UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eric Taylor

v. Case N o . 11-cv-341-PB Opinion N o .

The City of Manchester, et a l .

MEMORANDUM AND ORDER

The claims in this case arise out of an incident that began

as Eric Taylor led his intoxicated girlfriend through a crowded

festival in Manchester. The incident culminated in Taylor’s

arrest and criminal prosecution for assault, disorderly conduct,

and resisting arrest. Taylor alleges that the police officers

involved in his arrest violated his civil rights and caused him

serious injury when they unlawfully seized, arrested, detained,

and confined him. He asserts federal claims for false arrest,

excessive force, malicious prosecution, and a violation of his

due process rights against the City of Manchester, the

Manchester Police Department, and the four officers involved in

his arrest and subsequent transport to the police station: Todd

Leshney, Chad Tennis, Robert Gravelle, and George Mallios. He

also presents state claims against the same defendants for false imprisonment, malicious criminal prosecution, assault and

battery, and negligence. The defendants move for summary

judgment. Taylor objects. For the reasons set forth below, I

grant defendants’ motion in part and deny it in part.

I. BACKGROUND

On the evening of May 2 5 , 2008, Taylor and his girlfriend,

Kaela Silvia, attended an open air concert and fireworks display

in Manchester, New Hampshire called the Rock 101 Sky Show. At

approximately 9:00 p.m., Taylor found Silvia walking around the

festival alone and intoxicated. On finding her, Taylor decided

it was time to leave and guided Silvia through the crowd toward

the car by her hand. Silvia wanted to stay at the Sky Show, but

agreed to leave and did not resist. As they were exiting,

Taylor and Silvia stopped underneath a bridge by the entrance to

the park and had what he describes as “a little argument.”

Taylor testimony, Doc. N o . 11-4.

Around the same time, James Marron, who was also attending

the Sky Show, was standing about 15 yards up the hill from the

entrance to the park with two of his friends. Marron was

watching the crowd and talking to Officer Leshney. Josh Eaton,

2 one of Marron’s friends, was the first to notice Taylor and

Silvia. He said something to the effect of “Hey guys look at

this.” Marron deposition, Doc. N o . 11-7. In response to

Eaton’s comment, Marron looked to his left and observed a man

(Taylor) pulling a woman (Silvia) by the arm.1 Marron then said

to Officer Leshney, “Hey, Todd, you might want to take care of

this.” 2

At this point, the facts begin to diverge. Taylor and

Silvia claim that Taylor did not have any physical contact with

Silvia during the course of their argument. Taylor testimony,

1 Marron also states that h e : (1) heard Silvia say, “You’re hurting me”; (2) heard someone in what appeared to be a group of the woman’s female friends say something to the effect of “Let her g o . You’re hurting her”; and (3) heard the man yell at the woman, “Fucking come with me right now.” Marron deposition, Doc. N o . 11-7. There is no evidence in the record to suggest that Marron told Officer Leshney what he had heard. 2 It is not clear from the record exactly what Marron said to Officer Leshney. In his deposition, Marron recalls saying, “Hey, Todd, you might want to take care of this” or “You might want to take care of this before I have to.” Later in his deposition, Marron mentioned that he told Officer Leshney that “he’s hurting her” or “he accosted her.” Leshney’s affidavit states that Marron said to him, “That guy just hit a girl or his girlfriend” or words to that effect. Marron maintains that he never saw the man hit the woman and never told Officer Leshney that he saw the man hit the woman. While he may have characterized his statements differently at different times, I take the version most favorable to Taylor when ruling on the present motion. 3 Doc. N o . 11-4; Silvia testimony, Doc. N o . 11-2. Taylor did not

assault Silvia, hit her, yank on her, or do anything physically

inappropriate to her at all. Taylor testimony, Doc. N o . 11-4;

Silvia testimony, Doc. N o . 11-2. Nevertheless, while they were

arguing under the bridge, Taylor felt a hand grab his throat and

he was thrown to the ground. He did not know that he was being

taken to the ground by a police officer because he was

approached from behind. Taylor hit the ground on his upper back

and suffered a fractured vertebra and collapsed disk.

Officer Leshney claims that he turned around and saw Taylor

pulling Silvia by the wrist. He saw her slap Taylor’s hand and

heard her yell, “No, let me go!” as she attempted to pull her

wrist away. Officer Leshney signaled to Officer Chad Tennis to

assist him and approached Taylor and Silvia. As he was

approaching, Officer Leshney observed Taylor pull Silvia in his

direction causing her to lose her balance and almost fall.

Officer Leshney claims he made eye contact with Taylor and said,

“Let her go.” Officer Leshney then grabbed Taylor’s wrist,

separated him from Silvia, rolled his wrist outward, put his

hand in the area of Taylor’s neck, stepped behind him, planted

Taylor’s back on the pavement, and identified himself as a

4 police officer.

Taylor claims that after Officer Leshney slammed him into

the pavement, Leshney turned Taylor onto his stomach, trapping

his hands beneath his body. At some point, Officer Tennis

arrived to assist Officer Leshney with the arrest. While Taylor

was on his stomach with his hands under his body, someone

yelled, “Give me your hands.” Taylor was unable to move his

hands because “two or three people” had their knees on his back

and neck. Officers Tennis and Leshney dragged Taylor’s hands

out from underneath him, scraping the tops of Taylor’s hands,

and put handcuffs on him. While pinned to the ground, Taylor

felt afraid, did not know what was going to happen to him or why

he was being seized, and did not realize that the people seizing

him were police officers. Taylor was upset and yelling. Taylor

deposition, 11-6.

The officers handcuffed Taylor and brought him to his feet.

Taylor noticed the Manchester police uniform when he was lifted

up off the ground. Without conducting any additional

investigation, Officer Leshney yelled loud enough for those

nearby to hear that Taylor had hit his girlfriend. Although

Taylor denied Officer Leshney’s claim, he was dragged over to

5 the police cruiser by the handcuffs.

At the time of the incident, Officer Tennis was standing

near Officer Leshney. Officers Tennis and Leshney were assigned

to patrol together that night. Officer Tennis saw Officer

Leshney get into a “scuffle” with Taylor and take him to the

ground.3 Officer Tennis noticed that Taylor was resisting arrest

and went to assist Officer Leshney put handcuffs on Taylor.

Tennis affidavit, Doc. N o . 7-3.

Officers Gravelle and Mallios were driving the transport

wagon on May 2 5 , 2008 and did not arrive on the scene until

after Taylor had been handcuffed and brought over to the police

cruiser. Officer Gravelle was driving the transport wagon, and

has no recollection of Taylor from that night. Gravelle

deposition, Doc. N o . 7-5. Officer Mallios states that Taylor

was handcuffed and on his feet when they arrived at the scene.

Mallios deposition, Doc. N o . 7-4. He states that Taylor was

kicking, banging, and screaming in the transport wagon as they

drove him to the police station.

When they arrived at the

station, Officer Mallios remembers Taylor banging his head

3 Officer Tennis says he saw Officer Leshney “transitioning” Taylor to the ground. Tennis affidavit, Doc. N o . 7-3. Taylor says he was “thrown” or “whipped” to the ground. Taylor testimony, Doc. N o . 11-4. 6 against the cinder block wall.

After Officers Gravelle and Mallios drove Taylor to the

police station in the transport wagon, Officer Leshney met

Taylor there and booked him. At station, Taylor asked Officer

Leshney why he had been arrested and Officer Leshney told Taylor

that a bystander claimed that he had hit Silvia.

Officer Leshney filled out an incident report identifying

the following charges: (1) one count of assault on a police

officer; (2) one count of domestic assault; (3) disorderly

conduct; and (4) resisting arrest. Doc. N o . 11-9.

Taylor was acquitted at a trial in Manchester District

Court on October 1 6 , 2008.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

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

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .

Pfizer Corp.,

0 , 94 (1st Cir. 2001) (quoting Griggs-

7 Ryan v . Smith,

1 2 , 115 (1st Cir. 1990)).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v . Catrett,

1 7 , 323 (1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v . One Parcel of Real Property with

Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson v .

Liberty Lobby, Inc.,

4 2 , 248 (1986)). If the moving

party satisfies this burden, the burden 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

Defendants move for summary judgment on all counts. I

first address Taylor’s federal constitutional claims against

Officer Leshney. Next, I consider Taylor’s claims against the

other individual defendants. I then turn to Taylor’s federal

failure to train claim against the Manchester Police Department.

8 Finally, I address Taylor’s state law claims against Officer

Leshney and the Manchester Police Department.

A. Federal Claims Against Officer Leshney

Taylor asserts several constitutional claims against

Officer Leshney. He alleges that Officer Leshney lacked

probable cause to arrest him and used excessive force to

effectuate the arrest. Taylor also presents claims against

Officer Leshney for malicious prosecution and a violation of his

due process rights. Officer Leshney challenges these claims by

contending that he is entitled to qualified immunity.

The doctrine of qualified immunity protects “government

officials performing discretionary functions ... 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.” Mutter v . Town of Salem,

0 2 , 405 (D.N.H. 1996) (quoting Harlow v .

Fitzgerald,

0 0 , 818 (1982)). A two-part inquiry is

used to determine whether an officer is entitled to qualified

immunity: “(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and

(2) if s o , whether the right was ‘clearly established’ at the

9 time of the defendant’s alleged violation”. Glik v . Cunniffe,

8 , 81 (1st Cir. 2011) (quoting Maldonado v . Fontanes,

(1st Cir. 2009)). “Immunity exists even where

the abstract ‘right’ invoked by the plaintiff is well-

established, so long as the official could reasonably have

believed ‘on the facts’ that no violation existed.” Mlodzinski

v . Lewis,

4 , 33 (1st Cir. 2011) (quoting Dirrane v .

Brookside Police Dep’t,

5 , 69 (1st Cir. 2002)).

1. Unlawful Arrest

Police officers are entitled to qualified immunity for a

Fourth Amendment claim arising from an otherwise lawful

warrantless arrest “so long as the presence of probable cause is

at least arguable.” Glik,

(quoting Ricci v .

Urso,

, 7 (1st Cir. 1992)). Probable cause to arrest

exists when “the facts and circumstances within [the police

officers'] knowledge and of which they had 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,

(1st Cir. 1992) (alterations in original) (quoting United States

v . Figueroa,

(1st Cir. 1987).

10 Taking the facts in the light most favorable to Taylor, no

reasonable officer could have found probable cause to support a

belief that Taylor had assaulted his girlfriend. See Glik,

8 . Marron said something along the lines of “Todd, you

better take care of this” to Officer Leshney. When Officer

Leshney looked over, he would have seen Taylor and Silvia having

a “little argument” under the bridge. Taylor was slightly

irritated, but not angry, and was not being physically forceful

towards Silvia. No reasonable officer could have concluded from

these facts that Taylor had committed a crime. See United

States v . Torres-Maldonado,

5 , 105 (1st Cir. 1994)

(holding that to establish probable cause, the government must

demonstrate that “at the time of the arrest, the facts and

circumstances known to the arresting officers were sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense”).

2. Excessive Force

Police officers violate an arrestee’s Fourth Amendment

right to be free from excessive force if they use more force

than is objectively reasonable under the circumstances to

effectuate an arrest. Graham v . Connor,

, 396–97

11 (1989). To succeed on an excessive force claim, a plaintiff

must establish that the defendants' actions in making the arrest

were objectively unreasonable in light of the facts and

circumstances known to the arresting officer on the scene at the

time of the arrest. Calvi v . Knox Cnty.,

2 2 , 428

(2006).

Determining whether the force used to make an arrest was

reasonable is a fact based inquiry. Graham,

.

Factors courts consider include: “the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest[.]” Jennings v .

Jones,

, 11 (1st Cir. 2007) (quoting Graham,

9 6 ) .

An officer may be entitled to qualified immunity from an

excessive force charge even if the force used was excessive

under the circumstances. To overcome a qualified immunity

defense to an excessive force claim, a plaintiff must “show an

incommensurate use of force beyond that needed to establish a

garden-variety excessive force claim and, further, beyond the

‘hazy border’” between acceptable and excessive force. Morelli

12 v . Webster,

2 , 24 (1st Cir. 2009) (quoting Saucier v .

Katz,

9 4 , 206 (2001)).

Construing the facts in the light most favorable to Taylor,

and viewing those facts from the perspective of a reasonable

officer, a reasonable jury could find that Officer Leshney used

excessive force when he arrested Taylor. According to Taylor,

he had engaged only in a verbal argument with his girlfriend.

He was not being physically forceful towards her. Taylor

testimony, Doc. N o . 11-4. Taylor was not committing a crime or

doing anything that could be misunderstood as a crime when

Officer Leshney allegedly approached from behind, hit Taylor’s

neck with his forearm, and slammed him to the pavement. See

Taylor did not pose an immediate threat to the safety of the

officers or others and was not actively resisting arrest when

Officer Leshney allegedly struck him. See

Accordingly,

Officer Leshney’s alleged conduct “was such an obvious violation

of the Fourth Amendment’s general prohibition on unreasonable

force that a reasonable officer would ... be on notice that his

conduct was unlawful.” See Jennings,

7 . Thus, he

is not entitled to qualified immunity on the present record.

3. Malicious Prosecution

13 Taylor appears to base his federal malicious prosecution

claim on both the Fourteenth Amendment’s due process clause and

the Fourth Amendment. As I explain, however, neither provision

provides him with a basis for relief.

Taylor cannot maintain a substantive due process claim for

malicious prosecution because the First Circuit has held that

“‘substantive due process may not furnish the constitutional peg

on which to hang’ a federal malicious prosecution tort.” Nieves

v . McSweeney,

6 , 53 (1st Cir. 2001) (quoting Albright

v . Oliver,

, 271 n.4 (1994)). To the extent that he

seeks to couch his claim as a procedural due process violation,

the claim is also a non-starter because New Hampshire law

provides an adequate state law remedy for malicious

prosecution. See Perez-Ruiz v . Crespo-Guillen,

0 , 43

(1st Cir. 1994) (procedural due process claim for malicious

prosecution unavailable where an adequate remedy is available

under state l a w ) .

The First Circuit has not yet determined whether a

plaintiff may base a malicious prosecution claim on the Fourth

Amendment. See Harrington v . City of Nashua,

4 , 30

(1st Cir. 2010) (leaving question unresolved). In a case like

14 this, however, where the plaintiff was arrested without a

warrant, there can be no viable federal malicious prosecution

claim based on the Fourth Amendment unless the plaintiff can

demonstrate a post-arraignment deprivation of liberty that

qualifies as a seizure under the Fourth Amendment.

at 3 2 .

Taylor has failed to point to any evidence to support this

element of his claim. Accordingly, he may not maintain a

malicious prosecution claim against Officer Leshney under

federal law.

4. Due Process Claims

Taylor argues that Officer Leshney violated his substantive

due process rights by unlawfully detaining him for several hours

following his arrest. He also claims that Officer Leshney

violated both his substantive and procedural due process rights

by failing to properly investigate the charges brought against

Taylor. Both claims lack merit.

The Supreme Court has long recognized that “[w]here a

particular Amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of

government behavior, ‘that Amendment, not the more generalized

notion of “substantive due process,” must be the guide for

15 analyzing [such] claims.” Albright,

(plurality

opinion) (quoting Graham,

9 5 ) . The detention that

Taylor seeks to challenge is the routine detention that resulted

from his arrest. Because he may sue under the Fourth Amendment

to challenge the lawfulness of his arrest, he has no claim that

the arrest and the detention that followed also violated his

right to due process.

Taylor’s failure to investigate claim also fails. To the

extent that Taylor bases his claim on Officer Leshney’s alleged

failure to investigate before arresting him, his claim is

cognizable, if at all, only under the Fourth Amendment.

Further, once an arrest has been effectuated, police officers

have no affirmative duty to investigate when a person in custody

proclaims their innocence. See Baker v . McCollan,

3 7 ,

145–46 (1979); see also Thompson v . Olson,

5 2 , 556

(1st Cir. 1986) (“Once the arrest has been properly effected, it

is the magistrate and not the policeman who should decide

whether probable cause has dissipated to such an extent

following arrest that the suspect should be released.”). Thus,

Taylor is not entitled to assert a failure to investigate claim

against Officer Leshney under the due process clause.

16 B. Claims Against Tennis, Gravelle, and Mallios

Taylor asserts federal claims against Officers Tennis,

Gravelle, and Mallios for unlawful arrest, excessive force,

malicious prosecution, and a violation of the due process

clause. He also asserts state law claims against the same

officers for assault and battery, false imprisonment, malicious

prosecution, and negligence.

While there is some disagreement about what Officer Tennis

saw and did, Taylor’s claims against him are unsupportable even

when I resolve all conflicts in the evidence in Taylor’s favor.

First, there is simply no support in the record for any claim

that Tennis arrested Taylor, used excessive force against him,

or maliciously prosecuted him. If anyone can be held liable for

these acts, it is Officer Leshney, not Officer Tennis. To the

extent that Taylor claims that Officer Tennis is liable because

he failed to prevent Officer Leshney from violating Taylor’s

constitutional rights, the record does not support a claim that

Officer Tennis knew enough about what had happened immediately

prior to Taylor’s arrest to form a view about the propriety of

Officer Leshney’s actions. Without such evidence, a reasonable

jury could not conclude that Officer Tennis violated Taylor’s

17 rights by failing to intervene to stop Office Leshney from

arresting him.

Taylor has even less evidence to support his claims against

Officers Mallios and Gravelle. Both officers became involved in

the case only after Taylor had been arrested and neither officer

was responsible for his prosecution. Accordingly, Taylor has no

basis for any of his claims against Officers Tennis, Mallios, or

Gravelle.

C. Failure to Train

Taylor brings a federal claim against the Manchester Police

Department for failing to train Officer Leshney and his fellow

officers “to not exert excessive force when seizing and

arresting an individual, to identify themselves as police

officers prior to seizing and arresting an individual, and to

appropriately investigate whether a crime has been committed

prior to and/or after seizing and/or arresting an individual.”

Doc. N o . 1-1.

Local governments ordinarily cannot be held liable under §

1983 unless a plaintiff is able to prove that he was injured as

a result of “official municipal policy.” Connick v . Thompson,

(2011). Although a decision by a

18 government entity not to train its employees may qualify as a

municipal policy, the failure to train must rise to the level of

“deliberate indifference to the rights of persons with whom the

[untrained employees] come into contact.”

(quoting City of

Canton v . Harris,

7 8 , 388 (1989)).

Here, Taylor’s claim fails because he has not provided any

evidence to prove that Manchester’s failure to train its

employees evidences a “deliberate indifference” to the rights of

the City’s inhabitants. See id. Although Taylor asserts that

Officer Leshney was not adequately trained because he stated in

his affidavit that “[t]he maneuver I used to take [Taylor] down

was part of my law enforcement training,” Doc. N o . 7-2, the

maneuver he was describing was very different from what Taylor

claims actually happened. Because Taylor offers no other

evidence to support his claim, it necessarily fails.

D. State Law Claims Against Officer Leshney

Taylor has sued Officer Leshney under state law for assault

and battery, false imprisonment, and malicious prosecution.

Leshney responds by arguing that the evidence will not support

any of Taylor’s state law claims. I first address the assault

19 and battery and false imprisonment claims together and then

separately address Taylor’s malicious prosecution claim.

1 . Assault and Battery and False Imprisonment

Leshney’s challenge to Taylor’s assault and battery and

false imprisonment charges are based upon his assertion that he

used the minimum amount of force that was required to arrest

Taylor and that he was justified in making the arrest because he

had probable cause to believe that Taylor had assaulted his

girlfriend. The problem with this argument is that it fails to

follow the summary judgment standard. As I have explained, when

I rule on a motion for summary judgment, I must view the

evidence in the light most favorable to the non-moving party.

Using this standard, I must reject Leshney’s request for summary

judgment because, if a reasonable jury accepted Taylor’s view of

the evidence, it could find that Officer Leshney both assaulted

Taylor and falsely imprisoned him.

I am also not persuaded by Officer Leshney’s argument that

he is entitled to official immunity. Official immunity cannot

save Officer Leshney at the summary judgment stage because a

reasonable jury could conclude from the evidence that he acted

wantonly or recklessly when he assaulted Taylor and arrested him

20 without probable cause. See Castro v . Panica, N o . 10-cv-554-PB,

, at *23-24 (D.N.H. July 1 7 , 2012) (explaining

official immunity doctrine and concluding that officer did not

have official immunity because evidence permitted conclusion

that he acted wantonly or recklessly).

2. Malicious Prosecution

To succeed on a malicious prosecution claim in New

Hampshire, Taylor must “prove that he was subjected to a

criminal prosecution instituted by the defendant without

probable cause and with malice, and that the criminal proceeding

terminated in his favor.” See Robinson v . Fimbel Door Co.,

4 8 , 350 (1973). Leshney’s primary argument is that he

cannot be held liable for malicious prosecution because the

undisputed evidence establishes that it was the City Solicitor

who decided to prosecute Taylor rather than Officer Leshney.4

The Restatement (Second) of Torts recognizes that a person

who causes a third party to institute criminal charges against

4 Officer Leshney also argues that the malicious prosecution claim fails because he had probable cause to institute charges against Taylor. I reject this argument for the same reason that I rejected Officer Leshney’s challenges to Taylor’s false imprisonment claim. When I view the evidence from Taylor’s perspective, it will support a reasonable jury verdict that Leshney lacked probable cause to charge Taylor. 21 someone can be liable for malicious prosecution if the other

elements of the claim are satisfied. See Restatement (Second)

of Torts, § 653 (1977). Cases in a number of jurisdictions have

also held that a defendant who causes charges to be brought

against someone by presenting false evidence in support of a

charge can be liable for malicious prosecution if the charges

are instituted on the basis of the false information. See,

e.g., Stuart M . Speiser, Charles F. Krause, & Alfred W .

Gans, The American Law of Torts § 28.6 at 562 (2011) (collecting

cases). The reasoning that underlies these cases is that an

independent exercise of prosecutorial discretion is impossible

when charges are urged on a prosecutor on the basis of false

information. See Smiddy v . Varney,

6 1 , 267 (9th Cir.

1981).

In the present case, when the evidence is viewed in

Taylor’s favor, it is sufficient to permit a conclusion that

Officer Leshney caused Taylor to be prosecuted by arresting him

and providing a police report to his supervisors that falsely

claimed that Taylor had engaged in criminal activity.

22 Accordingly, I decline to grant summary judgment on Taylor’s

state law malicious prosecution claim.5

3. Other Claims

Wanton and reckless conduct (Count XI) and enhanced damages

(Count XII) are not causes of action. Accordingly, summary

judgment is granted with respect to these claims.

IV. CONCLUSION

For the reasons set forth in this order, defendants’ motion

for summary judgment (Doc. N o . 7 ) is granted with respect to all

of Taylor’s claims against defendants Tennis, Gravelle, and

Mallios (Counts I , I I , I I I , IV, V , V I I , VIII, I X , X , X I , and

X I I ) , his federal claim against Leshney for malicious

prosecution (Count I V ) , and his failure to train claim against

the City of Manchester (Count V I ) . The motion is denied with

respect to Taylor’s federal claims against Leshney for excessive

force and unlawful arrest, and his state law claims against

Leshney and the City for assault and battery, false

5 Although Taylor names Officer Leshney in his negligence claim, he does not argue in opposition to defendants’ motion for summary judgment that Officer Leshney is liable on this claim. Accordingly, I decline to address the claim on its merits.

23 imprisonment, and malicious prosecution (Counts I , I I , V I I ,

VIII, and I X ) .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 2 0 , 2012

cc: John W . Dennehy, Esq. Robert J. Meagher, Esq.

24