Nowaczyk v. North Hampton

Nowaczyk v . North Hampton             CV-97-635-JD   03/15/01
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE


Steven J. Nowaczyk

     v.
                                    Opinion N o . 

Town of North Hampton, et a l .

                             O R D E R


     The plaintiff, Steven Nowaczyk, proceeding pro s e , brought
civil rights claims and state tort claims against municipal and
county defendants and their employees and three individuals,
arising from his arrest and prosecution on stalking and arson
charges.   The municipal defendants1 have moved for partial
summary judgment in their favor with respect to the federal
claims and the state law claims of malicious prosecution, false
arrest, false imprisonment, and abuse of process based on the
issue of probable cause to arrest and prosecute Nowaczyk.
Nowaczyk objects.




     1
      The defendants moving for summary judgment are the Town of
North Hampton, Richard Crowley, Dick Wollmar, Stanley Knowles,
Mary Herbert, Frank Beliveau, Richard Sawyer, Jr., David Giguere,
Robert Wharem, Jane Doe, and Michael Maloney (the North Hampton
defendants); the Town of Hampton, Robert Mark, Shawn Maloney,
Philip Russell, William Lally, Dan Gidley, and town selectmen
(the Hampton defendants); the Town of Seabrook, James Cawley, and
unknown Seabrook detectives and selectmen (the Seabrook
defendants); and Rockingham County.
                         Standard of Review

     Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”     Fed. R. Civ. P.

56(c).   The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett, 

 (1986).    All

reasonable inferences are resolved in favor of the nonmoving

party.   See Barreto-Rivera v . Medina-Vargas, 

 2 , 45 (1st

Cir. 1999).   A party opposing a properly supported motion for

summary judgment must present competent evidence of record that

shows a genuine issue for trial. See Anderson v . Liberty Lobby,

Inc., 

 (1986); Torres v . E.I. Dupont De Nemours

& Co., 

 3 , 18 (1st Cir. 2000).   “[A]n issue is ‘genuine’
if the evidence presented is such that a reasonable jury could

resolve the issue in favor of the nonmoving party and a

‘material’ fact is one that might affect the outcome of the suit

under governing law.”   Fajardo Shopping Ctr. v . Sun Alliance Ins.

Co., 

 , 7 (1st Cir. 1999).




                                  2
                            Background

     Between 1990 and 1992, Steven Nowaczyk and his wife, Penny,
operated the Copper Penny Restaurant in North Hampton, New
Hampshire, where they leased property from Dean Stevens.     On
December 2 4 , 1991, the Copper Penny was damaged by fire.
Although the fire department incident report indicated that the
fire originated from the careless disposal of smoking materials,
a subsequent fire investigation by Fire Science Technologies,
Inc. determined that the fire was most probably caused by an
electrical malfunction.2

     In April of 1993, Nowaczyk opened another restaurant, the
Nifty Fifties Café. Defendant Raymond Desilets was involved in
that business with Nowaczyk.   Defendant Amy Keegan worked for
Nowaczyk beginning in April of 1993, and Keegan and Nowaczyk
began a personal relationship at the same time. The Café was
destroyed by fire in December of 1993. The fire was determined

     2
      Nowaczyk submits as exhibits three copies of fire incident
reports that he claims show that the original fire incident
report for the Copper Penny fire was altered to show a different
cause for the fire. One of the submitted reports does not
pertain to the fire at the Copper Penny. Counsel for the North
Hampton defendants represents that the hand notations on another
submitted copy of the report were made by Thomas Lambert of the
North Hampton Fire Department and that an admission of that fact
was provided to Nowaczyk. Counsel represents that the hand
notations merely provide the information indicated by the
numerical codes. Nowaczyk has provided no contrary evidence to
show that the notations are material.

                                 3
to be of suspicious origin, prompting further police
investigation.   The Nifty Fifties fire increased interest in a
further investigation of the Copper Penny Restaurant fire.3
     On January 2 8 , 1994, Raymond and Margaret Desilets
approached North Hampton police officer Robert Wharem and
Sargent Brian Page, while they were eating breakfast at Wilbur’s
Countryside Restaurant.   Raymond Desilets told the officers that
he and Amy Keegan had given the FBI and the Hampton Police
Department evidence about the Nifty Fifties fire and said that
Nowaczyk had told him about trying to burn down the Copper Penny
Restaurant.   Desilets also said that Nowaczyk had been watching
them and that they were staying in a motel to avoid Nowaczyk.
Officer Wharem noted that the Desiletses both appeared to be
frightened.   Desilets said he would go to the police department
at 11:00 that morning.    Amy Keegan and the Desiletses gave
statements that day.

     The investigation of the Copper Penny Restaurant fire was
assigned to North Hampton Police Patrol Officer Richard Sawyer.
Because the physical evidence of the fire no longer existed,


     3
      Nowaczyk includes as an exhibit a fire investigation report
pertaining to the Copper Penny Restaurant fire by the North
Hampton Fire Department, L t . R. Bud O’Connor, Investigator. The
signature line is dated November 2 6 , 1992, but is not signed.
The part of the report recounting Deputy Chief Tom Lambert’s
recollection of the Copper Penny fire is dated December 2 2 , 1993.

                                 4
Sawyer investigated by taking statements from witnesses.      Between
February 1 and 4 , 1994, statements were taken from Raymond
Desilets, Margaret Desilets, Amy Keegan, Kimberly Hillsgrove,
Christopher Hillsgrove, Tricia Ziemba, and Dean Stevens. Amy
Keegan, Raymond Desilets, Margaret Desilets, Tricia Ziemba, and
Christopher Hillsgrove said that Nowaczyk told them that he
intentionally caused the fire at the Copper Penny.4    Keegan,
Desilets, and Christopher Hillsgrove all reported that Nowaczyk
told them that it was an electrical fire.5

     Keegan and the Desiletses also gave statements about
Nowaczyk’s threatening behavior.     Keegan said that Nowaczyk had
threatened her with harm if she revealed what she knew about his
activities.6   She said that Nowaczyk proposed marriage to her at



     4
      The portion of Kimberly Hillsgrove’s statement that was
submitted to the court does not include statements about the
cause of the fire.
     5
      Nowaczyk reportedly told Keegan that the fire started in
the electrical panel, told Raymond Desilets that he tried to make
it look like an electrical fire, and told Christopher Hillsgrove
that he wired the office and left wires undone and smoldering.
     6
      Specifically, Keegan said that Nowaczyk told her in October
or November of 1993 that he would have her “raped and murdered”
if she talked to the police. In January 1994 when Nowaczyk
revealed to Keegan his involvement in the Nifty Fifties Café
fire, Keegan said he asked her if she knew what would happen if
she told what she knew and she said she would end up dead in a
ditch. Nowaczyk agreed.

                                 5
the end of January 1994, and she declined, saying that he was the
last person she would trust. They then went for a ride in his
car where Nowaczyk confessed his involvement in the restaurant
fires and said he would do it again.    Keegan was so frightened
that she jumped out of the car but then let Nowaczyk drive her
home.
     Keegan moved in with the Desiletses in late January of 1994.
Keegan told the police that Nowaczyk repeatedly called the
Desiletses, drove his car to their home where she was staying,
turned around and left, and when Keegan drove by a gas station
where he was stopped, he followed her in his car.    She said that
she and the Desiletses stayed in a motel for two days because of
their concerns for their safety.     Margaret Desilets said that
Nowaczyk often drove by their home to check on them and that he
called and seemed threatening.

     Raymond Desilets said that he called the North Hampton
police when Nowaczyk drove into their yard and then left.     After
the police left, Penny Nowaczyk called and asked Raymond Desilets
to meet them at a Pizza Hut restaurant, but he declined.     He also
said that he saw Steven Nowaczyk driving around in the

Desiletses’ end of town and by their house, and he presumed that
Nowaczyk was watching their house and trying to contact Keegan.
Raymond Desilets said that Nowaczyk told him that Keegan had made


                                 6
it clear to him that she did not want to see Nowaczyk anymore.
Desilets said that Keegan was frightened.     Keegan and the
Desiletses said that they knew of violent acts Nowaczyk had done
or hired others to do for him.
     On February 1 , 1994, North Hampton Police Officer Richard
Sawyer applied for a warrant to arrest Nowaczyk for stalking in
violation of New Hampshire Revised Statute Annotated (“RSA”)
633:3-a with a supporting affidavit and a complaint.    The warrant
issued the same day, and Nowaczyk was arrested on February 2 ,
1994.   On February 4 , 1994, Sawyer applied for a warrant to
arrest Nowaczyk for arson of the Copper Penny Restaurant in
violation of RSA 634:1, with a supporting affidavit and a
complaint.   The warrant issued, and Nowaczyk was arrested the
same day.

     The stalking charges were dismissed by nolle prosequi on
March 1 0 , 1994. Nowaczyk was tried on the charges related to
arson of the Copper Penny Restaurant beginning on May 6, 1997.
The trial ended in a mistrial, and the state dismissed the
charges by nolle prosequi on July 1 , 1997.



                            Discussion

    The defendants contend that because probable cause existed

to arrest Nowaczyk on the stalking charge and to arrest and

                                 7
prosecute him on the arson charges, they are entitled to summary

judgment on his federal claims and state law claims of malicious

prosecution, false arrest, false imprisonment, and abuse of

process.    Nowaczyk objects to summary judgment, arguing that

probable cause was lacking for both charges.

     With respect to the federal claim, probable cause to arrest

exists “when the facts and circumstances within the police

officers’ knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent person in

believing that the defendant had committed or was committing an

offense.”    Fletcher v . Town of Clinton, 

 1 , 53 (1st Cir.

1999) (internal quotation and alterations omitted).      Probable

cause to arrest may be based on less than a fifty percent

likelihood that the suspect is guilty.     See Samos Imex Corp. v .

Nextel Communications, 

 (1st Cir. 1999).

Similarly, under New Hampshire law, “‘[p]robable cause to arrest
exists when the arresting officer has knowledge and trustworthy

information sufficient to warrant a person of reasonable caution

and prudence in believing that the arrestee has committed an

offense.’” Hartgers v . Town of Plaistow, 

 (1996)

(quoting State v . Brown, 

 (1994)).




                                   8
A.   Stalking Charges
     Nowaczyk was arrested and charged with stalking in violation
of RSA 633:3-a. Under the applicable part of the statute, a
person is guilty of stalking if he purposely, knowingly, or
recklessly “appear[s] on more than one occasion for no legitimate
purpose in proximity to the residence, place of employment, or
other place where another person is found under circumstances
that would cause a reasonable person to fear for his personal
safety.”7   RSA 633:3-a, I(d)(4) (Supp. 1994).   Officer Sawyer
provided his affidavit in support of the application for an
arrest warrant in which he summarized the pertinent information
gleaned from the statements made to Officer Wharem and to him by
Raymond and Margaret Desilets and Amy Keegan.

      In particular, Sawyer stated in his affidavit that the
Desiletses and Keegan talked to Officer Wharem on January 2 8 ,
1994, about Nowaczyk and the Copper Penny Restaurant fire and
that he conducted audio-taped interviews with each of them on
February 1 , 1994. Sawyer stated that Keegan told him that
Nowaczyk threatened to have her raped and murdered, that she had



     7
      The complaint and arrest warrant cite RSA 633:3-a(4) which
presumably refers to the stalking definition in RSA 633:3-a,
I(d)(4) (Supp. 1994). Inexplicably, the defendants cite RSA
633:3-a, I(d)(2), which is similar to (d)(4) except that it
includes an intent element.

                                 9
told Nowaczyk she wanted nothing to do with him, and that while
she was staying with the Desiletses, he drove into the lot next
door, and that three days later he followed her in her car.
Sawyer stated that Raymond Desilets told him he made it clear to
Nowaczyk he should not come to the Desiletses’ home, that in the
past week on three occasions he saw Nowaczyk circle around the
trailer park where the Desiletses and Keegan were living and once
drive i n , turn around, and drive away, that in the past week
Nowaczyk contacted Desilets several times seeking information
about Keegan, and that Nowaczyk admitted going by the Desiletses’
home.   Sawyer stated that Margaret Desilets told him that she had
also seen Nowaczyk in the trailer park area in the last week.
The Desiletses both told Sawyer that Nowaczyk’s conduct was
causing Keegan constant fear for her safety.

     Sawyer’s affidavit demonstrates that he had knowledge of and
information about circumstances that would justify a belief that
Nowaczyk had appeared on more than one occasion in proximity to
Keegan’s residence (in the Desiletses’ home) with no legitimate
purpose and under circumstances that would cause a reasonable
person to fear for her safety.   The information provided by
Keegan and the Desiletses appears to be reliable and credible.
Therefore, on its face, the affidavit demonstrates probable cause




                                 10
for Nowaczyk’s arrest on the stalking charge.8



B.   Arson Charges
     On February 4 , 1994, Nowaczyk was charged with arson in
violation of RSA 634:1 for starting a fire at the Copper Penny
Restaurant and an arrest warrant issued on that charge.   “A
person is guilty of arson if he knowingly starts a fire or causes
an explosion which unlawfully damages the property of another.”
RSA 634:1 (1996).    Sawyer provided a supporting affidavit based
on audio taped interviews with Amy Keegan, Raymond Desilets,
Margaret Desilets, Tricia Ziemba, Kimberly Hillsgrove, and
Christopher Hillsgrove and a statement to another officer made by
Dean Stevens. He stated that he conducted or participated in the
audio taped interviews between February 1 and 4 , 1994.

      In his affidavit, Sawyer stated that Officer Wharem had
spoken with Keegan and the Desiletses on January 2 8 , 1994, about

     8
       Nowaczyk compares the affidavit submitted in his case to
the evidence submitted in support of an arrest warrant in Vlack
v . Town of Rye, 

 (D.N.H. May 2 8 , 1999), to show
that probable cause did not exist in his case. Probable cause in
both the state and federal contexts is determined based on the
totality of the circumstances presented in the supporting
affidavit which may include hearsay. See Illinois v . Gates, 

 (1983); accord State v . Carroll, 

(1988). Contrary to Nowaczyk’s interpretation, the analysis in   i
Vlack supports the existence of probable cause in his case.
Nowaczyk’s challenges to the veracity and reliability of the
witnesses’ statements is discussed infra.

                                 11
the Copper Penny Restaurant fire and that Wharem told Sawyer
about the conversations. Amy Keegan told Sawyer in her interview
that during a conversation on December 3 0 , 1993, Nowaczyk
admitted setting the fire at the Copper Penny.   Raymond Desilets
told Sawyer that over the preceding four months he had had three
or four conversations with Nowaczyk in which Nowaczyk said that
he caused the fire and tried to make it look like an electrical
fire.   Margaret Desilets told him that Nowaczyk told her in early
November of 1993 that he set the Copper Penny fire, and Tricia
Ziemba told Sawyer that Nowacyzk told her the same thing in early
October of 1993.

     Sawyer also stated that he was present during an interview
of Kimberly Hillsgrove when she said that Nowaczyk told her that
he started the Copper Penny fire by doing something to the wiring
so that it would smolder.   Christopher Hillsgrove said during his
interview that Nowaczyk told him in the spring of 1992 that he
set the Copper Penny fire by undoing some wires and leaving them
to smolder.   Christopher Hillsgrove also said that Nowaczyk told
him he put all of his and his wife’s belongings in the basement
of the Copper Penny before the fire so that he could collect
insurance.    Sawyer also reported in his affidavit that Detective
James Giguere interviewed Dean Stevens, the owner of the property
where Nowaczyk operated the Copper Penny, who said that Nowaczyk


                                 12
was thousands of dollars behind on his rent at the time of the
fire.
     Sawyer’s affidavit submitted in support of the warrant to
arrest Nowaczyk for arson indicates he had reliable information
about circumstances that would justify a belief that Nowaczyk
knowingly started a fire at the Copper Penny Restaurant that
damaged property owned by Dean Stevens. Therefore, the
affidavit, on its face, appears to provide probable cause for the
arrest warrant.



C.   Challenges to the Arrest Warrants

     Nowaczyk contends that his arrests were not supported by
probable cause because Sawyer omitted information from and
misrepresented information in the affidavits, that Sawyer had
reason to doubt the reliability of statements made by the
Desiletses and Keegan, and that his affidavits, based on hearsay,
were insufficient to support the arrest warrants.9   Nowaczyk also
contends that a more complete investigation would have uncovered
other evidence that he had not committed either offense.




     9
      To the extent that Sawyer, in his affidavit, attributed
certain information to particular witnesses erroneously, the
errors were not material because the same information was
provided by other witnesses.

                                13
     1.   Sufficiency of the affidavits.
     An affidavit submitted in support of a warrant application
is presumed to be valid.   See Franks v . Delaware, 

 (1978); United States v . Grant, 

 2 , 77 (1st Cir.
2000); State v . Valenzuela, 

 (1987).     The
presumption may be overcome only by showing that the affidavit
“contains either (1) a false statement made knowingly and
intentionally, or with reckless disregard for the truth, or (2)
technically accurate statements that have been rendered
misleading by material omissions.”    Grant, 218 F.3d at 77
(internal quotations and citations omitted); see also State v .
Jaroma, 

 (1993); State v . Wilkinson, 

 (1992).   The misrepresentation or omission in the
affidavit must be material so that if the misrepresentation is
corrected or the omitted information is added to the affidavit,
probable cause would no longer exist. See United States v .
Scalia, 

 (1st Cir. 1993); Valenzuela, 

.

     Nowaczyk contends that Sawyer omitted information from his
affidavit submitted in support of the arrest warrant for

stalking.    In particular, Nowaczyk contends that Sawyer knew that
his wife, Penny, was with him on several occasions when he drove
to the Desiletses’ home, which was the reason that they left


                                 14
without stopping when they saw Keegan’s car.   He also contends
that he and his wife were expected by the Desiletses and that
they intended to see Raymond Desilets about business matters. He
also argues that the affidavit improperly omitted information
about his personal and professional relationship with Keegan and
the Desiletses.
     Contrary to Nowaczyk’s representations about his intentions,
there is evidence in the record only to support the fact that his
wife was with him on one occasion when he drove into the yard and
then left and telephoned the Desiletses. He offers no

explanation for the times he repeatedly drove to the mobile home
park, apparently checking on the Desiletses’ home, called seeking
information about Keegan, or for the reported threat he made
against Keegan.   If Sawyer’s affidavit had included information
that Penny Nowaczyk accompanied her husband on one trip to the
Desiletses’ home, it would still support a reasonable belief that
he was there for no legitimate purpose and that Keegan had a
reasonable concern for her safety.

     Information about Nowaczyk’s relationship with Keegan, that
they had had a romantic relationship recently terminated by
Keegan and that the relationship began when Keegan worked with
Nowaczyk, would have enhanced rather than undermined the grounds
for probable cause. Information about Nowaczyk’s relationships


                                15
with the Desiletses would also have shown additional bases for
the information that they provided to police.
     Nowaczyk challenges the affidavit submitted in support of
the arson arrest warrant on the grounds that it omitted
information from the original fire incident report and the Fire
Science Technologies report and misrepresented when officials
began their criminal investigation into the fire.   In particular,
Nowaczyk contends that probable cause would be negated by the
fire investigation reports, which Nowaczyk interprets to report
that the fire was not of suspicious origin.

     The initial incident report indicates through a numerical
code the form of heat ignition, which apparently means that the
heat that ignited the fire was from smoking materials.    The
report does not say that the fire was not suspicious.     The
investigation report by Fire Science Technologies, Inc. states
that “according to municipal authorities this fire was most
probably due to an electrical malfunction and our inspection of
the premises failed to disclose anything other than this.”      Pl.
Ex. C at 5 .

     Those reports do not undercut the witnesses’ statements that
Nowaczyk told them he started the fire in a way to make it look
like an electrical fire. Despite the initial report about
smoking materials, subsequent investigations revealed that the


                               16
fire had started from an electrical malfunction, which is
consistent with the witnesses’ statements about Nowaczyk’s
admissions.   Therefore, even if the fire reports’ findings had
been included in Sawyer’s affidavit, probable cause would have
existed to support his arrest on the arson charge. Whether the
criminal investigation into the Copper Penny fire began before
January 2 8 , 1994, or not, is immaterial.



     2.   Reliability of witnesses’ statements.

     Nowaczyk argues that the witnesses’ statements were not

reliable and that Sawyer intentionally omitted information from

the affidavits that would have demonstrated their unreliability.

To affect probable cause, omitted information pertaining to the

reliability of the information submitted in support of probable

cause must undercut the existence of probable cause.   See

Lallemand v . Univ. of R.I., 

 (1st Cir. 1993).

Information provided by a victim is generally considered to be

reliable.   See B.C.R. Transport Co., Inc. v . Fontaine, 

 , 9 (1st Cir. 1984).

     Nowaczyk contends that Sawyer demonstrated that he doubted

the truth of the Desiletses’ and Keegan’s statements because he

told each of them that he knew in the past that Nowaczyk had

witnesses make statements against him only to get information

                                17
about police investigations and then the witnesses recanted their
statements.    The transcript shows, however, that Sawyer asked the
witnesses whether they were trying to get information for
Nowaczyk or whether the statement was true. Each witness
affirmed that his or her statement was true.   Therefore, Sawyer
allayed his concern about their credibility.   Other unreliable
statements by witnesses do not undermine the credibility of
Keegan and the Desiletses or undercut the sufficiency of the
affidavit to show probable cause.

     To the extent that Nowaczyk contests Sawyer’s reliance on
Keegan’s credibility based on Keegan’s written account of her
relationship with Nowaczyk and related events, which she titled
“Precious Silence,” Nowaczyk has not shown that Sawyer was aware
of Keegan’s account in early February of 1994. Further, the
account generally corroborates Keegan’s statements.    Nowaczyk
also makes unsubstantiated allegations that the North Hampton
police suspected Raymond Desilets of criminal activity and that
Amy Keegan had previously provided the police with questionable
information.    In the absence of record support, those allegations
are not sufficient to oppose summary judgment.    In summary,
Nowaczyk has not demonstrated a trialworthy issue as to whether
issues of witnesses’ reliability and credibility would undercut
the probable cause demonstrated in Sawyer’s affidavits.


                                 18
      3.   Sufficiency of the investigation.

     Nowaczyk also suggests that the police should have

investigated further before charging and arresting him.     Once a

police officer has sufficient credible information to support a

finding of probable cause, no further investigation is

constitutionally necessary.   See, e.g., Borlawsky v . Town of

Windham, 

 7 , 29-30 (D. M e . 2000) (citing cases).


D.   Probable Cause to Prosecute on the Arson Charge

     Nowaczyk challenges the existence of probable cause to
prosecute him on the arson charge, contending that the defendants
(or some of them) withheld the initial fire incident report from
the prosecutors.10   Nowaczyk offers no evidence that any of the
defendants withheld the initial fire incident report from the
prosecutors.   In addition, as discussed above, the report does
not undercut probable cause that he committed arson based on the
witnesses’ statements. The fact that the prosecutors decided to
dismiss the arson charge after a mistrial does not negate the
existence of probable cause to prosecute. See Roche v . John



     10
      Although Nowaczyk also says that the defendants
“purposefully concealed and misrepresented material facts to the
county attorney, which may have influenced his decisions to
prosecute the plaintiff for the arson allegation,” he does not
explain what facts were concealed or misrepresented.

                                 19
Hancock Mut. Life Ins. Co., 

 (1st Cir. 1996);
Stock v . Byers, 

 (1980).   Therefore, no
trialworthy issue remains as to the existence of probable cause
to prosecute.


E.   Summary Judgment

     Nowaczyk’s federal claims in Counts XIV, XV, X V I , XVII, and

XVIII arise from allegations that he was arrested on the stalking

and arson charges and prosecuted for arson in violation of the

Fourth Amendment.     To succeed on those claims, Nowaczyk would

have to prove the absence of probable cause. See, e.g., Britton

v . Maloney, 

 4 , 28-29 (1st Cir. 1999); Meehan v . Town of

Plymouth, 

 5 , 89 (1st Cir. 1999); Calero-Colon v .

Betancourt-Lebron, 

 , 3-4 (1st Cir. 1995).    Based on the

record presented for summary judgment, no genuine issue remains

as to the existence of probable cause to arrest Nowaczyk on

charges of stalking and arson and to prosecute him on the arson

charge.     Therefore, the defendants are entitled to summary

judgment with respect to all of Nowaczyk’s remaining federal
claims.11


     11
      Since a civil rights conspiracy claim requires proof of a
constitutional deprivation, the defendants are entitled to
summary judgment on Nowaczyk’s conspiracy claim. See Brennan v .
Hendrigan, 

 (1st Cir. 1989). For the same

                                  20
     Nowaczyk’s state law claims of false arrest, false

imprisonment, and malicious prosecution also require proof of the

absence of probable cause. See Hartgers, 

; ERG,

Inc. v . Barnes, 

 (1993); Hickox v . J.B. Morin

Agency, Inc., 

 (1970).     The defendants are

therefore also entitled to summary judgment as to those claims.

To the extent that Nowaczyk’s negligent hiring, training, and

supervision claims are premised on his federal claims for his

state law claims of false arrest, false imprisonment, or

malicious prosecution, the defendants are also entitled to

summary judgment as to those claims.

     Nowaczyk’s abuse of process claim, however, does not depend

on an absence of probable cause. See Cabletron Sys., Inc. v .

Miller, 

 5 , 57-58 (1995); Long v . Long, 

 5 , 29

(1992); see also Allred v . Moore & Peterson, 

(5th Cir. 1997); Kaminske v . Wis. Cent. Ltd., 

 (E.D. Wis. 2000); Shiner v . Moriarty, 

 (Pa. Super. C t . 1998).   Therefore summary judgment is denied


reason, Nowczyk’s civil rights conspiracy claim in Count XIV
brought against the Desilets is also dismissed. To the extent
Nowaczyk may have intended to assert a constitutional claim based
on the recording of his conversation with Raymond Desilets, he
has failed to state such a claim. See, e.g., Illinois v .
Perkins, 

 (1990); United States v . White, 

 (1971); United States v . Upton, 

 (D.N.H. 1980).

                                  21
as to the abuse of process claim.
     The claims that remain are state law claims of invasion of

privacy, abuse of process, and defamation brought against the

North Hampton, Hampton, Seabrook, and individual defendants. To

the extent Nowaczyk intended state law claims of negligent

hiring, training and supervision arising from abuse of process,

invasion of privacy, or defamation, those claims also survive

summary judgment.   Since all of the federal claims have now been

terminated, the court declines to exercise supplemental

jurisdiction with respect to the remaining state law claims.

See 

(c)(3); Day v . Mass. Air Nat’l Guard, 

 (1st Cir. 1999).



                            Conclusion
     For the foregoing reasons, the defendants’ motions for
partial summary judgment (documents n o . 188, 189, 190, and 191)
are granted as to all of the plaintiff’s federal claims and the
state law claims of false arrest, false imprisonment, and
malicious prosecution.   The motions are also granted to the
extent the plaintiff’s negligent hiring, training, and
supervision claims were based on the federal claims and on the
state claims of false arrest, false imprisonment, or malicious
prosecution.   The motions are otherwise denied.   The civil rights


                                 22
conspiracy claim against the Desiletses is dismissed.       The court
declines supplemental jurisdiction with respect to the remaining
state law claims, which are dismissed without prejudice.
      Default was entered as to claims arising from the Copper
Penny fire charges against defendant Amy Keegan.       The plaintiff
shall submit an application for default judgment against Amy
Keegan, pursuant to Federal Rule of Civil Procedure 55(b)(2), on
or before April 6, 2001.

      SO ORDERED.



                                        Joseph A . DiClerico, Jr
                                        District Judge
March 1 5 , 2001
cc:   Steven J. Nowaczyk, pro se
      John J. Ryan, Esquire
      John P. Fagan, Esquire
      John A . Lassey, Esquire
      John P. Sherman, Esquire
      Raymond Desilets, pro se
      Margaret Desilets, pro se
      Amy Keegan, pro se




                                   23