characterized Russell Scrocca's

behavior as loud, disturbing and startling. He also obtained

eyewitness accounts from three members of the Prospect Mountain

staff who described Russell Scrocca's behavior at the school as

aggressive, startling, loud, distracting, or threatening, thus

corroborating Abelmann's account and contradicting Russell's.14

Indeed, Russell's behavior reportedly left one employee fearful

for Abelmann's safety. It was reasonable, therefore, for the

police to conclude that Russell created a disturbance at Prospect

Mountain High School,15 thus establishing probable cause for his

administrative staff, teachers, or other employees to be disturbed so long as the building's physical plant or students remain sheltered from the disturbance. C f . Margues v. Fitzgerald,

(1st Cir. 1996)("[A] statute may not be construed in a manner that results in absurdities or defeats its underlying purpose.")

14Neither the complaint nor Russell's affidavit contain factual assertions disputing the statements that the three school office workers made to Detective Nichols. In fact, Russell never directly denies being loud. Rather, he alleges only that "Abelmann claimed that Russell became loud and angry with him during the meeting and threatened him generally . . [and] Abelmann claimed that Russell continue [sic] to be loud and yell at him while leaving the High School." Compl. at 5 12; see also Pi's Obj. to Town Defs.' Mot. for Summ. J., Ex. A at 2 ("Abelmann then accused me of being loud. I told Abelmann I was not being loud.").

15Even assuming that Russell's allegations undermine the trustworthiness of Abelmann's complaint, the corroborating statements of the other three witnessesat the school (undisputed by Russell) validates the conclusion that probable cause

14 arrest.16,17 As no genuine issue of material fact undermines the

conclusion that the town defendants' conduct was constitutionally

permissible, they are entitled to summary judgment.

C. Malicious prosecution (Count 3)

Finally, defendant Abelmann contends that the state law

malicious prosecution claim against him should be dismissed. The

court agrees. As explained supra Part III.B, because probable

cause supported Russell's arrest, he cannot possibly sustain his

burden of proof.

supported the arrest. C f . Mutter v. Town of Salem,

(D.N.H. 1996) (probable cause existed even though it was based on a victim's statement where police officer's investigation revealed other facts and circumstances making it objectively reasonable to rely on victim's statement); see also White v. Town of Marblehead,

(D.Mass. 19 97)(same).

16Russell attempts to manufacture a fact controversy by contending that "Nichols knew from the beginning that no crime had been committed" and conspired with Abelmann, such that Nichols threatened arrest "to protect his friend the assistant principal Abelmann." This argument, however, is based on rank speculation. Summary judgment cannot be avoided by a non­ movant's conclusory allegations, improbable inferences, and unsupported speculation. See Estate of Bennett,

; see also supra Part III.B n.10.

17It is also worth noting, though not itself dispositive, that both the county prosecutor and the warrant-issuing magistrate evidently believed that probable cause supported the school disturbance charge. See Gidley v. Oliveri, ___ F. Supp. 2d ____,

(D.N.H. June 25, 2009)^

15 "A successful malicious prosecution claim requires, among

other things, a lack of probable cause for the charge." Gidley,

F. Supp.2d ____ , 200

62, *10; see Martin v. Applied

Cellular Tech., Inc.,

(1st Cir. 2002); Paul v.

Sherburne,

(N.H. 2006); ERG, Inc. v. Barnes,

(N.H. 1993).

Russell is unable to satisfy the second element, namely,

that Abelmann acted without probable cause.18 A party has

probable cause to initiate civil or criminal proceedings if it

has knowledge of facts that would lead a person "of ordinary

caution and prudence to believe or entertain an honest and strong

suspicion" that the accused has committed a civil wrong or crime.

MacRae v. Brant,

(N.H. 1967). "If the

defendant had such information as would reasonably lead him to

believe that the accused had committed a crime, it is immaterial

that the defendant may have been actuated by malice or motives

that were less than noble in bringing the charge." Stock v.

Byers,

(N.H. 1980); see Martin,

.

Thus, even if there is a fact dispute as to the motivation of the

18While the determination of facts relevant to the existence of probable cause is left to a fact finder, the existence of probable cause is ultimately a question of law to be decided by the court. Martin,

; see Paul,

.

16 complaining party, "the absence of probable cause cannot be

inferred from even express malice." Martin,

(quotations and brackets omitted). Likewise, probable cause does

not depend on the ultimate disposition of the complaint against

the plaintiff.

Abelmann could have reasonably believed that Russell had

created a disturbance at Prospect Mountain High School. First,

as noted above, the police report details three eyewitness

accounts from office workers (and that of Abelmann) describing

Russell's behavior as loud, startling, and threatening, all of

which corroborate Abelmann's internal report.19 Finally, Russell

Scrocca's affidavit addresses only Abelmann's accusation that he

was being loud, and his denial. It contains no disputative

facts, or even conclusory allegations regarding his own

disruptiveness or Abelmann's reasonable assessment to that

effect. See supra Part II. As such, as a matter of law,

Abelmann can not be said to have acted without probable cause.20

19Again, Abelman's report was provided to the court, and is relied on to establish facts, by the plaintiffs.

201he plaintiffs attempt to demonstrate lack of probable cause by asserting malice on the part of Abelmann. As noted above, even if it is assumed that there was malice, this inference cannot be drawn. See Martin,

.

17 The court therefore grants summary judgment on this count in

favor of Abelmann.

IV. CONCLUSION

For the reasons set forth above, the court grants both the

school defendants'21 and the town defendants'22 motions for

summary judgment. All other motions are denied as moot. The

clerk is directed to enter judgment for the defendants and to

close the case.

SO ORDERED.

Dated: July 28, 2009

cc: Richard C. Mooney, Esq. R. Matthew Cairns, Esq. Dean B. Eggert, Esq.

21Document no. 30.

22Document no. 34.

18