McCue v. City of Rochester

• Court: District Court, D. New Hampshire
• Decided: September 18, 1996
• Docket: CV-94-480-M
• Status: Published

Opinion

McCue v. City of Rochester CV-94-480-M 09/18/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard G. McCue, Plaintiff,

v. Civil No. 94-480-M

City of Rochester, New Hampshire; Chief of Police Kenneth P. Hussey; Police Officer Paul J. Moore; and Does 1-3, Defendants.

O R D E R

Richard G. McCue brings a civil rights action seeking money

damages against the City of Rochester, New Hampshire; Kenneth P.

Hussey, Chief of the Rochester Police; Rochester police officer

Paul J. Moore, and three other officers whose names are unknown.

McCue alleges that the defendants violated his constitutional

rights by failing to properly investigate and by concealing

exculpatory evidence that caused him to be wrongfully tried,

convicted, and imprisoned for first degree murder. He also

asserts related tort claims. The defendants move for summary

judgment.

STANDARD OF REVIEW

Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would reguire trial. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it

might affect the outcome of the litigation, and an issue is

"genuine" if the record would allow a reasonable jury to return a

verdict in favor of the nonmoving party. Anderson, 477 U.S. at

24 8; see also National Amusements, Inc. v. Dedham, 43 F.3d 731,

735 (1st Cir.), cert, denied, 115 S.Ct. 2247 (1995). The court

interprets the record in the light most favorable to the

nonmoving party, the plaintiff in this case, and resolves all

inferences in his favor. McIntosh v. Antonio, 71 F.3d 29, 33

(1st Cir. 19 95).

BACKGROUND

2 Alene Courchesne was murdered during the early morning

hours of October 18, 1987. Her body was found a short distance

from the northbound lane of the Spaulding Turnpike in Rochester.

Richard McCue became a suspect early in the police investigation

when they discovered that he was with Courchesne the night before

she died and was apparently the last person seen with her. He

was indicted and arrested in April 1988. McCue's defense pointed

to two other suspects, Barry Lazaro, who arrived at the scene

just after the police found Courchesne's body and left hurriedly,

and Russell Healy, who also was seen with Courchesne on the night

before she died.

At McCue's trial, the prosecution offered circumstantial

evidence of his guilt, including a witness's description of a

truck parked on the side of the highway about 2:30 a.m. near

where the police discovered Courchesne's body that matched the

truck McCue was driving on October 17; another witness's

testimony that Courchesne and McCue left the witness's house just

after 2:30 a.m., that she heard Courchesne's raised voice and the

truck engine revving before they left (the witness's house was

four minutes from where Courchesne's body was later found);

evidence of truck tire marks and tire impressions in the gravel

where Courchesne's body was found that matched the tires on

3 McCue's truck; evidence that an antifreeze stain was found on the

ground at the scene and that McCue's truck had been filled

recently and leaked antifreeze; and evidence that the boot

impressions at the scene matched a test impression made with

McCue's boots. McCue was convicted of first degree murder on

December 8, 1988, and his conviction was affirmed by the New

Hampshire Supreme Court in April 1991. State v. McCue, 134 N.H.

94 (1991) .

After losing on appeal, McCue moved for a new trial on the

grounds of newly-discovered exonerating evidence from witnesses

who, he alleged, would implicate Healy in Courchesne's murder.

The state court denied his motion, and he moved for

reconsideration, offering additional new witnesses including

Elizabeth Grant. Healy died in November 1991 while McCue's

motion was pending. In April 1992, the state court held an

evidentiary hearing on McCue's motion and heard testimony from

Grant and Sargent Paul Moore of the Rochester Police Department

as well as other witnesses.

Grant testified that within a few weeks of Courchesne's

death, while she and Healy were discussing the death at the home

of a friend, Healy said, referring to Courchesne: "Well, I'm two

or three or four hundred dollars in the hole with her. I don't

4 have to worry about that anymore because I took care of her."

Grant further testified that she called the Rochester Police

Department a few weeks after her conversation with Healy and met

with Officer Paul Moore and another unidentified officer. She

said that when she tried to tell Moore what Healy told her about

Courchesne, Moore was uninterested and ended the interview. She

testified that the police never contacted her again about the

case. However, Moore testified that he did not know Grant, that

he had never been in contact with her or obtained information

from her, and that he had never even seen her except in the

courtroom. Before the court ruled on the motion for

reconsideration, McCue filed another motion for a new trial,

alleging juror misconduct, and on July 27, 1992, the state court

granted that motion.

Prior to McCue's second trial, the prosecution moved in

limine to exclude Grant's testimony about Healy's statements as

inadmissible hearsay. The court ruled that the statements were

inadmissible because they lacked the necessary circumstantial

guarantees of trustworthiness. McCue was retried, and on

February 27, 1993, he was found not guilty on all charges.

Following his acguittal, McCue brought the present action.

5 DISCUSSION

McCue alleges that Moore and three Rochester police

officers, identified only as Does one through three, conspired to

and did conceal Grant's statements implicating Healy in

Courchesne's murder, and failed to properly investigate the

exculpatory information provided by Grant. Based on those

factual allegations, McCue brings federal claims under 42

U.S.C.A. § 1983 against the individual defendants alleging

violations of his due process rights under the Fourth, Fifth, and

Fourteenth Amendments, and against the City of Rochester and

Chief of Police Hussey, alleging that their failure to properly

hire, train, and supervise the police evidenced an official

policy to violate his due process rights through the actions of

the defendant officers. In addition, he alleges that the

defendants' actions subjected him to wrongful imprisonment and

cruel and unusual punishment in violation of his Fourth, Fifth,

Eighth, and Fourteenth Amendment rights. He also alleges that

the defendants subjected him to malicious prosecution without

probable cause in violation of his Fourth, Fifth, and Fourteenth

Amendment rights. McCue brings related tort claims alleging

negligence, negligent supervision, malicious prosecution, and

conspiracy to commit malicious prosecution. The defendants move

6 for summary judgment contending that McCue's § 1983 claims are

barred by the applicable statute of limitations and the

preclusive effect of the state court's evidentiary rulings; that

they are entitled to gualified immunity; and that McCue cannot

show that the alleged violations resulted from implementation of

a municipal custom, policy, or practice, or that the supervisors

acted recklessly or with callous indifference to McCue's rights.

The issues raised in the defendants' motion are resolved as

follows.

A. Statute of Limitations

The timeliness of McCue's § 1983 claims is governed by the

analogous three-year limitations period found in New Hampshire

law. See N.H. Rev. Stat. Ann. §§ 507-B:7 & 508:4; see also

Owens v. Okure, 488 U.S. 235, 236 (1989); Wilson v. Garcia, 471

U.S. 261, 276 (1985). To determine when McCue's § 1983 claims

accrued for purposes of beginning the limitations period, the

court must identify "the common law cause of action most closely

analogous to the constitutional right at stake" and then

determine when the plaintiff "'kn[ew] or ha[d] reason to know of

the injury which is the basis of the action.'" Calero-Colon v.

Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995) (guoting Street

7 v. Vose, 936 F.2d 38, 40 (1st Cir. 1991)). McCue's federal

claims, which are brought under the Fourth, Fifth, Eighth, and

Fourteenth Amendments, all challenge the constitutionality of his

conviction and confinement pursuant to legal process, and are

most closely analogous to the common law tort of malicious

prosecution. See Heck v. Humphrey, 114 S. C t . 2364, 2371 (1994)

(evaluating claim by inmate that his constitutional rights were

violated by police and prosecutors' conspiracy to conceal

exculpatory evidence); see also Calero-Colon, 68 F.3d at 3-4. A

plaintiff may not maintain a § 1983 claim challenging the

legality of his conviction and confinement and seeking damages

until the challenged conviction has been invalidated. Heck, 114

S. C t . at 2372-73 (§ 1983 cause of action does not exist unless

and until the conviction is reversed). Because McCue's § 1983

claims did not accrue until he was acguitted on February 27,

1993, and he filed the present action on September 15, 1994, his

§ 1983 claims are not barred by the three-year limitation period.

Summary judgment is accordingly denied on statute of limitations

grounds.

B. Collateral Estoppel The defendants argue that the state court's evidentiary

ruling prior to McCue's second murder trial (i.e. that Healy's

statements to Grant were inadmissible to prove that Healy and not

McCue murdered Courchesne) established for this litigation that

Grant's testimony is not credible. Because the defendants

advance the preclusive effect of a New Hampshire state court

ruling. New Hampshire's collateral estoppel rule applies. See

Commercial Assocs. v. Tilcon Gammino, Inc., 998 F.2d 1092, 1096

(1st Cir. 1993). The following elements of collateral estoppel

are well-established under New Hampshire law: (1) the issue or

fact subject to estoppel must be identical in both actions; (2)

the first action must have resulted in a final resolution of the

issue or fact on the merits; (3) the party to be estopped must be

the same or in privity with the party in the first action; (4)

the party to be estopped must have had a full and fair

opportunity to litigate the issue in the first action; and (5)

the issue must have been essential to the final judgment in the

first action. Simpson v. Calivas, 139 N.H. 1, 7 (1994) .

In the present analysis, however, it is unnecessary to

progress beyond the first reguirement because the defendants have

not shown that the state court's ruling established the identical

fact that they assert is precluded: Grant's credibility. The defendants contend that the state court "specifically found that

Grant's testimony was lacking in trustworthiness." The reference

to the record provided by the defendants does not support that

assertion. In another document in the record, however, the court

ruled that Healy's statement to Grant was inadmissible because

there were "no corroborating circumstances to indicate the

trustworthiness of the statement" and "no circumstantial

guarantees of trustworthiness." Superior Court Order, dated

January 19, 1993. Although the state court noted that other

witnesses contradicted Grant's testimony, the court did not

determine the relative credibility of the conflicting witnesses.

The defendants have shown only that the state court found Healy's

statement lacked sufficient indicia of trustworthiness to meet

the evidentiary standard, not that a finding was made as to

Grant's credibility. C f . Glantz v. United States, 837 F.2d 23,

25 (1st Cir. 1988) (credibility of a government witness

established in prior criminal conviction where testimony was

essential to verdict and precluded issue of witness's perjury in

subseguent civil action). Accordingly, the state court rulings

do not preclude the issue of Grant's credibility in this action.

C. Malicious Prosecution Under 5 1983

10 The defendants contend that McCue cannot maintain a § 1983

claim for malicious prosecution as a violation of the Fourteenth

Amendment. Because § 1983 creates no substantive rights, but

only a means for redressing violation of federal rights, a claim

brought under § 1983 must allege a specific federal

constitutional or statutory violation as the basis of the claim.

Albright v. Oliver, 114 S. C t . 807, 811 (1994). McCue alleges in

Count Five that the defendants' actions concerning Grant's

exculpatory evidence subjected him "to malicious prosecution

without probable cause, in violation of the constitutional rights

of the plaintiff as guaranteed by the Fourth, Fifth, and

Fourteenth Amendments."

The plurality opinion in Albright precludes a § 1983 claim

alleging a right to be "free of prosecution without probable

cause" under the substantive due process protection afforded by

the Fourteenth Amendment. Id. at 812; see also Perez-Ruiz v.

Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994). In addition, as

the common law of New Hampshire provides a cause of action for

malicious prosecution, McCue cannot bring a § 1983 Fourteenth

Amendment procedural due process violation claim.1 Reid v. New

1 McCue denies that he has asserted a procedural due process claim.

11 Hampshire, 56 F.3d 332, 341 (1st Cir. 1995). Therefore, the

defendants are entitled to summary judgment on McCue's claims of

wrongful prosecution without probable cause in violation of his

rights under the Fourteenth Amendment as alleged in Count Five. 2

D. Qualified Immunity

Public officials performing discretionary functions are

entitled to gualified immunity from suit for violations of

federal law "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

2 Albright seemingly left open the possibility of a § 1983 claim addressing wrongful prosecution (because lacking probable cause) if the claim were based on an illegal seizure in violation of the Fourth Amendment. Id. 114 S. C t . at 813; see also, Calero-Colon, 68 F.3d at 3 n.7; Whiting v. Traylor, 85 F.3d 581, 584 n.3 (11th Cir. 1996). In addition, since Albright, the Supreme Court implicitly has recognized that other constitutional claims analogous to the tort of malicious prosecution, such as claims alleging that defendants withheld exculpatory information, may be brought under § 1983. See Heck, 114 S. C t . at 2370-2372, see also McMillan v. Johnson, 88 F.3d 1554, 1567 n.12 (11th Cir. 1996) (discussing §1983 liability for a violation of Bradv v. Maryland, 373 U.S. 83 (1963), and collecting cases); Reid, 56 F.3d at 336 n.9, 341 (§ 1983 procedural due process liability for withholding exculpatory evidence as New Hampshire common law does not provide a remedy); Tavlor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996) (§ 1983 claim based on officer's failure to disclose exculpatory information not affected by Albright) . As the defendants have not challenged McCue's claims on other grounds, the court has no reason to address the defendants' liability based on the other constitutional rights alleged. See, e.g., Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 n.5 (1st Cir. 1996).

12 reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The qualified immunity analysis in this

circuit is two-pronged: (1) "the court must establish whether the

constitutional right asserted by the plaintiff was 'clearly

established' at the time of the alleged violation," and (2) "the

court must ask whether 'a reasonable official situated in the

same circumstances should have understood that the challenged

conduct violated that established right.'" St. Hilaire v. City

of Laconia, 71 F.3d 20, 24 (1st Cir. 1995) (quoting Burns v.

Loranqer, 907 F.2d 233, 236 (1st Cir. 1990)), cert, denied, 116

S. C t . 2548 (1996). "The ultimate question of whether a

defendant is entitled, on a given set of facts, to the protection

of qualified immunity is a question of law for the court to

decide." Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996).

A "necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is 'clearly

established' at the time the defendant acted is the determination

of whether the plaintiff has asserted a violation of a

constitutional right at all." Sieqert v. Gilley, 500 U.S. 226,

232 (1991). If the plaintiff has failed to show a constitutional

violation, the court may bypass the qualified immunity analysis

and address the merits of the claim. United States v. Aversa,

13 No. 95-2216, 1996 WL 466426 *14 (1st Cir. Aug 21, 1996) . The

burden is on the plaintiff to provide sufficient support for his

federal claim to show infringement of a federal right, and if he

fails to do so, the defendant is necessarily entitled to summary

judgment. See Quintero de Quintero v. Aponte-Rogue, 974 F.2d

226, 228 (1st Cir. 1992).

The individual defendants argue that they did not violate

McCue's constitutional rights by failing to investigate or

disclose allegedly exculpatory information provided by Grant.

They contend that they had probable cause to arrest McCue and

that they had no independent duty to disclose exculpatory

information to McCue. Alternatively, they invoke gualified

immunity from liability. As the defendants have challenged the

existence of the federal rights asserted by McCue and also have

asserted gualified immunity, it is appropriate to begin by

determining whether the challenged conduct violated McCue's

federal rights, and if so, then determine whether the defendants

are nevertheless entitled to gualified immunity.3

3 The parties dispute the facts at the core of McCue's claims. McCue contends that Grant provided exculpatory information to the police, which they withheld from the prosecution and McCue, but defendants contend that Grant never contacted the police, never provided any such information, and they thus withheld nothing. For purposes of summary judgment, the defendants aim at the legal underpinnings of McCue's claim

14 1. Duty to investigate.

McCue claims a constitutional right not to be arrested

unless the police first investigate allegedly exculpatory

information. While police are obligated to conduct a fair

investigation of a crime, they have no constitutional duty to

investigate any particular information and no duty to investigate

after determining that probable cause exists to arrest a suspect.

See Baker v. McCollan, 443 U.S. 137, 146 (1979) (police have no

duty to investigate every claim of innocence); Franco-De Jerez v.

Burgos, 876 F.2d 1038, 1042 (1st Cir. 1989) (no duty to

investigate after a determination of probable cause to arrest);

see also Romero v. Fav, 45 F.3d 1472, 1476-77 (10th Cir. 1995)

(collecting cases discussing police duty to investigate prior to

arrest) .

McCue's response to defendants' summary judgment motion is

inadeguate and off the mark. For example, he merely states that

Grant's information about Healy's involvement in Courchesne's

murder negates probable cause. He fails to show what evidence

the police relied on in determining that they had probable cause

to arrest, and why Grant's statements would sufficiently

undermine any police conclusion, given all of the information in

rather than dispute facts.

15 their possession, that there was a reasonable probability that he

committed the murder.4 The mere existence of some exculpatory

information does not necessarily negate probable cause and

"conclusory responses unsupported by the evidence" are

insufficient to oppose summary judgment.5 Griqqs-Ryan v. Smith,

904 F.2d 112, 115 (1st Cir. 1990). Even if McCue's belated

suggestion of an illegal arrest in his objection were credited,

he still has not shown that the evidence relied on to obtain his

arrest warrant would have been insufficient to support probable

cause if Grant's statements were also considered. Because McCue

has not carried his burden of showing that the defendants'

failure to investigate allegedly exculpatory information resulted

in his having been arrested without probable cause, in violation

4 "Probable cause exists if 'the facts and circumstances within [a police officer's] knowledge and of which [the officer] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution' to believe that a crime has been committed or is being committed." Alexis v. McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 351 (1st Cir. 1995) (guoting Carroll v. United States, 267 U.S. 132, 162 (1925)). A probable cause determination is based on a reasonable probability that the suspect committed a crime and does not reguire sufficient evidence to convict. Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992).

5 Although McCue's inability to support his argument that the defendants lacked probable cause to arrest him strongly suggests that he cannot maintain his Fourth Amendment claim, that issue was not sguarely presented for summary judgment by the defendants.

16 of his federal constitutional rights, that claim cannot survive

defendant's summary judgment motion.

2. Duty to disclose exculpatory information.

The defendants assert that they had no independent duty to

disclose exculpatory information to McCue and, therefore, did not

violate his rights by failing to disclose the information

allegedly provided by Grant. A prosecutor's constitutional duty

to disclose exculpatory information to the defense in a criminal

case was established in Bradv v. Maryland, 373 U.S. 83 (1963) .

Since Bradv, courts have recognized a concomitant duty obligating

police investigators to turn over exculpatory and impeachment

evidence to the prosecutor. See Reid, 56 F.3d at 341; see also,

e.g., MacMillian v. Johnson, 88 F.3d 1554, 1566-67 (11th Cir.

1996) (collecting cases); Walker v. City of New York, 974 F.2d

293, 299 (2d Cir. 1992) (collecting cases), cert, denied, 507

U.S. 9611 (1993). For purposes of this motion only, it is

accepted that Grant's statements were made to police

investigators and defendants did not disclose those statements to

the prosecutor.

The defendants would nevertheless be entitled to gualified

immunity if their obligation to turn over exculpatory information

17 to the prosecutor (who in turn would deliver it to the defense)

was not clearly established when they allegedly concealed Grant's

statements, or if reasonable officers in the same circumstances

would not have known that disclosure was required. See St.

Hilaire, 71 F.3d at 24. The prosecution's obligation to disclose

was clearly established by Bradv in 1963. An investigator's duty

to disclose to the prosecutor was clearly established in 1987,

when Grant states that she gave Moore the information implicating

Healy, and in 1988, when McCue was tried and convicted. See

McMillan, 88 F.3d at 1568-69 ("We agree with the Fifth Circuit

that clearly established law in 1987 and 1988 prohibited the

police from concealing exculpatory or impeachment evidence.");

see also Campbell v. Maine, 632 F. Supp. Ill, 121 (D. Me. 1985),

aff'd , 787 F.2d 776 (1st Cir. 1986). A police officer's

constitutional obligation to turn over exculpatory information to

the prosecutor was clearly established when the defendants

allegedly withheld information, and the defendants have offered

no argument that reasonable police officers in the same

circumstances would not have recognized that obligation.6

The defendants have not addressed whether the information Grant allegedly provided meets the materiality requirement that triggers the duty to disclose. See Kyles v. Whitley, 115 S. C t . 1555, 1565-66 (1995) .

18 Therefore, the defendants are not entitled to qualified immunity

with respect to McCue's claim that they concealed exculpatory

information provided by Grant.

3. Wrongful imprisonment.

The defendants contend that McCue cannot prove a violation

of his federal rights based on a theory of wrongful imprisonment

or cruel and unusual punishment as alleged in Count Four. In

response, McCue argues that his imprisonment following conviction

for first degree murder was "conscience-shocking" in violation of

the substantive due process provision of the Fourteenth Amendment

because the defendants withheld exculpatory information.7 McCue

offers no legal authority to support his claim. To the contrary,

"[t]he Constitution does not guarantee that only the guilty will

be arrested. If it did, § 1983 would provide a cause of action

for every defendant acquitted--indeed for every suspect

released." Baker, 443 U.S. at 145. McCue's "wrongful

imprisonment" claim merely restates his Bradv claim that he was

wrongfully convicted of murder because the defendants withheld

7 Although McCue also alleged cruel and unusual punishment in violation of the Eighth Amendment, he has waived that claim by failing to respond to the defendants' challenge in their motion for summary judgment. See United States v. Zannino, 8 95 F.2d 1, 17 (1st Cir.), cert, denied, 494 U.S. 1082 (1990).

19 exculpatory information with additional allegations of injury

caused by imprisonment. Accordingly, summary judgment is granted

in the defendants' favor on Count Four.

E. Municipal Liability

A claim of municipal liability under § 1983 must be based on

a municipal policy, custom, or practice that caused, or was a

moving force behind, a deprivation of the plaintiff's

constitutional rights. Monell v. Department of Social Servs.,

436 U.S. 658, 694 (1978). The City of Rochester contends that

McCue cannot establish any city policy, custom, or practice to

withhold exculpatory information in support of his claim against

the city. McCue responds that the single incident in this case,

in which Moore and three other unidentified officers allegedly

withheld exculpatory information, is sufficient to meet the

Monell reguirement.8 Although a single incident of significant

magnitude can provide some proof of a municipal policy or custom

to act in a manner consistent with the incident, it is

McCue has not shown that any of the police officer defendants were policymakers such that their alleged decision to withhold evidence could constitute municipal policy. See, e.g., Bordanaro, 871 F.2d at 1157. He also has not shown that Chief Hussey had any actual or constructive knowledge of the defendant officers' alleged conduct. Id.

20 insufficient standing alone to prove an underlying policy or

custom. Bordanaro v. McLeod, 871 F.2d 1151, 1156-57 (1st Cir.),

cert, denied, 493 U.S. 820 (1989). McCue offers no evidence of

prior similar incidents or other evidence of a city policy or

practice to withhold exculpatory information from prosecutors

and, therefore the "Bordanaro umbrella" offers him no assistance

in proving a municipal policy or practice. See Mahan v. Plymouth

County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995). The

City of Rochester is entitled to summary judgment as McCue has

not come forward with any evidence from which a trier of fact

could find that the alleged concealment of exculpatory evidence

was done in accordance with some municipal custom, policy, or

regulation.

Similarly, McCue provides no evidentiary support for his

claim that the city and its police chief failed to properly

train, supervise, or discipline the police officer defendants.

Claims of inadeguate training "reguire proof that the failure to

train was a policy or deliberate choice made by the municipality

and that there is a direct link between the municipality's policy

and the constitutional violation." Bowen v. City of Manchester,

966 F.2d 13, 18 (1st Cir. 1992) (citing Canton v. Harris, 489

U.S. 378, 390 (1989)). Inadeguate police training is actionable

21 under § 1983 only when "the municipality's failure to train its

officers 'amounts to deliberate indifference to the rights of

persons with whom the police come into contact.'" Manarite v.

City of Springfield, 957 F.2d 953, 958 (1st Cir. 1992) (quoting

Canton, 489 U.S. at 388), cert, denied, 506 U.S. 837 (1992).

McCue offers no evidence that Rochester police were not trained

to provide exculpatory information to prosecutors, much less that

any training omissions were due to the city's deliberate

indifference to the constitutional rights of accused persons.

There being no factual basis in the record to support

municipal liability under § 1983, Rochester and the defendants

sued in their official capacities9 are entitled to entry of

summary judgment in their favor.

F. Supervisory Liability

McCue's claims against Chief Hussey are apparently based on

a theory of supervisory liability as he has not alleged that any

The claims against Hussey and Moore in their official capacities, in effect, are suits against Rochester and do not survive summary judgment. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) ("Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'") (quoting Monell v. New York City Pep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)).

22 individual actions by Hussey violated his rights.10 A plaintiff

suing a supervisor under § 1983 must show that (1) a subordinate

violated his constitutional rights; (2) the supervisor's acts or

omissions caused the subordinate's unconstitutional conduct; and

(3) the supervisor was deliberately indifferent to the

constitutional rights of others in acting or failing to act.

Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir.

1994); Manarite, 957 F.2d at 955-56. The First Circuit has

determined that deliberate indifference reguires "actual

knowledge [or willful blindness] of impending harm, easily

preventable." Manarite, 957 F.2d at 956 (quoting DesRosiers v.

Moran, 949 F.2d 15, 19 (1st Cir. 1991)). McCue has made no

allegations and has offered no evidence that Chief Hussey knew

about Moore's alleged conduct or that under the circumstances he

was willfully blind to Moore's alleged conduct. Because McCue

alleges only supervisory liability with respect to Chief Hussey,

making no factual allegations that he participated in withholding

exculpatory information, Hussey is entitled to summary judgment

on all of McCue's federal claims.

10 Although the defendants refer to "supervisors" in the plural form, McCue names only Hussey as a supervisor and provides no evidence of other supervisors' liability.

23 G. Conspiracy Claims

A claim alleging a civil conspiracy under § 1983 reguires an

agreement among two or more persons to violate the plaintiff's

federal rights and an actual deprivation of those rights. Earle

v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988); Landriqan v. City

of Warwick, 628 F.2d 736, 742 (1st Cir. 1980). Accordingly, to

the extent McCue's claims are dismissed on summary judgment, his

related conspiracy claims also do not survive.

CONCLUSION

For the foregoing reasons, defendants' motion for summary

judgment (document no. 12) is granted in part and denied in part.

Summary judgment is granted in favor of the City of Rochester and

Chief Hussey as to all of McCue's federal claims. Summary

judgment is granted in favor of the remaining individual

defendants on all claims in Count Four, the Fourteenth Amendment

claim in Count Five, and all remaining federal claims based on

defendants' failure to properly investigate exculpatory

information. Summary judgment is also granted in favor of all

individual defendants on the conspiracy claims alleged in Count

One that are based on the claims on which summary judgment has

been granted. Summary judgment is otherwise denied; the court is

24 unable to be more specific as to what remains of plaintiff's

complaint (in addition to his claims based on failure to disclose

exculpatory evidence) because the complaint does not clearly

describe the precise causes of action he purports to be pursuing

beyond what has been discussed above.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 18, 1996

cc: Andrew L. Isaac, Esg. William G. Scott, Esg.