Breen v. Salem, NH CV-95-439-M 09/25/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Martha Breen and Kevin J. Breen, Plaintiffs,
v. Civil No. 95-439-M
Fred A. Rheault; Mark F. Cavanaugh; Richard Dunn; Alan Gould; James E. Ross; Barry M. Brenner; and the Town of Salem, New Hampshire, Defendants.
O R D E R
Though plaintiffs' complaint seems to assert multiple causes
of action, this is basically a civil rights case, brought under
42 U.S.C. § 1983. Plaintiffs seek redress for an alleged
violation of Kevin Breen's right under the Fourth Amendment not
to be arrested except upon probable cause, and assert various
state law causes of action as well. All the named defendants
have moved for summary judgment on essentially two grounds:
1) Plaintiff Kevin Breen's arrest was based on probable cause,
and 2) even if it wasn't, the police officers obtained an arrest
warrant and are entitled to gualified immunity (and the other
defendants are otherwise not liable as a matter of law). As
explained below, all defendants are entitled to entry of summary judgment in their favor on the federal causes of action asserted
by plaintiffs.
Background
The opposing pleadings and supporting affidavits and
documents show that on September 13, 1993, Plaintiff Kevin Breen,
a Salem Fire Department lieutenant, attended a Boston Red Sox
game at Fenway Park with three friends: Glenn Milner, an
attorney who represented the Salem firefighters' union, Dennis
Covey, a Salem firefighter, and Jay Crooks. The group drove to
Boston in Milner's car, which was eguipped with a cellular
telephone. After the game, the group set out for the "Golden
Banana," a nightclub of sorts in Saugus, Massachusetts.
Apparently the group had been drinking (Breen, however, denies
that he was drinking, claiming to have been the "designated
driver").
On the way to the Golden Banana, at about 11:30 p.m., two
calls were placed from Milner's car phone to the Salem Fire
Department. The first call was apparently made for the purpose
of harassing Salem Fire Captain Kevin Kimball, who was on duty at
the station that night, and the second was made by Milner to
disassociate himself from the first call. Captain Kimball failed
2 to appreciate either the sentiments expressed or the humor
apparently shared by those in the car. He took the matter
seriously, directing the dispatcher, Cheryl Ritchie, to record
both calls in the department phone log, with details. He also
reported the matter to the Fire Chief and to the Salem Police
Department.
The Salem Police responded to Kimball's complaint by
initiating an investigation. Detectives Cavanaugh and Rheault
were assigned to look into the incident. Cavanaugh and Rheault
interviewed Ritchie, Captain Kimball, and two Methuen
(Massachusetts) police officers who had had contact with the
revellers following their involvement in an unrelated disturbance
that same night at a gas station. Based on their initial
investigation, on September 21, 1993, Detective Cavanaugh applied
for and obtained a warrant to arrest Plaintiff Breen on a
misdemeanor charge of telephone harassment in violation of N.H.
Rev. Stat. Ann. ("RSA") 6 4 4 : 4.1 Covey was also charged, and
1 RSA 644:4 (1971), the misdemeanor statute in effect at the time provided:
A person is guilty of a misdemeanor, and subject to prosecution in the jurisdiction where the telephone call originated or was received, if, with a purpose to annoy or alarm another, he:
I. Makes a telephone call, whether or not a
3 charges were drafted but, as explained later, never lodged
against Milner. Breen and Covey turned themselves in for arrest
on the warrant on September 23, 1993.
Focusing on what information the police officers had at the
time the arrest warrant was obtained, the following facts appear
undisputed (plaintiffs have offered no contradictory evidence).
On September 14, 1993, the Fire Department's dispatcher, Cheryl
Ritchie, told the police investigators that at about 11:20 p.m.
the previous evening a phone call came in to the Fire Department
on the non-emergency number, 888-9775. The call struck Ritchie
as odd because the published number is 888-9774. If the 9774
line is busy then an incoming call is automatically switched to
the 9775 line. The 9774 line was not busy, so Ritchie assumed
the caller was familiar with the Salem Fire Department. When
Ritchie answered the phone she was greeted with, " [Y]ou fucking
asshole, get me Kevin." See Continuation of Investigation
Report, p.2, September 15, 1993, appended to Defendants' Motion
conversation ensues, without purpose of lawful communication; or II. Makes repeated communications at extremely inconvenient hours or in offensively coarse language; or III. Insults, taunts or challenges another in a manner likely to provoke a violent or disorderly response.
4 for Summary Judgment. In the background she heard several people
laughing and bantering about "Kevin" or "Kimball." Ritchie
assumed the caller or callers were drunk. Ritchie dutifully
transferred the call to Captain Kimball, who by that time was in
bed, having retired at the station due to his overnight on-call
status. A few minutes later, a second call came in on the same
line, 9775. Ritchie answered it and a person she thought she
recognized as Attorney Milner stated that he wanted nothing to do
with the prank regarding [Captain] Kevin Kimball. The caller
then identified himself as Milner, and Ritchie asked Milner if he
made the earlier call to the station. Milner denied having made
the first call. Ritchie then asked Milner who was in the car
with him. Milner identified Plaintiff Breen and Dennis Covey,
both Salem firefighters. During the first and the second call
Ritchie heard laughter and profanity in the background, with
references to Captain Kimball. Ritchie asked to speak to L t .
Breen. Breen took the phone and Ritchie asked him about the
prior call to the station. Breen denied any knowledge of any
calls and ended the conversation by saying he had to "take two
guys home." Id., p.3. Ritchie also told the police that
Captain Kimball was monitoring this second call, and at its
conclusion directed Ritchie to log both calls and their nature.
5 Kimball also asked Ritchie if she knew the callers and she told
Kimball that they were Milner and L t . Breen.
On September 15, 1993, the police interviewed the
complainant. Captain Kimball. He told Detective Rheault that on
September 13 he was awakened by Dispatcher Ritchie's referral of
a phone call, said by the caller to be an emergency. Kimball
picked up the phone and heard what sounded like a conversation
over a car phone (because the sound was fading in and out). When
the sound became clear, Kimball recognized the voice of Salem
Fireman Dennis Covey, who made the following statements: "What a
fucking asshole you are, you dick sucker fucking asshole, you
need to be taught a fucking lesson and I'm going to stick it up
your fucking ass, fuck him and fuck her." Police Investigation
Report, Kimball Interview, p. 3, appended to Defendants' Motion
for Summary Judgment. Kimball also heard general laughter and
yelling on the other end. Kimball told the police that the line
became unclear again and when it cleared the person speaking was
no longer Covey. The new speaker talked of calling Kimball's
wife. Kimball told the police that at that point he became
concerned, felt threatened, and feared for his family's safety.
There continued to be yelling over the phone, then Kimball heard
"Kevin, Kevin" and "[Y]ou['re] a fucking asshole." Id. Captain
6 Kimball told the police that those comments were definitely made
by Plaintiff Breen, whose voice Kimball knew. Kimball told the
police that he was "100% sure" that the person speaking was
Breen. I d ., p.4. According to Captain Kimball, laughter,
raucous yelling, and profanity continued among the vehicle
occupants, then the phone went dead. Kimball said he was
dumbfounded, and while pondering his options, another call came
in on the 9775 line. Kimball picked up the line to monitor the
call and heard the second call from Milner, as reported by
Ritchie in all material respects.2 That is essentially what the
police knew about the September 13 incident when they sought and
obtained the warrant for Breen's arrest.
As it is somewhat relevant to plaintiffs' claims, as he
perceives them, a brief review of additional information obtained
by the police after Breen's arrest is warranted as well. On
September 30, a week after Breen's arrest, the police interviewed
Jay Crooks, a passenger in the car, who generally told them that
2 The police later learned (on September 30) that at least one, and more likely two, additional calls was made to the station that evening, at 2:30 a.m. on September 14, by Covey, who said he was with Breen. The dispatcher then on duty, Brian Chevalier, heard Breen in the background telling Covey to get off the phone. Investigative Report, Chevalier Interview, appended to Defendants' Motion for Summary Judgment. According to Milner' subseguent statement, the party had moved to a Denny's restaurant by that time.
7 the men were horsing around with the phone, calling wives and
girlfriends, etc., when Covey suggested calling Captain Kimball.
Crooks denied any knowledge of Breen or Milner interceding and
telling Covey not to call Kimball (as was later contended by
Milner). Crooks said Covey actually dialed the number and then
handed the phone to him, telling him to ask for Kevin Kimball and
stating that he (Covey) did not want Kimball to recognize his
voice. Crooks demurred, so Covey spoke into the phone. Though
Crooks claimed not to remember what Covey said, he did
acknowledge "There was a lot of swearing and yelling going on."
Id. Crooks told the police that the next day he saw Attorney
Milner, who told him "the firemen [Breen and Covey] are in
trouble and are going to blame you for the call." Id. Crooks
denied knowing a fire station had been called and said Covey
initiated the whole thing.
Also on September 30, the police interviewed Attorney
Milner, but only after Milner's own lawyer arranged a cooperative
deal — Milner would talk so long as he was not charged (the
police had already drafted charges against him based on his
alleged participation). Milner also said the call to Kimball was
Covey's idea, that he (Milner) tried to dissuade Covey, and that
there was a great deal of joking, laughing, and swearing going on. Continuation of Investigation/Arrest Report, dated September
30, 1993, Milner Interview, p.l, appended to Defendants' Motion
for Summary Judgment. The police thought Milner was trying to
avoid telling them what Breen had been saying or doing. Id. In
an affidavit filed in this case, however, Milner says he made it
clear to the police that he and Breen tried to dissuade Covey,
and points out that Fire Chief Nadeau wrote to Defendant Gould on
September 23, 1993, to report the contents of a call Milner
placed to the Chief within two days of the incident in which
Milner put the blame on Covey and said Breen had advised Covey
"not to do it." See Letter, Nadeau to Gould, dated September 23,
1993, appended to Defendants' Motion for Summary Judgment.
Milner acknowledged making the second call in which he sought to
disassociate himself from the first call. Milner also told the
police that at about 2:00 to 2:30 a.m. the group was at a Denny's
restaurant, but he had no explanation for two additional calls
his phone records showed were made around that time to the fire
station from his car phone.
Plaintiffs' Claims First, plaintiffs, Breen and his wife,3 cast most of their
causes of action in terms of denials of both "substantive due
process" and "due process," and violations of his rights under
the Fourth, Fifth and Fourteenth Amendments. The Supreme Court
has made it abundantly clear that § 1983 claims alleging
unconstitutional arrest are properly brought only under the
Fourth Amendment. See Albright v. Oliver, 114 S.Ct. 807, 813
(1994); Graham v. O'Connor, 490 U.S. 386 (1989). Accordingly,
the court will assume that Breen's federal causes of action
brought pursuant to 42 U.S.C. § 1983 are based on his claimed
deprivation of his right under the Fourth Amendment not to be
arrested except upon a warrant supported by probable cause.
The defendants raise a number of issues in their dispositive
motion, but particularly stress that no constitutional violation
has been shown to have occurred, and even if such a violation did
occur, gualified immunity and other defenses preclude liability.
Of course, public officials, like police officers, who perform
discretionary functions are entitled to gualified immunity from
suit for violations of federal law "insofar as their conduct does
not violate clearly established statutory or constitutional
3 Mrs. Breen's claims involve alleged loss of consortium and damages related to state causes of action.
10 rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity
analysis in this circuit is two-pronged: (1) "the court must
establish whether the constitutional right asserted by the
plaintiff was 'clearly established' at the time of the alleged
violation," and (2) "the court must ask whether 'a reasonable
official situated in the same circumstances should have
understood that the challenged conduct violated that established
right.'" St. Hilaire v. City of Laconia, 71 F.3d 20, 24 (1st
Cir. 1995) (quoting Burns v. Loranger, 907 F.2d 233, 236 (1st
Cir. 1990)), cert, denied, 116 S. C t . 2548 (1996). "The ultimate
question of whether a defendant is entitled, on a given set of
facts, to the protection of qualified immunity is a question of
law for the court to decide." Wood v. Clemons, 89 F.3d 922, 927
(1st C i r . 1996).
A "necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is 'clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all." Siegert v. Gilley, 500 U.S. 226,
232 (1991). If the plaintiff has failed to show a constitutional
violation, the court may bypass the qualified immunity analysis
11 and address the merits of the claim. Brown v. Hot, Sexy and
Safer Productions, Inc., 68 F.3d 525, 531 (1st Cir. 1995). The
burden is on the plaintiff to provide sufficient support for his
federal claim to show infringement of a federal right, and if he
fails to do so, the defendant is necessarily entitled to summary
judgment. See Quintero de Quintero v. Aponte-Rogue, 974 F.2d
226, 228 (1st Cir. 1992).
Here, Breen faces two major difficulties. First, although
the Fourth Amendment right not to be arrested except upon
probable cause was clearly established at the time of his arrest,
the information developed by Detectives Rheault and Cavanaugh
before applying for the warrant was, as a matter of law, more
than adeguate to establish probable cause to arrest him for
harassing Captain Kimball in violation of New Hampshire's
criminal law. So, Breen's Fourth Amendment rights, though
clearly established, were not violated. Second, even if the
police officers did not have probable cause (that is, even if a
Fourth Amendment violation is assumed), a reasonable police
officer possessing the same information they had, could have
reasonably believed that probable cause existed. So, the
officers' conduct in obtaining the warrant and effecting Breen's
12 arrest was objectively reasonable, entitling them to qualified
immunity from suit and from liability.
Rheault and Cavanaugh had reasonably trustworthy information
from Captain Kimball, the direct victim, and from Dispatcher
Ritchie that: On September 13 a phone call was made to the Salem
Fire Department; the caller or callers wanted to speak to Captain
Kimball; when Kimball was notified and put on the line, at least
two people abused him directly, using insulting, vulgar language,
and at least implicitly suggested that his wife would likely be
abused in a similar fashion; the language, content, and general
moronic tenor of the call attested to its obvious purpose to
annoy or alarm Kimball; the nature and context of the call easily
supported an inference that it was a group effort; the call was
made from Milner's car phone; Lieutenant Breen was in Milner's
car when the call was placed; Kimball positively identified Breen
as one of the callers who clearly spoke over the phone and who
directed vulgar and insulting language toward him (the other
clearly identified speaker being Covey, the other Salem
firefighter and the alleged mastermind); and of course Ritchie
confirmed that the calls were in fact received, and that Breen
was in the car when the obviously harassing call was made.
13 Any reasonable officer armed with that information, could
readily and reasonably conclude that there was probable cause4 to
believe that the call was harassing within the meaning of RSA
644:4; that Breen associated himself with and participated in the
harassing call; that Breen spoke the specific vulgarities
attributed to him by Captain Kimball; that Breen directed his own
vulgar comments to Captain Kimball for the purpose of annoying or
alarming Kimball; and that Breen joined in Covey's vulgar
comments to Captain Kimball, all in violation of RSA 644:4. That
Breen denied making the first call when Ritchie asked him about
it hardly served to undermine probable cause.
Subseguent investigation, after the arrest warrant was
issued but before Breen surrendered himself at the police
station, did not develop any information that effectively
undermined the officers' reasonable conclusion as to the
probability that Breen did exactly what Kimball said he did.
4 "Probable cause exists if 'the facts and circumstances within [a police officer's] knowledge and of which [the officer] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution' to believe that a crime has been committed or is being committed." Alexis v. McDonald's Restaurants of Mass. Inc., 67 F.3d 341, 351 (1st Cir. 1995) (guoting Carroll v. United States, 267 U.S. 132, 162 (1925)). A probable cause determination is based on a reasonable probability that the suspect committed a crime and does not reguire sufficient evidence to convict. Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992).
14 And, that various other suspects later began giving self-
exculpatory statements, or placed the entire blame on Covey (the
only other Salem firefighter in the car) also did not undermine
probable cause, given Captain Kimball's direct statement
implicating Breen. The police are not reguired, nor are they
expected, to anticipate or resolve defenses likely to be asserted
by criminal suspects, nor are they reguired to determine a
suspect's guilt beyond a reasonable doubt before seeking an
arrest warrant. Here, the information the police had on
September 21 and 23, 1993, made it more than "probable" that
Breen violated RSA 644:4. Thus, the arrest warrant was supported
by probable cause and there was no constitutional violation.
However, even if probable cause were found to be lacking and
a Fourth Amendment violation is assumed, these officers would
still be entitled to gualified immunity. While plaintiff seems
to make much of perceived animosity or bias on the part of the
police officers — supposedly arising from past investigations or
competing union interests (Breen served as an officer of the
firefighter's union), or friendship between the police officers
and Captain Kimball,
"[u]nder the Harlow standard . . . an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner."
15 Mallev v. Briggs, 475 U.S. 335, 341 (1986). Seeking an arrest warrant is 'objectively reasonable1 so long as the presence of probable cause is at least arguable, [citation omitted] Police officers "will not be immune if, on an objectively reasonable basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue immunity should be recognized." Mallev, 475 U.S. at 341. Thus, in cases where law enforcement officials reasonably but mistakenly conclude that probable cause is present, those "officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Prokev v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991).
Plaintiff does not dispute that Captain Kimball told the
police that Breen made the referenced statements to him during
the first call, and does not dispute that Ritchie told the police
what they say she told them. What the police knew prior to
obtaining the arrest warrant and prior to effecting the arrest is
not in genuine dispute. Therefore, whether a reasonable police
officer could have believed there was probable cause to arrest
Breen based on the information known to the police in this case
at the time they obtained the warrant and effected the arrest is
a guestion of law for the court to resolve. Prokev v. Watkins,
942 F.2d at 73. There can be no doubt that probable cause in
this case was "at least arguable." Beyond that very low
standard, however, it is clear that the officers did act with
16 objective reasonableness in seeking the warrant to arrest Breen.
So, even if they were mistaken as to probable cause, in this case
the officers would still be entitled to qualified immunity.
There are one or two other sub-themes running through
Breen's complaint and summary judgment response that ought to be
addressed. One is that the police "jumped the gun," that is,
they were obligated to investigate further before they applied
for Breen's arrest warrant. The implication seems to be that had
they first interrogated Milner or Covey or Crooks or Breen
himself (i.e. the people in the car), they would have had no
cause to believe Breen was involved, much less a direct
participant in the harassing call, because they would have known
only Covey was criminally liable. That argument fails.
While police are obligated to conduct fair investigations,
they have no constitutional duty to investigate any particular
information and no duty to investigate after determining that
probable cause exists to arrest a suspect. See Baker v.
McCollan, 443 U.S. 137, 146 (1979) (Police have no duty to
investigate every claim of innocence); Franco-DeJerez v. Burqor,
876 F.2d 1038, 1042 (1st Cir. 1989) (no duty to investigate after
a determination of probable cause to arrest); see also Romero v.
17 Fav, 45 F.3d 1472, 1476-77 (10th Cir. 1995) (collecting cases
discussing police duty to investigate prior to arrest).
This is not to say that the information the police had at
the time of Breen's arrest proved Breen's guilt by any means.
Breen could well have not said what Kimball attributed to him; he
could well have been the sobering influence seeking to restrain
his inebriated companions. Indeed, Breen was later acguitted in
a bench trial. But Breen's actual guilt or innocence is not the
issue — the issue is whether probable cause existed to believe
Breen committed the offense of harassment at the time of his
arrest, or whether an objectively reasonable police officer could
arguably have thought probable cause existed based on the
information the police had at that time.
Another theme permeating plaintiffs' complaint and summary
judgment response is the notion that at some point the police
should have realized that Captain Kimball was wrong; that Breen
did not participate in the harassing call; that Covey alone was
responsible; that in fact Breen interceded (with Milner) to try
and dissuade Covey; and, therefore, the police should have
dropped the prosecution.5 Plaintiff makes no claim or assertion
5 Plaintiff also seems to base part of his complaint on an assertion that Defendants Gould, Dunn, Rheault and Cavanaugh (all Salem police officers) unlawfully sought to present evidence
18 that the police failed to turn over any exculpatory or
impeachment evidence to the state's prosecutor. See e.g.
MacMilliam v. Johnson, 88 F.3d 1554, 1566-67 (11th Cir. 1996)
(collecting cases); Walker v. City of New York, 974 F.2d 293, 299
(2d Cir. 1992) (collecting cases), cert, denied, 507 U.S. 9611
(1993). The state's prosecutor, Diane M. Gorrow, Esq., filed an
affidavit in support of summary judgment in which she attests
that she was the prosecutor for the Salem Police Department, not
any of the named defendants, and the exhibits filed by plaintiff
confirm that Attorney Gorrow presented the criminal case.
So, to the extent plaintiff seeks to impose liability on
defendants for his continued prosecution, it would seem that
Attorney Gorrow and not the police defendants made the
prosecutorial decisions. As a state prosecutor. Attorney Gorrow
would enjoy absolute immunity for any acts related to the
initiation and conduct of Breen's criminal prosecution. Imbler
supporting a charge of felony witness tampering against Breen to a grand jury. While it appears uncontroverted that such a charge was referred by the police to the local county attorney, the charge was not presented to the grand jury. The county prosecutor believed an indictment would likely be returned but a conviction, requiring proof beyond a reasonable doubt, would not likely result. So, he exercised his prosecutorial discretion not to present the case. Whether to charge a suspect, whether to present a case to a grand jury, and whether to decline to prosecute a case are all prosecutorial functions for which the actor(s) enjoy absolute immunity. Imbler v. Pachtman, infra.
19 v. Pachtman, 424 U.S. 409, 431 (1976). Moreover, courts employ a
functional approach when evaluating the availability of absolute
prosecutorial immunity. See Butz v. Economic, 438 U.S. 478, 515
(1978). Therefore, the police officer defendants also would be
entitled to prosecutorial immunity to the extent that they
performed prosecutorial functions as "advocate[s] for the state."
Guzmen-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir. 1995)
(quoting Burns v. Reed, 500 U.S. 478, 491 (1991)); see also
Malachowski v. City of Keene, 787 F.2d 704, 712 (1st Cir.), cert.
denied, 479 U.S. 828 (1986). The decision not to dismiss a
criminal case (or to continue to pursue it) "lies at the heart of
the prosecutorial function." Guzman v. Rivera, 55 F.3d at 31.
Accordingly, although it is by no means clear that plaintiff
is asserting a federal claim related to his continued
prosecution, to the extent he is, such a claim would be and is
precluded by prosecutorial immunity.6
Parenthetically, while plaintiff does assert a state law claim based on "malicious prosecution," New Hampshire law also provides absolute immunity from liability for any acts that are "functionally related to the initiation of criminal process or to the prosecution of criminal charges." Belcher v. Paine, 136 N.H. 137, 146 (1992).
20 Supervisory Liability and Municipal Liability
A plaintiff suing a supervisor under § 1983 must show that
(1) a subordinate violated his constitutional rights; (2) the
supervisor's acts or omissions caused the subordinate's
unconstitutional conduct; and (3) the supervisor was deliberately
indifferent to the constitutional rights of others in acting or
failing to act. Febus-Rodriquez v. Betancourt-Lebron, 14 F.3d
87, 92 (1st Cir. 1994); Manarite, 957 F.2d at 955-56. A
supervisor displays deliberate indifference only if "it would be
manifest to any reasonable official that his conduct was very
likely to violate an individual's constitutional rights." Febus-
Rodriquez , 14 F.3d at 92. To avoid summary judgment on a claim
of supervisory liability, a plaintiff must "proffer sufficient
evidence to create a trial issue as to whether the actions" of
the supervisory defendants violated the plaintiffs'
constitutional rights. I d . at 94. As is always true in opposing
summary judgment, the plaintiff cannot rely on " [o]ptimistic
conjecture, unbridled speculation, or hopeful surmise" to meet
his burden of establishing a triable issue as to every element of
his claim. See Vega v. Kodak Caribeean, Ltd., 3 F.3d 476, 479
(1st C i r . 19 93).
21 Plaintiff has utterly failed to present any evidence, or
even to allege any facts, sufficient to create a trial issue as
to whether the actions of any of the supervisory defendants
violated plaintiffs' federal rights. Conjecture and surmise is
not enough; saying it does not make it so. In reality, plaintiff
merely asserts that police supervisors also should have
recognized that probable cause was lacking and intervened to
prevent Breen's arrest, without providing sufficient factual
support to establish the elements reguired for supervisory
liability. In addition, probable cause was not lacking, and the
supervisory defendants, like the arresting officers, could have
believed, with objective reasonableness, that probable cause
existed and so are entitled to gualified immunity.
Municipal Liability
A claim of municipal liability under § 1983 must be based on
a municipal policy, custom, or practice that caused, or was a
moving force behind, a deprivation of the plaintiffs'
constitutional rights. Monell v. Department of Social Servs.,
436 U.S. 658, 694 (1978). Although a single incident of
significant magnitude can provide some proof of a municipal
policy or custom to act in a manner consistent with the incident.
22 it is insufficient standing alone to prove an underlying policy
or custom. Bordanaro v. McLeod, 871 F.2d 1151, 1156-67 (1st
Cir.), cert, denied, 493 U.S. 820 (1989). In addition, a single
action by a municipal official may gualify as a policy, but only
if the decision was "made by the official charged with the final
responsibility for making it under local law." Harrington, 977
F.2d at 45; St. Louis v. Praprotnik, 485 U.S. 112, 124, 143
(1988); Pembaur, 475 U.S. at 483. If the plaintiff can establish
the existence of a municipal policy or custom, he must then show
that the policy caused or was the moving force behind a
deprivation of his constitutional rights. See McCabe v. Life-
Line Ambulance Serv., 77 F.3d 540, 544 (1st Cir.), Petition for
cert, filed, 64 USLW 3808 (May 29, 1996) .
Although plaintiff employs the right terms — "policy,"
"custom," etc. — he has failed to present any evidence or even to
allege any facts from which a jury could find that some municipal
policy or custom served as the moving force behind a deprivation
of his federal rights. First, his federal rights were not
violated. Second, he does not assert, for example, that it was
the policy or custom of Salem or the Salem Police Department to
effect arrests without probable cause, or to target Salem
firefighters for unlawful arrest, or to fail to train police
23 officers in the Fourth Amendment's requirement of probable cause
to arrest. Plaintiffs' only point seems to be that better
trained investigators would have gone further with the
investigation before seeking an arrest warrant. That is not
sufficient to show the existence of a policy or custom likely to
cause violations of citizens' constitutional rights.
Plaintiff also includes the Town of Salem, the Town Manager
and various supervising police officials as defendants in their
respective official capacities. Because Breen was arrested
pursuant to a warrant that was supported by probable cause, and
no violation of any of his federal rights occurred, these
defendants are of course entitled to summary judgment on his
federal causes of action. They are also entitled to summary
judgment because, even in the absence of probable cause, no basis
for supervisory or municipal liability exists, and because to the
extent they are sued in their official capacities, those claims
are simply claims against the municipality. See, e.g., Kentucky
v. Graham, 473 U.S. 159, 165 (1985); Monell v. New York P e p 't of
Social Servs., 436 U.S. 658, 590 n.55 (1978).
Conclusion
24 Summary judgment is entered in favor of all defendants on
all federal claims asserted by plaintiffs. The court declines to
exercise its supplemental jurisdiction over the causes of action
asserted by plaintiffs under state law, and those claims are
dismissed without prejudice. See, 28 U.S.C. § 1 3 6 7 (c)(3). The
clerk shall close this case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 25, 1996
cc: Donald E. Mitchell, Esg. William G. Scott, Esg. Diane M. Gorrow, Esg.