Nesbitt v. USA; Graffam CV-96-594-SD 12/16/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James M. Nesbitt, III
v. Civil No. 96-594-SD
United States of America; Special Agent Gerald Graffam
O R D E R
Plaintiff James M. Nesbitt, III, brings this civil action
for damages against the United States of America under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seer. , and
against Special Agent Gerald Graffam, individually, under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971) ("Bivens"). These claims arise out of Agent
Graffam's alleged participation in and knowledge surrounding the
search, seizure, and arrest of plaintiff. Plaintiff forwards two
FTCA causes of action (Count I: false imprisonment, and Count II:
intentional or negligent infliction of emotional distress), and
one Bivens cause of action (Count III: unreasonable search and/or
seizure). Jurisdiction is invoked under 28 U.S.C. § 1346(b) and 28 U.S.C. § 1331. Before the court is defendants' converted
motion for summary judgment.1
Background
1. Facts2
The facts surrounding this litigation date back to 1994,
when the New Hampshire State Police began investigating the
suspected drug activities of plaintiff James Nesbitt. The police
used an informant, Samantha Medina, to arrange what they hoped
would be a drug sale leading to the arrest of Nesbitt, a
suspected cocaine trafficker. After several monitored phone
calls with plaintiff, the informant arranged a meeting with
plaintiff at the Cumberland Farms store in Milton, New Hampshire.
Five law enforcement officers were in place May 10, 1994, the day
of the arranged meeting between Nesbitt and the informant. Two
state officers. Sergeant Steven Demo and Trooper Russell Conte,
occupied a surveillance position to make the arrest at the
appropriate time. One state officer. Corporal Francis Lord, rode
1This order addresses: defendants' motion to dismiss, document 26; plaintiff's objection, document 28; defendants' memorandum in support of the converted motion for summary judgment, document 37; plaintiff's memorandum in opposition, document 42; and defendants' reply to plaintiff's opposition, document 4 6.
2The record is reviewed in the light most favorable to the plaintiff, and the following facts are gleaned from the parties' motions, including supporting documents. Disputed facts are noted as necessary.
2 with the informant posing as her acquaintance. One federal
officer, defendant Graffam, an agent with the Drug Enforcement
Administration (DEA), accompanied the remaining state officer.
Corporal Susan Forey, in a vehicle parked behind the Cumberland
Farms store. Due to a shortage of manpower, Forey had contacted
Graffam on May 9, 1994, to request DEA's assistance in the
surveillance and possible arrest of plaintiff.
Prior to departure, Forey strip-searched the informant to
check for any drugs or money. The officers thereafter outfitted
the informant with a wire transmitter, which did not work
correctly that day, and a $1,700 "flash roll" to show plaintiff.
After arriving at Cumberland Farms, the informant spoke briefly
with plaintiff, returned to Lord's pickup, and said that
plaintiff wanted her to go for a ride. Against Lord's
instructions, the informant got in plaintiff's car and they drove
up to the store. She got out of the car, briefly entered the
store, returned to plaintiff's car, and then came back over to
Lord's pickup and said that everything was "all set" and that
plaintiff was going to get "it." Demo and Conte followed as
plaintiff drove away. When Lord asked the informant where the
money was, she said that she gave it to plaintiff, which prompted
Lord to order Demo and Conte to stop plaintiff and recover the
money.
After driving away, plaintiff pulled into a parking lot
about one and one-half miles from Cumberland Farms, followed by
3 Demo and Conte. With guns drawn, they asked him where the money
was. He responded that he did not have it, and a pat search
confirmed that he did not have the money. Demo then saw a clear
bag of white powder that appeared to be cocaine on the floor of
plaintiff's car. Plaintiff was then arrested and brought to the
rear of the building for a strip search, which revealed nothing.
Officer Conte contacted Officer Keyes to transport plaintiff to
the police station, but he was never prosecuted because the
substance in the bag tested negative for the presence of cocaine.
In the meantime. Agent Graffam walked from Cumberland Farms
to the parking lot down the road where plaintiff's arrest took
place. After arriving and learning that the money had not been
found, he walked back along the road to see if plaintiff had
tossed out the money along the way. The officers also searched
the Cumberland Farms store for the money, but they found nothing.
Eventually the informant admitted to Forey that she had kept the
money hidden in her vagina, and she then produced the money.
Although both parties agree that the informant planted the
white powder in plaintiff's car, they dispute why she did so.
Plaintiff's theory all along has been that the informant planted
the bag as part of a conspiracy with the officers to create
pretextual probable cause. Plaintiff has to this date been
unable to produce an affidavit from the informant. He does
submit a copy of a transcribed interview between the informant, a
private investigator, and a lawyer representing plaintiff. In
4 the interview, the informant indicates that she planted the
evidence at the direction of the officers. Also, plaintiff
disputes a statement made by Forey in her declaration, wherein
Forey states the informant admitted to planting the bag under
plaintiff's seat days before the arrest. This cannot be true,
according to plaintiff, because he remembers cleaning his car at
some point after the informant claims to have planted the bag,
and he saw no such bag when he cleaned his car. Declarations
have also been provided by Forey, Lord, Conte, Demo, and Graffam
denying having provided the informant with any fake cocaine, and
denying any knowledge that the informant intended to plant any
fake cocaine.
Additional facts are noted as necessary.
2. Procedural History
Highlights of the procedural quagmire underlying this case
include the following. Plaintiff filed a complaint in state
court in August 1995 against the state and federal actors. After
the action was removed to federal court, plaintiff voluntarily
dismissed his claim against Agent Graffam, the only federal
defendant, and this court remanded the case back to the state
court in November 1995. On July 1, 1996, the Strafford County
(New Hampshire) Superior Court, Mohl, J., granted summary
judgment in favor of defendants on three of four counts. Count
III of plaintiff's state complaint, alleging that Officer Keyes
5 verbally threatened to break Nesbitt's legs while transporting
him to the station, survived summary judgment, but plaintiff
voluntarily dismissed this claim during trial.
Plaintiff then appealed the summary judgment decision to the
New Hampshire Supreme Court, and in the meantime filed this suit
against Agent Graffam on November 27, 1996. After the New
Hampshire Supreme Court summarily affirmed the summary judgment
on September 22, 1997, the United States and Agent Graffam moved
to dismiss this action based on qualified immunity and collateral
estoppel. Plaintiffs objected, and this court converted the
motion to dismiss to a motion for summary judgment on
November 26, 1997, to allow additional discovery and submissions.
On December 31, 1997, defendants filed a memorandum in support of
the converted motion for summary judgment, and on February 2,
1998, plaintiffs filed a memorandum in opposition. Defendants
then filed a rely brief on March 4, 1998.
Discussion
1. Standard of Review
Summary judgment is appropriate when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Rule 56(c), Fed. R.
Civ. P. This familiar standard has a "rhythm of its own,"
described as follows:
6 The movant must put the ball into play, averring an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material. A genuine issue is one that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party. Put another way, a genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. A material issue is one that affect[s] the outcome of the suit, that is, an issue which, perforce, need[s] to be resolved before the related legal issues can be decided.
Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576, 581 (1st Cir.
1994) (quotations and citations omitted).
When the nonmovant bears the ultimate burden of proof on an
issue, he may not defeat the motion "by relying upon mere
allegations or evidence that is less than significantly
probative." Id. (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986)). "Summary judgment likely will be
appropriate if the nonmovant elects to rest upon some combination
of 'conclusory allegations, improbable inferences, and
unsupported speculation.'" Id. (quoting Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
Furthermore, the motion for summary judgment "must be decided on
the record as it stands, not on litigants' visions of what the
facts might some day reveal." Id.
When a party pleads the affirmative defense of collateral
estoppel at the summary judgment stage, issue preclusion on
7 summary judgment is appropriate when all the requirements of both
issue preclusion and summary judgment are met. See 18 M o o r e 's
Federal Practice § 132.05 [7] (3d ed. 1998) ; c f . Lillios v. Justices
of the New Hampshire Dist. Ct., 735 F. Supp. 43, 45 (D.N.H.)
(limited inquiry of motion to dismiss does not allow review of
previous action for preclusive effect).
2. Plaintiff's Evidentiary Arguments
Plaintiff argues for the admissibility of the informant's
unsworn, out-of-court statements. The statements are contained
in a transcribed copy of a recorded interview between the
informant, Sid Carlson (investigator for plaintiff), and Brian
Stern (attorney for plaintiff). According to plaintiff, the
statements are admissible as (1) statements against penal
interest, (2) vicarious admissions by a party-opponent, and (3)
co-conspirator statements. The statements are allegedly evidence
that law enforcement officers directed the informant to plant
fake drugs in plaintiff's car. The court finds that the
statements are inadmissible under any of plaintiff's theories and
therefore may not be considered in ruling on summary judgment.
Plaintiff first argues an exception to the hearsay rule
under Rule 804(b)(3), Fed. R. Evid., as a statement against penal
interest.3 By stating in the interview that she agreed to plant
3Rule 804(b)(3), Fed. R. Evid., Statement against Interest, provides: the fake drugs, the informant subjected herself to criminal
liability for falsifying evidence. The government argues that
the circumstances do not clearly indicate the trustworthiness of
the statement, as required under Rule 804(b)(3).
As with any hearsay exception, it is the trustworthiness and
reliability of certain statements that justifies their exception
from the hearsay rule. In the case of a statement against
interest, this guaranty of trustworthiness comes from the notion
that "a reasonable man in his position would not have made the
statement unless he believed it to be true." Id. Thus, unless a
declarant is aware when making a statement that it is against his
interest, the trustworthiness of the statement is called into
question. See United States v. Albert, 773 F.2d 386, 390-91 (1st
Cir. 1985); Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir.
1985). And where a declarant has a motive to misrepresent the
facts through self-serving statements, the questionable
reliability of the statement prevents its admission under Rule
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 804 (b) (3) . See Albert, supra, 773 F.2d at 390; 5 W e i n s t e i n 's
Federal Evidence § 804.06 [4] [d] [iii] (2d ed. Matthew Bender 1998) .
Here, the informant's unsworn interview, full of leading
questions, took place in front of the lawyer of the man whom she
framed by planting fake drugs. After already admitting to Forey
that she planted the evidence, the informant clearly had
motivation to exculpate herself by stating she planted the bag at
the direction of the officers. As far as the informant was
concerned, her self-serving statements were exculpatory rather
than against her own interest because they shift the blame to
others. Therefore, the unsworn interview lacks the necessary
indicia of trustworthiness to qualify for admissibility as a
statement against penal interest. See United States v. Mackev,
117 F.3d 24, 29 (1st Cir. 1997), cert, denied, 118 S. Ct. 431,
U.S. ___ (1997); Albert, supra, 773 F.2d at 390; United
States v. Zirpolo, 704 F.2d 23, 26-27 (1st Cir. 1983); United
States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976).
Plaintiff next argues that the informant's unsworn interview
is not hearsay because the informant's statements are a vicarious
admission of a party opponent under Rule 801(d)(2)(D).4 Relying
on Lippav v. Christos, 996 F.2d 1490 (3d Cir. 1993) (investigator
4Rule 801(d)(2)(D), Fed. R. Evid., provides that a statement is "not hearsay" if "[t]he statement is offered against a party and is . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship."
10 lacked sufficient supervisory control over informant to establish
agency relationship), plaintiff argues that Forey's long-standing
and supervisory relationship with the informant renders her an
agent acting under color of state law. The first flaw in this
argument is that it ignores the evidence indicating Agent
Graffam's exceedingly limited relationship to the informant. At
best, plaintiff can make an argument that Forey's lead
investigative role and prior relationship established an agency
relationship with the informant. Nothing, however, indicates
that Agent Graffam "personally directed [the informant's] work on
a continuing basis." Id. at 1498; see also Brookover v . Mary
Hitchcock Mem'l Hosp., 893 F.2d 411, 413 (1st Cir. 1990) (no
proof that declarant was agent or employee of party against whom
statement was offered).
The second flaw in plaintiff's argument is that the
declarant's statement must be "made during the existence of the
[agency] relationship." Rule 801(d)(2)(D), Fed. R. Evid.
Plaintiff's arrest occurred on May 10, 1994, the date of the
arranged drug sale between plaintiff and the informant. The
transcription of the informant's taped interview is dated
December 21, 1994. See Plaintiff's Memorandum in Opposition
(document 42). The alleged agency relationship therefore
predates the informant's statements by over seven months. As
stated by Forey in her affidavit:
11 By the next day, I had reported the events of May 10, 1994 to my supervisors who debated whether or not to charge [the informant] with theft. It was ultimately concluded that criminal prosecution was not necessary because she would be blacklisted as an informant by the State Police, the Drug Task Force, and the DEA. Effectively, her service as an informant was ended.
See Defendants' Supplemental Memorandum, Exhibit A at 16
(document 37). Accordingly, there is no evidence that the
informant's statements were made during the existence of the
alleged agency relationship, and the statements are not
admissible as vicarious admissions of a party-opponent under Rule
801(d)(2)(D). See United States v. Pena, 527 F.2d 1356, 1361
(5th Cir.1976) (declining to decide whether informant was an
agent, because statements were made after informant's
relationship with government ended), cert, denied, 426 U.S. 949
(1976); see generally Woodman v. Haemonetics Corp., 51 F.3d 1087,
1094 n.4 (1st Cir. 1995); Union Mut. Life Ins. Co. v. Chrysler
Corp., 793 F.2d 1, 8 (1st Cir. 1986).
Lastly, plaintiff argues that the informant's unsworn
interview is not hearsay because the statements are admissible
under Rule 801(d)(2)(E), Fed. R. Evid., as statements by a co
conspirator.5 It is true that statements made by a government
informant may serve as co-conspirator statements, see United
5Rule 801(d)(2)(E) provides that a statement is "not hearsay" if "[t]he statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in the furtherance of the conspiracy."
12 States v. TSE, 135 F.3d 200, 209 (1st Cir. 1998), but the
"statement must be made during the course of and in furtherance of
that conspiracy." Id. (citing Rule 801(d)(2)(E), Fed. R. Evid.,
and United States v. Machor, 879 F.2d 945, 951 (1st Cir. 1989),
cert, denied, 493 U.S. 1094 (1990)).
Assuming Agent Graffam was a co-conspirator, which the
evidence does not support,6 plaintiff's argument must fail for the
same reasons that the vicarious admission theory fails. The
informant's statements were not made during the course of the
alleged conspiracy and are not in furtherance of that conspiracy.
See Rule 801(d)(2)(E), Fed. R. Evid.; Machor, supra, 879 F.2d at
951 (noting that declarant and defendant must be members of
conspiracy when statement is made in furtherance of conspiracy);
United States v. Pelletier, 845 F.2d 1126, 1128 (1st Cir. 1988)
(same); c f . TSE, supra, 135 F.3d at 209 (contents of statement
showed that conspiracy had not ended).
Furthermore, the substance of the informant's unsworn
interview is insufficient to establish a trialworthy issue as to
Agent Graffam's objectively reasonable actions the day of the
arrest. The thirty pages of the interview contain many unclear
6The court recognizes that the substance of a co conspirator's out-of-court statement are probative of the existence of the alleged conspiracy. See Bournailv v. United States, 483 U.S. 171, 180 (1987); TSE, supra, 135 F.3d at 209. The content of the informant's interview nevertheless would not tip the scales in favor of finding a conspiracy between the informant and Agent Graffam.
13 statements, often in response to leading questions by an attorney,
that fall short of creating a trialworthy issue as to whether
Agent Graffam acted objectively unreasonably. The informant
generally refers to being given a bag of cocaine to put under the
plaintiff's seat, but is unable to identify who gave her the bag
or who asked her to plant the bag. See Plaintiff's Memorandum,
Exhibit 2 at 16, 26 (document 42). Even if the informant's
unclear version of why she placed the drugs in plaintiff's car
were admissible. Agent Graffam's limited actions on the day of
plaintiff's arrest remain objectively reasonable.
3. Collateral Estoppel
a. State Court Proceedings
Due to the importance of the state court proceedings in
relation to defendants' collateral estoppel defense, the summary
judgment order is discussed in detail. Because plaintiff
previously dismissed Agent Graffam, the only named defendants were
the state law enforcement officers, including Francis Lord, Susan
Forey, Russell Conte, Steve Demo, and Elizabeth Keyes. The
complaint included four counts. Count I alleged that the
defendants "conspired together and acted in concert to cause the
arrest, imprisonment, and prosecution of plaintiff" in violation
of 42 U.S.C. § 1983.
The court dismissed the conspiracy theory because plaintiff
never submitted an affidavit from the informant, Medina, who
14 allegedly suggested during a taped interview that she was
instructed to plant the fake drugs in plaintiff's car. The court
went on to hold that:
The plaintiff's conspiracy theory (Count I) relies exclusively on Medina's alleged knowledge of specific facts to show that defendants participated in a scheme to unlawfully arrest and prosecute plaintiff. Plaintiff has failed to provide any other proof that defendants conspired to arrest and imprison him. . . . . . . The transcript of Medina's interview is an unsworn statement and is inadequate to contradict the affidavits provided by defendant.
Nesbitt v. Lord, No. 95-C-284 (N.H. Super. Ct. Jan. 18, 1997),
attached Defendants' Memorandum as Exhibit 4, at 6 (hereafter
"summary judgment order"). The court also dismissed Count II,
which alleged that defendants seized, searched, arrested, and
imprisoned plaintiff without probable cause. As to this claim,
the court ruled that even if plaintiff was arrested before
defendants saw the bag in his car, sufficient probable cause
existed to arrest based on the events leading to the arrest. Of
the two remaining counts, the court also dismissed Count IV
(issuing summons without probable cause) under the doctrine of
prosecutorial immunity.
b. Instant Proceedings
Defendants argue that plaintiff's Bivens and FTCA claims are
barred by collateral estoppel because (1) the same facts and
issues underlying the state conspiracy theory also underlie the
15 current federal claims, (2) the matter was actually litigated by
way of the summary judgment motions, and (3) the state court's
determination that there was no conspiracy was a necessary part
of the judgment. Plaintiff responds that the issues were not
identical between the state court proceedings and the current
proceedings.
The federal full faith and credit statute, 28 U.S.C. § 1738,
requires that the "records and judicial proceedings . . . [of any
State] shall have the same full faith and credit in every court
within the United States . . . as they have by law or usage in
the courts of such State . . . from which they are taken." This
statute requires federal courts to give the same preclusive
effect to state court judgments as would the courts of the state
rendering the decision. See Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 466, 476 (1982) (state
court decisions have preclusive effect in subsequent Title VII
actions in federal court); Allen v. McCurry, 449 U.S. 90, 94, 97-
99 (1980) (state court decisions have preclusive effect in
subsequent § 1983 actions in federal court); Kyricopoulos v. Town
of Orleans, 967 F.2d 14, 15-16 (1st Cir. 1992) (full and fair
opportunity to litigate probable cause in state criminal trial
precludes relitigation of probable cause under § 1983 in federal
court). The purpose of section 1738 is to ensure that federal
courts, not included within the constitution's full faith and
16 credit clause, are bound by state court judgments. See Kremer,
supra, 456 U.S. at 483 n.24.
Thus section 1738 "embodies the view that it is more
important to give full faith and credit to state court judgments
than to ensure separate forums for federal and state claims."
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83
(1984); see also Cuesnongle v. Ramos, 835 F.2d 1486, 1497 n.8
(1st Cir. 1987) ("where a plaintiff neglects to raise a federal
claim in a state court action, that plaintiff is estopped from
raising the federal claim in federal court subsequent to a state
court decision"). Doctrines of preclusion in the state-to-
federal context "not only reduce unnecessary litigation and
foster reliance on adjudication, but also promote the comity
between state and federal courts that has been recognized as a
bulwark of the federal system." See Allen, supra, 449 U.S. at
95-96.
Therefore, the question is whether the courts of New
Hampshire would give preclusive effect to the issues raised in
this action. The three requirements of collateral estoppel are:
[1] [T]he issue subject to estoppel must be identical in each action, [2] the first action must have resolved the issue finally on the merits, and [3] the party to be estopped must have appeared as a party in the first action, or have been in privity with someone who did so. These conditions must be understood, in turn, as particular elements of the more general requirement, that a party against whom estoppel is pleaded must have had a full and fair opportunity to litigate the issue or fact in question.
17 Daigle v. City of Portsmouth, 129 N.H. 561, 570, 534 A.2d 689,
693 (1987) (citations omitted). "While collateral estoppel does
not require an identity of the earlier and later causes of
action, it precludes the relitigation only of issues actually
raised and determined in the earlier litigation." Morgenroth &
Assoc's. Inc. v. State, 126 N.H. 266, 270, 490 A.2d 784, 786
(1985) .
Here, plaintiff was clearly a party in the prior state
litigation, and summary judgment disposed of the issues on the
merits. See New Hampshire York Co. v. Titus Constr. Co., 107
N.H. 223, 224-25, 219 A.2d 708, 710 (1966); cf^ ERG, Inc. v.
Barnes, 137 N.H. 186, 189, 624 A.2d 555, 557 (1993) (dismissal
for failure to state a cause of action is on the merits). Thus,
as evidenced by plaintiff's focus on the lack of identity of
issues, the critical question in this case is whether the issues
subject to estoppel are identical. More specifically, plaintiff
contends that conspiracy simply is not a necessary element or an
issue in this action,7 but, rather, the issue is whether Agent
Graffam "knew when he acted that probable cause did not exist
for his search and seizure, and/or that fake cocaine was being
7Plaintiff, seeking to avoid the bar of collateral estoppel, now seeks to distance himself from this conspiracy theory. Given Agent Graffam's minimal participation in the arrest, however, it is difficult to envision how he could be liable for the arrest, if not as a co-conspirator.
18 employed to provide pretextual probable cause." Plaintiff's
Memorandum at 6-7 (document 28).
The court therefore must examine the extent to which the
state court addressed issues that are identical to those
presented by this case. Plaintiff's current Bivens and FTCA
claims are each addressed in turn.
Under Bivens, an implied constitutional cause of action
exists for violations of Fourth Amendment rights by federal
actors. See Bivens, supra, 403 U.S. 388. The factual basis of
plaintiff's Bivens claim centers around whether there was an
unreasonable search and/or seizure under the Fourth Amendment.
As alleged by plaintiff:
Defendant Graffam acted to search and/or seize the person and property of the plaintiff when no probable cause to search and/or seize the defendant existed, as defendant acted with knowledge that facsimile cocaine was being used as a pretext to supply probable cause for the search and/or seizure that would not have otherwise existed.
Complaint 5 32. Plaintiff's current Bivens claim therefore will
be barred by collateral estoppel if issues decided adversely to
plaintiff in the prior section 1983 state litigation are
identical to issues necessary to prevail in this Bivens action.
Arrest without a warrant does not violate the Fourth
Amendment if the arresting officer has probable cause to believe
that the suspect is violating or has violated the law. See
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); Alexis v.
19 McDonald's Restaurants of Mass., 67 F.3d 341, 351 (1st Cir.
1995). Probable cause exists when "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, supra, 67
F.3d at 351 (quotations omitted). The officer's particular state
of mind is irrelevant to the legal justification for the
officer's action "as long as the circumstances, viewed
objectively, justify the action." Scott v. United States, 436
U.S. 128, 138 (1978). Thus the officer's actions are examined
"under a standard of reasonableness without regard to the
underlying intent or motivation of the officers involved." Id.;
see also Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991);
United States v. Ayres, 725 F.2d 806, 809 (1st Cir. 1984), cert
denied, 469 U.S. 817 (1984).
Applying the objective legal standard of probable cause, the
state court found that the state officers had probable cause to
arrest plaintiff. Although the state court did not decide the
issue of Agent Graffam's subjective knowledge. Agent Graffam's
personal state of mind is irrelevant as long as the
circumstances, viewed objectively, support probable cause. See
Scott, supra, 436 U.S. at 138; Lewis, supra, 944 F.2d at 953;
Ayres, supra, 725 F.2d at 809. Distinguishing the issue as Agent
Graffam's subjective personal knowledge does not change the fact
20 that for collateral estoppel purposes the same legal standard is
at issue in this case. Of course, if there was evidence that
Graffam had information that undermined probable cause, the case
would be different. Here, however, there is no such evidence.
Viewing the record in the light most favorable to plaintiff,
the same objectively viewed circumstances supporting probable
cause in the state litigation are at issue here with respect to
Agent Graffam. See P I Enterprises, supra, 457 F.2d at 1013.
Therefore, since lack of probable cause is a necessary element of
plaintiff's Bivens claim, the collateral estoppel effect of the
state court judgment prevents plaintiff from prevailing on his
Bivens claim. Boiled down, plaintiff is seeking to relitigate
the same facts against a different defendant in a different
forum. Collateral estoppel, however, prevents relitigation of
these same issues under a different legal theory, see Morgenroth
& Assoc's , Inc., supra, 126 N.H. at 270, 490 A.2d at 786, even
though against a different defendant, see Cutter v. Town of
Durham, 120 N.H. 110, 111, 411 A.2d 1120, 1121 (1980).
Additionally, policies of federalism underlying the Rooker-
Feldman doctrine are raised in this case. This jurisdictional
doctrine prevents lower federal courts from reviewing state court
judgments, and applies to claims that are "inextricably
intertwined" with a prior state proceeding. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16
(1983). When a plaintiff's claims may succeed "only to the 21 extent the state court wrongly decided the issues before it," the
Rooker-Feldman doctrine prevents a federal court from rehearing
the issue. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987)
(Marshall, J . , concurring). It is well established that lower
federal courts may not sit in review of a state court's order,
see id.; Decker v. Hillsborough County Attorney's Office, 845
F.2d 17, 20-21 (1st Cir. 1988), and that the United States
Supreme Court has exclusive jurisdiction to review state court
judgments, see 28 U.S.C. § 1257.
Plaintiff submits in his supporting declaration that "my
preference in continuing the present litigation would be to
obtain grounds for the Court to set aside the prior summary
judgment, to add as defendants in this Court one or more of the
former state actor-defendants, and to hold them primarily
responsible and liable for the wrongful law enforcement actions
against me, and for my resulting injuries." Plaintiff's
Supporting Declaration 5 7 (attached to Plaintiff's Opposition
Memorandum) (document 42). Obviously, the court declines
plaintiff's sweeping "preference" to simply "set aside" the state
court judgment. See 28 U.S.C. § 1738. This court simply cannot
review whether the state court correctly or incorrectly decided
the issue of probable cause, and plaintiff's recourse is first
with the New Hampshire Supreme Court and then with the United
States Supreme Court. See 28 U.S.C. § 1257.
22 Accordingly, for the reasons discussed above plaintiff's
Bivens claim (Count III) must be dismissed.
The next question is whether the issues decided in the state
proceeding are identical to the issues necessary to prevail in
the instant FTCA claims. Unlike Bivens, which is an individual
action against federal officials, an FTCA claim is asserted
against the federal government for intentional torts caused by
federal officials. See 28 U.S.C. § 2671, et. seer. An action
under the FTCA only exists when the laws of the state where the
conduct occurred would permit the cause of action. See Carlson
v . Green, 446 U.S. 14, 23 (1980). New Hampshire clearly
recognizes an action for false imprisonment, which is defined as
the "unlawful restraint of an individual's personal freedom."
Welch v. Bergeron, 115 N.H. 179, 181, 337 A.2d 341, 343 (1975).
Thus the alleged act must be unlawful, which requires the
"absence of valid legal authority for the restraint imposed."
Id.
As discussed above, the state court found probable cause
existed for plaintiff's arrest. Therefore, valid legal authority
existed for the arrest. See U.S. Con st, amend IV; State v.
Christy. 138 N.H. 352, 356, 639 A.2d 261, 264 (1994); Kav v. New
Hampshire Democratic Party, 821 F.2d 31, 34 (1st Cir. 1987). The
fact that plaintiff was later released and charges were dropped
does not change the result. See Michigan v. DeFillippo, 443 U.S.
31, 36 (1979); United States v. Kozerski, 518 F. Supp. 1082
23 (D.N.H. 1981), aff'd , 740 F.2d 952 (1st Cir. 1984), cert, denied,
469 U.S. 842 (1984). Plaintiff therefore has failed to establish
a trialworthy issue as to the false imprisonment claim, and Count
I accordingly is dismissed.
Plaintiff's other FTCA claim. Count II, alleges intentional
or negligent infliction of emotional distress. New Hampshire
recognizes the torts of intentional and negligent infliction of
emotional distress. See Morancv v . Morancv, 134 N.H. 493, 495-96
(1991); Thorpe v. State Dep't of Corrections, 133 N.H. 299, 303-
04, 575 A.2d 351, 353 (1990). It is clear from plaintiff's
complaint that his emotional distress theories are linked to his
allegedly unlawful arrest: "The acts or omissions of defendant
Graffam, by which he falsely imprisoned the defendant, constitute
intentional, extreme and outrageous conduct." See Complaint 5
27. Given the validity of plaintiff's arrest and the objectively
reasonable actions of Agent Graffam (see Qualified Immunity
discussion, supra) , plaintiff's emotional distress theories also
must fail. See Dean v. City of Worcester, 924 F.2d 364, 369 (1st
Cir. 1991) (under Massachusetts law, objectively reasonable
arrest prevents recovery for intentional infliction of emotional
distress). There is no evidence that Agent Graffam acted with
"extreme and outrageous conduct intentionally or recklessly
caus[ing] severe emotional distress." See Morancv, supra, 134
N.H. at 495-96, 593 A.2d at 1159. Furthermore, there is no
evidence indicating plaintiff suffered any physical 24 manifestations from his alleged distress. See id. at 495, 593
A.2d at 1159; Thorpe, supra, 133 N.H. at 303-04, 575 A.2d at 353.
Accordingly, Counts I and II are dismissed.8
4. Qualified Immunity
Even if the court did not give the state court judgment
preclusive effect. Agent Graffam would be entitled to the
affirmative defense of qualified immunity. This good-faith
defense shields government officials performing discretionary
functions "from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
scope of qualified immunity is broad, and protects "all but the
plainly incompetent or those who knowingly violate the law."
Hunter v . Bryant, 502 U.S. 224, 229 (1991) (quoting Mallev v.
Briggs, 475 U.S. 335, 341 (1986)). The defendant officer is
entitled to immunity "if the federal law allegedly violated was
not clearly established at the time of the alleged violation, or
if, at summary judgment, there is no genuine dispute of material
fact that would prevent a finding that the defendants' actions,
Notwithstanding the collateral estoppel effect of the state court probable cause finding, as set forth below in the qualified immunity discussion, the court also independently finds that probable cause existed for plaintiff's arrest.
25 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) (citing Stella v. Kelley,
63 F .3d 71, 73 (1st Cir. 1995)).
There is no question that clearly established Fourth
Amendment law at the time of plaintiff's arrest required probable
cause to support the warrantless arrest. See Beck v. Ohio, 379
U.S. 89, 91 (1964). The issue, therefore, is whether Agent
Graffam acted in an objectively reasonable fashion. Agent
Graffam's actions are "deemed objectively reasonable unless there
clearly was no probable cause at the time the arrest was made."
Vargas-Badillo, supra, 114 F.3d at 6. This inquiry does not turn
on whether the facts supported "legally sufficient grounds for
[plaintiff's] warrantless arrest." Id. at 7. Rather, the
question is if "the undisputed facts in this case preclude a
finding that there was clearly no probable cause, or that 'no
reasonably competent officer would have found probable cause.'"
Id. (quoting Prokev v . Watkins, 942 F.2d 67, 72 n.4 (1st Cir.
1991)). Probable cause depends on whether at the time of arrest
the facts and circumstances within Agent Graffam's knowledge, of
which he had reasonably trustworthy information, were sufficient
to warrant a prudent officer's belief that plaintiff had
committed or was committing an unlawful act. See Beck, supra,
379 U.S. at 91; Vargas-Badillo, supra, 114 F.3d at 6.
26 The following undisputed facts could have led reasonable
officers to conclude, based on the facts and circumstances, that
plaintiff had committed or was committing a crime. Due to a
shortage of manpower. Corporal Forey contacted Agent Graffam to
assist in the surveillance and possible arrest of plaintiff
during an arranged meeting with the informant. Forey informed
Graffam that the informant would be wearing a wire and carrying a
$1,700 "flash roll" to show plaintiff for the purchase of
cocaine. Agent Graffam had received no other details regarding
the investigation into plaintiff. During the meeting between
plaintiff and informant, Graffam waited behind the building in
Forey's car along with Forey. After the informant met with
plaintiff in the parking lot of Cumberland Farms, she informed
Corporal Lord that she gave plaintiff the $1,700 flash roll and
he was leaving to get "it." At this point Lord ordered Demo and
Conte to stop the plaintiff and obtain the money. Based on the
prior telephone conversations between plaintiff and the
informant, and the informant's previous relationship with law
enforcement, the informant was considered reliable. Officer
Graffam remained at the Cumberland Farms parking lot. Demo and
Conte then followed plaintiff into a parking lot down the road.
After observing a bag of white powder that appeared to be
cocaine, they arrested plaintiff for possession of a controlled
27 substance.9 In the meantime, Graffam walked from the Cumberland
Farms parking lot down the road to where Demo and Conte arrested
plaintiff. Arriving after plaintiff was arrested, Graffam then
walked back to Cumberland Farms along the road to see if
plaintiff had discarded the money along the way.
Based on these facts, the court cannot conclude that there
clearly was no probable cause or that no reasonably competent
officer would have found probable cause. See Vargas-Badillo,
supra, 114 F.3d at 7. The central disputed fact--why the bag of
white powder was placed in plaintiff's car--does not affect Agent
Graffam's objectively reasonable actions. A well-trained officer
in Agent Graffam's position could reasonably conclude that
probable cause existed to arrest plaintiff. As far as Agent
Graffam knew, a drug sale had been arranged and the informant
gave plaintiff money to go get drugs. After the informant told
Forey that she gave plaintiff the $1,700 to go get "it," a
reasonably competent officer would conclude that plaintiff
accepted the money for the purchase of drugs and would have
probable cause to arrest plaintiff.
9Plaintiff contends that Demo walked directly to plaintiff's car, opened the door, and removed the package of white powder. According to plaintiff, this creates a reasonable inference that Demo knew exactly where to look for the evidence ahead of time because he knew it was already planted. Aside from the stretched logic of this proposition, it still does not show that Agent Graffam acted in an objectively unreasonable manner.
28 Plaintiff also attaches importance to the informant's
explanation of events.10 Whether or not the informant is
"credible" does not create a reasonable inference that Forey
"fabricated" this version of events. Nor does the informant's
creative story shed any light on whether Officer Graffam's
actions were objectively reasonable. See Anderson, supra, 477
U.S. at 248 (only outcome determinative facts are material, and
irrelevant factual disputes are not counted). After concluding
that Forey "fabricated" the informant's story, plaintiff states,
"Given that conclusion concerning Corporal Forey, the person in
charge of the entire investigation, a factfinder would reasonably
infer that everyone involved knowingly participated in the
plaintiff's arrest on fabricated grounds." Plaintiff's
Memorandum in Opposition at 6 (document 42) (emphasis added).
This inferential leap is even more attenuated.
First, this statement assumes the conclusion that Forey's
report contains a fabricated version of the informant's story.
Second, by meeting with the entire team prior to the operation
and accompanying Forey in her car, plaintiff assumes Agent
Graffam must have "knowingly participated" in the alleged scheme
10A1though somewhat hard to follow, the informant told Forey she planted the bag of fake drugs a few days earlier so that, on the day of the meeting, she could keep the money and plaintiff would be arrested. The money would then be used to buy drugs from and pay off an existing debt with another dealer. Then the informant would notify the police of the sale, leading to the arrest of the dealer.
29 to violate plaintiff's Fourth Amendment rights. See id.
However, this inference is not reasonable in light of (1) the
undisputed facts demonstrating Agent Graffam's limited
participation in the operation, (2) Agent Graffam's sworn
affidavit denying any knowledge that evidence would be planted to
create pretextual probable cause, also confirmed by Forey's sworn
declaration, and (3) plaintiff's failure to produce a sworn
affidavit from the informant controverting Agent Graffam's sworn
testimony. See Favorito v. Pannell, 27 F.3d 716, 721 (1st Cir.
1994) (nonmoving party's "bare assertion" that moving party's
uncontroverted evidence might be disbelieved is insufficient to
overcome summary judgment). Accordingly, the court "cannot say
that there clearly was no probable cause from the point of view
of reasonable persons standing in [Agent Graffam's] shoes."
Vargas-Badillo, supra, 114 F.3d at 6.
Plaintiff also submits a personal affidavit denying that the
informant could have planted the bag days earlier, because he
recalls cleaning his car at some point after the informant
allegedly planted the bag. This also does not raise a
trialworthy issue because it is not material to whether Agent
Graffam acted to violate plaintiff's Fourth Amendment rights.
See Anderson, supra, 477 U.S. at 248. At best, this disputed
fact means that the informant planted the bag the day of the
arrest, but this still does not create a trialworthy issue as to
Agent Graffam's objectively reasonable actions.
30 Furthermore, Agent Graffam did not arrest plaintiff, nor did
he participate by ordering plaintiff's arrest. This further
calls into question plaintiff's theory that Agent Graffam
violated plaintiff's Fourth Amendment rights. As plaintiff
concedes, the state court decided the issue of whether Agent
Graffam entered into any agreement with the other officers to
violate plaintiff's rights. Without a conspiracy between Agent
Graffam and the state actors who ultimately effected plaintiff's
arrest, and without actually arresting or ordering plaintiff's
arrest, it is difficult to see how Agent Graffam is liable for
plaintiff's alleged violations.
Conclusion
For the reasons stated above, the collateral estoppel effect
of the prior state court judgment precludes plaintiff from
prevailing in his instant suit against Agent Graffam.
Additionally, Agent Graffam is entitled to qualified immunity.
Summary judgment is granted in favor of defendants, and all
counts are herewith dismissed. The clerk shall enter judgment
accordingly.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
December 15, 1998 cc: Gordon R. Blakeney, Jr., Esq. T. David Plourde, Esq.