Appell v . Giaccone, et a l . CV-96-060-M 12/11/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Leonard Appell
v. Civil N o . 97-60-M
Nicholas Giaccone, Christopher O’Connor, and Town of Hanover, New Hampshire
O R D E R
The plaintiff, Leonard Appell, brought this action under
state and federal law alleging false arrest, malicious
prosecution, and municipal liability against the defendants,
Nicholas Giaccone and Christopher O’Connor, in their official and
individual capacities, and the Town of Hanover, New Hampshire.
Before the court is the defendants’ motion to dismiss for failure
to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6) (document n o . 8 ) .
Background1
On August 1 8 , 1993, the plaintiff attempted to inspect certain property for his brother. When he arrived at the
property, the plaintiff was met by Nicholas Giaccone, a police
officer employed by the Town of Hanover. After speaking with the
plaintiff, Giaccone phoned Christopher O’Connor, also a police
officer employed by the Town of Hanover. At O’Connor’s
direction, Giaccone arrested the plaintiff for criminal trespass
1 The facts relevant to the instant motion have been alleged by the plaintiff. (in violation of a court order). O’Connor prosecuted the case against the plaintiff, who was acquitted on all charges in June 1994. The plaintiff asserts that Giaccone’s and O’Connor’s acts were willful, wanton, malicious, and in bad faith, and were made in an effort to assist a complaining witness, Fleet Bank New Hampshire, which the plaintiff asserts subsidized the costs of his prosecution. The plaintiff also contends that the Town of Hanover maintained policies of (1) allowing officers to make arrests without probable cause to service influential private parties; (2) allowing police officers without legal training to prosecute misdemeanor cases, thereby creating a conflict of interest and breaching the prosecutor’s duty to review all cases independently; and (3) promulgating no rules or restrictions preventing a complaining witness in a criminal case from
subsidizing the costs of and exerting improper influence over the prosecution.
On February 1 0 , 1997, the plaintiff filed an action pursuant to 42 U.S.C. § 1983 against the defendants, alleging false arrest, malicious prosecution, and municipal liability in violation of his rights under the Fourth and Fourteenth
Amendments to the United States Constitution. The plaintiff also brings several claims under New Hampshire law.2 The defendants
2 The plaintiff asserts state law claims of intentional false arrest and imprisonment; intentional and negligent infliction of emotional distress; malicious prosecution; negligent hiring, training, and supervision; and respondeat superior liability.
2 have moved to dismiss the plaintiff’s complaint for failure to
state a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, asserting,
inter alia, that (1) the plaintiff’s false arrest claims are
barred by the statute of limitations; (2) O’Connor, against whom
the plaintiff’s malicious prosecution claims are made, is
entitled to absolute prosecutorial immunity; and (3) the
plaintiff’s municipal liability claims under section 1983 must
fail because the plaintiff has failed to identify any municipal
policy that caused the deprivation of his rights, and because the
plaintiff’s claims for municipal liability based on false arrest
and malicious prosecution are barred by the statute of
limitations and the doctrine of prosecutorial immunity,
respectively.
Discussion
Although the defendants have moved to dismiss all claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted, the defendants
have already filed an answer to the plaintiff’s complaint, and consequently, the pleadings have closed under Federal Rule of
Civil Procedure 7 ( a ) . As such, the court will treat the
defendants’ motion to dismiss as a motion for judgment on the
pleadings. See Fed. R. Civ. P. 12(c).
The standard for evaluating a Rule 12(c) motion for judgment
on the pleadings is essentially the same as the standard for
3 evaluating a Rule 12(b)(6) motion. See Lanigan v . Village of
East Hazel Crest, Ill., 110 F.3d 4 6 7 , 470 n.2 (7th Cir. 1997).
In both cases, the court’s inquiry is a limited one, focusing not
on “whether a plaintiff will ultimately prevail but whether [he
or she] is entitled to offer evidence to support the claims.”
Scheuer v . Rhodes, 416 U.S. 2 3 2 , 236 (1974) (motion to dismiss
under Fed. R. Civ. P. 12(b)(6)). In making its inquiry, the
court must accept all of the factual averments contained in the
complaint as true, and draw every reasonable inference in favor
of the plaintiffs. See Garita Hotel Ltd. Partnership v . Ponce
Fed. Bank, 958 F.2d 1 5 , 17 (1st Cir. 1992) (Rule 12(b)(6)
motion); Santiago de Castro v . Morales Medina, 943 F.2d 129, 130
(1st Cir. 1991) (Rule 12(c) motion). Great specificity is not
required to survive a Rule 12 motion. “[I]t is enough for a
plaintiff to sketch an actionable claim by means of ‘a
generalized statement of facts.’” Garita, 958 F.2d at 17
(quoting 5A Charles A . Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (1990)). In the end, the court may
not enter judgment on the pleadings unless it appears “‘beyond
doubt that the plaintiff can prove no set of facts in support of
his or her claim which would entitle him or her to relief.’”
Santiago de Castro, 943 F.2d at 130 (quoting Conley v . Gibson,
355 U.S. 4 1 , 45-46 (1957)); see also Rivera-Gomez v . de Castro,
843 F.2d 6 3 1 , 635 (1st Cir. 1988).
A. Section 1983 Claims Arising from Arrest
4 The defendants contend that the plaintiff’s first claim
under section 1983, in which he alleges that his rights to
privacy and to be free from unreasonable seizure were violated
when Giaccone and O’Connor arrested him without probable cause,
is analogous to a claim for false arrest and therefore is barred
by the statute of limitations. The plaintiff asserts that the
action is timely because his claim did not accrue at the time of
the arrest, but sometime later, when the state proceedings
terminated in his favor.
The law of the forum state provides the appropriate statute
of limitations in section 1983 claims for personal injury. See
Calero-Colon v . Betancourt-Lebron, 68 F.3d 1 , 2 (1st Cir. 1995)
(citing Wilson v . Garcia, 471 U.S. 2 6 1 , 276-280 (1985)). In New
Hampshire, the statute of limitations for personal injury claims
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Appell v . Giaccone, et a l . CV-96-060-M 12/11/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Leonard Appell
v. Civil N o . 97-60-M
Nicholas Giaccone, Christopher O’Connor, and Town of Hanover, New Hampshire
O R D E R
The plaintiff, Leonard Appell, brought this action under
state and federal law alleging false arrest, malicious
prosecution, and municipal liability against the defendants,
Nicholas Giaccone and Christopher O’Connor, in their official and
individual capacities, and the Town of Hanover, New Hampshire.
Before the court is the defendants’ motion to dismiss for failure
to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6) (document n o . 8 ) .
Background1
On August 1 8 , 1993, the plaintiff attempted to inspect certain property for his brother. When he arrived at the
property, the plaintiff was met by Nicholas Giaccone, a police
officer employed by the Town of Hanover. After speaking with the
plaintiff, Giaccone phoned Christopher O’Connor, also a police
officer employed by the Town of Hanover. At O’Connor’s
direction, Giaccone arrested the plaintiff for criminal trespass
1 The facts relevant to the instant motion have been alleged by the plaintiff. (in violation of a court order). O’Connor prosecuted the case against the plaintiff, who was acquitted on all charges in June 1994. The plaintiff asserts that Giaccone’s and O’Connor’s acts were willful, wanton, malicious, and in bad faith, and were made in an effort to assist a complaining witness, Fleet Bank New Hampshire, which the plaintiff asserts subsidized the costs of his prosecution. The plaintiff also contends that the Town of Hanover maintained policies of (1) allowing officers to make arrests without probable cause to service influential private parties; (2) allowing police officers without legal training to prosecute misdemeanor cases, thereby creating a conflict of interest and breaching the prosecutor’s duty to review all cases independently; and (3) promulgating no rules or restrictions preventing a complaining witness in a criminal case from
subsidizing the costs of and exerting improper influence over the prosecution.
On February 1 0 , 1997, the plaintiff filed an action pursuant to 42 U.S.C. § 1983 against the defendants, alleging false arrest, malicious prosecution, and municipal liability in violation of his rights under the Fourth and Fourteenth
Amendments to the United States Constitution. The plaintiff also brings several claims under New Hampshire law.2 The defendants
2 The plaintiff asserts state law claims of intentional false arrest and imprisonment; intentional and negligent infliction of emotional distress; malicious prosecution; negligent hiring, training, and supervision; and respondeat superior liability.
2 have moved to dismiss the plaintiff’s complaint for failure to
state a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, asserting,
inter alia, that (1) the plaintiff’s false arrest claims are
barred by the statute of limitations; (2) O’Connor, against whom
the plaintiff’s malicious prosecution claims are made, is
entitled to absolute prosecutorial immunity; and (3) the
plaintiff’s municipal liability claims under section 1983 must
fail because the plaintiff has failed to identify any municipal
policy that caused the deprivation of his rights, and because the
plaintiff’s claims for municipal liability based on false arrest
and malicious prosecution are barred by the statute of
limitations and the doctrine of prosecutorial immunity,
respectively.
Discussion
Although the defendants have moved to dismiss all claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted, the defendants
have already filed an answer to the plaintiff’s complaint, and consequently, the pleadings have closed under Federal Rule of
Civil Procedure 7 ( a ) . As such, the court will treat the
defendants’ motion to dismiss as a motion for judgment on the
pleadings. See Fed. R. Civ. P. 12(c).
The standard for evaluating a Rule 12(c) motion for judgment
on the pleadings is essentially the same as the standard for
3 evaluating a Rule 12(b)(6) motion. See Lanigan v . Village of
East Hazel Crest, Ill., 110 F.3d 4 6 7 , 470 n.2 (7th Cir. 1997).
In both cases, the court’s inquiry is a limited one, focusing not
on “whether a plaintiff will ultimately prevail but whether [he
or she] is entitled to offer evidence to support the claims.”
Scheuer v . Rhodes, 416 U.S. 2 3 2 , 236 (1974) (motion to dismiss
under Fed. R. Civ. P. 12(b)(6)). In making its inquiry, the
court must accept all of the factual averments contained in the
complaint as true, and draw every reasonable inference in favor
of the plaintiffs. See Garita Hotel Ltd. Partnership v . Ponce
Fed. Bank, 958 F.2d 1 5 , 17 (1st Cir. 1992) (Rule 12(b)(6)
motion); Santiago de Castro v . Morales Medina, 943 F.2d 129, 130
(1st Cir. 1991) (Rule 12(c) motion). Great specificity is not
required to survive a Rule 12 motion. “[I]t is enough for a
plaintiff to sketch an actionable claim by means of ‘a
generalized statement of facts.’” Garita, 958 F.2d at 17
(quoting 5A Charles A . Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (1990)). In the end, the court may
not enter judgment on the pleadings unless it appears “‘beyond
doubt that the plaintiff can prove no set of facts in support of
his or her claim which would entitle him or her to relief.’”
Santiago de Castro, 943 F.2d at 130 (quoting Conley v . Gibson,
355 U.S. 4 1 , 45-46 (1957)); see also Rivera-Gomez v . de Castro,
843 F.2d 6 3 1 , 635 (1st Cir. 1988).
A. Section 1983 Claims Arising from Arrest
4 The defendants contend that the plaintiff’s first claim
under section 1983, in which he alleges that his rights to
privacy and to be free from unreasonable seizure were violated
when Giaccone and O’Connor arrested him without probable cause,
is analogous to a claim for false arrest and therefore is barred
by the statute of limitations. The plaintiff asserts that the
action is timely because his claim did not accrue at the time of
the arrest, but sometime later, when the state proceedings
terminated in his favor.
The law of the forum state provides the appropriate statute
of limitations in section 1983 claims for personal injury. See
Calero-Colon v . Betancourt-Lebron, 68 F.3d 1 , 2 (1st Cir. 1995)
(citing Wilson v . Garcia, 471 U.S. 2 6 1 , 276-280 (1985)). In New
Hampshire, the statute of limitations for personal injury claims
is (and was in 1993) three years. See N.H. Rev. Stat. Ann.
(“RSA”) § 508:4 (1997). However, federal law determines when a
section 1983 claim accrues, and it provides that such a claim
does not accrue until the plaintiff “knows or has reason to know
of the injury which is the basis of the cause of action.”
Calero-Colon, 68 F.3d at 3 (quotation omitted). To determine
when a plaintiff knew or had reason to know of the alleged
injury, the court must “look to the common law cause of action
most closely analogous to the right at stake,” id. (citing Heck
v . Humphrey, 512 U.S. 4 7 7 , 484 (1994)), and identify the
constitutional right allegedly infringed, see id. (citing
Albright v . Oliver, 510 U.S. 266, 271 (1994)).
5 Here, plaintiff’s first section 1983 claim is most closely
analogous t o , and is in fact styled in his complaint a s , a claim
for false arrest. Indeed, plaintiff alleges that he was arrested
by the individual defendants without probable cause. This
assertion implicates plaintiff’s rights under the Fourth
Amendment. See Albright v . Oliver, 510 U.S. 266, 273 (1994).
Thus, the date of accrual turns on the date the plaintiff knew or
should have known of his injury, in this case the violation of
his Fourth Amendment rights through his false arrest. Because a
plaintiff has reason to know of all the elements of a false
arrest claim on the date of his arrest, see Calero-Colon, 68 F.3d
at 3 & n.6; Rose v . Bartle, 871 F.2d 3 3 1 , 351 (3d Cir. 1989);
McCune v . City of Grand Rapids, 842 F.2d 903, 906 (6th Cir.
1988), the plaintiff had until August 1 8 , 1996, three years after
the date of his arrest, to file a complaint on these grounds.
Having failed to file until February 1 0 , 1997, his section 1983
false arrest claim is barred by the statute of limitations.
B. Section 1983 Claims Arising from Prosecution for Trespass
The defendants next contend that count two of the plaintiff’s complaint, which alleges that O’Connor violated the
plaintiff’s rights to due process of law, personal privacy, and
freedom from unreasonable seizure by prosecuting him maliciously
and without probable cause, must be dismissed because O’Connor’s
6 actions are protected under the doctrine of absolute prosecutorial immunity.3
A public official performing prosecutorial functions is
entitled to absolute immunity under federal law for conduct
performed in the official’s “‘role as advocate for the [s]tate.’”
Guzman-Rivera v . Rivera-Cruz, 55 F.3d 2 6 , 29 (1st Cir. 1995)
(quoting Burns v . Reed, 500 U.S. 4 7 8 , 491 (1991)). Absolute
immunity does not reach acts that are merely investigatory or
administrative in nature; rather, such immunity attaches only to
conduct that is “intimately associated with the judicial phase of
the criminal process.” Id. (quoting Imbler v . Pachtman, 424 U.S.
409, 430-31 (1976)). Because the determination of whether an
official is entitled to prosecutorial immunity does not depend on
the official’s title, but rather, the conduct that forms the
basis of the plaintiff’s cause of action, police officers are
protected by prosecutorial immunity to the extent that they
perform prosecutorial functions as advocates for the state. See
Guzman-Rivera, 55 F.3d at 2 9 ; Malachowski v . City of Keene, 787
F.2d 7 0 4 , 712 (1st Cir. 1986)).
In count two of the complaint, plaintiff seeks to hold O’Connor liable for prosecuting him. In fact, the plaintiff has
styled count two of his complaint as one for malicious
prosecution under section 1983. Thus, the claim focuses on
3 The defendants do not assert that the plaintiff’s malicious prosecution claims pursuant to section 1983 are not actionable due to New Hampshire’s recognition of the tort of malicious prosecution. See Reid v . New Hampshire, 56 F.3d 3 3 2 , 341 (1st Cir. 1995).
7 O’Connor’s performance of prosecutorial functions, and is barred by the doctrine of absolute prosecutorial immunity.40.Generally, elements of a malicious prosecution claim relate to the plaintiff’s court proceeding, while elements of a false arrest claim typically relate to the plaintiff’s confinement. See Calero-Colon, 68 F.3d at 3 nn.5-6.5
C. Municipal Liability A municipal liability claim under section 1983 must allege that a municipal policy, custom, or practice caused, or was a moving force behind, a deprivation of the plaintiff’s
constitutional rights. McCabe v . Life-Line Ambulance Service, Inc., 77 F.3d 5 4 0 , 544 (1st Cir.) (citing Oklahoma City v . Tuttle, 471 U.S. 8 0 8 , 819 (1985) and Monell v . Department of Soc. Servs., 436 U.S. 6 5 8 , 694 (1978)), cert. denied, 117 S.Ct. 275 (1996). Thus, factual allegations that, if proven, would show a municipal policy caused a violation of a plaintiff’s
constitutional rights state a claim under section 1983. However, to maintain the claim, where as here “a plaintiff seek[s] to
4 The plaintiff argues that an absolute immunity defense is precluded because O’Connor, acting in his capacity as a police officer, arrested the plaintiff without probable cause. It is true that “prosecutors . . . not acting as advocates for the state, but in an ‘entirely investigative’ capacity,” are not entitled to absolute immunity. Guzman-Rivera, 55 F.3d at 30 (quoting Buckley v . Fitzsimmons, 509 U.S. 259, 274 (1993)). However, to the extent that the conduct attributed to O’Connor in count two of the complaint is investigative in nature and therefore not protected by absolute immunity, it is only relevant to the plaintiff’s false arrest claim under section 1983,
which, as noted supra, is barred by the statute of limitations.
8 establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff’s rights[, the plaintiff] must demonstrate that the municipal action was taken with ‘deliberate indifference’ to its known or obvious consequences.” Board of the County Comm’rs v . Brown, 117 S . C t . 1382, 1390 (1997) (emphasis added) (quoting City of Canton v . Harris, 489 U.S. 3 7 8 , 388 (1989))).
To the extent the municipal policies alleged by the plaintiff led to the denial of his right to be free from unreasonable seizure, they are barred by the applicable statute of limitations. As noted supra, “[s]ection 1983 claims accrue when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Calero-Colon, 68 F.3d at 3 (quotation marks omitted). Here, the injury that forms the basis of the plaintiff’s false arrest claims under section 1983, whether asserted against the individuals responsible for his arrest or the municipality whose policies are alleged to have led thereto, is the deprivation of his Fourth Amendment rights. Because the plaintiff knew or should have known that this deprivation occurred when he was arrested, his municipal
liability claims arising out of the arrest are also barred by the statute of limitations.
As to the plaintiff’s municipal liability claims arising out of the town’s policy of permitting police officers to prosecute misdemeanor cases and its alleged policy or custom of allowing complaining witnesses to subsidize prosecutions, defendants move
9 to dismiss on grounds that the allegations are conclusory and
fail to state a claim of constitutional harm. Unless a complaint
is so facially deficient as to lack sufficient notice of a claim
and its grounds, a defendant’s attack on the merits of a section
1983 claim is more appropriately addressed in a motion for
summary judgment. Leatherman v . Tarrant County Narcotics Unit,
507 U.S. 163, 168-69 (1993). Although plaintiff’s allegations
against Hanover may push to the limits even the minimal
requirements of notice pleading, they are sufficient to avoid
judgment on the pleadings. The remaining municipal liability
claims would be better addressed in a motion for summary judgment
where the sufficiency of plaintiff’s factual proof of Hanover’s
policies, customs, and deliberate indifference is at issue. See,
e.g., Britton v . Maloney, 901 F. Supp. 4 4 4 , 452-53 (D. Mass.
1995).
To the extent that Hanover also contends that plaintiff’s
allegations concerning its policies fail to state a claim as a
matter of law because no constitutional harm is alleged or can be
proven, that contention must fail. Plaintiff does broadly invoke
many constitutional rights and the issue of proof cannot be
resolved on the pleadings. If Hanover intended to show that the
facts alleged do not constitute a constitutional injury as a
matter of law, then that contention must fail because its
presentation of the legal issue is insufficient to support
judgment on the pleadings.
10 D. State Law Claims
Plaintiff alleges state law claims against defendants
O’Connor, Giaccone, and Hanover based on his arrest and
prosecution. As the arrest occurred more than three years before
plaintiff filed his complaint, his state law claims against all
defendants arising from the arrest are barred by the statute of
limitations. See RSA § 508:4, I . Plaintiff’s claims against
O’Connor based on his conduct as a prosecutor are barred by
prosecutorial immunity. See Belcher v . Paine, 136 N.H. 1 3 7 , 143-
47 (1992).
Plaintiff’s claim, presented in a single sentence, against
Hanover alleging negligent hiring, training, and supervision of
“Hugel” and “Does” does not include sufficient facts to notify
Hanover of the claim alleged. Plaintiff does not identify
“Hugel” or “Does” or allege any actions by them or explain in
what context Hanover’s alleged negligence harmed him. At best,
this one-sentence allegation gives a “general scenario” that is
“dominated by unpleaded facts” and thus is insufficient to state
a claim. Dewey v . University of New Hampshire, 694 F.2d 1 , 3
(1st Cir. 1982); accord Gooley v . Mobil Oil Corp., 851 F.2d 513,
515 (1st Cir. 1988). Accordingly, Hanover is entitled to
judgment on pleadings as to the negligent hiring claim.
Defendant Hanover argues that the respondeat superior claim
against Hanover based on O’Connor’s prosecution of plaintiff is
barred by prosecutorial immunity. Hanover cites no authority in
support of its argument. Whether, under New Hampshire law, a
11 respondeat superior claim is viable despite the employee’s or
agent’s immunity seems to be our open question. A cursory review
has not found any applicable New Hampshire law on point and has
demonstrated that other states have reached different conclusions
on the issue. See, e.g., S.J.S. v . Faribault County, 556 N.W.2d
563 (Minn.Ct.App. 1992); Roy v . City of Everett, 823 P.2d 1084,
1094 (Wash. 1992) (dissent); Taplin v . Town of Chatham, 453
N.E.2d 4 2 1 , 423 (Mass. 1983) (collecting cases). Since Hanover
has not shown that plaintiff cannot maintain his respondeat
superior claim under New Hampshire law, judgment on the pleadings must be denied.6
Conclusion
For the foregoing reasons, the court grants in part and
denies in part the defendants’ motion for judgment on the
pleadings (document n o . 8 ) . Judgment is granted on all claims in
favor of defendants, O’Connor and Giaccone, and is granted as to
Hanover on the state law respondeat superior claim based on
allegations of false arrest and the negligence claim pertaining
to “Hugel” and “Does.” Judgment is denied as to Hanover on the section 1983 claims and state law respondeat superior claim based
on O’Connor’s prosecution of plaintiff.
SO ORDERED.
6 As Hanover has not addressed municipal immunity under state law or any other defenses in its motion, the court does not explore other potential grounds for dismissing the claims.
12 Steven J. McAuliffe United States District Judge
December 1 1 , 1997
cc: Leonard Appell Charles P. Bauer, Esq.