Michaud v. McQuade CV-99-186-JD 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Michaud
v. Civil No. 99-186-JD Opinion No. 2000 DNH 230 Michael McQuade, et a l .
O R D E R
The plaintiff, David Michaud, appearing pro se, brings a
civil rights action under 42 U.S.C.A. § 1983, and related state
law claims, in which he alleges that he was falsely charged with
violating a domestic violence order in violation of his Fourth
and Fourteenth Amendment rights.1 The defendants, two Rochester,
New Hampshire police officers, Michael McQuade and Wayne
Perreault, and the City of Rochester, move for summary judgment.
The plaintiff moved for an extension of time, pursuant to Federal
Rule of Civil Procedure 56(f), to permit him to depose McQuade
and Perreault and several other witnesses, which was previously
denied by the magistrate judge. See Order dated Oct. 10, 2000.
The plaintiff moves for reconsideration of the magistrate's
decision. The plaintiff also filed an objection to the motion
for summary judgment. In addition, the plaintiff moves for a
1Michaud's complaint was limited on initial review pursuant to 28 U.S.C.A. § 1915A to claims arising from the charges of violation of the domestic violence order. See Orders of July 14 and August 3, 1999. hearing on his allegations that the transcript of a taped
conversation between the plaintiff and his ex-wife was
deliberately altered.
Background
David Michaud was separated from his wife, Linda Michaud, in
the spring of 1996 when the events pertinent to this lawsuit
occurred. David lived in a house across the street from where
Linda and her three children lived. Linda obtained ex parte
restraining and protective orders against David on May 7, 1996,
and a hearing was held on May 16, 1996. Linda and David were
both present at the hearing and both were represented by counsel.
The domestic violence final orders were issued on May 16,
1999. The final orders found that David had abused Linda within
the meaning of RSA 173-B, and prohibited David from, among other
things, entering the premises of Linda's residence, contacting
her at work, and harassing her or her family members. The final
orders were served on David, although he apparently contends that
he never opened the envelope.
Linda's home was destroyed by fire on June 6, 1996. After
the fire, Linda and the children lived with her father in
Somersworth, New Hampshire. Based on the results of the fire
investigation, the police suspected that David set the fire and
2 informed Linda that David was a suspect on June 11, 1996. Linda
agreed to cooperate in the investigation. On June 13, 1996,
Officer Perreault applied for and received approval to install a
one-party telephone interception on the telephone at Linda's
residence for the purpose of recording conversations with David
about the fire.
On June 13, while Officers Perreault and McQuade were at
Linda's home in Somersworth to install the telephone interception
device, David drove up to the house. The officers saw David
arrive, get out of the car, and talk to Linda. Linda told him to
leave and that he was violating the domestic violence order.
After a few minutes, David left and called Linda. Their
conversation was recorded.
David was arrested on stalking charges on June 20, 2000, and
on June 21 on charges of arson of Linda's house. On June 28,
while David was in jail on the stalking and arson charges.
Detective Williams of the Somersworth Police Department prepared
a warrant application and criminal complaint charging David with
violating the domestic violence order. The violation charges
were based on Officer McQuade's statement that he and Officer
Perreault saw David drive up to Linda's father's house on June 13
and talk to her. The violation charges were dismissed by nol
prosequi on September 12, 1996. David Michaud was convicted on
3 the arson charges in January of 1998.
Standard of Review
Summary judgment is appropriate when "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 record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz, 172
F.3d 122, 125 (1st Cir. 1999). " [A]n issue is 'genuine' if the
evidence presented is such that a reasonable jury could resolve
the issue in favor of the nonmoving party and a 'material' fact
is one that might affect the outcome of the suit under governing
law." Fajardo Shopping Ctr. v. Sun Alliance Ins. Co., 167 F.3d
1, 7 (1st Cir. 1999). Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) .
Discussion
The plaintiff alleges that the defendants violated his
Fourth and Fourteenth Amendment rights and committed the state
4 law torts of abuse of process and malicious prosecution by having
an arrest warrant and criminal complaint brought against him for
violation of the protective orders issued in the domestic
violence final order.2 The defendants move for summary judgment
on the plaintiff's remaining claims. The plaintiff objects to
the defendants' motion for summary judgment, moves for
reconsideration of the magistrate's decision denying his motion
pursuant to Rule 56(f), and moves for a hearing on his
allegations that the transcript of the taped telephone
conversation was altered.
A. Motion for Reconsideration
The plaintiff moves for reconsideration of the magistrate's
denial of his motion for an extension of time under rule 56(f).
A motion for Rule 56(f) relief must:
(1) be made within a reasonable time after the filing of the summary judgment motion; (2) place the district court on notice that movant wants the court to delay action on the summary judgment motion, whether or not the motion cites Rule 56(f); (3) demonstrate that
2As noted above, the plaintiff's other claims were dismissed pursuant to 28 U.S.C.A. § 1915A. Although the defendants addressed some of the plaintiff's other claims in the motion for summary judgment, including a First Amendment claim alleging a violation of the plaintiff's right to "assemble" with his children and an illegal wiretap claim, those claims do not appear to arise out of his arrest for violation of the domestic violence order, and therefore, were previously dismissed.
5 movant has been diligent in conducting discovery, and show good cause why the additional discovery was not previously practicable with reasonable diligence; (4) set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion; and (5) attest that the movant has personal knowledge of the recited grounds for the requested continuance.
Simas v. First Citizens' Fed.
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Michaud v. McQuade CV-99-186-JD 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David Michaud
v. Civil No. 99-186-JD Opinion No. 2000 DNH 230 Michael McQuade, et a l .
O R D E R
The plaintiff, David Michaud, appearing pro se, brings a
civil rights action under 42 U.S.C.A. § 1983, and related state
law claims, in which he alleges that he was falsely charged with
violating a domestic violence order in violation of his Fourth
and Fourteenth Amendment rights.1 The defendants, two Rochester,
New Hampshire police officers, Michael McQuade and Wayne
Perreault, and the City of Rochester, move for summary judgment.
The plaintiff moved for an extension of time, pursuant to Federal
Rule of Civil Procedure 56(f), to permit him to depose McQuade
and Perreault and several other witnesses, which was previously
denied by the magistrate judge. See Order dated Oct. 10, 2000.
The plaintiff moves for reconsideration of the magistrate's
decision. The plaintiff also filed an objection to the motion
for summary judgment. In addition, the plaintiff moves for a
1Michaud's complaint was limited on initial review pursuant to 28 U.S.C.A. § 1915A to claims arising from the charges of violation of the domestic violence order. See Orders of July 14 and August 3, 1999. hearing on his allegations that the transcript of a taped
conversation between the plaintiff and his ex-wife was
deliberately altered.
Background
David Michaud was separated from his wife, Linda Michaud, in
the spring of 1996 when the events pertinent to this lawsuit
occurred. David lived in a house across the street from where
Linda and her three children lived. Linda obtained ex parte
restraining and protective orders against David on May 7, 1996,
and a hearing was held on May 16, 1996. Linda and David were
both present at the hearing and both were represented by counsel.
The domestic violence final orders were issued on May 16,
1999. The final orders found that David had abused Linda within
the meaning of RSA 173-B, and prohibited David from, among other
things, entering the premises of Linda's residence, contacting
her at work, and harassing her or her family members. The final
orders were served on David, although he apparently contends that
he never opened the envelope.
Linda's home was destroyed by fire on June 6, 1996. After
the fire, Linda and the children lived with her father in
Somersworth, New Hampshire. Based on the results of the fire
investigation, the police suspected that David set the fire and
2 informed Linda that David was a suspect on June 11, 1996. Linda
agreed to cooperate in the investigation. On June 13, 1996,
Officer Perreault applied for and received approval to install a
one-party telephone interception on the telephone at Linda's
residence for the purpose of recording conversations with David
about the fire.
On June 13, while Officers Perreault and McQuade were at
Linda's home in Somersworth to install the telephone interception
device, David drove up to the house. The officers saw David
arrive, get out of the car, and talk to Linda. Linda told him to
leave and that he was violating the domestic violence order.
After a few minutes, David left and called Linda. Their
conversation was recorded.
David was arrested on stalking charges on June 20, 2000, and
on June 21 on charges of arson of Linda's house. On June 28,
while David was in jail on the stalking and arson charges.
Detective Williams of the Somersworth Police Department prepared
a warrant application and criminal complaint charging David with
violating the domestic violence order. The violation charges
were based on Officer McQuade's statement that he and Officer
Perreault saw David drive up to Linda's father's house on June 13
and talk to her. The violation charges were dismissed by nol
prosequi on September 12, 1996. David Michaud was convicted on
3 the arson charges in January of 1998.
Standard of Review
Summary judgment is appropriate when "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 record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz, 172
F.3d 122, 125 (1st Cir. 1999). " [A]n issue is 'genuine' if the
evidence presented is such that a reasonable jury could resolve
the issue in favor of the nonmoving party and a 'material' fact
is one that might affect the outcome of the suit under governing
law." Fajardo Shopping Ctr. v. Sun Alliance Ins. Co., 167 F.3d
1, 7 (1st Cir. 1999). Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) .
Discussion
The plaintiff alleges that the defendants violated his
Fourth and Fourteenth Amendment rights and committed the state
4 law torts of abuse of process and malicious prosecution by having
an arrest warrant and criminal complaint brought against him for
violation of the protective orders issued in the domestic
violence final order.2 The defendants move for summary judgment
on the plaintiff's remaining claims. The plaintiff objects to
the defendants' motion for summary judgment, moves for
reconsideration of the magistrate's decision denying his motion
pursuant to Rule 56(f), and moves for a hearing on his
allegations that the transcript of the taped telephone
conversation was altered.
A. Motion for Reconsideration
The plaintiff moves for reconsideration of the magistrate's
denial of his motion for an extension of time under rule 56(f).
A motion for Rule 56(f) relief must:
(1) be made within a reasonable time after the filing of the summary judgment motion; (2) place the district court on notice that movant wants the court to delay action on the summary judgment motion, whether or not the motion cites Rule 56(f); (3) demonstrate that
2As noted above, the plaintiff's other claims were dismissed pursuant to 28 U.S.C.A. § 1915A. Although the defendants addressed some of the plaintiff's other claims in the motion for summary judgment, including a First Amendment claim alleging a violation of the plaintiff's right to "assemble" with his children and an illegal wiretap claim, those claims do not appear to arise out of his arrest for violation of the domestic violence order, and therefore, were previously dismissed.
5 movant has been diligent in conducting discovery, and show good cause why the additional discovery was not previously practicable with reasonable diligence; (4) set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion; and (5) attest that the movant has personal knowledge of the recited grounds for the requested continuance.
Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 45 n.2
(1st Cir. 1999) (internal quotations omitted) . The plaintiff's
motion is deficient in several respects.
The plaintiff argues that the defendants' interrogatory
answers are "unfairly vague." The interrogatory answers were
returned in February of this year. The defendants' motions for
summary judgment were filed on August 31. To the extent the
plaintiff contends that the defendants' interrogatory answers
were insufficient, he has had more than enough time to pursue
supplemental interrogatory answers. The plaintiff also contends
that he needs to depose defendants McQuade and Perreault and
needs "discovery" from Linda Michaud and the couple's two
children. The plaintiff has had ample time to pursue the
discovery he seeks.
Most importantly, the plaintiff has not demonstrated that
any factual information is likely to be discovered by deposing
the defendants, or the other potential witnesses, that would
influence the outcome of the pending summary judgment motion.
6 The domestic violence order prohibited the plaintiff from
contacting Linda Michaud at her residence, and he does not
dispute that he did contact her on June 13 in violation of the
order. Therefore, to the extent the plaintiff challenges the
defendants' ability to hear their conversation, those issues are
immaterial. The plaintiff's other objections to the defendants'
affidavits and evidence are also immaterial.
Because the plaintiff's motion for an extension of time for
additional discovery was properly denied, see C.B. Trucking, Inc.
v. Waste Management, Inc., 137 F.3d 41, 45 (1st Cir.1998), his
motion for reconsideration is denied.
B. Motion for Summary Judgment
In order to succeed on either his civil rights Fourth
Amendment claim or his state law malicious prosecution claim, the
plaintiff must be able to prove that he was arrested and charged
without probable cause.3 See Britton v. Maloney, 196 F.3d 24, 28
(1st Cir. 1999); ERG. Inc. v. Barnes. 137 N.H. 186, 190 (1993).
Probable cause exists in the federal context "if the facts and
3In this case, it is not necessary to distinguish between claims of false arrest and malicious prosecution because the plaintiff was arrested on a warrant issued at the same time as the criminal complaint with the same alleged infirmities. Cf. Meehan v. Town of Plymouth, 167 F.3d 85, 89 (1st Cir. 1999) (discussing differences in the claims).
7 circumstances within the arresting officer's knowledge are
sufficient to lead an ordinarily prudent officer to conclude that
an offense has been, is being, or is about to be committed, and
that the putative arrestee is involved in the crime's
commission." laobucci v. Boulter, 193 F.3d 14, 21 (1st Cir.
1999) (quotation omitted). Similarly, in the state context,
"[plrobable cause exists when the facts and circumstances
presented warrant a person of reasonable caution and prudence in
believing that the arrestee has committed an offense." State v.
Crottv, 134 N.H. 706, 709 (1991) (quotation omitted).
In this case, as noted above, the domestic violence final
order found that the plaintiff had abused Linda Michaud within
the meaning of RSA 173-B and ordered the plaintiff, among other
things, "not to interfere with" Linda Michaud and "not to enter
the premises" where she resides. New Hampshire RSA 173-B:8
directs the police to arrest a defendant who violates such a
protective order. Officers McQuade and Perreault saw the
plaintiff drive up to the apartment house where Linda was living,
get out of the car, and talk with her. The plaintiff does not
dispute that those events occurred. Therefore, Officer McQuade,
who made the statement submitted to Officer Arthur Williams of
the Somersworth Police Department, had probable cause to believe that the plaintiff had violated the orders.4
The plaintiff has not demonstrated that a triable issue
remains as to whether probable cause existed to charge and arrest
him for violating the protective orders issued in the final
domestic violence order. The defendants are therefore entitled
to summary judgment on the civil rights claim based on the Fourth
Amendment and state law claim of malicious prosecution.
Abuse of process occurs when a lawful criminal process, such
as an arrest warrant, is used for an unlawful purpose. See
Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir. 1989); Long v.
Long, 136 N.H. 25, 30 (1992). Under state law, "no liability
exists, however, 'where a party has done nothing more than carry
out the process to its authorized conclusion, even though with
ulterior intentions.'" Cabletron Svs., Inc. v. Miller, 140 N.H.
55, 57 (1995) (quoting Clipper Affiliates v. Checovich, 138 N.H.
271, 277 (1994)). In the federal context, because abuse of
process does not involve a seizure, the Fourth Amendment does not
support an abuse of process claim, although egregious cases might
violate substantive due process. See Bradv v. Dill, 187 F.3d
110-15 (1st Cir. 1999); see also Santiago, 891 F.2d at 388
4Given the record as to the existence of probable cause, the court does not address the distinction between Officer McQuade as the complaining officer and Officer Williams as the arresting officer.
9 (holding that subjective intent element of abuse of process claim
precludes § 1983 liability for such a claim standing alone).
The plaintiff has not identified what improper motive the
defendant police officers had in pressing the violation charge
and has not shown that the officers did anything more than press
the charges to their authorized conclusion. Based on the record
presented for summary judgment, the plaintiff has not
demonstrated a triable factual issue as to his claims of abuse of
process. The defendants are entitled to summary judgment with
respect to the abuse of process claims.
The plaintiff alleges that the City of Rochester had a
policy or custom of inadequately supervising its police officers
to prevent constitutional violations. The court has not
addressed the city as a separate defendant because the plaintiff
makes no argument in his objection as to the city's liability.
Since no triable issue remains as to any of the alleged
constitutional violations or state tort claims with respect to
the individual defendants, the city is also entitled to summary
judgment. See Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir.
1996).
10 C. Plaintiff's Motion for a Hearing
The plaintiff alleges that the defendants' counsel
"purposely and deliberately altered" a copy of the transcript of
a taped conversation between the plaintiff and his ex-wife, Linda
Michaud, recorded on June 13, 1996. The transcript of the
telephone call appears to start in the course of the conversation
rather than at the beginning. In his motion for a hearing, the
plaintiff offers no explanation of what he believes was
deliberately altered and provides no evidence of an alteration.
The plaintiff alleges in his motion for an extension of time,
pursuant to Rule 56(f), that the defendants destroyed the first
few minutes of the taped conversation in order to eliminate
evidence that Linda told him she wanted to reconcile their
marriage in order to induce him to visit or call her.
Since the telephone conversation and transcript are not
material to the plaintiff's claims in suit, the plaintiff's
allegations would not change the outcome of the present motion
for summary judgment.5 In addition, the defendants have produced
a sworn statement of Brenda J. DiMatteo, who transcribed the
taped conversation. Ms. DiMatteo states that the transcript
5Whether or not the plaintiff believes that his ex-wife induced him to visit or call, because the domestic violence order prohibiting contact was still in effect at that time, he was prohibited from such contact. See RSA 173-B:5, V (1999).
11 provided is a "true and accurate transcript of the audio
recording of the conversation which took place on June 13, 1996
between Linda Michaud and David Michaud." As no evidence exists
that the taped conversation was altered in any way and the
conversation is immaterial to the plaintiff's claims in this
suit, the plaintiff's motion to be heard is denied.
Conclusion
For the foregoing reasons, the plaintiff's motion to be
heard (document no. 39) is denied. The plaintiff's motion for an
extension of time pursuant to Rule 56(f) (document no. 37) was
denied by the magistrate judge's order of October 10, 2000, and
his motion for reconsideration (document no. 45) is denied. The
defendants' motions for summary judgment (documents no. 35 and
36) are granted. The clerk of court is directed to enter
judgment accordingly and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
October 31, 2000
cc: David Michaud, pro se Donald E. Gardner, Esquire