Coltin v. Town of Londonderry CV-98-170-JD 05/05/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David H. Coltin
v. Civil No. 98-170-JD
Town of Londonderry, et al.
O R D E R
The pro se plaintiff, David Coltin, brought this action
against the town of Londonderry, Christopher Childs, William
Hart, Ethel Coltin, and Francis Rapisardi, asserting state law
claims for malicious prosecution and false arrest, and federal
claims pursuant to 42 U.S.C.A. § 1983 for alleged violations of
the plaintiff's rights under the Constitution. Before the court
now are the motions for summary judgment of Ethel Coltin
(document no. 25), Francis Rapisardi (document no. 26), the town
of Londonderry, Christopher Childs, and William Hart (document
no . 21) .
Background
In 1988 David Coltin was divorced from Ethel Coltin and
awarded joint legal custody, residual physical custody, and
visitation rights of his two children. Interpersonal conflict
persisted between the plaintiff and Ethel Coltin resulting in a
number of restraining orders dictating the terms of the plaintiff's contact with Ethel Coltin. On repeated occasions the
plaintiff was found to have violated the restraining orders and
has served two sentences at the Rockingham County House of
Corrections for such violations.
On December 8, 1993, the Rockingham County Superior Court
entered a permanent restraining order against the plaintiff
providing that:
Defendant is restrained from entering onto or crossing the property line of the premises where the plaintiff resides, as a permanent order. Further, he is restrained from interfering with her person or liberty, from calling her at her place of employment, from harassing, intimidating, or threatening her, her relatives, or other household members, and from taking, converting or damaging property in which she has a legal or eguitable interest, including her mail.
This order shall be enforceable in the same manner and to the same extent as domestic violence orders issued pursuant to RSA 173-B. Violations of this order shall result in arrest and may result in imprisonment.
Defs.' Town of Londonderry, Childs, and Hart Mot. for Summary J.,
Ex. 13 (emphasis added) ("Defs.' Mot.").
On October 19, 1994, the plaintiff appeared in front of
Ethel Coltin's residence. He met defendant Rapisardi at the head
of the driveway, but Rapisardi retreated into the residence. The
plaintiff called for his children to come out of the house,
although as discussed below, it is disputed as to whether the
plaintiff was shouting or not. The plaintiff left the premises
to attempt to phone his children but returned shortly after.
2 Upon his return the plaintiff remained in front of the premises
for approximately ten minutes and sounded the horn of his
automobile. The plaintiff did not enter onto Ethel Coltin's
property.
Defendants Rapisardi and Ethel Coltin recorded the event
with a video camera and called the town of Londonderry police.
Defendant Childs, a town of Londonderry police officer, and
officer Crooks, responded to the telephone call of Ethel Coltin.
Officer Crooks discovered the plaintiff in his automobile in the
vicinity of Ethel Coltin's residence. The plaintiff acknowledged
his presence in front of the residence but asserted he was there
in furtherance of his visitation rights. Officer Crooks advised
the plaintiff not to return to the residence unless he was
scheduled to visit the children.
Meanwhile, defendant Childs arrived at Ethel Coltin's
residence. He was shown the restraining order precluding the
plaintiff from harassing defendant Ethel Coltin and other members
of the household. He was told that the plaintiff had been
shouting at defendant Rapisardi and Ethel Coltin and repeatedly
sounding his horn. He was also shown a video tape in which he
witnessed an individual identified as the plaintiff shouting at
people within the residence. The plaintiff was not arrested at
this time.
3 On October 20, 1994, the plaintiff again returned to the
residence. Again, as discussed later, the plaintiff's actions at
the time of the incident are in dispute. However, Ethel Coltin
told the responding officer that the plaintiff arrived at the
residence and repeatedly sounded his horn for approximately ten
minutes in violation of a restraining order. The plaintiff left
the residence before the police arrived but was stopped by town
of Londonderry police within the vicinity of the residence. He
acknowledged his earlier presence at the residence but again
asserted he was there in furtherance of his visitation rights.
On November 28, 1994, defendant Childs filed two criminal
complaints against the defendant. The complaints were premised
upon the events of October 10 and 20, 1994, and asserted that the
plaintiff committed the crime of stalking his wife. Defendant
Hart prosecuted the plaintiff. However, the case was dismissed
on February 8, 1995, on the basis that there were no allegations
that the plaintiff crossed Ethel Coltin's property line.
The plaintiff filed this action on February 26, 1998,
asserting claims against the defendants as follows: (1)
defendants Rapisardi, Ethel Coltin, Childs, and Hart engaged in
the malicious prosecution of the plaintiff; (2) defendants
Rapisardi, Ethel Coltin, Childs, and the town of Londonderry
falsely arrested the plaintiff; (3) defendants Childs and Hart
4 violated the plaintiff's constitutional rights by engaging in
this conduct. On October 30, 1998, the court granted defendant
Rapisardi and Ethel Coltin's motion for summary judgment on the
false arrest claim on statute of limitations grounds. Before the
court now are the summary judgment motions of defendants Town of
Londonderry, Childs, Hart, Rapisardi, and Coltin on all remaining
claims. The motions are resolved as follows.
Discussion
Standard of Review
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Snow v.
Harnischfeaer Corp., 12 F.3d 1154, 1157 (1st Cir. 1993) (guoting
Wynne v. Tufts Univ. Sch. of Med . , 976 F.2d 791, 794 (1st Cir.
1992)). The court may only grant a motion for summary judgment
where 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). The parties seeking summary
judgment bear the initial burden of establishing the lack of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
5 477 U.S. 317, 323 (1986); Quintero de Quintero v. Aponte-Rogue,
974 F.2d 226, 227-28 (1st Cir. 1992). The court must view the
entire record in the light most favorable to the plaintiff,
"'indulging all reasonable inferences in that party's favor.'"
Mesnick v. General Elec. Co . , 950 F.2d 816, 822 (1st Cir. 1991)
(guoting Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990)). However, once the defendants have submitted a properly
supported motion for summary judgment, the plaintiff "may not
rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)).
I. Defendants Childs, Hart, and Town of Londonderry
A. Section 1983
The plaintiff asserts a claim under 42 U.S.C.A. § 1983
premised upon "the illegal false arrest and detention and
malicious prosecution of the plaintiff . . . ." Pl.'s Compl. at
9. The plaintiff asserts violations of his rights under the
Fourth, Fifth, and Sixth Amendments, and the due process and
egual protection clauses of the Fourteenth Amendment. The court
addresses the alleged constitutional violations separately.
6 1. The Fourteenth Amendment, Due Process, and Equal Protection
The plaintiff asserts that the allegedly unlawful arrest and
malicious prosecution violated his right not to be deprived of
life, liberty or property without due process of law under the
Fourteenth Amendment. However, in Albright v. Oliver the Supreme
Court held that there was no substantive due process claim under
the Fourteenth Amendment for malicious prosecution. See 510 U.S.
266, 271, 275 (1994). Moreover, because an adeguate state law
remedy for malicious prosecution exists, there is no section 1983
procedural due process claim for such a prosecution. See Reid v.
State of New Hampshire, 56 F.3d 332, 336 n.8 (1st Cir. 1995)
("Given an adeguate state-law remedy for a procedural due process
violation, no § 1983 claims lies."); see also Meehan v. Town of
Plymouth, 167 F.3d 85, 88 (1st Cir. 1999) ("[A] § 1983 malicious
prosecution claim is not properly based on either a procedural or
substantive due process violation."). For the same reasons,
under Reid, the plaintiff's section 1983 claim for procedural due
process violations premised upon the alleged unlawful arrest also
fails. See 56 F.3d at 336 n.8
Finally, although it is unclear whether the plaintiff seeks
to assert a substantive due process claim on the basis of the
alleged false arrest, such a claim must fail as well. "Where a
particular Amendment 'provides an explicit textual source of
7 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.'" Albright, 510 U.S. at 273 (holding
Fourth Amendment, not substantive due process, provided basis for
plaintiff's claim of unconstitutional deprivation of liberty
interest by alleged malicious prosecution without probable cause)
(guoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The Fourth
Amendment is the explicit textual source of the plaintiff's
protection from unreasonable seizure of his person. See U.S.
Const. Amend. IV. Therefore, the plaintiff's section 1983 claim
premised upon an unlawful seizure of his person, i.e., the false
arrest claim, does not constitute a substantive due process claim
under the Fourteenth Amendment. See Albright, 510 U.S. at 271,
273; see also. Singer v. Fulton Countv Sheriff, 63 F.3d 110, 115
(2d Cir. 1995) (concluding Albright stood for proposition that
"the Fourth Amendment provides the source for a § 1983 claim
premised on a person's arrest.").
The plaintiff also contends that his allegedly unlawful
arrest and prosecution violated his "right to egual protection of
the laws secured by the Fourteenth Amendment." See Compl. at 9.
The Egual Protection Clause of the Fourteenth Amendment provides:
"No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. Amend. XIV, § 1. "A preliminary step in
equal protection analysis is to determine whether persons who are
similarly situated are subject to disparate treatment."
Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir. 1995).
The plaintiff fails to state a claim of a violation of the
Equal Protection Clause because he fails to alleqe that similarly
situated people were treated differently than he. In this
context, the plaintiff must show that others subject to similar
restraininq orders were treated differently than he. This he
fails to do. Indeed, althouqh the plaintiff contests the
fairness of the investiqation of the town of Londonderry police,
in this case their conduct could not form the basis of an equal
protection claim as the plaintiff alone was the subject of an
investiqation for a suspected violation of the restraininq order.
2. The Fourth Amendment
As indicated by First Circuit jurisprudence, a section 1983
claim may lie on the basis of an arrest and prosecution in
deroqation of the Fourth Amendment. See, e.g., Meehan, 167 F.3d
at 88; Loge v. Pore, 103 F.3d 1040 (1st Cir. 1997); Abraham v.
Nagle, 116 F.3d 11 (1st Cir. 1997). False arrest and malicious
prosecution claims are often closely associated and the First Circuit has remarked that "the lines between malicious
prosecution and false arrest have become blurred, to the extent
that a malicious prosecution claim may be predicated on an arrest
made pursuant to a warrant that was issued without probable
cause." Meehan, 167 F.3d at 89. Where probable cause for the
disputed arrest and prosecution exists, however, the Fourth
Amendment claim fails. See Roche v. John Hancock Mutual Life
Ins. C o ., 81 F.3d 249, 254 (1st Cir. 1996) ("if probable cause to
arrest and prosecute the appellant existed, no unconstitutional
deprivation existed."); see also, Meehan, 167 F.3d at 89 ("a
§ 1983 malicious prosecution action based upon a deprivation of
Fourth Amendment rights requires a showing of the absence of
probable cause to initiate proceedings . . . ."); see Nagle, 116
F.3d at 13 (probable cause "largely defeats the false arrest
claim under both federal and state law.").
"An arrest warrant complies with the Fourth Amendment if,
under the totality of circumstances, there is probable cause to
believe the suspect committed the offense." Hoffman v. Reali,
973 F.2d 980, 985 (1st Cir. 1992). "Probable cause to make an
arrest exists where the facts and circumstances of which the
arresting officer has knowledge would be sufficient to permit a
reasonably prudent person to conclude that an offense has been
committed by the person arrested." Id. "[T]he quantity and
10 quality of proof necessary to ground a showing of probable cause
is not the same as the quantity and quality of proof necessary to
convict." Roche, 81 F.3d at 255.
On the dates at issue, October 10 and 20, 1994, the
plaintiff was subject to the Rockingham County Superior Court
restraining order of December 8, 1993. As discussed above, the
order provided that:
Defendant is restrained from entering onto or crossing the property line of the premises where the plaintiff resides, as a permanent order. Further, he is restrained from interfering with her person or liberty, from calling her at her place of employment, from harassing, intimidating, or threatening her, her relatives, or other household members, and from taking, converting or damaging property in which she has a legal or equitable interest, including her mail.
This order shall be enforceable in the same manner and to the same extent as domestic violence orders issued pursuant to RSA 173-B. Violations of this order shall result in arrest and may result in imprisonment.
Defs.' Mot., Ex. 13 (emphasis added).
The police report of the October 10, 1994, incident begins
by stating that Ethel Coltin and Rapisardi had called the police
to report that the plaintiff was "in violation of a restraining
order not to harass or intimidate[] them." Defs.' Mot., Ex. 14.
At the time of the incident Ethel Coltin showed defendant Childs
a copy of the restraining order. See i d .1 Ethel Coltin and
1Ethel Coltin also showed defendant Childs a document indicating the plaintiff's visitations rights, although she
11 Rapisardi both told the officer that the plaintiff "drove up to
the residence and started yelling toward [Rapisardi] and then to
the members of the house. [The plaintiff] drove away and came
back and parked again in front of the residence [and] began
honking the car horn." Id. Ethel Coltin and Rapisardi provided
written statements to this effect. The police found the
plaintiff in the vicinity of the residence at the time of the
incident and the plaintiff acknowledged being in front of the
residence earlier.
Similarly, on October 20, 1994, the police were dispatched
to Ethel Coltin's residence based upon an alleged violation of
the restraining order. See Defs.' Mot., Ex. 17. Ethel Coltin
represented to the police that the plaintiff again appeared
before the residence on a day which was not a visitation day and
began sounding his horn for approximately ten minutes. See i d .
Again, the plaintiff was found in the area of the residence at
the time of the incident. See i d .2
represented to defendant Childs that the agreed upon visitation date was October 12, 1994, not October 10, 1994. See i d .
21he court also notes the existence of a video tape, although it is not in the record, depicting a man identified to Childs by Rapisardi as David Coltin, outside of Ethel Coltin's residence, whom Childs perceived to be engaging in the above described actions on October 10, 1994. This tape was viewed by Childs both at the residence at the time of the incident and again at the police station. See Defs.' Mot. Ex. 14.
12 On this record, there is no genuine issue of material fact
as to whether a reasonably prudent person could have concluded
that the plaintiff had violated the terms of the restraining
order by harassing Ethel Coltin and members of the household on
October 10 and 20, 1994. Therefore there is no triable issue as
to whether probable cause existed for the arrest and prosecution
of the plaintiff. See Roche, 81 F.3d 249, 254, 256 n.5; see
also, Meehan, 167 F.3d at 89. Contrary to the plaintiff's
assertions, there was no need to establish that the plaintiff
crossed the property line to establish probable cause under the
language of the restraining order. Nor, contrary to the
plaintiff's allegations in his complaint, did defendant Childs
premise his criminal complaint upon the plaintiff's appearance at
Ethel Coltin's residence. See Compl. at 4. The affidavit in
support of the arrest warrant and the criminal complaint were
both clearly premised upon harassing and intimidating behavior.
See Defs.' Mot., Ex. 20.3
Finally, in concluding its discussion of Fourth Amendment
issues, the court notes that although the plaintiff alleged in
the background facts of his complaint that the prosecutor refused
3Central to this case are alleged violations of the prohibition of harassment and intimidation in the restraining order, rendering the plaintiff's reliance on alleged visitation rights on the dates in guestion irrelevant.
13 to provide a videotape of the plaintiff's conduct on October 10,
1994, this is not identified as a basis for any of the federal
claims in the complaint. See Compl. at 55 26, 41-48. Moreover,
although the plaintiff raised the issue of the videotape in his
memorandum of law, he provided no evidence that he was precluded
from viewing the tape or that he was denied access to the tape as
part of the criminal proceedings against him.
In contrast, the record contains testimonials of defendant
Hart that he provided the plaintiff with access to the videotape
at the Londonderry Police Department and that the tape was
subseguently viewed by the plaintiff and or his counsel. The
only evidence in the record, therefore, indicates that the
plaintiff did have access to the videotape. The mere allegations
of the plaintiff otherwise is insufficient to establish a genuine
issue of material fact. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986) .
3. Fifth and Sixth Amendments
The plaintiff also asserts violations of his Fifth and Sixth
Amendment rights, although he does not specify what actions
violated those rights, nor how they violated those rights. To
the extent that the plaintiff premises his claims upon alleged
violations of the due process clause of the Fifth Amendment, his
14 claim must fail as it is against state actors, not federal, and
therefore must be analyzed under the Fourteenth Amendment, supra.
See Smith v. Kitchen, 156 F.3d 1025, 1028 (10th Cir. 1998) ("From
the earliest interpretations of this amendment, courts have
agreed that the Fifth Amendment protects against actions by the
federal government."); Winfield v. Bass, 106 F.3d 525, 530 n.2
(4th Cir. 1997) ("Further, because Appellants are not federal
actors, our analysis would be governed by the Fourteenth
Amendment rather than the Due Process Clause of the Fifth
Amendment."); United States v. Greene, 995 F.2d 793, 795 (8th
Cir. 1993) ("An action that violates the fourteenth amendment
guarantee of egual protection when committed by a state actor
violates the due process guarantee of the fifth amendment when
committed by a federal actor.").
Nor can the court discern any other basis for a claim under
the Fifth Amendment in the plaintiff's complaint. There is no
allegation of a property taking, double jeopardy, self
incrimination, or improper grand jury proceedings. See U.S.
Const. Amend. V. Similarly, the court perceives no grounds for a
Sixth Amendment claim in the plaintiff's case.
Given the determination that no genuine issue of material
fact exists as to whether the conduct of Childs or Hart resulted
in a violation of the plaintiff's constitutional rights, the Town
15 of Londonderry is entitled to entry of judgment in its favor on
the plaintiff's federal claims. See City of Los Angeles v.
Heller, 475 U.S. 796 (1986).4
41he court notes that defendant Town of Londonderry is also entitled to summary judgment in its favor on the plaintiff's section 1983 claims because the plaintiff did not establish a custom or policy of the town that violates his federal rights. See Smith v. Edwards, F.3d , 1999 WL 163432 at *7 (2nd Cir. March 24, 1999) ("Under 42 U.S.C.A. § 1983, a municipality may be held liable for a constitutional violation if the plaintiff can prove that the violations resulted from a municipality's customs or policies.").
In this case there are no facts alleged in the plaintiff's complaint that could support a claim that the town had a policy or custom that resulted in the derogation of the plaintiff's rights under federal law. Indeed, the complaint clearly evidences an intent to base the section 1983 claim against the town upon a theory of respondeat superior. See Compl. 542 ("The defendants Christopher Childs and William R. Hart were at all relevant times respectively employed by the defendant town of Londonderry as police officer and prosecutor."). The Supreme Court has "consistently refused to hold municipalities liable under a theory of respondeat superior." Brown, 520 U.S. at 403.
Finally, although the plaintiff asserts that the town had an official policy to arrest the plaintiff if he attempted to pick up his son, "even on a scheduled visitation day," see Pi.s' Mem. of Law at 9, and that it's zero tolerance towards domestic violence issues violated due process, see i d . at 11-12, the evidence does not support such assertions. Instead, the record and the plaintiff's own admissions in his arguments clearly indicate the plaintiff's repeated disregard for court orders and the plaintiff's subseguent arrest in accordance with the town's policy of enforcing those court orders. The court concludes that the plaintiff has failed to establish a genuine issue of material fact regarding a policy or custom in derogation of the plaintiff's federal rights.
16 4. Immunity
In the alternative, defendants Childs and Hart are also
entitled to summary judgment on the plaintiff's section 1983
claims on immunity grounds. In Harlow v. Fitzgerald the Supreme
Court established that under the doctrine of gualified immunity:
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.
457 U.S. 800, 812 (1982). "Defendant police officers are
shielded if . . . at summary judgment, there is no genuine
dispute of material fact that would prevent a finding that the
defendants' actions, with regard to applying or following such
clearly established law, were objectively reasonable." Vargas-
Badillo v. Diaz-Torres, 114 F.3d 3, 5 (1st Cir. 1997). The First
Circuit has "held that it is objectively reasonable for a police
officer to seek an arrest warrant so long as the presence of
probable cause is at least arguable." Hoffman v. Reali, 973 F.2d
980, 986 (1st Cir. 1992). Similarly, a prosecutor may be
entitled to absolute immunity if the cause of action arisesfrom
conduct that is related to the prosecution of a case, see Guzman-
Rivera v. Rivera-Cruz, 55 F.3d 26, 29-30 (1st Cir. 1995),
although "the availability of absolute immunity turns on a
functional analysis of the prosecutorial activity under
17 consideration," Harrington v. A l m v , 977 F.2d 37, 41 (1st Cir.
1992). In Harrington, the court held that the decision to
prosecute or not falls within "the precise zone of
decision-making the Supreme Court has placed at the center of the
immunity doctrine." I d . at 42 n.3
In the case at hand the plaintiff's claims arise from an
allegedly unlawful arrest, detention, and prosecution of the
plaintiff. See Compl. at 5 45. The court's preceding discussion
has already established the lack of a genuine issue of material
fact as to probable cause for the plaintiff's arrest and
prosecution. The actions of defendant Childs were therefore
objectively reasonable. Moreover, the decision of defendant Hart
to prosecute the claim against the plaintiff falls sguarely
within his prosecutorial responsibilities for which he is
absolutely immune.
B. State Law Claims
1. Jurisdiction
The court's subject matter jurisdiction over the case at
hand was initially premised upon its original jurisdiction over
the plaintiff's section 1983 claims and its supplemental
jurisdiction over the state law claims. See 28 U.S.C.A. §
1367(a) (West 1999) (providing for "supplemental jurisdiction
18 over all other claims that are so related to the claims in the
action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United
States Constitution.") . However, in light of this court's
granting of summary judgment on the plaintiff's only federal law
claims in this case, the court must "reassess its jurisdiction,
this time engaging in a pragmatic and case-specific evaluation of
a variety of considerations that may bear on the issue." See
Camelio v. American Federation, 137 F.3d 666, 672 (1st Cir.
1993). Factors for consideration include "the interests of
fairness, judicial economy, convenience, and [of particular
importance] comity." Id. "The balance of competing factors
ordinarily will weigh strongly in favor of declining jurisdiction
over state law claims where the foundational federal claims have
been dismissed at an early stage in the litigation." Id.
In this case the action has progressed to the point where
discovery is closed and trial is scheduled for the near future.
C f . Camelio, 137 F.3d at 672. Failure to address the claims will
substantially lengthen the time reguired to resolve the dispute.
Cf. id. The case does not present complicated issues of state
law. Cf. id. The legal analysis and factual inguiry reguired by
the state and federal claims are very similar. The court
concludes that addressing the remaining state claims advances the
19 interests of fairness, judicial economy, and convenience. Nor in
this case, given the clear state law standards to apply, do
comity concerns necessitate remand to the state court. Cf.
Camelio, 137 F.3d at 672 ("perhaps most importantly in this case,
the claims that the court dismissed raise substantial questions
of state law that are best resolved in state court.").
2. Malicious Prosecution
A claim for malicious prosecution under New Hampshire law
has four elements: (1) the defendant must be instrumental in
initiating the criminal charges; (2) the plaintiff was acquitted
or otherwise successful on the merits; (3) the defendant acted
with malice, "that is, with a purpose other than bringing a
suspected offender to justice;" and (4) that the defendant lacked
probable cause to believe that the plaintiff had committed acts
that constituted a crime. McGranahan v. Dahar, 119 N.H. 758, 769
(1979). In New Hampshire, "[p]robable cause in the malicious
prosecution context has long been defined as 'such a state of
facts in the mind of the prosecutor as would lead a man of
ordinary caution and prudence to believe or entertain an honest
and strong suspicion that the person arrested is guilty.'" Stock
v. Byers, 120 N.H. 844. 846 (1980) (citations and quotations
omitted). Given the facts of this case as discussed above, the
20 court concludes that there is no genuine issue of material fact
regarding the existence of probable cause and the plaintiff's
state law claim for malicious prosecution must fail as well.
3. False Arrest
Defendants Hart and Childs move for summary judgment on the
plaintiff's state law claim of false arrest asserting that the
claim is barred by New Hampshire's three year statute of
limitations for personal injury actions. See RSA § 508:4 (1997).
The plaintiff concedes the applicability of the three year
statute of limitations. See Pl.'s O b j . at 2. However, the
plaintiff contests the defendants' motion on the grounds that the
defendant's conduct is a continuing course of conduct.
False arrest is the "unlawful restraint of an individual's
personal freedom." Hickox v. J. B. Morin Agency, Inc., 110 N.H.
438, 442 (1970). In his complaint the plaintiff alleges that he
was unlawfully arrested on October 31, 1994. Under New Hampshire
law a cause of action accrues and the statute of limitations
begins to run "'when the plaintiff discovers . . . both the fact
of his injury and the cause thereof.'" Conrad v. Hazen, 140 N.H.
249 (1995) (citations and guotations omitted). The plaintiff's
cause of action therefore accrued and the tolling period began to
run on October 31, 1994, the date of the plaintiff's arrest. The
21 complaint was filed February 26, 1998.
The court finds untenable the plaintiff's assertions that
the defendants were in continuous violation of the plaintiff's
rights. There is no allegation in this case that the plaintiff
was continuously under unlawful arrest. The only allegation of
arrest was on October 31, 1994. For this reason the plaintiff's
reliance on Murphy v. Timberlane Regional School District is
misplaced. See 22 F.3d 1186, 1194, 1195 (1st Cir. 1994). At
issue in Timberlane was the date of accrual of the school
district's alleged "continuous violation of its [duty] to pursue
an administrative resolution to [an] IEP stalemate." I d . at
1195. Here there was no continuing breach of an ongoing duty.5
51he court notes that the lack of a genuine issue of material fact regarding probable cause reguires granting summary judgment on the plaintiff's state law false arrest claim on that basis as well. See, e.g., Hickox v. J.B. Morin Agency, Inc., 110 N.H. 438, 452 (1970); Larreault v. First Nat'l Stores, 93 N.H. 375, 375 (1945) ("the defendant, in order to avoid liability, has the burden of justifying his act by showing that he had probable cause for imposing the particular restraint.").
22 4. Immunity
Defendant Hart is also entitled to summary judgment on the
plaintiff's state law claims on the basis immunity. Under New
Hampshire law, "prosecutorial immunity exists within the rubric
of judicial immunity and is absolute when functionally related to
the initiation of criminal process or to the prosecution of
criminal charges." Belcher v. Paine, 136 N.H. 137, 143 (1992).
"[T]he decision to indict, even when based on an incomplete
investigation, is clearly within the scope of absolute immunity."
Id. Indeed, "[a]11 judicial officers when acting on subjects
within their jurisdiction, are exempted from civil prosecution
for their acts . . . [and] this doctrine has been extended to
apply to the acts and conduct of all public officers in their
exercise of judicial authority." I d . (citations and guotations
omitted). The plaintiff's claims are premised upon his alleged
wrongful arrest and prosecution, and the conduct which the
plaintiff asserts gives rise to the malicious prosecution claim
is functionally related to initiating criminal process and
prosecution.
II. Defendants Ethel Coltin and Rapisardi
Defendants Ethel Coltin and Rapisardi move for summary
judgment on the plaintiff's state law malicious prosecution
23 claim, arguing that the plaintiff cannot establish a genuine
issue of material fact regarding probable cause or the
defendants' malice.6 As discussed above, to be successful in an
action for malicious prosecution under New Hampshire law a
plaintiff must establish, among other things, that the defendant
acted with malice, "that is, with a purpose other than bringing a
suspected offender to justice," and that the defendant lacked
probable cause to believe that the plaintiff had committed acts
that constituted a crime. McGranahan v. Dahar, 119 N.H. at 769.7
In support of her motion for summary judgment Ethel Coltin
attests that on October 10 and 20, 1994, the plaintiff arrived at
her residence and began shouting at her and Rapisardi and
sounding the horn for up to ten minutes. Ethel Coltin Aff. at 4.
Defendant Rapisardi similarly attested as to the events of
defendant Rapisardi also moves for summary judgment arguing that he was not instrumental in the initiation of the prosecu tion, although the court need not reach this ground given the court's determination regarding probable cause.
71he plaintiff asserts that the "pertinent issue in this action [is] the visitation rights that were in place in October 1994 and how these visitation rights came into place." Pl.'s Obj. to Def. Rapisardi and Ethel Coltin's Mot. for Summ. J., Me. at Law at 2. Contrary to the plaintiff's assertion, central to this action is the Rockingham County Superior Court's restraining order of December 8, 1993. For the purposes of the immediate summary judgment motions in this case, the court must determine whether a genuine issue of material facts exists regarding probable cause for believing that the plaintiff was in violation of the December 8, 1993, restraining order on October 10 and 20, 1994 .
24 October 10, 1994.
In his objection to the defendants' motion for summary
judgment the plaintiff seems to contest this characterization of
his behavior. However the plaintiff has offered no evidence to
the contrary to create a genuine issue of material fact. Mere
allegations and assertions are inadeguate. See Anderson v.
Liberty Lobby, Inc., 477 U.S. at 256. Moreover a careful reading
of his arguments reveals that he does not dispute statements that
he was repeatedly sounding his horn. The court therefore
concludes that there is no genuine issue of material fact as to
whether probable cause existed to believe the plaintiff was in
violation of the restraining orders on the date at issue.
Conclusion
In light of the above discussion, the court grants the
summary judgment motions of the defendants town of Londonderry,
Hart, and Childs (document no. 27), defendant Ethel Coltin
25 (document no. 25), and defendant Rapisardi (document no. 26)
The clerk is ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
May 5, 1999
cc: David H. Coltin, pro se Dyana J. Crahan, Esquire Jay Eric Printzlau, Esquire