Bryant v . Noether, et a l . CV-00-191-M 03/30/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Bryant, Plaintiff
v. Civil N o . 00-191-M Opinion N o . 2001 DNH 064 Lauren Noether, in her Individual and Official Capacity, Sheriff Stephen Hodges, in his Individual and Official Capacity, Deputy Richard Batstone, in his Individual and Official Capacity, Chief Michael McCarty, in his Individual and Official Capacity, Sgt. Karen McCarty, in her Individual and Official Capacity, Sgt. Brian Loanes, in his Individual and Official Capacity, and New Beginnings, Defendants
O R D E R
Pursuant to 42 U.S.C. § 1983 and New Hampshire common law,
Richard Bryant seeks redress for alleged violations of his civil
and common law rights arising from his arrest and prosecution for
assaulting his wife. Two motions are before the court: (1)
Defendant Lauren Noether’s Motion for Judgment on the Pleadings:
Prosecutorial Immunity (document n o . 1 4 ) , and (2) Defendants
Lauren Noether’s, Stephen Hodges’s, and Richard Batstone’s (collectively, the “county defendants”) Motion for Judgment on
the Pleadings & For Summary Judgment: Qualified Immunity and
Collateral Estoppel (document n o . 2 0 ) . Noether also requests
attorney’s fees pursuant to 42 U.S.C. § 1988.
Factual Background
Plaintiff, a Belmont, New Hampshire, police officer, was
arrested on April 1 5 , 1997, for assaulting his wife. His
complaint alleges the following facts:
On the morning of April 1 5 , 1997, plaintiff and his wife
argued in their home. In the course of that argument, their
heads collided and his wife hit him. Plaintiff left the home for
a previously scheduled doctor’s appointment, but returned when he
realized he had forgotten his wallet.
Upon his return, plaintiff’s wife was preparing to leave
with their children, but followed him back into the house,
continuing the argument. At some point during the resumed
argument, plaintiff’s wife threatened to report to the police
that plaintiff “beat her.”1
1 Plaintiff’s wife allegedly made a similar threat a year earlier during a similar altercation. Following that incident, plaintiff reported being assaulted by his wife to the Belmont
2 Plaintiff left the home again and, as he was walking to his
car, his wife got into her car, revved her engine, and backed
into him, knocking him to the ground. At this point, plaintiff
also threatened to report his wife’s conduct to the police. By
the time he drove to the police department, however, he changed
his mind and continued on to his doctor’s appointment, without
ever making a report.
Plaintiff’s wife, on the other hand, apparently did not
change her mind and filed a domestic violence petition (“DVP”).
Based on the sworn statement in the DVP, the Laconia District
Court granted her a temporary domestic violence protective order
(“DVPO”).
Given plaintiff’s employment as a police officer, the
Belknap County Sheriff’s Office (“BCSO”) was asked to serve the
DVPO. Plaintiff’s wife delivered the DVPO to a Sheriff’s deputy,
who in turn gave it to Deputy Richard Batstone for service.
Batstone never saw or spoke to plaintiff’s wife about the matter.
Following his medical appointment, plaintiff returned home.
Shortly after he arrived, Batstone and Belmont Police Sgt. Brian
Police Department, who referred the matter to the Belknap County Sheriff’s Office for appropriate action. The investigation was eventually terminated, at plaintiff’s request.
3 Loanes pulled into his driveway. Batstone advised plaintiff that
he was being taken into custody for assault. Loanes informed him
that he had been placed on administrative leave by the Belmont
Police Department (“BPD”) and was required to turn over his
service weapon, which he did.
While plaintiff was in the deputy’s car, Batstone served him
with the DVPO. Batstone admitted to plaintiff that while he did
not have an arrest warrant and had not spoken with plaintiff’s
wife, he was nevertheless effecting an arrest based on
information contained in the sworn petition supporting the DVPO.
He also advised plaintiff that he had consulted Loanes and
Sergeant Karen McCarty (also of the B P D ) , whom he viewed as
“experts” in handling domestic matters. Batstone acknowledged
that plaintiff’s wife told the Sheriff’s department that she did
not want him arrested, but that h e , nevertheless, made the
decision to effect an arrest because he believed that action was
required under the circumstances.
Plaintiff was released on bail, with an arraignment set for
April 1 7 , 1997. Batstone drove him home to gather personal
belongings (the order precluded his continued presence in the
house). They found plaintiff’s wife at home. When she learned
4 of the arrest, she called Sheriff Stephen Hodges to find out why
her husband had been taken into custody, rather than just served
with the DVPO. Her protests did not affect the decision by the
Sheriff’s department, however, and from that point o n , she
refused to cooperate in her husband's prosecution.
The following day, plaintiff was ordered to appear before
Chief Michael McCarty and Sergeant Loanes to discuss the
incident, purportedly as part of an internal BPD investigation.
Plaintiff both objected to Loanes’ presence, and asked to have a
union representative present, but the meeting continued as
arranged. Chief McCarty tape-recorded the interview with
plaintiff.
Plaintiff later learned from his wife that after she
attempted to determine the reason for his arrest, and informed
the Sheriff’s department that she would not cooperate, Chief
McCarty and Sgt. McCarty went to talk to her about the incident.
According to his wife, the chief and sergeant knew she was in an
unhealthy state, both mentally and physically (having gone days
without sleep and being on medication). Plaintiff alleges she
was led to believe that any information she provided would be
used for internal purposes only, and that she had no choice but
5 to speak with them. The chief and sergeant then proceeded to
obtain a written statement from his wife, which she contends was
false and misleading.
Mrs. Bryant also told plaintiff that a counselor from New
Beginnings, a women’s crisis center, accompanied her when she
filed the DVP, and coaxed her into making things seem worse than
they actually were to ensure that an order would be issued.
On April 1 7 , 1997, plaintiff’s wife petitioned the court to
withdraw the DVPO. Her petition was granted. She informed
plaintiff, however, that someone allegedly had called the court
to try to stop her from seeking the order's withdrawal. She
later made repeated attempts to set the record straight, and
refused to testify at her husband’s trial (the criminal charges
were still pending), despite the County Attorney’s attempts to
compel her testimony.
Belknap County Attorney Lauren Noether was responsible for
prosecuting plaintiff’s criminal case. She eventually negotiated
a disposition with plaintiff and his attorney, under which the
pending charges were nol prossed (thereby avoiding the risk of
plaintiff suffering a criminal conviction), but on condition that
plaintiff complete a course of marriage counseling.
6 Standard of Review
Federal Rule of Civil Procedure 12(c) provides that,
“[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the
pleadings.” In reviewing such a motion, the court must credit
all material allegations in the complaint as true and draw all
reasonable inferences in the non-moving party’s favor. See
Feliciano v . State of Rhode Island, 160 F.3d 780, 788 (1st Cir.
1998). The court may grant a motion for judgment on the
pleadings only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims that would entitle
him to relief. See Gaskell v . Harvard Cooperative Society, 3
F.3d 495, 497-98 (1st Cir. 1993). A pro se complaint, however,
is held to “less stringent standards” than one drafted by an
attorney, see, e.g., Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976),
and the court should deny a motion for judgment on the pleadings
if the pro se's factual allegations support a claim that may be
misnamed.
If “a complaint’s factual allegations are expressly linked
to – and admittedly dependent upon – a document (the authenticity
of which is not challenged), that document effectively merges
7 into the pleadings and the trial court can review it . . . .”
Beddall v . State Street Bank and Trust Co., 137 F.3d 1 2 , 17 (1st
Cir. 1998). Furthermore, “[i]f, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 5 6 , and all
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.” Fed. R.
Civ. P. 12(c).
Here, the county defendants’ motion is captioned as a
“Motion for Judgment on the Pleadings & For Summary Judgment,”
and it includes attached affidavits from Noether and Batstone.
Plaintiff’s objection mirrors the county defendants’ caption and
also refers to matters outside the complaint, including a
statement by Mrs. Bryant attached to the objection.
Additionally, both parties recite the standard of review
applicable to summary judgment, as well as the standard of review
applicable to judgment on the pleadings. Accordingly, plaintiff
has facially acknowledged that defendants alternatively move for
summary judgment, and has probably had a “reasonable opportunity
8 to present all material made pertinent to [a motion for summary
judgment].” See Fed. R. Civ. P. 12(c).
However, plaintiff objects to treating the motion as one for
summary judgment because he failed to engage in discovery while
proceeding pro s e . Having since retained legal counsel,
plaintiff now treats the motion as one for judgment on the
pleadings only. Accordingly, the court will disregard additional
material outside the pleadings and treat the county defendants’
motion as one for judgment on the pleadings. But, because
plaintiff’s allegations are expressly dependant upon his wife’s
DVP and the resulting DVPO (copies of which were submitted with
the county defendants’ motion and not objected to by plaintiff)
these documents are “effectively merge[d] into the pleadings” and
considered without converting the motion to one for summary
judgment. See Beddall, 137 F.3d at 1 7 .
9 Discussion2
“The crux of [p]laintiff’s [c]omplaint alleges that,
notwithstanding any false allegations made, the gist of the
information contained in Mrs. Bryant’s DVP does not constitute
probable cause sufficient to justify the [p]laintiff’s arrest and
subsequent prosecution.” Plaintiff’s Memorandum in Opposition to
Judgment on the Pleadings (document n o . 2 4 ) . On that basis, he
argues that his arrest and prosecution violated his civil rights
(Counts I and I I ) , as well as his state common law rights (Counts
III and I V ) . The county defendants argue that plaintiff’s rights
were not violated because there was probable cause to arrest and
prosecute him. In the alternative, they argue that even if
probable cause was lacking, they are entitled to immunity, either
absolute or qualified, for their actions. Furthermore, the
2 Only potential liability of the county defendants in their individual capacities will be discussed. Suits brought against parties in their official capacities are treated as suits against the municipality. See, e.g., Brandon v . Holt, 469 U.S. 464, 471 (1984). In order for a municipality to be liable under 42 U.S.C. § 1983, there must be a deprivation of constitutional rights resulting from “official action taken pursuant to a ‘custom or usage’ of the municipality.” Mahan v . Plymouth County House of Corrections, 64 F.3d 1 4 , 16 (1st Cir. 1995). Here, plaintiff has not alleged any unconstitutional custom or usage. Accordingly, plaintiff cannot maintain § 1983 claims against the county defendants in their official capacities.
10 county defendants assert that plaintiff’s probable cause argument
is barred by the doctrine of collateral estoppel, and that he has
failed to allege essential elements of his common law claims.
I. 42 U.S.C. § 1983
Title 4 2 , section 1983 provides a civil remedy for the
deprivation of constitutional rights by anyone acting under the
color of law. There is no dispute that the county defendants
were acting under color of law in this case. Accordingly, to
survive the present motions, plaintiff need only allege facts
which, if true, demonstrate that the county defendants’ actions
deprived him of federal rights. However, under some
circumstances, those alleged to have deprived a person of his
rights are entitled to immunity. See Imbler v . Pachtman, 424
U.S. 409, 418-19 (1976). Immunity can be either absolute or
qualified. See id.
A. County Attorney Noether: Absolute Prosecutorial Immunity
It is well settled that prosecutors enjoy absolute immunity
for actions taken within the scope of their prosecutorial duties.
See, e.g., Imbler, 424 U.S. at 422-23. It is equally well
11 settled that “in initiating a prosecution and in presenting the
State’s case, the prosecutor is immune from a civil suit for
damages under § 1983.” Id. at 431; see Burns v . Reed, 500 U.S.
478, 486 (1991); Guzman-Rivera v . Rivera-Cruz, 55 F.3d 2 6 , 29
(1st Cir. 1995). For absolute immunity to apply, the challenged
conduct must be “intimately associated with the judicial phase of
the criminal process.” Imbler, 424 U.S. at 430; see Guzman-
Rivera, 55 F.3d at 2 9 . Absolute immunity does not, however,
shield a prosecutor’s acts as an administrator or investigator,
but is limited to her role as an advocate for the state. See,
e.g., Guzman-Rivera, 55 F.3d at 2 9 .
Absolute prosecutorial immunity is necessary to protect the
judicial process from “harassment by unfounded litigation [that]
would cause a deflection of the prosecutor’s energies from [her]
public duties, and the possibility that [she] would shade [her]
decisions instead of exercising the independence of judgment
required by [her] public trust.” Burns, 500 U.S. at 478 (citing
Imbler, 424 U.S. at 4 2 3 ) . The Supreme Court has acknowledged
that “[absolute] immunity does leave the genuinely wronged
defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty. But the
12 alternative of qualifying a prosecutor’s immunity would disserve
the broader public interest.” Imbler, 424 U.S. at 427.
Count I I , the only claim arguably brought against Noether,
alleges she maliciously prosecuted plaintiff in violation of his
constitutional rights. However, the complaint does not allege
that Noether participated in any stage of the process prior to
charges being filed against plaintiff. Plaintiff only complains
about Noether’s decision to proceed with the prosecution.
Accordingly, even if Noether was motivated by something other
than a good faith belief in the merits of the case, and even if
all of plaintiff’s other allegations are accepted as true,
because the decision to proceed with a prosecution is precisely
the kind of official duty absolute prosecutorial immunity is
designed to protect, see, e.g., Imbler, 424 U.S. at 4 3 1 ,
plaintiff cannot, as a matter of law, maintain an action for
damages against the prosecutor.3
3 The court notes that plaintiff’s stated claim, “Violation of Amendment XIV,” cannot survive to the extent he claims a violation of a substantive due process right to be free fro prosecution without probable cause. See, e.g., Meehan v . Town of Plymouth, 167 F.3d 8 5 , 88 (1st Cir. 1999). Because plaintiff filed his complaint pro s e , the court considered the extent to which he may be asserting Fourth Amendment rights and/or raising a state claim. However, absolute prosecutorial immunity would also apply to such claims. See Belcher v . Paine, 136 N.H. 137, 147 (1992) (absolute immunity under state l a w ) .
13 B. The Remaining County Defendants - Batstone & Hodges
Plaintiff complains that the remaining county defendants are
liable to him under § 1983 because they violated his Fourth
Amendment rights. The Fourth Amendment guarantees the freedom of
every citizen to be free from unreasonable searches and seizures.
Ordinarily, an arrest warrant, issued by an impartial magistrate
or judge, must be obtained before an arrest is made. See, e.g.,
Gerstein v . Pugh, 420 U.S. 103, 112 (1974). However, in some
situations, an arrest may be effected without a warrant, if
probable cause exists to believe a crime has been committed by
the arrested person. See id. at 113. In addition, New Hampshire
law provides:
An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever: . . . (b) He has probable cause to believe that the person to be arrested has within the past 6 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, . . . .
N.H. Rev. Stat. Ann. (RSA) ch. 594:10, I (Supp. 2000) (effective
July 3 , 1993). RSA 173-B:1 defines “abuse,” in pertinent part
as:
14 [T]he occurrence of one or more of the following acts between family or household members or current or former sexual or intimate partners: (a) Attempting to cause or purposely or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon under any of the circumstances outlined in RSA 631:1 [(First Degree Assault)], 631:2 [(Second Degree Assault)], or 631:2-a [(Simple Assault)]; . . . .
RSA 173-B:1, I (1994). In this case, plaintiff was arrested and
charged with simple assault, defined a s :
I. A person is guilty of simple assault if he: (a) Purposely or knowingly causes bodily injury or unprivileged physical contact to another; or (b) Recklessly causes bodily injury to another; or (c) Negligently causes bodily injury to another by means of a deadly weapon. I I . Simple assault is a misdemeanor unless committed in a fight entered into by mutual consent, in which case it is a violation.
RSA 631:2-a (1996).
Because each remaining county defendants’ role in
plaintiff’s arrest was somewhat different, each will be discussed
separately.
15 1. Deputy Batstone
Batstone was the Sheriff’s deputy who made the decision to
arrest plaintiff after reviewing the DVP, and accompanying DVPO,
and after consulting BPD officers responsible for domestic
violence matters. Plaintiff says Batstone’s decision to arrest
was based solely on the information contained in the DVP, and
that the DVP’s content did not supply probable cause.
Accordingly, at least with respect to Batstone, the only question
is whether the DVP, and accompanying protective order, were
sufficient to provide him with probable cause to believe
plaintiff had “[p]urposely or knowingly cause[d] bodily injury or
unprivileged physical contact to [his wife]; or . . .
[r]ecklessly cause[d] bodily injury to [his wife] . . . .” See
RSA 631:2-a.
a. Collateral Estoppel
As an initial matter, the county defendants argue that
plaintiff is precluded, under the doctrine of collateral
estoppel, from litigating the existence of probable cause because
that issue was previously resolved against him.
16 "Federal courts are bound by state law on the preclusive
effect of state judgments." Commercial Associates v . Tilcon
Gammino, Inc., 998 F.2d 1092, 1096 (1st Cir. 1993). Accordingly,
the court shall apply the New Hampshire standard for collateral
estoppel, which precludes a party from re-litigating an issue
previously decided on the merits when the current party had a
full and fair opportunity to be heard, or was in privity with a
party who had such an opportunity. See, e.g., In re Alfred P.,
126 N.H. 6 2 8 , 629 (1985). The issue must actually be raised and
determined on the merits. See id.
Defendants assert that plaintiff is estopped from litigating
the probable cause issue because (1) in issuing the DVPO, the
Laconia District Court necessarily found by a preponderance of
the evidence that plaintiff had physically abused his wife4 and
(2) plaintiff did not raise the issue during his criminal trial.
Both arguments fail. First, plaintiff was not a party to
the ex parte proceeding, which led to the issuance of the
4 The county defendants rely on the version of RSA 173-B:4 in effect at the time of plaintiff’s arrest which provided, in pertinent part, “Upon a showing of abuse of the plaintiff by a preponderance of the evidence, the court shall grant such relief as is necessary to bring about a cessation of abuse . . . .” RSA 173-B:4 (1994) (amended 1999). As will be discussed below, see, infra, footnote 5 , their reliance on this statutory provision is misplaced.
17 temporary DVPO by the Laconia District Court. Nor was he in
privity with his wife or the state, with regard to the domestic
violence proceeding. Second, failure to raise the issue during
his criminal proceedings does not trigger collateral estoppel
because the issue was not determined on the merits. See Alfred
P., 126 N.H. at 629. Accordingly, plaintiff can raise the issue
of whether probable cause existed to arrest him.
b. Probable Cause
“[P]robable cause exists when the facts and circumstances
within the [arresting officer’s] knowledge and of which [he] 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, 979 F.2d 259, 263
(1st Cir. 1992) (internal citations, alterations, and quotation
marks omitted). Probable cause does not require the facts and
circumstances within the officer’s knowledge to “be sufficient to
prove guilt beyond a reasonable doubt, to make out a prima facie
case or even to establish that guilt is more probable than not.”
State v . Thorp, 116 N.H. 303, 307 (1976) (citing Spinelli v .
United States, 393 U.S. 410, 419 (1969), abrogated on other
18 grounds by Illinois v . Gates, 462 U.S. 213 (1983)). Although it
is dependent upon the specific facts of a case, if there are no
factual disputes, or if it can be resolved based on undisputed
facts, the determination of whether probable cause existed is a
question of law for the court to answer. See Kay v . Bruno, 605,
F. Supp. 7 6 7 , 774 (D.N.H. 1985), aff’d Kay v . New Hampshire
Democratic Party, 821 F.2d 31 (1st Cir. 1987).
Here, Batstone received the DVP, and accompanying DVPO, on
April 1 5 , 1997, the same day as the alleged assault. Mrs.
Bryant, the victim, had personally delivered the documents to the
BCSO. The DVP was undeniably “[s]ubscribed and sworn to by” Mrs
Bryant, and the following detailed description appears on the
face of the DVP:
On 4-15-97 at approx. 10:00 AM my husband Richard A . Bryant became angry with me and when I closed the bedroom door to get away from him, and to avoid an argument in front of our children, he proceeded to slam the door open and head butt me above my right eye all the while yelling [and] screaming and grabbing me around the neck. He also ripped my jacket off me breaking the zipper. As I tried to leave the home he got right in my face and shoved me to try and prevent me from leaving [and] going to my mother’s house.
County Defendants’ Motion for Judgment on the Pleadings, Ex. A ,
Domestic Violence Petition signed by Mary Bryant. The DVPO
19 indicated that, “having considered” the DVP, the Laconia district
court judge found that Mrs. Bryant was “in immediate and present
danger of abuse” by plaintiff.5
Plaintiff complains that Batstone did not have probable
cause because he did not investigate further: he did not first
question Mrs. Bryant about the incident (in fact he never saw or
spoke to h e r ) ; he did not observe any physical evidence of abuse;
and he did not attempt to interview plaintiff about the incident
before effecting his arrest.
Although not a per se rule, a victim’s statement will
generally suffice to support probable cause, absent some reason
to doubt the victim’s reliability. See B.C.R. Transport Co.,
Inc. v . Fontaine, 727 F.2d 7 , 10 (1st Cir. 1984); Speigel v .
Cortese, 966 F. Supp. 6 8 4 , 691 (N.D. Ill. 1997), aff’d 196 F.3d
717 (&th Cir. 1999). Here, Batstone was relying on the alleged
victim’s sworn, detailed statement that identified her husband by
name and described an altercation clearly within the bounds of
5 The county defendants, relying on RSA 173-B:4, argue that this finding was necessarily “upon a showing of abuse by a preponderance of the evidence.” RSA 173-B:4, I . However, because the DVPO issued was temporary, and issued ex parte, its issuance was governed by RSA-B:6 (as it existed at the time) which authorized a judge to issue temporary orders “[u]pon a showing of an immediate and present danger of abuse.”
20 RSA 631:2-a. See Lallemand v . University of Rhode Island, 9 F.3d
214, 216 (1st Cir. 1993) (victim’s statement and identification
sufficient to provide probable cause). Although plaintiff
mentions in his statement of facts that Mrs. Bryant allegedly
threatened to file a false petition a year earlier, there is no
reasonable basis to conclude Batstone had any knowledge of that
threat, or of any other reason to think Mrs. Bryant would swear
falsely, file a false petition, and seek to procure a DVPO by
fraud. Plaintiff has not alleged Batstone had knowledge, nor has
he alleged, or argued in his opposition since retaining counsel,
that Batstone had any reason to doubt the trustworthiness of the
sworn DVP. Furthermore, Batstone had the Laconia district court
order, confirming a judge’s finding, after considering the DVP,
that Mrs. Bryant was in immediate and present danger of abuse.
These facts and circumstances were “sufficient to warrant a
prudent person in believing that [plaintiff] had committed”
physical abuse against his wife. See Rivera, 979 F.2d at 263.
Furthermore, Batstone was not required to take the steps
suggested by plaintiff because once an officer determines
probable cause exists, further investigation is not required.
See, e.g., Franco-de Jerez v . Burgos, 876 F.2d 1038, 1041-42 (1st
21 Cir. 1989). Accordingly, because Batstone had probable cause to
arrest plaintiff, he did not violate plaintiff’s Fourth Amendment
rights.
c. Qualified Immunity
In the alternative, Batstone argues that if his
determination of probable cause was wrong, he is entitled to
qualified immunity and, therefore, not liable under § 1983.
Although this defense is unnecessary since the court has found
probable cause actually existed, in the interest of completeness,
the court will address i t .
In a § 1983 action, “government officials performing
discretionary functions generally are shielded 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.” Harlow v . Fitzgerald, 457
U.S. 800, 818 (1982). It is “an immunity from suit rather than a
mere defense to liability,” and should be decided at the earliest
possible stage. Hunter v . Bryant, 502 U.S. 224, 227-28 (1991)
(per curiam).
22 In the Fourth Amendment context, officers are “entitled to
immunity if a reasonable officer could have believed that
probable cause existed.” Rivera, 979 F.2d at 263. This is true
even if it turns out later that there was no probable cause. See
Hunter, 502 U.S. at 227; Rivera, 979 F.2d at 263. It is an
“objectively reasonable” test, that does not require exploration
of an officer’s subjective analysis, or purpose. Officers are
entitled to qualified immunity for arrests “so long as the
presence of probable cause is at least arguable.” Floyd v .
Farrell, 765 F.2d 1 , 5 (1st Cir. 1985) (extending to warrantless
arrests test applicable to seeking arrest warrants). “[Q]ualifed
immunity is pierced only if there clearly was no probable cause
at the time the arrest was made.” Id.
As the discussion above illustrates, when presented with a
sworn statement by the alleged victim of domestic violence, in
which an incident of abuse was described in detail, and the
assailant was identified as the complainant’s husband, it i s , at
the very least, arguable that a reasonable officer could
reasonably believe he or she had probable cause to arrest
plaintiff. Accordingly, even if probable cause did not exist,
23 Batstone would still be entitled to qualified immunity from
liability.
2. Sheriff Hodges
To the extent Count I is intended to include Hodges, there
are no allegations capable of imposing liability under § 1983.
It cannot be reasonably inferred from the complaint that Hodges
was involved in the decision to arrest plaintiff. Although
Hodges is Batstone’s superior officer, he cannot be held
responsible for Batstone’s actions (if they were unlawful)
because there is no respondeat superior liability under § 1983.
See, e.g., Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562
(1st Cir. 1989). Any liability must be derived from Hodges’s own
actions or omissions. See id. His apparent inaction following
Mrs. Bryant’s protest of the arrest (the only conduct by him
alleged), absent allegations that he knew plaintiff was in fact
innocent, or that Batstone did not have probable cause, does not
state a claim for relief. Accordingly, based on the facts
alleged by plaintiff, Hodges cannot be held liable under Count I ,
as a matter of law.
24 II. Pendent State Claims A. Negligence6
Plaintiff alleges the county defendants breached a duty of
care owed to him “by arresting him without probable cause and in
direct dereliction of the alleged victim’s request that the
plaintiff simply be served with DVPO documents.” Complaint ¶ 6 3 .
In essence, plaintiff seems to be alleging a cause of action for
“negligent arrest.” The court has found no support under New
Hampshire law for such a claim in this context. When faced with
an allegation of “negligent arrest,” courts have generally
construed it as one for either false imprisonment or false
arrest, see, e.g., Hernandez v . Metro-Dade County, 992 F. Supp.
1365, 1369 (S.D. Fla. 1997), or as an action for excessive force
or wrongful death. See, e.g., Daniel v . State through Washington
State Patrol, 671 P.2d 802, 806 (Wash. App. 1983). Still other
courts have refused to recognize such claims in negligence. See,
e.g., Pourny v . Maui Police Dep’t, 127 F. Supp.2d 1129, 1145-46
6 The court notes that the county defendants mention the negligence claim in their motion, and in passing in their memorandum, but have failed to cite any authority supporting their claim to judgment on the pleadings. See Local Rule 7.1(a)(2). However, given the complete dependancy of Count III on the absence of probable cause (an essential element of the claim), the court will resolve the issue.
25 (D. Hawaii 2000); Larson v . Lowery, N o . 86-C-5286, 1987 WL 6304,
at *2 (N.D. Ill. Feb. 3 , 1987). This court has construed a claim
for “negligent arrest” as one for false imprisonment, see Kimball
v . Somersworth, CV 90-447-M (D.N.H. Feb. 1 7 , 1993), and malicious
prosecution. See Spaulding v . Town of Newport, CV 94-316-SD
(D.N.H. Dec. 2 3 , 1996) (construing claim as both false
imprisonment and malicious prosecution).
New Hampshire recognizes the tort of false imprisonment.
See, e.g., Hickox v . J.B. Morin Agency, Inc., 110 N.H. 438, 442
(1970). “False imprisonment is the unlawful restraint of an
individual’s personal freedom.” Id. But, because the court has
found Batstone had probable cause to arrest plaintiff, see,
supra, § I(B)(1)(b), the arrest was necessarily lawful, and a
false imprisonment count does not lie. Accordingly, Count III
must be dismissed.
B. Abuse of Process
The tort of abuse of process is recognized in New Hampshire
through express adoption of Restatement (Second) of Torts § 682.
Long v . Long, 136 N.H. 2 5 , 29 (1992). The Restatement describes
the cause of action as follows: “One who uses a legal process,
26 whether criminal or civil, against another primarily to
accomplish a purpose for which it is not designed, is subject to
liability to the other for harm caused by the abuse of process.”
Restatement (Second) of Torts § 682, at 474 (1977). To state a
claim for abuse of process, then, one must allege (1) an ulterior
purpose and (2) a wilful act in the use of process not proper in
the regular conduct of the proceeding. Clipper Affiliates, Inc.
v . Checovich, 138 N.H. 271, 276 (1994). The ulterior purpose is
generally some form of extortion. Id. at 277; Restatement
(Second) of Torts § 682 cmt. b , at 475. “Absent some form of
compulsory process forcing the performance or forbearance of some
prescribed act, a claim of abuse of process fails.” Clipper
Affiliates, Inc., 138 N.H. at 277 (internal citation and
quotation marks omitted). It is not enough to allege harassment
or retaliation. Id.; see also Restatement (Second) of Torts §
682 cmt. b (“[T]he entirely justified prosecution of another on a
criminal charge does not become abuse of process merely because
the instigator dislikes the accused and enjoys doing him harm.”).
Here, plaintiff has failed to allege facts necessary to
support finding in his favor on the necessary elements. Count IV
relates to representations allegedly made to the sheriff’s
27 department that led to the decision to arrest him and his actual
arrest. Plaintiff alleges in conclusory fashion that the
ulterior purpose of his arrest was to “injure him.” Complaint ¶
67. There is no allegation, either direct or indirect, that
plaintiff’s arrest was effected for the purpose of compelling him
to do something, or give up something unrelated to the
proceedings. See Clipper Affiliates, Inc., 138 N.H. at 277;
Restatement (Second) of Torts § 682 cmt. b , at 475.
Given plaintiff’s initial pro se status, and the court’s
obligation to liberally construe pro se complaints, it is
possible that plaintiff actually meant to allege common law
malicious prosecution. However, an essential element of
malicious prosecution is the absence of probable cause. Johnston
v . Flatley Realty Investors, 125 N.H. 133, 136 (1984).
Accordingly, a common law malicious prosecution claim would also
fail since the court has found that probable cause to arrest
plaintiff did exist.
28 Conclusion
For the above reasons, plaintiff cannot sustain any of his
stated, or suggested, causes of actions against the county
defendants. Accordingly, Noether’s motion for judgment on the
pleadings (document no. 14) and the county defendants’ motion for
judgment on the pleadings (document n o . 20) are granted.
In the exercise of the court’s discretion, defendants’
request for attorneys’ fees is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 3 0 , 2001
cc: Richard Bryant Jeffrey A . Runge, Esq. John A . Curran, Esq. Donald E . Gardner, Esq. Gary M. Burt, Esq.