St. Hilaire v. Laconia CV-93-191-B 03/31/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kathy St. Hilaire
v. Civil Action No. 93-191-B
City of Laconia, et al.
MEMORANDUM AND ORDER
Laconia Police Department Detective David Gunter shot and
killed Philip St. Hilaire while executing a search warrant.
St. Hilaire's wife, Kathy, has sued Gunter, the other officers
involved in executing the warrant, and their employers. She
argues that the defendants violated her husband's Fourth
Amendment rights because: the warrant authorizing the search was
not supported by probable cause; defendants omitted material
facts from the affidavit supporting the warrant application; and
defendants unreasonably used deadly force in executing the
warrant. She also alleges that defendants are liable under
various state law theories. Defendants have responded with
summary judgment motions contending that the individual
defendants are protected from suit on her federal claims by the
doctrine of gualified immunity. They also argue that plaintiff has failed to state a constitutional claim against the municipal
defendants. Finally, defendants ask me to decline supplemental
jurisdiction over plaintiff's state law claims.
I. FACTS
On April 27, 1990, Belknap County Deputy Sheriff Robert
Dupuis applied for a warrant to search Philip St. Hilaire and his
business, Laconia Auto Wrecking, for cocaine, drug paraphernalia,
and materials related to drug trafficking. Dupuis provided an
affidavit in support of the warrant application that included
information from a confidential informant who allegedly told
Dupuis that St. Hilaire was selling cocaine at Laconia Auto
Wrecking. Dupuis further alleged in his affidavit that: the
informant had purchased cocaine from Laconia Auto Wrecking on two
occasions under police supervision within the last two weeks;
Dupuis was able to partially corroborate the informant's claim
that St. Hilaire was planning a trip to New York to purchase
cocaine; and two of Dupuis' fellow officers had previously
obtained reliable information from the informant. Based on this
information, a special justice of the Laconia District Court
issued the warrant the same day.
2 After Dupuis obtained the warrant, he and other law
enforcement personnel, including defendants Gunter, David Nielsen
and Brian Loanes of the Belmont Police Department, and Daniel
Collis of the Belknap County Sheriff's Office, met at the
sheriff's office to plan the searches. The group decided that
Nielsen, Loanes, and Dupuis would form a team to find and search
St. Hilaire. Nielsen volunteered to wear his uniform and the
others agreed that they would remain in plain clothes. Collis
and Gunter were assigned to surveillance across the street from
Laconia Auto Wrecking. All of the defendants were warned that
St. Hilaire was likely to be armed.
The defendants planned to search St. Hilaire while he was at
work. Accordingly, the search team agreed to meet in the parking
lot of the nearby vocational-technical school and to walk through
the woods to the rear of Laconia Auto Wrecking. They would then
wait at the back corner of the building with Collis and Gunter
watching the front to let them know if the building appeared to
be open for business. They also planned to station patrolmen in
marked cruisers on the road on either side of Laconia Auto
Wrecking. If surveillance reported that the building appeared to
be open, the search team would come to the front of the building,
enter with Nielsen in uniform leading, and confront St. Hilaire
3 inside the building. If the building was closed for business,
they would either try to break in or wait for St. Hilaire to
leave the building and apprehend him in the yard.
At first, all went according to plan. The cruisers and
surveillance were in place. The search team assembled in the
parking lot and then walked to the rear of the building. When
they learned from surveillance that the building appeared to be
locked, Dupuis called Gunter at his position in the parking lot
across the street and instructed him to join the search team.
While they were waiting for tools and making plans to break in,
Collis radioed that St. Hilaire was leaving the building. The
group then immediately ran to the front of the building and saw
that St. Hilaire was sitting in the driver's seat of his car with
his back to the approaching officers.
Instead of approaching St. Hilaire in a group with Nielsen
in uniform leading as planned, the officers ran toward the car
from behind, with their weapons drawn, in single file separated
by ten to fifteen feet. Gunter, in plain clothes, was in the
lead, followed by Dupuis, Nielsen, and Loanes. The officers
contend that they shouted a series of orders to St. Hilaire with
some variation in their accounts. Gunter states that he said
"Phil, Phil, police" as he approached the rear of the car, and
4 that he thought he may have yelled, "Hold it" or "Police, " when
he arrived at the passenger door. Nielson reports that he heard
Gunter yell, "Hold it Phil, police, hold it," as Gunter
approached the passenger side of the car and that no one else
said anything. Dupuis claims that he yelled, "Police," once or
twice as he came around the corner of the building but stopped
because other people were yelling. Loanes states that he did not
shout anything, but he heard others say, "Police freeze," or
"Phil, its the police," or "Freeze, its the police." Collis
states that he heard yelling from one officer, he did not know
who, including the word "Police." Finally, a motorist passing
the building at the time reported that he heard a shout of
"Freeze" just before seeing the flash of a gunshot.
Gunter ran to the passenger side of the car with his gun in
his right hand. When Gunter reached the car, St. Hilaire turned
and made eye contact with him. At the same time, Gunter saw St.
Hilaire's right shoulder move and later claimed that he thought
that St. Hilaire was reaching for his gun. Gunter then shot St.
Hilaire through the partially open passenger window.
Nielsen opened the driver-side door and found St. Hilaire
slumped in the seat with a critical throat wound. St. Hilaire's
gun was found next to him on the seat of his car. Nielsen
5 reports that St. Hilaire asked him, "Why didn't he identify
himself, why didn't he say he was a cop," and others state that
St. Hilaire repeated the same questions at the hospital. As a
result of the gunshot wound, St. Hilaire was paralyzed from his
neck down. He died from complications caused by his injuries
approximately eighteen months after the shooting.
II. STANDARD OF REVIEW
Summary judgment is appropriate if, after reviewing the
facts in the light most favorable to the nonmoving party, "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c); Woods v. Friction Materials, Inc., 30 F.3d 255,
259 (1st Cir. 1994). 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." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); accord Garside v. Osco
Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). A "material issue"
is one that "might affect the outcome of the suit" under the
applicable legal standard. Anderson, 477 U.S. at 248. The
6 burden is upon the moving party to show the lack of a genuine,
material factual issue. Finn v. Consolidated Rail Corp., 782
F.2d 13, 15 (1st Cir. 1986). When a motion for summary judgment
is properly supported, the burden shifts to the nonmovant to show
that a genuine issue exists. Donovan v. Agnew, 712 F.2d 1509,
1516 (1st Cir. 1983). If the nonmovant fails to offer sufficient
factual support to counter the movant's proffer on an element for
which the nonmovant bears the burden of proof at trial, all other
factual issues become immaterial, and the movant is entitled to
summary judgment. Smith v. Stratus Computer, Inc., 4 0 F.3d 11,
12 (1st Cir. 1994), petition for cert, filed, (Feb. 21, 1995).
III. DISCUSSION
The primary issue presented by defendants' summary judgment
motions is whether the individual defendants are entitled to
gualified immunity with respect to plaintiff's constitutional
claims. Thus, I begin by describing the law governing gualified
immunity claims and then consider its application to plaintiff's
specific claims that the individual defendants violated St.
Hilaire's Fourth Amendment rights. I then turn to defendants'
challenges to plaintiff's remaining claims.
7 A. Qualified Immunity for Constitutional Claims Against the Individual Defendants
In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the
Supreme Court recognized that public officials performing
discretionary functions are entitled to gualified immunity from
suit for violations of federal law "insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." A
"necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is 'clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all." Siegert v. Gilley, 500 U.S. 226,
232 (1991). Thus, a court may determine that a defendant is
entitled to gualified immunity if either the plaintiff fails to
properly assert and support a claim based on the violation of a
constitutional right, or the court concludes that the law on
which plaintiff's claim was based was not clearly established
when the defendants acted. Id., see also Febus-Rodriguez v.
Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994) (holding that
as a predicate to the gualified immunity inguiry, "a plaintiff
must establish that a particular defendant violated the plaintiff's federally protected rights.").
The resolution of a qualified immunity defense presents a
legal question for the court. Elder v. Holloway, 114 S.Ct. 1019,
1023 (1994); Whiting v. Kirk, 960 F.2d 248, 250 (1st Cir. 1992).
Moreover, since the immunity is an immunity from suit rather than
merely a defense to liability, it is imperative that such claims
be resolved at the earliest possible date after suit is
commenced. Siegert, 500 U.S. at 232-33. Thus, I will determine
defendants' entitlement to immunity on their motions for summary
judgment unless factual disputes material to the issue require
resolution by the jury before I can resolve the legal questions
their motions present. See Prokev v. Watkins, 942 F.2d 67, 73
(1st Cir. 1991).
1. Probable Cause
Plaintiff first claims that she is entitled to damages
because the defendants lacked probable cause to seize St.
Hilaire. Probable cause to issue a warrant exists if the
totality of the circumstances related in the affidavit, viewed
with common-sense, presents a fair probability that the proposed
search will find contraband or evidence of a crime. United
States v. Jordan, 999 F.2d 11, 13 (1st Cir. 1993) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Under the totality
of the circumstances test, the value of a confidential
informant's information is evaluated in light of all the indicia
of its reliability, and a deficiency in one area may be
compensated by the strength of other relevant factors. United
States v. Diallo, 29 F.3d 23, 25 (1st Cir. 1994) (citing Gates,
462 U.S. at 232-33).
The affidavit that Dupuis submitted in support of the search
warrant application alleges that: (1) St. Hilaire owned Laconia
Auto Wrecking; (2) an informant, whose established record of
providing reliable information was detailed in the affidavit,
reported that St. Hilaire was selling cocaine at his place of
business; (3) the informant, acting under police supervision,
subseguently purchased cocaine at St. Hilaire's business on two
occasions in the weeks prior to the seizure; (4) the informant
told the defendants that St. Hilaire was planning a trip to New
York to purchase cocaine; and (5) airline records confirmed that
St. Hilaire had made a reservation around the same time as the
informant's report on a flight to New York's LaGuardia Airport.
These allegations sufficiently demonstrate the informant's
reliability and corroborate his claim that St. Hilaire was
engaged in the business of selling cocaine to support the issuing
10 judge's probable cause finding even though the affidavit does not
expressly allege that the informant purchased cocaine directly
from St. Hilaire. See Gates, 462 U.S. at 230; see also Jordan,
999 F.2d at 13-14. Accordingly, because plaintiffs have not
shown that the search warrant lacked probable cause, defendants
are entitled to immunity with respect to plaintiff's probable
cause claim.
2. Material Omissions
Plaintiff next argues that St. Hilaire's seizure was
unlawful because Dupuis failed to disclose in his affidavit that
his informant was induced to provide information against St.
Hilaire through offers of unspecified "consideration" with
respect to several outstanding felony charges. The Supreme Court
has recognized that a police officer's reckless or intentional
misstatements of material fact in a search warrant affidavit
violate the Fourth Amendment. Franks v. Delaware, 438 U.S. 154
(1978). This rule has been extended by various courts of appeal
to include an affiant's intentional or reckless omission of
material facts. See United States v. Higgins, 995 F.2d 1, 4 (1st
Cir. 1993); United States v. Knapp, 1 F.3d 1026, 1029 (10th Cir.
1993); United States v. Travis, 993 F.2d 1316, 1320 (8th Cir.),
cert, denied, 114 S. C t . 229, 245 (1993). When plaintiff claims
11 a Fourth Amendment violation based on alleged omissions of
material facts from a warrant application, the merit of the claim
depends on "'whether, even had the omitted statements been
included in the affidavit, there was still probable cause to
issue the warrant.'" Higgins, 995 F.2d at 4 (quoting United
States v. Rumnev, 867 F.2d 714, 720-21 (1st Cir.), cert, denied,
491 U.S. 908 (1989) ) .
Even if Dupuis's affidavit had been corrected to include the
"consideration" the police offered the informant, it still would
have demonstrated probable cause to justify the search because
the affidavit contained enough corroboration and sufficient
evidence of the informant's past reliability to establish the
probable accuracy of the informant's information. Thus,
plaintiff has failed to properly support her material omissions
claim, and therefore, defendants are entitled to immunity with
respect to this claim.
3. Excessive Force
Plaintiff's final claim is that defendants used
unconstitutionally excessive force in executing the warrant.
a. Fourth Amendment Reasonableness and Qualified Immunity
Excessive force claims arising during the course of a police
12 search or seizure must be analyzed under the Fourth Amendment's
reasonableness clause. Graham v. Connor, 490 U.S. 386, 395
(1989).1 Precedent dictates that the reasonableness of searches
and seizures must be evaluated by considering whether the
officer's conduct was objectively reasonable when judged "from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight." Id. at 396. Moreover,
"[t]he calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second
judgments -- in circumstances that are tense, uncertain, and
rapidly evolving -- about the amount of force that is necessary
in a particular situation." Id. at 397. Ultimately, the
reasonableness of an officer's use of force will be determined by
"careful balancing of the nature and guality of the intrusion on
the individual's Fourth Amendment interests against the
countervailing governmental interests at stake." Id. at 396
(guotations omitted).
Because a determination of both liability for and immunity
Plaintiff alleged in her complaint that defendants' use of deadly force also violated St. Hilaire's right to substantive due process. However, in light of Graham, plaintiff has abandoned this cause of action.
13 from claims based on violations of the Fourth Amendment's
reasonableness clause require an inquiry into the objective
reasonableness of a defendant's conduct, some courts in other
circuits appear to suqqest that the same test should be used to
evaluate both the substantive claim and the immunity defense.
See Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993), cert.
denied, 114 S. C t . 2672 (1994); Hopkins v. Andava, 958 F.2d 881,
885 n.3 (9th Cir. 1992); Jackson v. Hoylman, 933 F.2d 401, 402-03
(6th Cir. 1991); Street v. Parham, 929 F.2d 537, 540-41 n.2 (10th
Cir. 1991). Followinq a similar approach, the First Circuit in
Roy v. Inhabitants of Lewiston, 42 F.3d 691 (1st Cir. 1994), held
that the defendants were entitled to immunity from plaintiff's
excessive force claim, but observed that because the substantive
standard and the immunity standard in such cases turns on whether
the officer's conduct was objectively reasonable, the outcome
probably would have been the same even if the officers had not
raised an immunity defense. I_ci. at 695.
While these cases miqht be read to suqqest that a defendant
in an excessive force case can never claim immunity if the
plaintiff pleads and properly supports a claim that defendants
unreasonably used excessive force, that interpretation is plainly
inconsistent with Supreme Court precedent. In Anderson v.
14 Creighton, 483 U.S. 635 (1987), the Supreme Court held that a
police officer is immune from suit for an alleged violation of
the Fourth Amendment's reasonableness clause if his conduct was
objectively reasonable when "assessed in light of the legal rules
that were 'clearly established' at the time it was taken." Id.
at 639 (citation omitted). The dissent contended that the
majority's formulation was incorrect because it would improperly
entitle a defendant to immunity even if he reasonably, but
mistakenly, concluded that his conduct was objectively
reasonable. Id. at 648 (Stevens, J., dissenting) (contending
that the majority improperly adopted "a double standard of
reasonableness - the constitutional standard already embodied in
the Fourth Amendment and an even more generous standard that
protects any officer who reasonably could have believed that his
conduct was constitutionally reasonable."). The majority
countered by noting that in past applications of the doctrine of
gualified immunity, the Court had afforded immunity protection to
officers who had allegedly violated the Fourth Amendment. In
addition, the majority explained that the confusion caused by
using the terms "reasonable" and "unreasonable" to describe both
immune conduct and Fourth Amendment violations did not preclude
using a different "reasonable" standard for evaluating the
15 immunity defense. I_d. at 643.
Anderson thus requires that a court consider two factors in
evaluating an immunity defense to a claim based upon the Fourth
Amendment's reasonableness clause: (1) whether a constitutional
violation occurred at all; and (2) "'whether a reasonable
[officer] could have believed his actions were lawful in light of
clearly established law and the information the official
possessed at the time of his allegedly unlawful conduct.'"
Febus-Rodriguez, 14 F.3d at 91 (quoting McBride v. Tavlor, 924
F.2d 386, 389 (1st Cir. 1991)). Accord Jones by Jones v. Webb,
45 F.3d 178, 183 (7th Cir. 1995) (holding that qualified immunity
defenses to excessive force claims must be analyzed by asking
"whether a reasonable officer could have believed that his
conduct was constitutional in light of the clearly established
law and the information the officer possessed at the time the
incident occurred." (quotations and citations omitted)).
Accordingly, an officer is entitled to claim qualified immunity
in a police misconduct case even if he acted unreasonably unless
the law under which the officer's conduct is deemed unreasonable
was clearly established when he acted.
16 b. Application
In Tennessee v. Garner, 471 U.S. 1, 11 (1985), the Supreme
Court stated that "[w]here the officer has probable cause to
believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force." See also
Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991); Smith v.
Freland, 954 F.2d 343, 347 (6th Cir.), cert, denied, 112 S. C t .
1954 (1992). Relying on this principle, defendants argue that
they are entitled to gualified immunity because the undisputed
facts establish that when Gunter shot St. Hilaire, he reasonably
believed that St. Hilaire was about to use deadly force against
him. Plaintiff offers two arguments to support her claim that
defendants are not entitled to summary judgment on this issue.
First, she argues that a genuine factual dispute exists as to
whether Gunter reasonably needed to use deadly force against St.
Hilaire to protect himself. Second, she contends that even if
Gunter acted in self-defense, defendants violated the Fourth
Amendment by attempting to execute the warrant in a way that
unreasonably increased the likelihood that they would have to use
deadly force.
17 Plaintiff's first argument is easily addressed. While
witnesses to the shooting disagree about minor details, no one
disagrees that: (1) St. Hilaire was known to carry a weapon; (2)
St. Hilaire's gun was found on the seat beside him after the
shooting; and (3) the record contains no direct evidence to
contradict Gunter's testimony that he shot St. Hilaire only after
he reached for his weapon. Plaintiff's assertions that St.
Hilaire lacked sufficient time to draw his weapon and that the
position of his body when he was shot demonstrates that he could
not have been reaching for his gun amount to little more than
speculation. As such, they are insufficient by themselves to
create a genuine dispute as to whether Gunter reasonably believed
he had to use deadly force against St. Hilaire to defend himself.
Plaintiff's second argument raises more troubling guestions.
Although she points to several alleged deficiencies in the way in
which defendants planned and executed St. Hilaire's seizure,
plaintiff's most potent claim is that defendants unreasonably
increased the likelihood that they would need to use deadly force
by approaching St. Hilaire in plain clothes, with their guns
18 drawn and without identifying themselves as police officers.2
Had they properly identified themselves, plaintiff argues, St.
Hilaire would have offered no resistance. Moreover, she contends
that defendants' failure to identify themselves was unreasonable
because they could easily and safely have done so without
impairing their ability to subdue and search St. Hilaire.3
There is some support for the proposition that a police
officer who resorts to deadly force in self defense violates the
Fourth Amendment if he unreasonably creates the circumstances
where the use of deadly force becomes necessary. See, e.g..
Defendants have produced substantial evidence to counter plaintiff's claim. However, I assume, without deciding, that plaintiff has produced enough factual support for her claim to raise a genuine factual dispute as to whether defendants identified themselves as police officers when they approached St. Hilaire's vehicle.
3 It is well established that a person's Fourth Amendment rights are not implicated until a seizure actually occurs. California v. Hodari P., 499 U.S. 621, 629 (1991); Brower v. County of Inyo, 489 U.S. 593, 596 (1989). Accordingly, plaintiff does not contend that St. Hilaire's Fourth Amendment rights attached as soon as defendants drew their guns and approached his vehicle. Instead, she argues that St. Hilaire was "seized" when he was shot and, irrespective of whether Gunter was justified in using deadly force to defend himself at the moment of the shooting, the seizure violated St. Hilaire's Fourth Amendment rights because defendants' unreasonable conduct prior to the shooting increased the risk that one of them would have to use deadly force to subdue St. Hilaire.
19 Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (if
officer deliberately stepped in front of a moving vehicle, he may
not invoke self defense as a defense to a damages claim for
shooting the vehicle's driver); Gilmere v. Atlanta, 774 F.2d
1495, 1501 (11th Cir. 1985) (en banc) (officer cannot claim
immunity from a deadly force claim by arguing self defense if the
officer created the circumstances where it became necessary to
use deadly force in self defense), cert, denied, 476 U.S. 1115,
1124 (1986). However, neither the Supreme Court nor the First
Circuit Court of Appeals4 has yet taken such a position, and
there is substantial authority elsewhere to support the contrary
proposition.
Although the First Circuit held prior to Graham that police officers who use deadly force against people who pose no danger to the officers or others without first providing a warning violate the victims' rights to substantive due process, Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989), Gunter's reasonable belief that St. Hilaire was about to shoot him distinguishes this case from Gutierrez-Rodriguez. Also, although the Supreme Court held in Garner that the Constitution reguires police to provide a warning, j_f feasible, before using deadly force when a dangerous suspect flees or threatens them or others. Garner, 471 U.S. at 11-12, no warning was feasible in the split-second between when Gunter believed St. Hilaire was about to shoot him and he acted in self defense. Thus, neither Gutierrez nor Garner provide clearly established law applicable to the circumstances in this case.
20 In dissenting from the denial of certiorari in one of the
few cases supporting plaintiff's argument, then Chief Justice
Burger stated that the court should have granted certiorari to
reverse the decision because "an officer's conduct which makes
the need for deadly force more likely does not constitutionally
disable the officer from later using deadly force to defend
himself." Sampson v. Gilmere, 476 U.S. 1124, 1125 (1986).
Further, in Prewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993), the
Fourth Circuit Court of Appeals expressly rejected a claim that
an officer who resorts to deadly force in self defense
nevertheless violates the Fourth Amendment if he unreasonably
provokes the shooting by failing to properly identify himself as
a police officer. Id. at 778-789. Other circuits have reached
similar conclusions. See, e.g.. Carter v. Buscher, 973 F.2d
1328, 1332-33 (7th Cir. 1992); Cole v. Bone, 993 F.2d 1328, 1232-
33 (8th Cir. 1993) .
Given these conflicting precedents, the law concerning
whether a police officer who legitimately uses deadly force in
self-defense nevertheless violates the Fourth Amendment by
unreasonably increasing the likelihood that deadly force will
become necessary was not clearly established when the defendants
acted. See Sullivan v. Horta, 4 F.3d 2, 13 (1st Cir. 1993).
21 Accordingly, the defendants are entitled to prevail on their
qualified immunity defense.
B. Municipal Defendants
Plaintiff alleges that the Town of Belmont, the City of
Laconia, and Belknap County are "jointly and severally liable" on
her federal claims with the individual defendants. However,
these claims allege solely a respondeat superior theory which is
not cognizable under § 1983. See Monell v. Department of Social
Servs., 436 U.S. 658, 695 (1978); Manarite v. Springfield, 957
F.2d 953, 958 (1st Cir.), cert, denied, 113 S.Ct. 113 (1992).
These claims are dismissed.
C. Pendent State Claims
Having dismissed plaintiff's federal claims, I decline to
retain supplemental jurisdiction over her remaining state law
claims. See 28 U.S.C.A. § 1367(c)(3). Accordingly, I dismiss
these claims without prejudice.
IV. CONCLUSION
For the foregoing reasons defendants' motions for summary
judgment (documents 16 and 19) are granted as to all of
22 plaintiff's federal claims. Plaintiff's state law claims are
dismissed without prejudice.
SO ORDERED.
Paul Barbadoro United States District Judge
March 31, 1995
cc: Donald Perreault, Esq. Wayne Beyer, Esq. A. Gerard O'Neil, Esq. David Bownes, Esq.