Briand v. Morin CV-02-540-JD 02/25/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John Briand
v. Civil No. 02-540-JD
Opinion No. 2003 DNH 027
Jennifer Morin and
Denise Blanchette
O R D E R
The plaintiff, John Briand, proceeding pro se, brings a
civil rights action alleging that the defendants. Officer
Jennifer Morin, of the Milan Police Department, and Denise
Blanchette, a bail commissioner, imposed excessive bail after his
arrest for assault and criminal threatening with a firearm.
Morin moves for summary judgement pursuant to Federal Rule of
Civil Procedure 56(c) as to all of Briand's claims. Briand
obj ects.1
1At the end of his objection, Briand seeks relief in the
form of an entry of summary judgment on his behalf. The court
will not consider his objection to be a cross motion for summary
judgment because it was not submitted separately from other
filings, and it was not properly identified as a motion. See LR
7.1. While courts have historically loosened the reins for pro
se parties, see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (suggesting that courts should construe a pro se
litigant's pleadings with liberality), the "right of
self-representation is not 'a license not to comply with relevant
rules of procedural and substantive law.'" Andrews v. Bechtel
Power Corp.,
780 F.2d 124, 140 (1st Cir. 1985) (guoting Faretta
v. California,
422 U.S. 806, 835 n.46, (1975)), cert, denied,
476
U.S. 1172 (1986) ) .
Background
_____ Morin arrested Briand on charges of simple assault and
felony criminal threatening with a firearm in the early morning
hours of August 3, 2002. Morin's arrest of Briand was based both
upon her own observations and the statements of three men at the
scene of a disturbance in Milan.2 Later, as Morin completed
arrest-related paperwork at the police station, Blanchette was
contacted so that bail could be set for the plaintiff.
Before bail was set, Milan Police Chief Dayna Strout
discovered that Briand was a federal probationer. Strout then
spoke with Probation Officer Jim Bernier of the United States
Probation Office and was told that he was in the process of
preparing federal warrants and a federal detainer to hold Briand
for a violation. Bernier also noted that Briand should be
considered a flight risk and a danger to others. Bernier faxed a
copy of Briand's criminal record to Strout. Morin also reviewed
the information provided by Bernier.
Blanchette, the bail commissioner, arrived at the police
station and also spoke with Bernier. Subseguently, Morin
presented Blanchette with the complaints against Briand, an
arrest warrant and supporting affidavits. Blanchette interviewed
21he plaintiff alleges these three men were intoxicated.
2
Briand and then set Briand's bail at $25,000.
On August 5, 2002, Strout, Morin, and Captain George
Valliere of the Berlin Police Department attended Briand's bail
hearing before Judge Peter Bornstein. Valliere charged Briand
with a violation of a domestic violence order, and Morin charged
Briand with assault and felony criminal threatening with a
firearm. Morin recommended bail of $100,000. Judge Bornstein
then set bail at $100,000. Briand claims that both the $25,000
and $100,000 figures were determined with Morin and Blanchette's
knowledge that he could not pay such amounts.
Briand brings this cause of action under 42 U.S.C § 1983
alleging that Morin and Blanchette violated his right to be free
from excessive bail under the Eighth Amendment and his due
process right under the Fourteenth Amendment. He also brings a
count under 18 U.S.C. § 241 alleging that the defendants entered
into a conspiracy to deprive him of his constitutional rights.
Standard
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.
3
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, 477 U.S. 317, 323 (1986). All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party. See Barreto-Rivera v. Medina-
Varqas,
168 F.3d 42, 45 (1st Cir. 1999). "On issues where the
nonmovant bears the ultimate burden of proof, he must present
definite, competent evidence to rebut the motion." Mesnick v.
Gen. Elec. C o .,
950 F.2d 816, 822 (1st Cir. 1991). " [A]n absence
of evidence on a critical issue weighs against the party . . .
who would bear the burden of proof on that issue at trial."
Perez v. Volvo Car Corp.,
247 F.3d 303, 310 (1st Cir. 2001) .
Discussion
I. 42 U.S.C. S 1983 Claims
Morin argues that because, as a matter of New Hampshire law,
setting bail is exclusively within the province of the judicial
branch, she, as a police officer, cannot be liable under § 1983
for setting bail at a specific amount. Morin also contends that
the evidence does not show that she caused Briand's bail to be
set at any amount.3
3Morin also argues that, as a police officer, she is
entitled to gualified immunity as to her participation in setting
4
Briand bears the ultimate burden of proof on his § 1983
claim. See Rodriquez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir.
1997). To defeat Morin's motion for summary judgment he must
present sufficient evidence on each "essential factual element"
of his claim to "generate a trialworthy issue." See In re
Spigel,
260 F.3d 27, 31 (1st Cir. 2001). For his § 1983 claim
Briand must offer sufficient evidence that:
First . . . the defendants acted under color of state
law; and second . . . the defendant's conduct worked a
denial of rights secured by the Constitution or federal
law. . . . To satisfy the second element [Briand] must
show that the defendant's conduct was the cause in fact
of the alleged deprivation. . . . The issue of
causation of damages in a section 1983 suit is based on
basic notions of tort causation.
Garcia, 115 F.3d at 52 (internal citations omitted). Causation,
therefore, is a material issue on which Briand must present
"definite, competent evidence to rebut the motion" for summary
judgment. Mesnick,
950 F.2d at 822 (citing Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 256-57 (1986)).
Morin correctly asserts that New Hampshire law places the
power to set bail not with the police, but with the courts and
Briand's bail. The court must evaluate Morin's defense on the
issue of causation first, because the court is reguired to assess
whether a plaintiff "has alleged a deprivation of a
constitutional or federal right by a [public] official" before
evaluating that official's claim of gualified immunity. See
Kelly v. LaForce, 288 F.3d 1, 6-7 (1st Cir. 2002) .
5
individuals appointed as bail commissioners by the courts. See
N.H. Rev. Stat. Ann. § 597(1), et seq. This fact alone, however,
is insufficient to shield a police officer from potential
liability for excessive bail imposed by an authorized official.
In Wagenmann v. Adams,
829 F.2d 196 (1st Cir. 1987), the First
Circuit determined that a public official's lack of statutory
authority to set bail is insufficient to shield that official
from liability under § 1983 if he "help[s] to shape" and
"exercis[es] significant influence over" the bail decision. Id.
at 211-12. In coming to this conclusion, the court relied on the
principle that "if a person wrongfully brings about an end by
manipulating another, the naked fact that he lacked statutory
power to accomplish the end by himself does not provide an
impenetrable shield." Id. at 211.
In Wagenmann several defendants, including a police officer,
were found to have conspired to prevent the father of a bride
from contacting his daughter in the days preceding her wedding by
unconstitutionally arresting him without probable cause,
arranging for excessive bail to keep him imprisoned, and
ultimately confining him in a mental institution. See id., at
201-05. With respect to the police officer's liability for
setting excessive bail, the court found that the officer
"characteriz[ed]" his "description of the charges" and the
6
arrestee's access to funds "to bring about the outcome [in the
bail determination] which [he] coveted." Id. at 212.
The court used "traditional tort principles" of an
intervening, superceding cause theory to evaluate whether the
police officer in that case could be the legal cause of a clerk's
determination of an arrestee's bail. Id., at 212. In
particular, the court relied upon the following factors from
section 442 of the Restatement (Second) of Torts, addressing
intervening, superceding cause:
(a) the fact that its intervention brings about harm
different in kind from that which would otherwise have
resulted from the actor's negligence;
(b) the fact that its operation or the conseguences
thereof appear after the event to be extraordinary
rather than normal in view of the circumstances
existing at the time of its operation;
(c) the fact that the intervening force is operating
independently of any situation created by the actor's
negligence, or, on the other hand, is or is not a
normal result of such a situation;
(d) the fact that the operation of the intervening
force is due to a third person's act or to his failure
to act;
(e) the fact that the intervening force is due to an
act of a third person which is wrongful toward the
other and as such subjects the third person to
liability to him;
(f) the degree of culpability of a wrongful act of a
third person which sets the intervening force in
motion.
7
Wagenmann, 829 F.2d at 212 (quoting Restatement (Second)of Torts
§ 442 (1965)). The court reviewed these factors and concluded
that only the fourth factor weighed against a determination that
the officer was the cause of the bail determination. See
Wagenmann,
829 F.2d at 213.
The court's determination that the officer was not shielded
from liability based on the clerk's determination of bail was
shaped by the particular circumstances of that case, most
significantly the officer's "intimate involvement in the bail
decision." Id. at 211. The court indicated that the
relationship between the officer and the clerk who set bail was
such that it was "to be expected" that the clerk who set bail
would rely on the police officer's bail recommendation. See
id.
at 212. Furthermore, the officer was "the initiator of official
bail activity and the clerk's lone source of information about
the arestee." See
id. (emphasis added) .
In this case, however, the record includes no indication
that it was "to be expected" that Morin would influence
Blanchette's bail determination. Furthermore, the record
includes no evidentiary support for the proposition that Morin
in fact did influence Blanchette's bail determination. As to
Judge Bornstein's bail determination, the record does indicate
that Morin recommended that bail be set at $100,000, but there is
no record support for the proposition that it was "to be
expected" that Judge Bornstein would accept her bail
recommendation. Id. at 212.
In this case, the bail hearings occurred in the normal
course of police department procedure and were not the product of
a police officer manipulating or initiating bail activity.
Blanchette personally met with Briand and reviewed the arrest
warrant and the complaints against him as well as his significant
criminal record. Blanchette also personally spoke with Bernier
of the United States Probation Office. Morin did not make any
recommendation to Blanchette concerning bail.
Morin's recommendation to Judge Bornstein was made in the
normal course of a bail proceeding and was informed by her
knowledge of the charges against Briand, his criminal record, and
the information contained in Bernier's letter. Her involvement
in this matter is incomparable to that of the officer in
Wagenmann.
Judge Bornstein heard Captain Valliere and Officer Morin,
assisted by Chief Strout, state the charges against the
plaintiff. Officer Morin also provided the judge with the letter
from Bernier along with the plaintiff's criminal record. She
recommended that bail be set at $100,000.
Briand has not provided any evidence, aside from
unsupported, conclusory allegations in his complaint and
objection,4 in support of his claim that Morin manipulated the
bail proceedings in order to secure excessive bail for him.
Although Briand alleges that "Morin used trickery, chicanery and
deceit" during the course of the bail proceedings, Briand has
offered no specific evidence indicating that Morin misrepresented
any material facts about Briand to either Blanchette or Judge
Bornstein.
The undisputed facts in this case stand in stark contrast to
the facts of the Wagenmann case. After reviewing the undisputed
evidence of record in light of the Restatement factors, the court
concludes that Morin's actions were not the legal cause of the
bail determinations made by Blanchette and Judge Bornstein.
There is no genuine dispute that Morin did not exercise
significant influence over the bail determinations under the
circumstances presented in this case.5 Therefore, Morin is
4"The statements and argument of counsel in a memorandum of
law are not competent to support or oppose a motion for summary
judgment under rule 56(e). See Transurface Carriers, Inc. v.
Ford Motor C o ., 738 F.2d 42, 46 (1st Cir. 1984) ("Mere assertions
of counsel made in a legal memorandum are insufficient to
establish the existence of a genuine issue of material fact.")."
Lopez v. Corporation Azucarera de Puerto Rico, 938 F.2d 1510,
1516 (1st Cir. 1991).
51he court notes that given the charges that were brought
against the plaintiff, his criminal record, and the
10
entitled to summary judgment on Briand's § 1983 claim.
II. 18 U.S.C. § 241 Conspiracy
Morin also seeks summary judgment as to Briand's section 18
U.S.C. § 241 count on the ground that her cooperation with fellow
law enforcement officers, including members of United States
Probation, cannot constitute a conspiracy because such
cooperation is vital to law enforcement activity. The court need
not address the merits of Briand's claim under
18 U.S.C. § 241
because he has no standing to bring such a claim. "Only the
United States as prosecutor can bring a complaint under
18 U.S.C.
§ 241-242 (the criminal analogue of
42 U.S.C. § 1983) ....
These statutes do not give rise to a civil action for damages."
Cok v. Cosentino,
876 F.2d 1, 2 (1st Cir. 1989) (citing Duaar v.
Coughlin,
613 F. Supp. 849 (S.D.N.Y. 1985)); see also Fiorino v.
Turner,
476 F. Supp. 962 (D. Mass. 1979) . Because Briand is a
private citizen he cannot assert an
18 U.S.C. § 241 claim, and
Morin is entitled to summary judgment.
determinations by the United States Probation Officer that he was
both a flight risk and a danger to others, bail in the amount of
$25,000, and subseguently $100,000, was not excessive.
11
Conclusion
For the foregoing reasons, Morin's motion for summary
judgment (document no. 8) is granted. The clerk shall enter
judgment accordingly.
SO ORDERED.
Joseph A. DiClerico, Jr.
District Judge
February 25, 2003
cc: John Brian, pro se
Steven E. Hengen, Esguire
Daniel J. Mullen, Esguire
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