USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1804
DANIEL J. ROCHE ET UX. VALERIE ROCHE,
Plaintiffs, Appellants,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Boudin and Lynch,
Circuit Judges.
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Robert E. Kelley, with whom Robert W. Kelley was on brief,
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for appellants.
Neil Jacobs, with whom Michael J. Moody and Hale and Dorr
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were on brief, for appellee.
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April 16, 1996
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SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
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consider whether a private party should be held liable under 42
U.S.C. 1983 for an arrest and unsuccessful prosecution that
followed on the heels of its detailed report of suspected
wrongdoing to the authorities. The district court found no
competent evidence that the defendant violated 1983, discerned
no merit in the plaintiffs' other claims, and granted brevis
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disposition. See Fed. R. Civ. P. 56. Descrying no error, we
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affirm.
I.
I.
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Background
Background
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We limn the facts in the light most hospitable to the
summary judgment loser, consistent with record support. See,
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e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
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1990). In so doing, we ignore "conclusory allegations,
improbable inferences, and unsupported speculation." Medina-
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Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
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1990).
On March 18, 1991, as part of a sizeable reduction in
force, defendant-appellee John Hancock Mutual Life Insurance
Company (Hancock) laid off approximately 450 workers including
plaintiff-appellant Daniel J. Roche. The next day the principal
architect of Hancock's downsizing (a senior executive vice-
president who, for the sake of anonymity, we shall call "Green")
received three electronically recorded telephone messages on his
office voice mail system. The speaker threatened Green's life
2
and forecast the imminent kidnapping and mutilation of his
children. Later that day Green's secretary received and recorded
an equally ominous call.
Richard Louis, a Hancock employee responsible for
internal investigations, prepared recordings of the menacing
messages. It was readily apparent that these anonymous calls
were made by a man endeavoring to disguise his voice. Louis
tentatively concluded that the mystery man was a casualty of the
recent reduction in force, reported the matter to the Boston
police, and took steps to ensure the safety of Green and his
family. When the police investigation fizzled, Hancock retained
a firm of private detectives (McCain & Fitzpatrick). Robert
Fitzpatrick spearheaded the probe. After a preliminary review,
Fitzpatrick agreed that a disgruntled ex-employee most likely had
made the calls and predicted that the miscreant would strike
again around the anniversary of the March 18 layoffs.
All was quiet until the day before Christmas when Green
received another anonymous call. This call was sarcastic but not
threatening. He received a second such call eight days later.
Louis played recordings of these two calls for his supervisor,
David Cullington, who thought that the voice belonged to Jack
Budrow (an employee who had lost his job in the March layoffs).
Fitzpatrick's attempts to correlate these calls with the four
original calls proved inconclusive, and Hancock discounted Budrow
as a suspect vis-a-vis the threats.
In February of 1992, Hancock rehired Roche. On March
3
13, Green received another anonymous voice mail message. This
time the caller promised to kill him on the layoff anniversary
date. Louis recorded the communique and notified the
authorities. Cullington, understandably alarmed, played the
recording for Neil Smith (a manager acquainted with many of the
employees who had been cashiered in March 1991). Smith had known
Roche for twenty-two years and thought that he recognized Roche's
voice. Cullington next played the four March 1991 messages for
Smith's listening pleasure, but Smith could not positively
identify the caller.
Without mentioning Smith's views, Cullington aired the
same five messages for Paul Heaslip, Hancock's director of labor
relations, who had worked with Roche for four years. Heaslip
said that he recognized Roche's voice on the anniversary message,
but that he could not identify the disguised voice featured in
the four earlier recordings. Without mentioning Roche's name,
Cullington consulted Barry Rubenstein, Hancock's in-house
counsel. Rubenstein had worked with Roche off and on from 1985
to 1989. When he heard the same quintet of messages he
volunteered that the voice on the latest recording belonged to
Roche.
At that juncture, Rubenstein assumed an active role in
the proceedings. He researched the law, informed Cullington that
the threatening calls probably violated federal and state
criminal prohibitions, and stated that it would be appropriate to
report Hancock's suspicions to the authorities. Rubenstein also
4
counselled Cullington that, under the terms of the applicable
collective bargaining agreement, Roche's employment could be
terminated. Out of an abundance of caution, Rubenstein suggested
that the company obtain yet another opinion. Following this
advice, Cullington auditioned the recordings for Brooks Tingle
an employee who was in regular contact with Roche but not privy
to the investigation. Tingle stated without prompting that both
the March 1991 and March 1992 recordings contained Roche's voice.
In the same time frame Fitzpatrick, acting for Hancock,
recruited Sensimetric, a voice analysis firm, to compare the
March 1991 and March 1992 messages in order to determine whether
the calls had been made by the same person. Fitzpatrick reported
to Hancock that Sensimetric's analysis "strongly indicate[d]
that the same individual may have made both recordings."
Fitzpatrick also asked Sensimetric to compare the non-threatening
messages attributed to Budrow with the threat made in March of
1992. Sensimetric's analysis failed to establish a likely tie.
On March 23, 1992, Hancock lawfully but surreptitiously obtained
a recorded specimen of Roche's normal speaking voice.
Fitzpatrick subsequently reported to Hancock that, based on
Sensimetric's examination of the sample, Roche's voiceprint
matched that of the minacious caller.
Armed with this information, Louis recontacted the
authorities. A law enforcement official requested that he secure
sworn affidavits from the individuals who claimed to be able to
identify Roche's voice. Louis followed instructions and, on
5
March 25, he met with representatives of the Boston Police
Department and the Suffolk County District Attorney's Office.
Louis played the five threatening messages and presented sworn
affidavits from Smith, Heaslip, Rubenstein, and Tingle confirming
that each had identified Roche as the perpetrator. Relying on
Fitzpatrick's reports, Louis also told the authorities that
Sensimetric had analyzed the recordings and had concluded that
the caller's speech matched Roche's normal speaking voice.
The police decided to pursue the case. Without the
participation of any Hancock representative, the officers applied
for a criminal complaint and procured an arrest warrant. The
next morning four police officers arrived by prearrangement at
the company's Braintree office. Louis joined them and summoned
Roche. After Louis handed Roche a termination letter, the
gendarmes arrested him and, in short order, the district attorney
charged him with threatening to murder Green, threatening harm to
Green's family, and making harassing telephone calls.
Hancock kept close track of the criminal case: it
acceded to various prosecution requests for information, paid
Sensimetric's expert witness fees, and in addition, several of
its employees (including Louis, Heaslip, and Tingle) testified at
the trial. Notwithstanding Hancock's cheerleading, the jury
voted to acquit.
II.
II.
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Travel of the Case
Travel of the Case
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6
Roche sued Hancock in a Massachusetts state court.1
He asserted claims for abridgement of his civil rights pursuant
to 42 U.S.C. 1983 and counterpart state statutes. He also
pleaded claims for false arrest, false imprisonment, abuse of
process, malicious prosecution, and wrongful discharge. Hancock
removed the suit to the federal district court citing federal
question jurisdiction. See 28 U.S.C. 1331, 1441.
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After the close of discovery, Hancock sought summary
judgment. The district court, ruling ore tenus, found that
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Hancock, as a matter of law, had probable cause to believe that
the appellant had committed or would commit a crime, and thus had
legal justification to report the information in its possession
to the police. On this basis, the court rejected the appellant's
civil rights, abuse of process, and malicious prosecution claims.
Finding his other claims to be equally lacking in merit, albeit
for different reasons, the court granted judgment in Hancock's
favor across the board. This appeal followed.
III.
III.
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Analysis
Analysis
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A.
A.
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The Summary Judgment Standard
The Summary Judgment Standard
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We afford plenary review to the entry of summary
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1Roche's wife, Valerie, joined him as a party plaintiff and
appears as an appellant in this venue. Since her claims (for
infliction of emotional distress and loss of consortium) are
entirely derivative of his, we discuss the case as if Daniel
Roche were the sole plaintiff and appellant. Of course, our
reasoning and result are fully applicable to Valerie Roche's
claims.
7
judgment on the civil rights claim. See Smith v. F.W. Morse &
___ _____ ____________
Co., 76 F.3d 413, 428 (1st Cir. 1996). The criteria are
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familiar: a court may grant summary judgment if the nisi prius
roll discloses no genuine issue of material fact and if, viewing
the entire record in the light most flattering to the nonmovant,
the proponent demonstrates its entitlement to judgment as a
matter of law. See McCarthy v. Northwest Airlines, Inc., 56 F.3d
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313, 315 (1st Cir. 1995) (collecting cases); see also Fed. R.
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Civ. P. 56(c).
In applying these criteria, we recognize that
"genuineness and materiality are not infinitely elastic
euphemisms that may be stretched to fit whatever pererrations
catch a litigant's fancy." Blackie v. Maine, 75 F.3d 716, 721
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(1st Cir. 1996). An issue is "genuine" only when the relevant
evidence could lead a reasonable factfinder, drawing favorable
inferences, to decide it in the manner described by the nonmoving
party; a fact is "material" only when it possesses the capacity,
if determined as the nonmovant wishes, to alter the outcome of
the lawsuit under the applicable legal tenets. See id. In this
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connection, it is important to remember that genuine disputes
over material facts can only sprout out of competent and
reasonably definite evidence actually contained in the summary
judgment record. See Garside, 895 F.2d at 50. Put bluntly,
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"motions for summary judgment must be decided on the record as it
stands, not on a litigant's visions of what the facts might some
day reveal." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
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8
581 (1st Cir. 1994). Thus, speculation and surmise, even when
coupled with effervescent optimism that something definite will
materialize further down the line, are impuissant in the face of
a properly documented summary judgment motion. See Dow v. United
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Bhd. of Carpenters, 1 F.3d 56, 58 (1st Cir. 1993).
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B.
B.
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The 1983 Claim
The 1983 Claim
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The court below entered judgment on the 1983 claim
based on its determination that Hancock had legal justification
to report the appellant to the police and procure his arrest.
Since 1983 is aimed at state action and state actors, see 42
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U.S.C. 1983 (providing private right of action for deprivations
of constitutional rights "under color of any statute, ordinance,
regulation, custom, or usage" of any state), persons victimized
by the tortious conduct of private parties must ordinarily
explore other avenues of redress. See Dennis v. Sparks, 449 U.S.
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24, 27-28 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
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(1970). To be sure, the rule is not absolute: private actors
may align themselves so closely with either state action or state
actors that the undertow pulls them inexorably into the grasp of
1983. See, e.g., Adickes, 398 U.S. at 152; Burton v.
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Wilmington Parking Auth., 365 U.S. 715, 724 (1961). But the case
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at hand exemplifies the general rule, not the exception to it.
Here, the undisputed evidence discloses that the
police, of their own volition, decided to seek an arrest warrant.
An independent magistrate then examined the collected evidence
9
and found it sufficient to justify issuance of the warrant.
There is not the smallest hint that the magistrate was a Hancock
pawn, or, for that matter, that Hancock solicited the magistrate
to act. From that point forward, the police dictated the time,
place, and manner of the arrest; the district attorney's office
framed the charges; and that office directed the ensuing
prosecution. Because (1) the officers who requested the warrant
independently exercised reasonable professional judgment in
applying for it, cf. Malley v. Briggs, 475 U.S. 335, 345-46 & n.9
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(1986), (2) the magistrate acted autonomously and within the
range of her judicial competence in issuing the warrant, and (3)
the district attorney acted autonomously in prosecuting the case,
there is no principled basis for attributing state action to
Hancock.
Of course, liability under 1983 requires not only
state action but also an unconstitutional deprivation of rights.
The appellant fares no better on this aspect of the inquiry. At
a bare minimum, if probable cause to arrest and prosecute the
appellant existed, no unconstitutional deprivation occurred.2
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2We do not in any way imply that a citizen must have
probable cause (or anything remotely approaching probable cause)
before informing the police of a suspected crime. Indeed, to the
extent that the appellant's thesis implies that a private citizen
who articulates his suspicions to the police may, without more,
be held liable as a state actor under 1983 for an ensuing
arrest and prosecution if probable cause is lacking, we
unequivocally reject it. There is a strong public interest in
encouraging people to bring possible wrongdoing to the
authorities' attention. Consequently, when a private party,
acting in good faith, reports suspected criminal activity to the
police, the cutlass of the federal civil rights statute remains
in its scabbard. See, e.g., Wagenmann v. Adams, 829 F.2d 196,
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10
See Franco de Jerez v. Burgos, 876 F.2d 1038, 1040 (1st Cir.
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1989) (holding that the filing of a criminal complaint does not
violate the Constitution if the prosecutor had probable cause to
believe the defendant had committed the crime); Mann v. Cannon,
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731 F.2d 54, 62 (1st Cir. 1984) (explaining that to prove a
Fourth Amendment violation pursuant to 1983, a "plaintiff must
show at a minimum that the arresting officers acted without
probable cause").
Probable cause to arrest exists if, at the moment of
the arrest, the facts and circumstances within the relevant
actors' knowledge and of which they had reasonably reliable
information were adequate to warrant a prudent person in
believing that the object of his suspicions had perpetrated or
was poised to perpetrate an offense. See Beck v. Ohio, 379 U.S.
___ ____ ____
89, 91 (1964); United States v. Figueroa, 818 F.2d 1020, 1023
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(1st Cir. 1987). By definition, the determination does not
require scientific certainty. See Illinois v. Gates, 462 U.S.
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213, 235 (1983).
The inquiry into the existence vel non of probable
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210 (1st Cir. 1987) (endorsing the "premise that merely
initiating a good-faith request for police protection would not
attach liability for the subsequent unconstitutional conduct of
arresting officers"); Carey v. Continental Airlines, Inc., 823
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F.2d 1402, 1404 (10th Cir. 1987) (similar; airline employee
contacted police to remove striker from terminal); see also
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Alexis v. McDonald's Restaurants of Mass., Inc., 67 F.3d 341,
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351-52 (1st Cir. 1995) (granting summary judgment for restaurant
manager in analogous circumstances); United States v. Garlock, 19
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F.3d 441, 444 (8th Cir. 1994) (holding that a private employer
who investigated employee misconduct and reported the results did
not automatically become a state actor).
11
cause is not to be undertaken from the perspective of hindsight
but from the perspective of a hypothetical "reasonable man"
standing in the reporting person's shoes at the time when that
person acted. See Figueroa, 818 F.2d at 1023; United States v.
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McCambridge, 551 F.2d 865, 870 (1st Cir. 1977). The preferred
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approach is pragmatic; it focuses on the "factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Gates, 462 U.S. at 231. Thus,
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the quantity and quality of proof necessary to ground a showing
of probable cause is not the same as the quantity and quality of
proof necessary to convict. See United States v. Hoffman, 832
___ _____________ _______
F.2d 1299, 1305-06 (1st Cir. 1987); United States v. Miller, 589
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F.2d 1117, 1128 (1st Cir. 1978), cert. denied, 440 U.S. 958
_____ ______
(1979). It follows that one who asserts the existence of
probable cause is not a guarantor either of the accuracy of the
information upon which he has reasonably relied or of the
ultimate conclusion that he reasonably drew therefrom. See
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Figueroa, 818 F.2d at 1024-25.
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Even assuming that it was Hancock (and not the police)
who asserted the existence of probable cause, Hancock measures up
against this benchmark. Its own staff conducted an extensive
investigation of the threatening messages. That probe ultimately
unearthed a quartet of employees who identified the appellant's
voice. These individuals were all familiar with his speech, and
each vouchsafed the accuracy of the identification. There is no
suggestion in the record that any of these persons had the
12
slightest reason to dissemble. Standing alone, the
identification evidence is sufficient to support a finding of
probable cause.
What is more, the finding of probable cause does not
rest entirely on the identification evidence. Voice analysis
strongly suggested that the same individual originated the calls
placed in March of 1991 and March of 1992, and that the appellant
whose voiceprint matched the voiceprint of the man who placed
the March 1992 call was that individual. To buttress this
conclusion, Hancock received a series of reports from
Fitzpatrick, a twenty-year veteran of the FBI, indicating that
the appellant had placed the calls. On the basis of the
substantial evidence produced by Hancock's investigation, a
reasonable factfinder would have no option but to conclude that
Hancock had probable cause to report its findings to the
police.3
The appellant attempts to undermine this conclusion by
means of several expedients. We find these expedients uniformly
unavailing.
First, the fact that a state court jury acquitted the
appellant of the criminal charges does not speak to the existence
of probable cause. The probable cause determination is made at a
different point in time by a different, less demanding
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3It should be noted that the incentive to contact the
authorities was great; the caller threatened murder, and Hancock
had every reason to believe that Green's life was in dire
jeopardy.
13
methodology, and requires less proof than a conviction. See
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Figueroa, 818 F.2d at 1023; Miller, 589 F.2d at 1128.
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Second, the appellant's claim that the recordings were
of such poor quality that no one could glean anything useful from
them, even if true in retrospect, begs the question. Roche
points to nothing that furnishes any rational basis for believing
that Hancock, at the time it contacted the police, knew of any
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such shortcoming. This is of decretory significance because, for
the purpose of determining probable cause, courts must ask
whether a reasonable person would rely on a particular piece of
information, not whether that information was unquestionably
accurate.4 See Gates, 462 U.S. at 231.
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Third, the appellant's claim that the voice
identifications were "shaky" because they were performed under
highly suggestive conditions is argumentative. He offers not a
shred of probative evidence to support this asseveration, and it
is flatly contradicted by affidavits and depositions contained in
the record.
Fourth, the appellant asserts that the voice-imprint
analysis performed by Sensimetric failed conclusively to identify
him as the perpetrator. We agree but that fact is largely
beside the relevant point. The record is pellucid that Hancock
based its assessment of the expert's findings on Fitzpatrick's
account, and faithfully reported that account (which tended to
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4In any event, the magistrate independently examined the
recordings and apparently found them to be of adequate quality to
support the issuance of an arrest warrant.
14
inculpate Roche) to the authorities. If Sensimetric bungled
and there is little in the record to suggest that it did that
fact was not known to Hancock.
Fifth, the appellant maintains that Louis withheld
certain of Sensimetric's findings that tended to exculpate him
and did not mention the calls attributed to Budrow. This claim
which amounts to an assertion that Hancock impermissibly edited
what it told the police is bootless. Although Roche was able
to demonstrate some equivocation on Sensimetric's part at the
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criminal trial, there is nothing in the record to show that
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Hancock, which dealt with Sensimetric indirectly (through
Fitzpatrick), knew more than it disclosed at the relevant time.
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Similarly, the second part of the claim conveniently overlooks
the fact that Hancock's investigation implicated Roche, and that
Hancock lacked any cause to make a good-faith report to the
authorities concerning Budrow.
We could continue dissecting the appellant's
asseverations, but it would be pointless to do so. All of them
share the infirmities of the ones we have addressed. The short
of the matter is that, when Hancock went to the police, the
evidence it had in hand provided probable cause to believe that
the appellant had threatened to commit a crime and had made
harassing telephone calls, both of which constitute violations of
Massachusetts law.
C.
C.
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Malicious Prosecution
Malicious Prosecution
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15
The appellant's allegations of malicious prosecution
cannot salvage his 1983 claim. The law is settled that a
garden-variety claim of malicious prosecution garbed in the
regalia of 1983 must fail. There is no substantive due process
right under the Fourteenth Amendment to be free from malicious
prosecution, see Albright v. Oliver, 114 S. Ct. 807, 810-19
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(1994) (plurality op.); Calero-Colon v. Betancourt-Lebron, 68
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F.3d 1, 3 n.7 (1st Cir. 1995), and the availability of a plainly
adequate remedy under Massachusetts law, see Beecy v.
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Pucciarelli, 441 N.E.2d 1035, 1038-39 (Mass. 1982), defeats the
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possibility of a procedural due process claim here, see Perez-
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Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994).
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Consequently, the appellant cannot rewardingly predicate his
1983 claim on malicious prosecution simpliciter.5
D.
D.
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The Supplemental Claims
The Supplemental Claims
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After appropriately granting summary judgment on the
1983 claim, the district court proceeded to administer the same
medicine to the appellant on the pendent state-law claims. The
argument is made for the first time on appeal that, because the
1983 claim furnished the sole underpinning for federal
jurisdiction, the district court at that point should have
____________________
5Although the Supreme Court left open the possibility that a
malicious prosecution claim might lie under 1983 on the basis
of the Fourth Amendment, see Albright, 114 S. Ct. at 813-14, we
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need not explore this virgin territory. Even assuming the
vitality of such an approach, the existence of probable cause
vitiates any arguable Fourth Amendment claim.
16
remanded the state-law claims to the state court or dismissed
them without prejudice. The argument lacks force.
A federal court exercising jurisdiction over an
asserted federal-question claim must also exercise supplemental
jurisdiction over asserted state-law claims that arise from the
same nucleus of operative facts. See 28 U.S.C. 1367(a)
___
(providing that "in any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy"). Thus, the
court below had jurisdiction over the appellant's pendent state-
law claims once Hancock seasonably removed the action from the
state court.
Still, the appellant argues that the situation changed
after the district court threw out his 1983 claim. That
development, he says, stripped the court of power to exercise
jurisdiction over the remaining state-law claims. We disagree.
In a federal-question case, the termination of the foundational
federal claim does not divest the district court of power to
exercise supplemental jurisdiction but, rather, sets the stage
for an exercise of the court's informed discretion. See 28
___
U.S.C. 1367(c)(3) (authorizing a district court to decline
adjudication of lingering state-law claims after it has dismissed
"all claims over which it has original jurisdiction"). In
deciding whether or not to retain jurisdiction on such an
17
occasion, the trial court must take into account concerns of
comity, judicial economy, convenience, fairness, and the like.
See Rodriquez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st
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Cir. 1995); Vera-Lozano v. International Broadcasting, 50 F.3d
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67, 70 (1st Cir. 1995); Newman v. Burgin, 930 F.2d 955, 963-64
______ ______
(1st Cir. 1991). While dismissal may sometimes be appropriate if
the federal-question claim is eliminated early in the
proceedings, see, e.g., Martinez v. Colon, 54 F.3d 980, 990 (1st
___ ____ ________ _____
Cir.), cert. denied, 116 S. Ct. 515 (1995), each case must be
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gauged on its own facts. The preferred approach is pragmatic and
case-specific. Thus, in "an appropriate situation, a federal
court may retain jurisdiction over state-law claims
notwithstanding the early demise of all foundational federal
claims." Rodriguez, 57 F.3d at 1177.
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Here, the district court's resolve to go forward with
the state-law claims fell squarely within the realm of its
discretion. The litigation had matured well beyond its nascent
stages, discovery had closed, the summary judgment record was
complete, the federal and state claims were interconnected, and
powerful interests in both judicial economy and fairness tugged
in favor of retaining jurisdiction. We are bound to conclude on
this record that the district court appropriately exercised its
discretion in retaining jurisdiction over, and disposing of, the
entire compendium of claims in the case.
18
That ends the matter.6 Since the appellant has not
made a particularized argument that the district court decided
the state-law claims erroneously, we need go no further. See
___
Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990)
____ ______________
(explaining "that issues adverted to on appeal in a perfunctory
manner, unaccompanied by some developed argumentation, are deemed
to have been abandoned").
IV.
IV.
___
Conclusion
Conclusion
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We need go no further. For the reasons enumerated
above, we hold that the district court acted lawfully in granting
Hancock's motion for brevis disposition on all claims.
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Affirmed.
Affirmed.
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6We add in passing that the appellant's argument is
procedurally defaulted as well as substantively infirm. When the
time was right, he never asked the district court to withhold
decision on the state-law claims and to remand them to the state
court. It is settled in this circuit that a litigant who could
have asked the district court for relief fairly thought to be
available, but who chose not to do so, cannot seek that relief
for the first time on appeal. See Thibeault v. Square D Co., 960
___ _________ ____________
F.2d 239, 243 (1st Cir. 1992); Feinstein v. RTC, 942 F.2d 34, 43-
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44 (1st Cir. 1991).
19