Simpkins v. Snow CV-95-108-B 05/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Guv S. Simpkins
v. Civil No. 95-108-B
Robert M. Snow, Individually and in his capacity as Chief of Police of the Town of Bartlett, David W. Roode, Individually and in his capacity as Officer of the Bartlett Police Department, and Town of Bartlett
O R D E R
Guy Simpkins has sued the Town of Bartlett, its Police
Chief, Robert Snow, and Bartlett Police Officer, David Roode,
alleging that the defendants illegally searched his home and
unlawfully arrested him for possession of marijuana. Defendants
argue in a motion for summary judgment that Simpkins's claims are
barred by the doctrine of res judicata because he litigated and
lost a defamation claim against the Town and Chief Snow based, in
part, upon statements Snow made when obtaining the warrant to
search Simpkins's home. For the reasons that follow, I grant
defendants' motion. I. BACKGROUND
Chief Snow applied for and obtained a warrant to search
Simpkins's home on May 27, 1989. His supporting affidavit
alleged that (1) a third party told a confidential informant that
he could obtain marijuana from a bartender at the Red Parka Pub
named "Guy"; (2) Simpkins was the only person named Guy who
worked as a bartender at the Red Parka Pub; and (3) the informant
went to the third party's residence to purchase marijuana and,
while under police surveillance, the third party left his
residence, traveled to Simpkins's residence, stayed approximately
fifteen minutes, and returned with marijuana.
After obtaining the search warrant, the police seized a
small amount of marijuana, cash and drug paraphernalia from
Simpkins's home. Simpkins was arrested the same day and charged
in district court with possession of marijuana. The district
court later suppressed the evidence obtained from the search
because the affidavit supporting the warrant failed to
sufficiently establish the informant's credibility. Ultimately,
the court dismissed the case because the prosecutor failed to
appear for trial.
Simpkins filed a defamation action against Chief Snow and
the Town of Bartlett in Strafford County Superior Court on April
2 30, 1991. Simpkins's pretrial statement identified as disputed
issues of law: "Whether Chief Snow defamed the Plaintiff with the
statements he made both in writing on the Application for a
Search Warrant and verbally to Robert Wentworth." In his
statement of issues and final offer to the defendants on
September 13, 1993, Simpkins stated:
Chief Snow defamed the Plaintiff with false statements he made both in writing on his application for a search warrant, which was later suppressed, and verbally to Robert Wentworth, the Plaintiff's then employer. These statements were made with disregard by Chief Snow as to their truth and were not in furtherance of any judicial proceeding or investigation.
The court determined prior to trial that the statements Snow
made in the warrant affidavit were privileged. Accordingly, the
court granted defendants' motion in limine and prohibited
Simpkins from basing his defamation claim on those statements.
The trial court also made two evidentiary rulings. It excluded a
proposed witness's testimony on the ground that it would be
inadmissible hearsay, and it allowed the defense to introduce
into evidence items seized during the search even though the
district court had suppressed the same evidence in the criminal
case.
Chief Snow testified at the trial that Roy Olive, Jr. was
his confidential informant, and that William Donatelli was the
3 third party referenced in the warrant affidavit. Donatelli
testified at trial and denied Snow's claim that he had been
involved in the drug sale. Notwithstanding Donatelli's denial,
the jury returned verdicts in the defendants' favor, and the
verdicts were later affirmed by the New Hampshire Supreme Court.
See Simpkins v. Snow, 139 N.H. 735 (1995) .
Following the defamation trial, Simpkins's counsel contacted
Olive, who stated in a November 25, 1994, affidavit that he did
not know Guy Simpkins, had not participated in a controlled drug
buy with the Bartlett police as Chief Snow testified, and was not
an informant. In April 1995, Olive spoke by telephone with an
investigator from defendants' counsel's office. In that recorded
conversation, Olive changed his story and admitted that he was
the confidential informant. Chief Snow claims that Olive also
called him in April 1995 and confirmed his role as the
confidential informant.
Simpkins filed this action on February 24, 1995, alleging
that the defendants violated his Fourth and Fourteenth Amendment
rights. He also alleges state tort claims for intentional and
negligent infliction of emotional distress, negligence, negligent
supervision, and malicious prosecution. Defendants invoke the
4 doctrine of res judicata in support of their summary judgment
motion.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the facts taken in the
light most favorable to the nonmoving party show that no genuine
issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Barbour v. Dynamics Research Corp., 63 F.3d 32, 36-37 (1st Cir.
1995), cert, denied, 116 S.Ct. 914 (1996). A "material fact" is
one "that might affect the outcome of the suit under the
governing law," and a genuine factual issue exists if "the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). When the facts are undisputed, the moving
party must establish that it is entitled to judgment as a matter
of law. Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764
(1st Cir. 1994). I apply these principles when considering the
defendants' summary judgment motion.
5 III. DISCUSSION
Defendants contend that Simpkins's current claims are barred
by res judicata because Simpkins previously litigated and lost a
defamation claim in state court based, in part, on the same facts
that are at issue here. I apply New Hampshire law to determine
the preclusive effect of a New Hampshire state court judgment.
New Hampshire Motor Transport Ass'n v. Town of Plaistow, 67 F.3d
326, 328 (1st Cir. 1995), cert, denied, 116 S.Ct. 1352 (1996).
The New Hampshire Supreme Court recognizes that "res
judicata precludes the litigation in a later case of matters
actually litigated, and matters that could have been litigated,
in an earlier action between the same parties for the same cause
of action." In re Alfred, 126 N.H. 628, 629 (1985). "The term
'cause of action' embraces all theories on which relief could be
claimed arising out of the same factual transaction." ERG, Inc.
v. Barnes, 137 N.H. 186, 191 (1993) . Thus, when the plaintiff
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Simpkins v. Snow CV-95-108-B 05/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Guv S. Simpkins
v. Civil No. 95-108-B
Robert M. Snow, Individually and in his capacity as Chief of Police of the Town of Bartlett, David W. Roode, Individually and in his capacity as Officer of the Bartlett Police Department, and Town of Bartlett
O R D E R
Guy Simpkins has sued the Town of Bartlett, its Police
Chief, Robert Snow, and Bartlett Police Officer, David Roode,
alleging that the defendants illegally searched his home and
unlawfully arrested him for possession of marijuana. Defendants
argue in a motion for summary judgment that Simpkins's claims are
barred by the doctrine of res judicata because he litigated and
lost a defamation claim against the Town and Chief Snow based, in
part, upon statements Snow made when obtaining the warrant to
search Simpkins's home. For the reasons that follow, I grant
defendants' motion. I. BACKGROUND
Chief Snow applied for and obtained a warrant to search
Simpkins's home on May 27, 1989. His supporting affidavit
alleged that (1) a third party told a confidential informant that
he could obtain marijuana from a bartender at the Red Parka Pub
named "Guy"; (2) Simpkins was the only person named Guy who
worked as a bartender at the Red Parka Pub; and (3) the informant
went to the third party's residence to purchase marijuana and,
while under police surveillance, the third party left his
residence, traveled to Simpkins's residence, stayed approximately
fifteen minutes, and returned with marijuana.
After obtaining the search warrant, the police seized a
small amount of marijuana, cash and drug paraphernalia from
Simpkins's home. Simpkins was arrested the same day and charged
in district court with possession of marijuana. The district
court later suppressed the evidence obtained from the search
because the affidavit supporting the warrant failed to
sufficiently establish the informant's credibility. Ultimately,
the court dismissed the case because the prosecutor failed to
appear for trial.
Simpkins filed a defamation action against Chief Snow and
the Town of Bartlett in Strafford County Superior Court on April
2 30, 1991. Simpkins's pretrial statement identified as disputed
issues of law: "Whether Chief Snow defamed the Plaintiff with the
statements he made both in writing on the Application for a
Search Warrant and verbally to Robert Wentworth." In his
statement of issues and final offer to the defendants on
September 13, 1993, Simpkins stated:
Chief Snow defamed the Plaintiff with false statements he made both in writing on his application for a search warrant, which was later suppressed, and verbally to Robert Wentworth, the Plaintiff's then employer. These statements were made with disregard by Chief Snow as to their truth and were not in furtherance of any judicial proceeding or investigation.
The court determined prior to trial that the statements Snow
made in the warrant affidavit were privileged. Accordingly, the
court granted defendants' motion in limine and prohibited
Simpkins from basing his defamation claim on those statements.
The trial court also made two evidentiary rulings. It excluded a
proposed witness's testimony on the ground that it would be
inadmissible hearsay, and it allowed the defense to introduce
into evidence items seized during the search even though the
district court had suppressed the same evidence in the criminal
case.
Chief Snow testified at the trial that Roy Olive, Jr. was
his confidential informant, and that William Donatelli was the
3 third party referenced in the warrant affidavit. Donatelli
testified at trial and denied Snow's claim that he had been
involved in the drug sale. Notwithstanding Donatelli's denial,
the jury returned verdicts in the defendants' favor, and the
verdicts were later affirmed by the New Hampshire Supreme Court.
See Simpkins v. Snow, 139 N.H. 735 (1995) .
Following the defamation trial, Simpkins's counsel contacted
Olive, who stated in a November 25, 1994, affidavit that he did
not know Guy Simpkins, had not participated in a controlled drug
buy with the Bartlett police as Chief Snow testified, and was not
an informant. In April 1995, Olive spoke by telephone with an
investigator from defendants' counsel's office. In that recorded
conversation, Olive changed his story and admitted that he was
the confidential informant. Chief Snow claims that Olive also
called him in April 1995 and confirmed his role as the
confidential informant.
Simpkins filed this action on February 24, 1995, alleging
that the defendants violated his Fourth and Fourteenth Amendment
rights. He also alleges state tort claims for intentional and
negligent infliction of emotional distress, negligence, negligent
supervision, and malicious prosecution. Defendants invoke the
4 doctrine of res judicata in support of their summary judgment
motion.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the facts taken in the
light most favorable to the nonmoving party show that no genuine
issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Barbour v. Dynamics Research Corp., 63 F.3d 32, 36-37 (1st Cir.
1995), cert, denied, 116 S.Ct. 914 (1996). A "material fact" is
one "that might affect the outcome of the suit under the
governing law," and a genuine factual issue exists if "the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). When the facts are undisputed, the moving
party must establish that it is entitled to judgment as a matter
of law. Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764
(1st Cir. 1994). I apply these principles when considering the
defendants' summary judgment motion.
5 III. DISCUSSION
Defendants contend that Simpkins's current claims are barred
by res judicata because Simpkins previously litigated and lost a
defamation claim in state court based, in part, on the same facts
that are at issue here. I apply New Hampshire law to determine
the preclusive effect of a New Hampshire state court judgment.
New Hampshire Motor Transport Ass'n v. Town of Plaistow, 67 F.3d
326, 328 (1st Cir. 1995), cert, denied, 116 S.Ct. 1352 (1996).
The New Hampshire Supreme Court recognizes that "res
judicata precludes the litigation in a later case of matters
actually litigated, and matters that could have been litigated,
in an earlier action between the same parties for the same cause
of action." In re Alfred, 126 N.H. 628, 629 (1985). "The term
'cause of action' embraces all theories on which relief could be
claimed arising out of the same factual transaction." ERG, Inc.
v. Barnes, 137 N.H. 186, 191 (1993) . Thus, when the plaintiff
relies on the same factual transaction in a subseguent suit, res
judicata bars the second action "'even though the plaintiff is
prepared in the second action (1) to present evidence or grounds
or theories of the case not presented in the first action, or (2)
to seek remedies or forms of relief not demanded in the first
action.'" Eastern Marine Const. Corp. v. First Southern Leasing,
6 129 N.H. 270, 275 (1987) (quoting Restatement (Second) of
Judgments § 25). Further, the mutuality of parties requirement
is satisfied even if the party claiming res judicata was not
joined as a party in the prior action as long as the new party is
closely associated with a party in the prior action. Fiumara v.
Firemen's Fund Ins. Companies, 746 F.2d 87, 92 (1st Cir. 1984)
(litigation of bad faith claim against insurer in prior action
bars a subsequent claim based upon the same facts against the
insurer's investigators). If these requirements are fulfilled,
the new claims will be barred unless the plaintiff lacked a full
and fair opportunity to litigate the new claims in the prior
action. Scheele v. Village Dist. of Eidelweiss, 122 N.H. 1015,
1019 (1982); Fiumara, 746 F.2d at 92.
All of the elements of a successful res judicata claim are
present in this case. First, both Simpkins's prior action and
his current claims arise from the same factual transaction
because both sets of claims were based on Snow's statements in
the search warrant affidavit. Second, both the Town and Snow
were parties in the defamation case and Simpkins does not argue
that Officer Roode is not entitled to invoke res judicata even
though he was not a party in that action. Therefore, the
mutuality of parties requirement is not in dispute.
7 Simpkins nevertheless argues that res judicata does notbar
his current claims because he was denied a full and fair
opportunity to litigate the new claims in the prior action.
Simpkins bases his current claims on the assertion that Chief
Snow made material misrepresentations in the search warrant
affidavit. See Franks v. Deleware, 438 U.S. 154 (1978) (Fourth
Amendment violated if search warrant is based on material
misrepresentations). He contends that defendants denied him a
full and fair opportunity to litigate these claims by preventing
him from discovering Olive's claim that he was not Snow's
informant until after the defamation case had ended. I disagree
Newly discovered evidence will not prevent the application
of res judicata unless the defendant fraudulently concealed the
new evidence, the plaintiff could not have discovered thenew
evidence even if he had exercised due diligence, or other
exceptional circumstances are present. Fiumara, 746 F.2d at 92;
see also Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)
cert, denied, 480 U.S. 932 (1987); Guerrero v. Katzen, 774 F.2d
506, 508 (D.C. 1985). None of these exceptions apply in this
case. Although Simpkins did not learn that Olive was the
informant until the defamation trial was underway, Simpkins has
presented no evidence to support a claim that defendants fraudulently concealed the informant's identity. Further,
Simpkins has not demonstrated that he exercised due diligence in
attempting to discover this information because he never asked
the court in the defamation case to compel the defendants to
disclose the informant's identity. Since he points to no other
exceptional circumstances to support his position, Simpkins
cannot successfully contend that he was denied a full and fair
opportunity to litigate his current claims in the prior action.
IV. CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment (document no. 16) is granted.
SO ORDERED.
Paul Barbadoro United States District Judge
May 13, 1996
cc: Wayne Beyer, Esg. Andrew Isaac, Esg.