Hastings v . Lamy CV-89-413-M 04/28/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Earl C . Hastings, Plaintiff, v. Civil N o . 89-413-M Ronald Lamy; Michael Miles; Gary Slopes; John Barthelmes; Brian T . Tucker, Esq.; and Laurence D. Hastings, Defendants.
O R D E R
Plaintiff Earl Hastings brought this action against various
state defendants and his brother, Laurence Hastings. He asserts
claims under 42 U.S.C. § 1983 and supplemental state law claims
based on his prosecution for the murder of James Higley. The
remaining state defendants have moved for summary judgment.
Defendant Laurence Hastings has not filed a dispositive motion,
apparently (document n o . 48) because his counsel has been unable
to contact him. Plaintiff has not objected to the state
defendants' dispositive motion. For the reasons discussed below,
the court grants summary judgment in favor of the state
defendants, and declines to exercise supplemental jurisdiction
over the remaining state defamation claim brought against
plaintiff's brother. FACTUAL BACKGROUND
The factual background is drawn from the pleadings and is
presented in the light most favorable to the plaintiff.
On September 1 5 , 1985, the murdered body of James Higley was
discovered on the Massachusetts shore of the Connecticut River. In June of 1986, criminal investigators received information that
the plaintiff, Earl Hastings, was somehow involved in Higley's
death. Accordingly, the authorities began to focus their
investigation on plaintiff, his brother Larry Hastings, and his
friends, Robert Schill and Bonnie Santor.
Plaintiff initially denied knowing anything about Higley's
death. Larry, Schill and Santor also denied knowing anything.
Investigators subsequently learned that on the night Higley
was killed, Larry, Schill and Santor arrived at Larry's home to
discover Higley inside, committing burglary. Higley was held at
gun point and was forced to strip down to his underwear. Bonnie
Santor left to alert plaintiff, who was at his own home, and to
bring him back to Larry's house. Higley attempted to escape
before plaintiff arrived, at which time Larry shot him three
times in the back. An autopsy revealed that these three shots
2 alone would not necessarily have resulted in instant death. At some point after Higley was shot, plaintiff arrived at Larry's
house. Higley's throat was cut after plaintiff arrived on the
scene.
When police attention turned toward plaintiff, he contacted the others and told them not to tell the police
anything. However, the police were eventually told that
plaintiff had cut Higley's throat. On July 2 4 , 1986, plaintiff
signed a statement admitting that he cut Higley's throat. He was
arrested and charged with the murder of James Higley. Subsequent
prosecution resulted in plaintiff's acquittal.
STANDARD OF REVIEW
The applicable standard of review is familiar. Summary
judgment is proper "if 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 judgment
as a matter of law." Fed. R. Civ. P. 56(c). The moving party
has the burden of demonstrating the absence of a genuine issue of
material fact for trial. Anderson v . Liberty Lobby Inc., 477
U.S. 2 4 2 , 256 (1986). The party opposing the motion must set
3 forth specific facts showing that there remains a genuine issue
for trial, demonstrating "some factual disagreement sufficient to
deflect brevis disposition." Mesnick v . General Electric Co.,
950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 112 S.Ct. 2965
(1992). This burden is discharged only if the cited disagreement
relates to a genuine issue of material fact. Wynne v . Tufts
University School of Medicine, 976 F.2d 7 9 1 , 794 (1st Cir. 1992)
cert. denied 113 S.Ct 1845 (1993).
Plaintiff has not filed an objection to the summary judgment
motion and on that ground alone the motion could be granted.
However, the court will briefly address the merits.
DISCUSSION
A. Claims Against Brian Tucker
Plaintiff asserts a claim under 42 U.S.C. § 1983 against
Assistant Attorney General Brian Tucker for deprivation of his
rights to due process. Specifically, he alleges that Tucker
instructed witnesses not to testify at certain hearings or
depositions. The court previously determined, pursuant to 42
U.S.C. § 1915, that plaintiff's complaint could be construed to
state a claim for relief against Tucker, but only to the extent
4 his alleged actions might have constituted pre-prosecution
"investigative" conduct.
A state prosecutor enjoys absolute immunity for acts related
to the initiation and conduct of a criminal prosecution. Imbler
v . Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity for acts incident to the prosecutorial function is well grounded in
the common law and justified by policy concerns. Burns v . Reed,
500 U.S 4 7 8 , 490-491 (1991). When a prosecutor's duties as
public advocate require action preliminary to the initiation of a
prosecution, those acts are also shielded by absolute immunity.
Imbler, supra, at 4 3 1 , n . 3 3 . However, investigative activity
that does not relate to preparation for the initiation or conduct
of a prosecution is not entitled to absolute immunity, Burns,
supra, at 495, but to a lesser, qualified immunity.
In this case, Tucker is entitled to absolute immunity. By
the plaintiff's own admission, Tucker's involvement in the case
began after plaintiff had been charged with Higley's murder.
Plaintiff has not alleged any activity by Tucker during the pre-
arrest or pre-indictment investigation that might qualify for
scrutiny under a less rigorous immunity standard; those
5 activities about which plaintiff does complain are covered by
absolute immunity.
Even if Defendant Tucker's activity is judged against a
qualified immunity standard, it would still be protected
(plaintiff has offered nothing to contradict the factual assertions made in the state defendants' motion for summary
judgment).
B. State Law Malicious Prosecution Claims Against the Remainin Defendants
Plaintiff also asserts claims for malicious prosecution
under state law, and deprivation of his rights to due process
under 42 U.S.C. § 1983, against New Hampshire State Police Major
Crime Unit members Lamy, Miles, Slopes and Barthelmes.
Under state law, to prevail on a claim of malicious
prosecution, a plaintiff must prove that he was subjected to a
criminal prosecution instituted by a defendant without probable
Free access — add to your briefcase to read the full text and ask questions with AI
Hastings v . Lamy CV-89-413-M 04/28/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Earl C . Hastings, Plaintiff, v. Civil N o . 89-413-M Ronald Lamy; Michael Miles; Gary Slopes; John Barthelmes; Brian T . Tucker, Esq.; and Laurence D. Hastings, Defendants.
O R D E R
Plaintiff Earl Hastings brought this action against various
state defendants and his brother, Laurence Hastings. He asserts
claims under 42 U.S.C. § 1983 and supplemental state law claims
based on his prosecution for the murder of James Higley. The
remaining state defendants have moved for summary judgment.
Defendant Laurence Hastings has not filed a dispositive motion,
apparently (document n o . 48) because his counsel has been unable
to contact him. Plaintiff has not objected to the state
defendants' dispositive motion. For the reasons discussed below,
the court grants summary judgment in favor of the state
defendants, and declines to exercise supplemental jurisdiction
over the remaining state defamation claim brought against
plaintiff's brother. FACTUAL BACKGROUND
The factual background is drawn from the pleadings and is
presented in the light most favorable to the plaintiff.
On September 1 5 , 1985, the murdered body of James Higley was
discovered on the Massachusetts shore of the Connecticut River. In June of 1986, criminal investigators received information that
the plaintiff, Earl Hastings, was somehow involved in Higley's
death. Accordingly, the authorities began to focus their
investigation on plaintiff, his brother Larry Hastings, and his
friends, Robert Schill and Bonnie Santor.
Plaintiff initially denied knowing anything about Higley's
death. Larry, Schill and Santor also denied knowing anything.
Investigators subsequently learned that on the night Higley
was killed, Larry, Schill and Santor arrived at Larry's home to
discover Higley inside, committing burglary. Higley was held at
gun point and was forced to strip down to his underwear. Bonnie
Santor left to alert plaintiff, who was at his own home, and to
bring him back to Larry's house. Higley attempted to escape
before plaintiff arrived, at which time Larry shot him three
times in the back. An autopsy revealed that these three shots
2 alone would not necessarily have resulted in instant death. At some point after Higley was shot, plaintiff arrived at Larry's
house. Higley's throat was cut after plaintiff arrived on the
scene.
When police attention turned toward plaintiff, he contacted the others and told them not to tell the police
anything. However, the police were eventually told that
plaintiff had cut Higley's throat. On July 2 4 , 1986, plaintiff
signed a statement admitting that he cut Higley's throat. He was
arrested and charged with the murder of James Higley. Subsequent
prosecution resulted in plaintiff's acquittal.
STANDARD OF REVIEW
The applicable standard of review is familiar. Summary
judgment is proper "if 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 judgment
as a matter of law." Fed. R. Civ. P. 56(c). The moving party
has the burden of demonstrating the absence of a genuine issue of
material fact for trial. Anderson v . Liberty Lobby Inc., 477
U.S. 2 4 2 , 256 (1986). The party opposing the motion must set
3 forth specific facts showing that there remains a genuine issue
for trial, demonstrating "some factual disagreement sufficient to
deflect brevis disposition." Mesnick v . General Electric Co.,
950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 112 S.Ct. 2965
(1992). This burden is discharged only if the cited disagreement
relates to a genuine issue of material fact. Wynne v . Tufts
University School of Medicine, 976 F.2d 7 9 1 , 794 (1st Cir. 1992)
cert. denied 113 S.Ct 1845 (1993).
Plaintiff has not filed an objection to the summary judgment
motion and on that ground alone the motion could be granted.
However, the court will briefly address the merits.
DISCUSSION
A. Claims Against Brian Tucker
Plaintiff asserts a claim under 42 U.S.C. § 1983 against
Assistant Attorney General Brian Tucker for deprivation of his
rights to due process. Specifically, he alleges that Tucker
instructed witnesses not to testify at certain hearings or
depositions. The court previously determined, pursuant to 42
U.S.C. § 1915, that plaintiff's complaint could be construed to
state a claim for relief against Tucker, but only to the extent
4 his alleged actions might have constituted pre-prosecution
"investigative" conduct.
A state prosecutor enjoys absolute immunity for acts related
to the initiation and conduct of a criminal prosecution. Imbler
v . Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity for acts incident to the prosecutorial function is well grounded in
the common law and justified by policy concerns. Burns v . Reed,
500 U.S 4 7 8 , 490-491 (1991). When a prosecutor's duties as
public advocate require action preliminary to the initiation of a
prosecution, those acts are also shielded by absolute immunity.
Imbler, supra, at 4 3 1 , n . 3 3 . However, investigative activity
that does not relate to preparation for the initiation or conduct
of a prosecution is not entitled to absolute immunity, Burns,
supra, at 495, but to a lesser, qualified immunity.
In this case, Tucker is entitled to absolute immunity. By
the plaintiff's own admission, Tucker's involvement in the case
began after plaintiff had been charged with Higley's murder.
Plaintiff has not alleged any activity by Tucker during the pre-
arrest or pre-indictment investigation that might qualify for
scrutiny under a less rigorous immunity standard; those
5 activities about which plaintiff does complain are covered by
absolute immunity.
Even if Defendant Tucker's activity is judged against a
qualified immunity standard, it would still be protected
(plaintiff has offered nothing to contradict the factual assertions made in the state defendants' motion for summary
judgment).
B. State Law Malicious Prosecution Claims Against the Remainin Defendants
Plaintiff also asserts claims for malicious prosecution
under state law, and deprivation of his rights to due process
under 42 U.S.C. § 1983, against New Hampshire State Police Major
Crime Unit members Lamy, Miles, Slopes and Barthelmes.
Under state law, to prevail on a claim of malicious
prosecution, a plaintiff must prove that he was subjected to a
criminal prosecution instituted by a defendant without probable
cause and with malice, and that the criminal proceeding
terminated in his favor. Stock v . Byers, 120 N.H. 8 4 4 , 846
(1980) (citations omitted). Probable cause in the malicious
prosecution context is defined as "such a state of facts in the
mind of the prosecutor as would lead a man of ordinary caution
6 and prudence to believe or entertain an honest and strong
suspicion that the person arrested is guilty." Id., quoting
MacRae v . Brant, 108 N.H. 1 7 7 , 180 (1967). The existence of
probable cause is a question of law when the facts are taken as
established. Kay v . Bruno, 605 F. Supp. 7 6 7 , 774 (D.N.H. 1985).
Of course, even in the absence of probable cause, the defendant
officers would still be immune from a malicious prosecution
action, under state law, if the officers reasonably believed
their conduct to be lawful. See R.S.A. 541-B:19 ( d ) .
The court finds that the defendant officers unquestionably had probable cause to arrest and charge plaintiff with Higley's murder. Defendants were aware that plaintiff told the others to keep quiet about the murder, and that the others were afraid of him. They knew plaintiff had committed serious acts of violence in the past, particularly that he had been convicted in Oklahoma of attempted murder. Against this backdrop, when Schill accused plaintiff of cutting Higley's throat, and plaintiff then confessed to cutting Higley's throat, any doubt about probable cause to arrest and charge plaintiff evaporated. Plaintiff cannot sustain his claim for malicious prosecution against these defendants, as a matter of law.
7 C. Claim Under 42 U.S.C § 1983 Plaintiff also asserts claims against state defendants for
malicious prosecution under 42 U.S.C. § 1983. The United States
Supreme Court recently held that one alleging malicious
prosecution, even in the absence of probable cause, states no
substantive due process claim. Albright v . Oliver, 114 S.Ct 807 (1994). "[I]t is evident that substantive due process may not
furnish the constitutional peg on which to hang such a 'tort.'"
Id., at 8 1 1 , fn 4 . S o , plaintiff cannot rely on a violation of
his substantive due process rights as a basis for bringing a
malicious prosecution claim under § 1983.
Construing the plaintiff's complaint liberally, he might
assert a malicious prosecution claim based on a claimed
deprivation of procedural due process. But procedural due
process claims are not actionable unless no adequate post-
deprivation remedy under state law is available. Perez-Ruiz v .
Crespo-Guillen, 25 F.3d 4 0 , 43 (1st Cir. 1994). New Hampshire
law does provide an opportunity for sufficient post-deprivation
redress, including an action for malicious prosecution. The
availability of this remedy would appear to be fatal to
plaintiff's procedural due process claim as well, even if the
complaint is construed as asserting such claims. And, in any
8 event, the pertinent pleadings establish that the officers had
probable cause, which defeats any claim of malicious prosecution.
CONCLUSION
For the reasons stated above, the remaining state defendants' Motion for Summary Judgment is granted in its entirety. Having granted the remaining state defendants' unopposed motion for summary judgment, the court declines to exercise supplemental jurisdiction over plaintiff's remaining state defamation claim against his brother, Laurence Hastings, 28 U.S.C. § 1367(c)(3), and hereby dismisses that claim without prejudice, and without comment as to its merit under applicable state law.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 2 8 , 1995
cc: Earl C . Hastings, pro se Christopher P. Reid, Esq. Edward J. Burke, Esq.