Caughey v. Snow CV-94-226-JD 07/11/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Cauqhev
v. Civil No. 94-226-JD
Robert Snow, et al.
O R D E R
This case involves a January 18, 1992, physical altercation
between the plaintiff, Richard Caughey, and the defendant, Robert
Tetrault. The defendants Robert Snow and David Roode directed
the police investigation of the incident on behalf of their
employer, the defendant the town of Bartlett (collectively the
"Bartlett defendants"). The investigation resulted in the un
successful criminal prosecution of the plaintiff in New Hampshire
state court. The plaintiff alleges that the prosecution was
improper and that the defendants are liable under federal civil
rights law and state tort law. Before the court are Tetrault's
motion for judgment on the pleadings (document no. 19) and the
Bartlett defendants' motion for judgment on the pleadings
(document no. 18).
Discussion
In their motion the Bartlett defendants assert that they are
entitled to judgment on the pleadings for the federal claims (Counts I - IV) and the state tort claims (Counts V - V I I ) . In
his motion the defendant Tetrault asserts that he is entitled to
judgment on the pleadings for the federal claim (Count I) and the
state malicious prosecution claim (Count VIII) in which he is the
sole defendant. In response, the plaintiff argues that his
complaint contains sufficient factual averments to allow him to
go forward with both the constitutional and pendent state law
claims.
Pursuant to Fed. R. Civ. P. 12(c), a motion for judgment on
the pleadings will be granted if, accepting all of the plain
tiff's factual averments contained in the complaint as true, and
drawing every reasonable inference helpful to the plaintiff's
cause, "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.
1988). The court's Rule 12(c) analysis is governed by essen
tially the same standard used when ruling on a Rule 12(b) (6)
motion. Republic Steel Corp. v. Pennsylvania Enq'q Corp., 785
F.2d 174, 182 (7th Cir. 1986) . In both cases, the court's
inguiry 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. 232, 236 (1974) (motion to dismiss under Fed. R. Civ. P.
2 12(b) (6)) . Great specificity is not required to survive a Rule
12(c) motion. "[I]t is enough for a plaintiff to sketch an
actionable claim by means of 'a generalized statement of facts.'"
Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17
(1st Cir. 1992) (quoting 5A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (1990)).
I. Constitutional Claims
The plaintiff has asserted four federal claims under 42
U.S.C. §§ 1983, 1988. In Count I the plaintiff asserts that each
named defendant, acting in concert, violated the constitutional
protections afforded by the Fourth, Fifth and Fourteenth
Amendments. In Counts II, III, and IV the plaintiff asserts that
the defendants individually violated the same set of
constitutional rights.1__
In their respective motions and supporting memoranda
Tetrault and the Bartlett defendants argue, inter alia, that the
plaintiff cannot proceed under Counts I - IV because he has
failed to allege conduct sufficiently egregious or conscious-
shocking as to support a cognizable section 1983 substantive due
1The plaintiff asserts Count II against defendant Roode in his individual and official capacities; Count III against defendant Snow in his individual and official capacities; and Count IV against the defendant town of Bartlett.
3 process claim based on malicious prosecution. See Tetrault's
Memorandum of Law at 5, 9 (citing Torres v. Superintendent of
Police, 893 F.2d 404, 409-410 (1st Cir. 1990), cert, denied, 112
S. C t . 2323 (1992)); Bartlett Defendants' Memorandum of Law at 4-
5 (also citing Torres, 893 F.2d at 409). Tetrault further argues
that, even if such egregious facts were established, the Supreme
Court's recent ruling in Albright v. Oliver, 114 S. C t . 807
(1994), has foreclosed such a substantive due process claim based
on malicious prosecution. Tetrault's Memorandum of Law at 9-10.
A. Substantive Due Process
Section 1983 provides that
[e]very person who, under color of [state authority] subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in eguity, or other proper proceeding for redress.
42 U.S.C.A. § 1983 (West 1994). "Section 1983 is not itself a
source of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred." Albright, 114
S. C t . at 811 (citations omitted). Notwithstanding the sweeping
language of the statute, section 1983 does not provide a remedy
for a violation of every protection guaranteed by the
constitution. See i d . at 813. In Albright a plurality of the
Supreme Court held that plaintiffs cannot maintain section 1983
4 malicious prosecution claims based on a due process violation
where the conduct complained of also contravenes a liberty
interest protected by one of the "specific guarantees of the
various provisions of the Bill of Rights." Id. The court
reasoned that
[w]here a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Graham v. Connor, 490 U.S. 386, 395 (1989).
I d . at 813-14; see Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42
(1st Cir. 1994) ("Albright would appear virtually to foreclose
reliance on substantive due process as the basis for a viable
malicious prosecution claim under section 1983"); Filion v.
Bellows Falls Foods, No. 93-641-SD, slip op. at 8-10 (D.N.H. June
1, 1995) (Under Albright, section 1983 plaintiffs must rely on
Fourth Amendment and not substantive due process where alleged
deprivations of liberty related to defendants' search and
seizure); see also Aveni v. Mottola, 35 F.3d 680, 691 (2d Cir.
1994), cert, denied, 115 S. C t . 1689 (1995) (Following Graham and
Albright, "it is doubtful that any plaintiff may pursue a Fifth
Amendment substantive due process claim based on the same facts
as alleged in a Fourth Amendment unreasonable search claim.").
5 It is clear from the plaintiff's response to the defendants'
Rule 1 2 (c) motion that his constitutional claims are grounded in
alleged violations of the Fourth Amendment. See, e.g..
Plaintiff's Response to Defendant's Motion for Judgment on the
Pleadings ("Plaintiff's Response") at 5-6 ("There are two
possible 'seizures' pleaded in the Complaint which give rise to
Fourth Amendment protections."). Indeed, at one point the
plaintiff even acknowledges that a "similar claim was brought in
Albright v. Oliver, in which the [Supreme Court] . . . held that
petitioner's claim was properly adjudged under the Fourth
Amendment." I d . at 4-5. Although at times characterized as
substantive due process violations, the conduct the plaintiff
complains of is inextricably linked to the reasonableness of the
criminal investigation and his voluntary "surrender to the
State's show of authority [], a seizure for purposes of the
Fourth Amendment." Albright, 114 S. C t . at 812. The recent
Supreme Court rulings and subseguent decisions of lower courts,
supra, compel the court to view the plaintiff's constitutional
claims through a "Fourth Amendment lens" and not under the more
generalized notions of substantive due process protected by the
Fifth and Fourteenth Amendments. Albright, 114 S. C t . at 814
(Ginsburg, J., concurring).
6 B. Search and Seizure
The plaintiff asserts that the defendants violated the
Fourth Amendment proscription against unreasonable seizures when
they ordered him to surrender on January 19 , 1992. Plaintiff's
Response at 6. The plaintiff also asserts that his subsequent
indictment and summons to appear for trial constituted an
unconstitutional seizure. I d . at 7.
The Fourth Amendment
entitles an individual to "the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Terry v. Ohio, 392 U.S. 1, 9 (1968) .
Veiga v. McGee, 26 F.3d 1206, 1214 (1st Cir. 1994). The Fourth
Amendment governs "all seizures of the person, including seizures
that involve only a brief detention short of traditional arrest."
United States v. Mendenhall, 446 U.S. 544, 551 (1980) (quotation
omitted); Beverly C. v. Hampstead Outlook, Inc., No. 93-307-L,
slip op. at 6-7 (D.N.H. July 12, 1994) . However, the amendment's
protections do not extend to each situation in which an
individual has contact with the police as a person is only
considered to have been "seized" where, under the totality of the
circumstances, a reasonable person would have believed that he
was not free to leave. E.g., Mendenhall, 446 U.S. at 554.
Finally, "[s]eizure alone is not enough for § 1983 liability; the
7 seizure must be unreasonable." Brower v. County of Inyo, 109 S.
C t . 1378, 1382 (1989) .
The plaintiff has alleged that Tetrault and the Bartlett
defendants engaged in a variety of improper conduct relative to
the investigation of the January 18, 1992, melee at the Red Parka
Pub. E.g., Complaint at 55 20, 23 (Tetrault lied to police
during initial investigation); 5 29 (Bartlett defendants
coordinated police investigation with Tetrault's private attorney
and investigator); 5 30 (Bartlett defendant Roode erroneously
told plaintiff and plaintiff's former spouse that plaintiff had
mortally wounded Tetrault); 55 31, 39 (Bartlett defendants
avoided consideration of potentially exculpatory evidence by
refusing to investigate Tetrault and by refusing to interview
certain eyewitness). The plaintiff asserts that this wrongful
conduct resulted in his forced surrender to the Bartlett Police
on January 19, 1992, at which time the plaintiff was read his
Miranda rights.
The court finds that these factual allegations adeguately
sketch an actionable section 1983 claim based on a violation of
the Fourth Amendment. The plaintiff has alleged events which, if
proven, indicate that a reasonable person may have believed that
he was not free to leave the Bartlett police station on January
18, 1992. The fact that defendant Roode read the Miranda rights further suggests that the plaintiff was seized within the meaning
of the Fourth Amendment.2 Moreover, the complaint also contains
sufficient allegations of intentional wrongdoing on the part of
Tetrault and the Bartlett defendants to support a finding that
the investigation was conducted in such bad faith that any
resulting seizures were unreasonable. Accordingly, the court
finds that the claims advanced in Counts I through IV survive the
instant motion for a judgment on the pleadings to the extent they
are grounded in violations of the Fourth Amendment proscription
against unreasonable searches and seizures. To the extent the
claims allege a violation of substantive due process under the
Fourteenth Amendment they are dismissed.
II. State Tort Claims Against Bartlett Defendants
In Counts V, VI, and VII the plaintiff asserts common law
tort claims against the Bartlett defendants.3 Each count alleges
that the named defendant "negligently and/or recklessly caused
Mr. Caughey to be prosecuted, to suffer loss of property, and to
2Civen the ruling, supra, that the plaintiff's voluntary surrender may constitute a "seizure" for purposes of avoiding dismissal on the pleadings, the court need not consider whether the indictment and court summons would also satisfy this element of the prima facie section 1983/Fourth Amendment claim.
31he plaintiff asserts Count V against the defendant Snow; Count VI against the defendant Roode; and Count VII against the defendant Town of Bartlett. suffer significant anxiety, anguish, humiliation and expense
. . . ." Complaint at 55 65 - 67.
In their motion, the Bartlett defendants argue that the
plaintiff's state-law claims seek recovery for negligent
prosecution, a cause of action not recognized by New Hampshire
law. Bartlett Defendants' Memorandum of Law at 6 - 8
("Obviously, if there is no state tort for malicious prosecution
by public officials, then there cannot be a state tort for
'negligent' prosecutions.") (citing State v. Rollins, 129 N.H.
684, 533 A.2d 331 (1987)). The plaintiff responds that Counts V,
VI, and VII advance two cognizable state law claims in that they
allege liability for negligence and for malicious prosecution.
Plaintiff's Memorandum of Law at 19.
A. Negligence
Under New Hampshire law a party seeking to recover for
negligence "must show that there exists a duty, whose breach by
the defendant causes the injury for which the plaintiff seeks to
recover." Goodwin v. James, 134 N.H. 579, 583, 595 A. 2d 504, 507
(1991) (guotations omitted); see Rounds v. Standex Int'l, 131
N.H. 71, 76, 550 A.2d 98, 101 (1988). Moreover, the existence
and extent of a duty of care between the parties depends in part
on what risks are reasonably foreseeable from the allegedly
tortious conduct. E.g., Goodwin, 134 N.H. at 583, 595 A. 2d at
10 507 (citing McLaughlin v. Sullivan, 123 N.H. 335, 342, 461 A. 2d
123, 127 (1983)). "The test of due care is what reasonable
prudence would require under similar circumstances." Weldv v.
Town of Kingston, 128 N.H. 325, 330-31, 514 A. 2d 1257, 1260
(1986). New Hampshire plaintiffs may predicate a lawsuit on the
negligent breach of a police officer's duty of due care to
members of the public. See i d . at 331, 514 A. 2d at 1260.4
The plaintiff has alleged a variety of facts which,
depending on how the record develops, indicate that he may be
able to make out a prima facie negligence action in each of the
three common-law counts asserted against the Bartlett defendants.
Moreover, the allegations concerning the violation of key police
procedures, such as the selective inclusion of information on the
police report and the improper dissemination of confidential
investigative materials to private attorneys contemplating civil
action, could also support a finding that one or more of the
Bartlett defendants breached a duty of care. Finally, the
plaintiff has adequately alleged a loss of property and personal
4The First Circuit has noted that in the context of a police investigation, an "initial finding of probable cause justifies not only arrest but a reasonable period of continued detention . . . ." Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986), cert, denied, 107 S. C t . 1354 (1987). However, a finding of probable cause to arrest does not necessarily place a police officer's conduct beyond the scope of a negligence lawsuit as "[p]robable cause does not suspend an officer's continuing obligation to act reasonably." Id.
11 suffering which, if proven, could support a jury finding that the
defendants' conduct proximately caused a cognizable harm.
In light of the factual allegations included in the
complaint, the court finds that the plaintiff is entitled to move
forward and offer evidence in support of Counts V, VI, and VII to
the extent they are advanced under a common-law negligence
theory.
B. Malicious Prosecution
The plaintiff also asserts that Counts V, VI, and VII
constitute viable state-law claims for malicious prosecution.
The Bartlett defendants have correctly noted that "a
malicious prosecution claim against a public official in
performance of their public duty is not cognizable under New
Hampshire law." Tupick v. Gorham, 93-475-JD, slip op. at 16
(D.N.H. Oct. 13, 1995).
This jurisdiction recognizes the tort of malicious prosecution . . . . Since this rule of liability is generally understood to have no application "to public officials charged with the enforcement of the criminal law in their performance of their public duty", it is difficult to see what would be left of the cause of action if the [defendants] were to have absolute immunity.
Goss v. Hesler, No. 90-426-SD, slip op. at 15 (D.N.H. July 16,
1991) (guoting State v. Rollins, 129 N.H. 684, 687, 533 A. 2d 331
(1987) ) .
12 The issue of governmental immunity has been raised by the
defendants but not briefed with specificity. The magistrate
judge's August 5, 1994, order indicates that this defense will be
advanced in the context of a motion for summary judgment.
Cauqhev v. Snow, No. 94-226-JD, pretrial order at 3 (D.N.H. Aug.
5, 1994). Because the viability of Counts V, VI, and VII as
state-law claims for malicious prosecution is inextricably linked
to the guestion of whether the defendants are entitled to
immunity, the court denies the motion without prejudice to renew
in the context of a motion under Rule 56.
III. State Tort Claim Against Tetrault
In Count VIII the plaintiff asserts a common law tort claim
for malicious prosecution against Tetrault. In his motion
Tetrault asserts that the plaintiff has not alleged and cannot
prove facts to support each element of the claim. Tetrault's
Memorandum of Law at 12.
In New Hampshire,
[t]o succeed in an action for malicious prosecution, the "plaintiff must prove that he was subjected to a criminal prosecution instituted by the defendant without probable cause and with malice, and that the criminal proceeding terminated in his favor."
Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 738, 433
A.2d 1322, 1324 (1981) (guoting Stock v. Byers, 120 N.H. 844,
13 845, 424 A.2d 1122, 1123 (1980)); see Restatement (Second) of
Torts, § 653 (1977).
In the context of malicious prosecution claims advanced
under section 1983, courts have acknowledged that indictment by a
grand jury may insulate a defendant from liability.
[I]f the facts supporting the warrant or the indictment are put before an impartial intermediary such as a magistrate or grand jury, . . . the intermediary's independent decision breaks the causal chain and insulates the initiating party.
Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988); see Tavlor v.
Gregg, 36 F.3d 453, 456-67 (5th Cir. 1994) (citing cases).
However, the grand jury's finding of probable cause to indict
does not bar an action for malicious prosecution in those cases
where the "malicious motive of the law enforcement officials
[results in the] withold[ing of] relevant information from the
independent intermediary." Hand, 838 F.2d at 1428; see Goodwin
v. Metts, 885 F.2d 157, 162 (4th Cir. 1989) ("a prosecutor's
decision to charge, a grand jury's decision to indict, a
prosecutor's decision not to drop charges but proceed to trial --
none of these decisions will shield a police officer who
deliberately supplied misleading information that influenced the
decision" to arrest) (guoting Jones v. City of Chicago, 856 F.2d
985, 994 (7th Cir. 1988)).
14 The plaintiff has included in the complaint allegations
which, if later proven, could support each one of the elements of
this tort. First, there appears to be no dispute that the
plaintiff was prosecuted and ultimately acquitted for his conduct
relative to the altercation with Tetrault. Second, the plaintiff
has set forth a variety of allegations concerning Tetrault's
involvement in the initiation and maintenance of those criminal
charges. For example, Tetrault directed his attorney and a
private investigator to collaborate with the Bartlett defendants
in order to bring criminal and civil charges against the
plaintiff. Third, the plaintiff has set forth facts which raise
doubt about the existence of probable cause for his prosecution
and further suggest that Tetrault acted with malice.
Specifically, the allegations that Tetrault, intoxicated and
vindicative from a prior altercation, initiated the incident with
threatening language and conduct indicates that the plaintiff may
have acted reasonably and legally by striking in self-defense,
thus vitiating any assertion that probable cause existed for his
prosecution. Likewise, the deeply acrimonious relationship
between Tetrault and the plaintiff, coupled with the allegations
that Tetrault actively participated in the bringing of criminal
charges, if substantiated, could satisfy the lack of probable
cause and malice elements of the tort. Finally, Tetrault's
15 conduct, along with that of his attorney, may have caused the
prosecution to withold relevant evidence and potentially
exculpatory evidence from the grand jury which indicted the
plaintiff.
The court finds that Count VII adeguately sketches an
actionable malicious prosecution claim under New Hampshire law.
Conclusion
The court's Rule 12(c) inguiry reveals that the plaintiff is
entitled to offer evidence in support of at least one claim
asserted in each of his counts. Accordingly, the motions of the
Bartlett defendants (document no. 18) and of Tetrault (document
no. 19) for judgment on the pleadings are denied.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge July 11, 1995
cc: Andrew L. Isaac, Esguire Robert E. McDaniel, Esguire Peter G. Beeson, Esguire