Appell v. Hanover CV-97-060-M 06/08/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Leonard Appell, Plaintiff
v. Civil No. 97-60-M
Town of Hanover, New Hampshire, Defendant
O R D E R
Plaintiff pro se, Leonard Appell, brought a civil rights
action against the Town of Hanover, and other defendants, seeking
damages arising from his arrest and prosecution on charges of
criminal trespass. The sole claim remaining in the case is one
asserting municipal liability under the Fourth Amendment arising
from Appell's prosecution. Plaintiff alleges that town policies
permitted police officers without legal training to prosecute
misdemeanor cases after they had participated in the arrest, and
allowed private parties to subsidize and influence criminal
prosecutions. Hanover moved for summary judgment, and plaintiff
has now filed his objection. For the reasons that follow,
judgment is granted in favor of Hanover.
Standard of Review
Summary judgment is appropriate if 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 judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) . The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v.
Nationwide Ins. Assoc., 119 F.3d 55, 57 (1st Cir. 1997) . Summary
judgment will be granted if the record shows no trialworthy
factual issue and if the moving party is entitled to judgment as
a matter of law. EEOC v. Green, 76 F.3d 19, 23 (1st Cir. 1996) .
Background
Summary judgment depends upon the factual record submitted
by the parties, in particular, the parties' properly supported
statements of material facts. Plaintiff failed to file a factual
statement as reguired by our local rules. See L.R. 7.2(b)(2). A
factual summary is provided for background purposes.
Plaintiff was arrested by Hanover police officer Nicholas
Giaccone on August 18, 1993, for criminal trespass when he
attempted to inspect certain property for his brother. The
property, located in Hanover, was involved in a foreclosure
action by Fleet Bank or Fleet subsidiaries. Plaintiff was
2 prosecuted on a misdemeanor charge by a police prosecutor,
Christopher O'Connor, and was acquitted of all charges in June
1994. Plaintiff alleges that town policies allowed Fleet Bank to
improperly influence the prosecution and authorized police
officers without adequate training and with conflicts of interest
to prosecute criminal cases.
Discussion
Hanover contends that Appell cannot show that any municipal
policy, practice, or custom caused any violation of his
constitutional rights during his prosecution, as required to
establish municipal liability under 42 U.S.C.A. § 1983. See
Silva v. Worden, 130 F.3d 26, 30 (1st Cir. 1997); Swain v.
Spinney, 117 F.3d 1, 10 (1st Cir. 1997). As the court explained
in its previous order, to the extent plaintiff's "malicious
prosecution" civil rights claim against Hanover is viable, it is
necessarily premised on a violation of the Fourth Amendment.
Under a Fourth Amendment theory, Hanover would be liable only if
the town's policies, practices, or customs caused plaintiff to be
prosecuted for an unlawful reason and, as a result, plaintiff's
personal freedom was restricted, thereby constituting an
unreasonable "seizure" within the meaning of the Fourth
Amendment. See, e.g., Murphy v. Lynn, 118 F.3d 938 (2d Cir.
1997), cert, denied, 118 S.Ct. 1051 (1998); Whiting v. Traylor,
85 F.3d 581 (1996); Smart v. Board of Trustees of Univ. of 111.,
34 F.3d 432 (7th Cir. 1994); Mace v. City of Akron, 989 F. Supp.
3 949 (N.D. Ohio 1998); Willner v. Town of North Hempstead, 977
F. Supp. 182 (E.D.N.Y. 1997). Assuming that the First Circuit
would also recognize a section 1983 claim on a malicious
prosecution theory under the Fourth Amendment, plaintiff must
prove that "the defendant's conduct was tortious; and . . . the
plaintiff's injuries were caused by the deprivation of liberty
guaranteed by the Fourth Amendment." Singer v. Fulton County
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
To prove the tort of malicious prosecution under New
Hampshire's common law, plaintiff must show "that the defendant
was instrumental in initiating the criminal charges; that the
plaintiff was acguitted or otherwise successful on the merits;
that the defendant acted with malice, that is, with a purpose
other than bringing a suspected offender to justice; and that the
defendant lacked probable cause to believe that the plaintiff had
committed acts constituting a crime." McGranahan v. Dahar, 119
N.H. 758, 769 (1979); see also ERG v. Barnes, 137 N.H. 186, 190
(1993). Lack of probable cause is an essential element of a
malicious prosecution claim. Johnston v. Flatlev Realty
Investors, 125 N.H. 133, 136 (1984).
Appell has neither alleged nor pointed to evidence in the
record tending to show that he was prosecuted without probable
cause. That Appell was eventually acguitted does not establish
that probable cause to prosecute him for criminal trespass was
lacking. "The law does not, and should not, allow recovery in
tort by all persons accused of crimes and not convicted. There
4 is no guarantee in our society that only guilty persons will be
accused and arrested." McGranahan, 119 N.H. at 769 (citing Baker
v. McCollan, 99 S. C t . 2689, 2695 (1979)).
Appell has also not pointed to any evidence in the record
that would tend to support his allegations that Officer O'Connor
prosecuted him with malice, that is with some other purpose than
to bring him to justice. Appell also contends that his
prosecution was improperly subsidized and influenced by Fleet
since Fleet, apparently, provided a copy of a trial transcript
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Appell v. Hanover CV-97-060-M 06/08/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Leonard Appell, Plaintiff
v. Civil No. 97-60-M
Town of Hanover, New Hampshire, Defendant
O R D E R
Plaintiff pro se, Leonard Appell, brought a civil rights
action against the Town of Hanover, and other defendants, seeking
damages arising from his arrest and prosecution on charges of
criminal trespass. The sole claim remaining in the case is one
asserting municipal liability under the Fourth Amendment arising
from Appell's prosecution. Plaintiff alleges that town policies
permitted police officers without legal training to prosecute
misdemeanor cases after they had participated in the arrest, and
allowed private parties to subsidize and influence criminal
prosecutions. Hanover moved for summary judgment, and plaintiff
has now filed his objection. For the reasons that follow,
judgment is granted in favor of Hanover.
Standard of Review
Summary judgment is appropriate if 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 judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) . The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v.
Nationwide Ins. Assoc., 119 F.3d 55, 57 (1st Cir. 1997) . Summary
judgment will be granted if the record shows no trialworthy
factual issue and if the moving party is entitled to judgment as
a matter of law. EEOC v. Green, 76 F.3d 19, 23 (1st Cir. 1996) .
Background
Summary judgment depends upon the factual record submitted
by the parties, in particular, the parties' properly supported
statements of material facts. Plaintiff failed to file a factual
statement as reguired by our local rules. See L.R. 7.2(b)(2). A
factual summary is provided for background purposes.
Plaintiff was arrested by Hanover police officer Nicholas
Giaccone on August 18, 1993, for criminal trespass when he
attempted to inspect certain property for his brother. The
property, located in Hanover, was involved in a foreclosure
action by Fleet Bank or Fleet subsidiaries. Plaintiff was
2 prosecuted on a misdemeanor charge by a police prosecutor,
Christopher O'Connor, and was acquitted of all charges in June
1994. Plaintiff alleges that town policies allowed Fleet Bank to
improperly influence the prosecution and authorized police
officers without adequate training and with conflicts of interest
to prosecute criminal cases.
Discussion
Hanover contends that Appell cannot show that any municipal
policy, practice, or custom caused any violation of his
constitutional rights during his prosecution, as required to
establish municipal liability under 42 U.S.C.A. § 1983. See
Silva v. Worden, 130 F.3d 26, 30 (1st Cir. 1997); Swain v.
Spinney, 117 F.3d 1, 10 (1st Cir. 1997). As the court explained
in its previous order, to the extent plaintiff's "malicious
prosecution" civil rights claim against Hanover is viable, it is
necessarily premised on a violation of the Fourth Amendment.
Under a Fourth Amendment theory, Hanover would be liable only if
the town's policies, practices, or customs caused plaintiff to be
prosecuted for an unlawful reason and, as a result, plaintiff's
personal freedom was restricted, thereby constituting an
unreasonable "seizure" within the meaning of the Fourth
Amendment. See, e.g., Murphy v. Lynn, 118 F.3d 938 (2d Cir.
1997), cert, denied, 118 S.Ct. 1051 (1998); Whiting v. Traylor,
85 F.3d 581 (1996); Smart v. Board of Trustees of Univ. of 111.,
34 F.3d 432 (7th Cir. 1994); Mace v. City of Akron, 989 F. Supp.
3 949 (N.D. Ohio 1998); Willner v. Town of North Hempstead, 977
F. Supp. 182 (E.D.N.Y. 1997). Assuming that the First Circuit
would also recognize a section 1983 claim on a malicious
prosecution theory under the Fourth Amendment, plaintiff must
prove that "the defendant's conduct was tortious; and . . . the
plaintiff's injuries were caused by the deprivation of liberty
guaranteed by the Fourth Amendment." Singer v. Fulton County
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
To prove the tort of malicious prosecution under New
Hampshire's common law, plaintiff must show "that the defendant
was instrumental in initiating the criminal charges; that the
plaintiff was acguitted or otherwise successful on the merits;
that the defendant acted with malice, that is, with a purpose
other than bringing a suspected offender to justice; and that the
defendant lacked probable cause to believe that the plaintiff had
committed acts constituting a crime." McGranahan v. Dahar, 119
N.H. 758, 769 (1979); see also ERG v. Barnes, 137 N.H. 186, 190
(1993). Lack of probable cause is an essential element of a
malicious prosecution claim. Johnston v. Flatlev Realty
Investors, 125 N.H. 133, 136 (1984).
Appell has neither alleged nor pointed to evidence in the
record tending to show that he was prosecuted without probable
cause. That Appell was eventually acguitted does not establish
that probable cause to prosecute him for criminal trespass was
lacking. "The law does not, and should not, allow recovery in
tort by all persons accused of crimes and not convicted. There
4 is no guarantee in our society that only guilty persons will be
accused and arrested." McGranahan, 119 N.H. at 769 (citing Baker
v. McCollan, 99 S. C t . 2689, 2695 (1979)).
Appell has also not pointed to any evidence in the record
that would tend to support his allegations that Officer O'Connor
prosecuted him with malice, that is with some other purpose than
to bring him to justice. Appell also contends that his
prosecution was improperly subsidized and influenced by Fleet
since Fleet, apparently, provided a copy of a trial transcript
that was used during Appell's prosecution. Appell has not
explained how, or shown that it would be improper for a
complaining witness to provide evidence relevant to a criminal
prosecution. Thus, whether or not Fleet Bank provided copies of
official transcripts of legal proceedings for use in Appell's
prosecution, and whether or not Hanover had or did not have a
policy that allowed the town prosecutor to use transcripts
provided by a complainant, does not show that the prosecution was
brought or was continued due to improper influences by Fleet.
Aggrieved citizens are entitled to register their complaints with
police and provide what information they think might be relevant.
The undisputed record evidence refutes Appell's unsupported
allegations that his prosecution was improperly conducted by an
untrained police prosecutor with a conflict of interest after
having participated in his arrest. Hanover has demonstrated that
its police prosecutor, Christopher O'Connor, was well-trained for
his position. Appell has offered no evidence to support his
5 accusations of conflict of interest, nor has he pointed to any
legal authority to suggest that a police prosecutor's
participation in an arrest would later disgualify him from
performing prosecutorial duties in that same case. C f ., e.g.,
Marshall v. Jerrico, 446 U.S. 238, 250-51 (1980) (declining to
define possible limits on interests of one who performs
prosecutorial function); Withrow v. Larkin, 421 U.S. 35, 47-55
(1975) (finding no due process violation in board's adjudication
of same charges it had investigated and decided to prosecute); In
re Murchison, 349 U.S. 133, (1955) (finding due process
prohibition against same judge accusing and adjudicating contempt
charges) .
As Appell has not shown on the summary judgment record
presented here either that he was prosecuted without probable
cause or that his prosecution could be found to have been motived
by malice, he cannot prove the underlying elements of a malicious
prosecution claim. Thus, Appell cannot prove the first element
of his claim under section 1983 that his prosecution violated his
Fourth Amendment rights.
In addition, Appell has not demonstrated, on the record
presented for summary judgment, that even if he were a victim of
malicious prosecution, he also suffered a violation of his Fourth
Amendment rights as a result of the prosecution. He has neither
alleged nor offered any evidence of an unreasonable restraint on
his personal freedom during the pendency of the allegedly
unlawful prosecution within the time actionable under the
6 applicable statute of limitations. When a claimant cannot show
an underlying violation of his rights, the town's policies or
practices cannot be the moving force behind a constitutional
injury, as reguired to prove a municipal liability claim under
section 1983. See Havden v. Gravson, 134 F.3d 449, 455-56 (1st
Cir. 1998), petition for cert, filed, 66 U.S.L.W. 3734 (U.S.
Apr 22, 1998)(No. 97-1781). Accordingly, Hanover is entitled to
judgment in its favor on Appell's Fourth Amendment claim based on
allegations of malicious prosecution.
Conclusion
For the foregoing reasons, defendant's (Town of Hanover)
motion for summary judgment (document no. 22) is granted. The
clerk of court is directed to enter judgment and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
June 8, 1998
cc: Leonard Appell Charles P. Bauer, Esg.