Collins v . City of Manchester, et a l . CV-01-409-JM 07/08/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Craig Collins
v. Civil N o . 01-409-JM Opinion N o . 2002 DNH 129 City of Manchester and Jean Roers, Individually
ORDER
In this action, the plaintiff, Craig Collins (“Plaintiff” or
“Collins”), alleges that Manchester Police Officer Jean Roers
(“Defendant” or “Roers”), accompanied by her K-9 partner Cody
(“K-9 Cody”), arrested Plaintiff on November 8 , 1998 without
probable cause. Plaintiff filed this action on October 3 1 , 2001
against the City of Manchester, New Hampshire (the “City”), and
Roers pursuant to 42 U.S.C. § 1983 for violation of his right to
be free from unreasonable seizure secured by the Fourth and
Fourteenth Amendments to the U.S. Constitution. Additionally,
Plaintiff brings various pendant State law claims in this
action.1 The Defendants have moved for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure (document n o . 7 ) .
1 Plaintiff’s state law claims are based on false imprisonment, malicious prosecution, battery, assault, negligence, and violation of N.H. Rev. Stat. Ann. (“RSA”) 466:19 (Remedies and Penalties for Injuries Done by Dogs). For the reasons articulated below, Defendants’ motion is granted
with respect to Plaintiff’s federal claims.
Standard of Review
Summary judgment is appropriate only “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 a judgment as a matter of law.” Fed. R. Civ. P.
56(c); see Lehman v . Prudential Ins. C o . of Am., 74 F.3d 323, 327
(1st Cir. 1996). A genuine issue is one “that properly can be
resolved only by a finder of fact because [it] . . . may
reasonably be resolved in favor of either party.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact
is one that affects the outcome of the suit. See id. at 248.
The moving party bears the initial burden of establishing
that there is no genuine issue of material fact. See Celotex
Corp. v . Catrett, 477 U.S. 317, 323 (1986). If that burden is
met, the opposing party can avoid summary judgment only by
providing properly supported evidence of disputed material facts
that would require trial. Id. at 324.
In ruling on a motion for summary judgment, the court
2 construes the evidence in the light most favorable to the non-
movant, resolving all inferences in its favor, and determines
whether the moving party is entitled to judgment as a matter of
law. See Saenger Org. v . Nationwide Ins. Licensing Assocs., 119
F.3d 5 5 , 57 (1st Cir. 1997). The undisputed facts, viewed in the
light most favorable to Plaintiff, are recited below.
Background
A. Initiation of the Search
At 8:15 p.m. on November 8 , 1998, Roers and K-9 Cody
responded to a call from the Hesser College Campus in Manchester,
New Hampshire. Upon arriving at the college, campus security
informed Roers that they were searching for an individual
identified as Hide Inga (“Inga”). Inga was allegedly a heavy
supplier of marijuana and cocaine at the college. According to
campus security, Inga was present when one of Inga’s roommates
gave campus security permission to search the room. When campus
security came across a black bag, Inga grabbed the bag and fled.
Roers began searching for Inga in the vicinity of the
college. At 8:55 p.m., Roers stopped a car on West Mitchell
Street, about one-half mile south of the campus, and spoke with
two Hesser College students. Those students informed Roers that
3 they were also looking for Inga. The students believed that Inga
was hiding in a wooded area near railroad tracks that are
situated to the west of Hesser College. Roers began walking
north near the railroad tracks with K-9 Cody, who Roers had on a
six-foot lead.2
Roers detected a strong odor of marijuana when she reached
Sundial Avenue. The area where the railroad tracks intersect
Sundial Avenue is located just southwest of the Hesser College
campus. At that time, K-9 Cody began indicating to Roers that a
person or persons was nearby. While checking the area north of
Sundial Avenue between the railroad tracks and the campus, K-9
Cody began to pull Roers to the west. Roers followed K-9 Cody
and was led down a five-foot drop off a cement wall to a wooded
area between the railroad tracks and the campus. K-9 Cody then
gave Roers an even stronger indication that persons were present
in the area. Based on K-9 Cody’s indication, Roers was convinced
that one or more people were in the immediate area.
2 Officer Roers testified at Collins’ criminal trial that K-9 Cody is a certified tracking dog. See Transcript of Collins’ Criminal Trial for Docket N o . 98-CR-09497 (“Collins Trans.”) at 6:1-2. She further testified that Cody attended 14 weeks of training, and that she and K-9 Cody were tested annually certified to work together as a team. Id. at 27:19-28:12.
4 B. Collins and Santos
At this time, Plaintiff, a first-year student at Hesser
College, and his friend Daniel Santos (“Santos”) were sitting and
talking on a large rock located about forty feet away from the
parking lot of a Hesser College dormitory. This rock, which is
approximately four feet high and three feet wide, is located in
an area of heavy brush southwest of the campus.
Roers and K-9 Cody had passed the area where Plaintiff and
Santos were sitting when she crossed Sundial Avenue and proceeded
north. According to the testimony at the criminal trial, Roers
and K-9 Cody passed within approximately 20 feet of Plaintiff and
Santos. However, Roers and K-9 Cody gave no indication that they
knew that Plaintiff and Santos were there. Similarly, Plaintiff
and Santos were unaware that Roers and K-9 Cody had passed by.
Plaintiff first saw Roers and K-9 Cody walking south when
they were approximately sixty to seventy feet north of his
location. Plaintiff recognized Roers to be a police officer in
full uniform. When Roers and K-9 Cody reached a point
approximately forty to fifty feet north of where Plaintiff and
Santos were located, K-9 Cody began to pull Roers toward the
western woods. Plaintiff observed K-9 Cody straining at the
5 leash and attempting to run into the woods away from Collins’
location. Roers was facing into the woods west of the tracks and
shining a flashlight in that direction.
C. The Arrest
As Roers faced west looking into the woods, she announced
that she was a Police Officer and that she had a police K-9 with
her. She then stated that she knew that they were there and
advised them that they should come out or she would release her
K-9. She further advised that the dog would find them and
apprehend them. Roers did not know who or how many people were
in the woods when she made these announcements. She also did not
know exactly where the suspects were.
Plaintiff heard Roers’ announcements from his location. At
no time did Roers or K-9 Cody face in Plaintiff’s direction.
Roers and K-9 Cody were directed toward the woods to the west of
the railroad tracks. Plaintiff and Santos were east of the
railroad tracks sitting on the rock. Neither Plaintiff nor
Santos responded to Roers’ announcements.
After seeing no response to her warnings, Roers released K-9
Cody from the lead to search the wooded area. K-9 Cody ran into
the woods west of Roers’ position. Within a few moments K-9 Cody
6 circled around, crossed over the railroad tracks, and
“apprehended” Plaintiff by means of biting and holding onto his
left calf. K-9 Cody also bit Collins on his right knee. Roers
heard Collins yell, and then spotted K-9 Cody, Collins and Santos
behind the rock. Roers grabbed K-9 Cody by the collar and
commanded the dog to release Collins. K-9 Cody did not
immediately respond to Roers’ command to release Collins.3 But
eventually Roers did get K-9 Cody to release him.
Roers escorted Collins and Santos out of the woods and onto
Sundial Avenue. When back-up officers arrived, Collins and
Santos were searched. Neither Collins nor Santos had any illegal
drugs in their possession. Collins had rolling papers. When
asked why he did not come out of the woods, Collins stated “I
don’t know.” Collins acknowledged that he heard Roers’ warnings.
Santos allegedly admitted at the scene that he had been smoking a
joint and was scared.4 Collins denied having smoked any
marijuana that evening. Collins and Santos were charged with
3 Plaintiff claims that Roers had to hit K-9 Cody with her flashlight to get K-9 Cody to release him, which is an allegation disputed by Roers. Collins Trans. at 40:4-13. 4 Collins testified at his criminal trial that Santos was smoking marijuana. See Collins Trans. at 43:5-7.
7 Resisting Arrest, a violation of RSA 642:2,5 for refusing to come
out of the woods when commanded by Roers. Collins was brought
to Elliot Hospital in Manchester for treatment of the injuries he
sustained while being apprehended by K-9 Cody.
D. Collins’ Criminal Case
Collins was prosecuted for the crime of Resisting Arrest in
the Manchester District Court. His case was tried on April 1 5 ,
1999 before the Honorable William H. Lyons. After the State
rested, Collins moved to dismiss. The court ruled that, taking
the evidence in the light most favorable to the State, Collins’
motion was denied at that time. Collins Trans. at 34:20-23.
After the close of the evidence, the court took the matter under
advisement. The next day the court issued an order finding that
“the State has failed to satisfy its burden of proof as to each
and every element of the offense,” and thereby finding Collins
not guilty of the crime charged. See Manchester District Court
Order dated April 1 6 , 1999 (Docket Number 98-CR-09497).
5 RSA 642:2 provides that:
A person is guilty of a misdemeanor when the person knowingly or purposely physically interferes with a person recognized to be a law enforcement official . , seeking to effect an arrest or detention of the person or another regardless of whether there is a legal basis for the arrest.
8 Discussion
A. Elements of a 42 U.S.C. § 1983 Action
“The essential elements of a claim under section 1983 are:
first, that the defendants acted under color of state law; and
second, that the defendants’ conduct worked a denial of rights
secured by the Constitution or by federal law.” Rodriguez-Cirilo
v . Garcia, 115 F.3d 5 0 , 52 (1st Cir. 1997). “The second element
requires the plaintiff to prove not only a deprivation of federal
right, but also that the defendant’s conduct was a cause in fact
of the alleged deprivation.” Soto v . Flores, 103 F.3d 1056, 1062
(1st Cir. 1997).
There is no dispute that the Defendants were acting under
color of state law in this case. By alleging that Roers arrested
Collins without probable cause, Collins has sufficiently alleged
facts that, if proven, caused Collins to be deprived of his
constitutional right to liberty under the Fourth Amendment. See
Santiago v . Fenton, 891 F.2d 373, 383 (1st Cir. 1989) (“The
Fourth Amendment right to be free from unreasonable seizures of
the person demands that an arrest be supported by probable
cause”). These allegations, together with Collins’ prayer for
money damages, adequately state a Section 1983 false arrest
9 claim. See Iacobucci v . Boulter, 193 F.3d 1 4 , 19 (1st Cir.
1999).
B. Qualified Immunity
In this case the Defendants have raised the doctrine of
qualified immunity as a defense. The doctrine of qualified
immunity “strives to balance [the] desire to compensate those
whose rights are infringed by state actors with an equally
compelling desire to shield public servants from undue
interference in the performance of their duties and from threats
of liability which, though unfounded, may nevertheless be
unbearly disruptive.” Buenrostro v . Collazo, 973 F.2d 3 9 , 42
(1st Cir. 1992). In an action brought pursuant to 42 U.S.C. §
1983, “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); Vargas-
Badillo v . Diaz-Torres, 114 F.3d 3 , 5 (1st Cir. 1997). In
appropriate circumstances, government officials are entitled to
“an immunity from suit rather than a mere defense to liability.”
Hunter v . Bryant, 502 U.S. 224, 227-28(1991) (per curiam).
10 Therefore, the issue of qualified immunity should be decided at
the earliest possible stage. Id.
In the context of Section 1983 claims based on alleged
violation of Fourth Amendment rights, police officers are
“entitled to immunity if a reasonable officer could have believed
that probable cause existed.” Rivera v . Murphy, 979 F.2d 259,
263 (1st Cir. 1992). Officers are entitled to immunity even if
it is later determined that there was no probable cause. Hunter,
502 U.S. at 227; Rivera, 979 F.2d at 263. Courts must evaluate
whether the officer’s belief that probable cause existed was
“objectively reasonable.” Vargas-Badillo, 114 F.3d at 5 ;
Santiago, 891 F.2d at 386; Bryant v . Noether, 163 F. Supp. 2d at
109. Police officers are entitled to 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) (qualified
immunity is unavailable only if it is clear that there was no
probable cause at the time of the arrest). The key issue in this
case then is whether probable cause existed for Collins’ arrest.
C. Probable Cause
Probable cause exists when the “facts and circumstances
within the police officers’ knowledge and of which they had
11 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 at 263
(internal citations, alterations, and quotes omitted); Fletcher
v . Town of Clinton, 196 F.3d 4 1 , 53 (1st Cir. 1999). The facts
and circumstances within the officer’s knowledge need not
establish guilt beyond a reasonable doubt, make out a prima facie
case, or even show that guilt is more probable than not. Bryant
v . Noether, 163 F. Supp. 2d 9 8 , 107 (D.N.H. 2001), quoting State
v . Thorp, 116 N.H. 303, 307 (1976). “[I]f there are no factual
disputes, or if the issue can be resolved based on the undisputed
facts, the determination of whether probable cause existed is a
question of law for the court to answer.” Bryant v . Noether, 163
F. Supp. 2d at 108; see also, Martin v . Applied Cellular Tech.,
Inc., 284 F.3d 1 , 7 (1st Cir. 2002) (“While the determination of
facts relevant to probable cause is left to a factfinder, the
existence of probable cause is ultimately a question of law to be
decided by the court.”); Topp v . Wolkowski, 994 F.2d 4 5 , 48 (1st
Cir. 1993) (reversing a district court’s denial of a motion for
summary judgment because the undisputed facts demonstrated that
the defendant officers “could easily have believed that they had
12 probable cause” to arrest).
The undisputed facts include the following: (1) Roers was
searching for a suspected drug dealer in a wooded area near the
Hesser College campus; (2) Roers searched the area near the
campus with K-9 Cody at nighttime; (3) Roers detected a strong
odor of marijuana in the immediate vicinity where Plaintiff and
Santos were found; (4) Roers did not know how many people were in
the woods at that time or their precise location; (5) Roers
warned whoever was in the woods to come out; (6) Plaintiff heard
Roers’ warning; (7) K-9 Cody located Collins and Santos within
moments after Roers released him from the lead; (8) Collins
stated “I don’t know” when asked why he did not come out of the
woods; (9) Santos had been smoking marijuana; and (10) Collins
was found with rolling papers. These undisputed facts are
sufficient to support a finding that Roers had an objectively
reasonable basis to believe that probable cause existed to arrest
Plaintiff. It is at least arguable, based on the foregoing, that
Collins did not respond to Roers’ announcements because Collins
did not want to be discovered while engaged in drug activity.
Collins places much emphasis on his testimony at his
criminal trial that K-9 Cody was “going crazy” and was “out of
13 control” on the night of his arrest. I find that these facts are
not material to the probable cause inquiry. Even if Collins’
assertions are taken as true,6 that would not vitiate Roers’
objective belief that probable cause existed for Collins’ arrest.
Roers smelled a strong marijuana odor in the area. She commanded
whoever was in the woods to come out. She realized that Collins
and Santos were located close enough to her that individuals with
normal hearing would have heard her warnings. She heard Collins
respond “I don’t know” when asked why he did not come out of the
woods. And she heard Santos’ admission that he smoked marijuana
that night. Even if the reliability of Cody’s training or
condition is in dispute, that does not detract from the
independent facts available to Roers.
Similarly, Collins’ argument that there was no reason for
him to respond to Roers’ commands to “come out” because all of
Roers’ attention was directed away from his location does not
eliminate probable cause to arrest. The plaintiff’s subjective
view of the facts is not the test of whether the officer’s
actions were objectively reasonable. Fletcher, 196 F.3d at 5 1 .
I find, based on the undisputed facts, that Roers had an
6 No evidence was presented pertaining to the manner in which a Manchester Police K-9 is trained to apprehend a drug suspect.
14 objectively reasonable basis to believe that probable cause
existed for Collins’ arrest.7 Therefore, I further find that
Roers is entitled to qualified immunity and is immune from
liability on Plaintiff’s Section 1983 claim.
D. Municipal Liability Under 42 U.S.C. § 1983
In paragraph 34 of the Amended Complaint, Plaintiff states:
the Defendants, jointly and severally, violated his right to remain free from unreasonable seizure, as guaranteed by the Fourth and Fourteenth Amendments to the Constitution of the United States of America and Title 48 U.S.C. § 1983 [sic], by their conduct causing and effectuating his warrantless arrest on November 8 , 1998 without probable cause to take such action.
Plaintiff alleges that the City is liable under Section 1983
because the City “negligently, or with deliberate indifference to
the rights of the Plaintiff” trained Roers and K-9 Cody, and
“negligently supervised and certified” Roers and K-9 Cody causing
the unconstitutional attack on and arrest of the Plaintiff. Am.
Compl. Paras. 29-30. The Defendants contend that the City is
7 Although the precise issue of whether there was probable cause for Collins’ arrest was not litigated at Collins’ criminal trial, Defendants contend that Collins should be collaterally estopped from re-litigating the issue of probable cause because the Manchester District Court denied Collins’ motion to dismiss. In response, Collins argues that the doctrine of collateral estoppel does not apply in this context. I do not need to reach this issue since I find that the undisputed facts show the existence of probable cause to arrest.
15 entitled to summary judgment on Plaintiff’s Section 1983 claim
because there is no evidence that there was a policy or custom of
failing to train or supervise officers. Defs. Mem. at 1 0 .
“[A] municipality cannot be held liable solely because it
employs a tortfeasor --or in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior theory.”
Monell v . New York City Dept. of Soc. Servs., 436 U.S. 658, 691
(1978); City of Canton, Ohio v . Harris, 489 U.S. 378, 385 (1989).
A municipality may be found liable under 42 U.S.C. § 1983 only if
the plaintiff’s harm was caused by a constitutional violation and
the municipality itself is responsible for that violation.
Collins v . City of Harker Heights, 503 U.S. 115, 123 (1992). In
a Section 1983 action based on failure to train, the municipality
may be liable if “it had a policy or custom of failing to train
its employees and that failure caused the constitutional
violation.” Id. Inadequate training is only considered the
cause of a constitutional tort if “the failure to train amounted
to deliberate indifference to the rights of persons with whom the
police come into contact.” Id.; City of Canton, 489 U.S. at 388.
Plaintiff put forth no evidence in his Answer that would
16 support his Section 1983 claim against the City.8 A party cannot
rest on conclusory allegations in response to a motion for
summary judgment. If the moving party meets its initial burden
of establishing that there is no genuine issue of material fact,
the opposing party can avoid summary judgment only by providing
properly supported evidence of disputed material facts that would
require trial. Celotex Corp., 477 U.S. at 323; LeBlanc v . Great
Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (nonmoving party
may not rest upon mere allegations or denials in the pleadings in
opposition to a motion for summary judgment). There is no such
evidence here. Accordingly, I find that the City is entitled to
summary judgment on Plaintiff’s Section 1983 claim.
8 In fact, Plaintiff does not address the merits of his Section 1983 claim against the City at all in his Answer.
17 Conclusion
Defendants’ motion for summary judgment (document n o . 7 ) is
granted with respect to Plaintiff’s federal claims. The Court
declines to exercise supplemental jurisdiction over Plaintiff’s
pendant state law claims. The Clerk of Court shall enter
judgment in accordance with this Order and close the case.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: July 8 , 2002
cc: Robert J. Meagher, Esq. Bruce E . Kenna, Esq.