Briand v . Strout CV-03-052-JD 05/29/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John Briand
v. Civil N o . 03-052-JD
Opinion N o . 2003 DNH 091
Dayna Strout and Cecile Strout
O R D E R
The plaintiff, John Briand, proceeding pro s e , brings a
civil rights action alleging that the defendants, Dayna Strout
and Cecile Strout, respectively the Chief of the Milan Police
Department and a Sergeant within the department, violated his
civil rights by their involvement in bail proceedings subsequent
to his arrest for assault and criminal threatening with a firearm
on August 3 , 2002. The defendants move for summary judgment as
to all of Briand’s claims (document n o . 1 1 ) , to which Briand
objects (document n o . 1 2 ) .
Background
A prior suit by Briand against Officer Jennifer Morin of the
Milan Police Department and Bail Commissioner Denise Blanchette
concluded on February 2 5 , 2003. The court granted summary
judgment in favor of Morin and dismissed the action against
Blanchette. See Briand v . Morin, Opinion N o . 2003 DNH 27 (D.N.H.
Feb. 2 5 , 2003); Briand v . Morin, Opinion N o .
2003 DNH 28 (D.N.H.
Feb. 2 5 , 2003). Briand’s suit against Morin and Blanchette
raised essentially the same legal issues raised in this suit,
based upon essentially the same background circumstances except
that the present matter relates to the participation by Chief
Strout and Sergeant Strout in bail procedures for Briand.1
Morin arrested Briand on charges of simple assault and
felony criminal threatening with a firearm in the early morning
hours of August 3 , 2002. Chief Strout was present at Briand’s
arrest and, together with Morin, transported Briand to the Berlin
Police Department for processing. 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, Chief Strout discovered that Briand was
a federal probationer. Chief Strout then spoke with Probation
Officer Jim Bernier of the United States Probation Office who
told Chief Strout 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 Chief Strout.
1
For a general description of the background events
underlying this claim see Briand v . Morin, Opinion N o . 2003 DNH
N.H. Feb. 2 5 , 2003) and Briand v . Morin, Opinion N o . 2003
27 (D.N.H
DNH 28 (D.N.H. Feb. 2 5 , 2003).
2
Blanchette, the bail commissioner, arrived at the police
station and also spoke with Bernier. Subsequently, Morin
presented Blanchette with the complaints against Briand and an
arrest warrant with supporting affidavits. Blanchette
interviewed Briand and then set Briand’s bail at $25,000.
On August 4 , 2002 Chief Strout asked Sergeant Strout to
prepare for Briand’s bail hearing the next day. On August 5 ,
2002, Chief Strout, Morin, Captain George Valliere of the Berlin
Police Department, and Sergeant Strout attended Briand’s bail
hearing before Judge Peter Bornstein. Before the hearing began,
Sergeant Strout met with Officer Morin and discussed several
factors that they decided to emphasize during the bail hearing,
including Briand’s risk of flight, history of violence, criminal
record, and his lack of ties to the area.
At that hearing, 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 then
recommended bail of $100,000, and in support of this
recommendation presented the factors she had discussed with
Sergeant Strout. Although present, neither Chief Strout nor
Sergeant Strout actively participated in the bail proceeding. At
the conclusion of the proceeding, Judge Bornstein set bail at
$100,000.
3
The plaintiff asserts that on August 14 or August 2 0 , 2002,
at a probable cause hearing before Judge Bornstein, Sergeant
Strout recommended that bail be kept at $100,000. Briand, at
this time represented by counsel, claims that he requested that
bail be reduced and that this request was granted, lowering his
bail to $40,000.2
Briand brings this cause of action under 42 U.S.C § 1983
alleging that, because of their participation in his bail
proceedings, Chief Strout and Sergeant Strout 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.
2
In his complaint the plaintiff claims the hearing was on
August 2 0 , 2002 (pl.’s compl. at 1 0 ) , but in his objection he
claims it took place on August 1 4 , 2002 (pl.’s o b j . at 1 0 ) .
Briand has not supported his allegations as to the events at
this hearing with any record citation as required by Local Rule
7.2(b)(2). The plaintiff’s failure to properly support his
claims about the probable cause hearing is insubstantial because
his claims are not based on the reduction in bail that occurred
at that hearing. Briand’s claims are based on the $25,000 bail
set on August 3 , 2002, by Bail Commissioner Blanchette, and the
$100,000 bail set on August 5 , 2002 by Judge Bornstein. The
probable cause hearing appears, in contrast, to have resulted in
a considerable improvement in Briand’s bail conditions.
4
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, 477 U.S. 3 1 7 , 323 (1986). All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party. See Barreto-Rivera v . Medina-
Vargas,
168 F.3d 4 2 , 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. Co.,
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).
5
Discussion
I. Claims Under 42 U.S.C. § 19833
Briand bears the ultimate burden of proof on his § 1983
claim. See Rodriguez-Cirilo v . Garcia, 115 F.3d 5 0 , 52 (1st Cir.
1997). To defeat the defendants’ 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 2 7 , 31 (1st Cir. 2001) (internal quotation
and citations omitted). For his § 1983 claim Briand must offer
sufficient evidence that:
First . . . the defendants acted under color of state
law; and second . . . the defendants’ conduct worked a
denial of rights secured by the Constitution or federal
law. . . . To satisfy the second element, [Briand]
must show that the defendants’ 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. 2 4 2 , 256-57 (1986)).
3
In this discussion, because of the similarity of factual
and legal issues, the court substantially relies upon the
language and reasoning from the prior order granting summary
judgment for Officer Morin. See Briand, Opinion N o . 2003 DNH 2 7 .
6
New Hampshire law places the power to set bail, not with the
police, but with the courts and individuals appointed as bail
commissioners by the courts. See N.H. Rev. Stat. Ann. § 597(1),
et seq. Nevertheless, 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.
Wagenmann v . Adams,
829 F.2d 196, 212 (1st Cir. 1987). “[I]f 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 shaped
his “description of the charges,” “his version of the facts,” and
the arrestee’s access to funds “to bring about the outcome [in
the bail determination] which [he] coveted.”
Id. at 212.
7
“Traditional tort principles” of an intervening, superceding
cause theory govern the analysis of whether a police officer’s
involvement could be the legal cause of the bail ultimately set
for an arrestee. Id. at 212. The following factors, addressing
intervening, superceding cause, guide the analysis:
(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 consequences
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, o r , 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.
Wagenmann, 829 F.2d at 212 (quoting Restatement (Second) of Torts
§ 442 (1965)).
In Wagenmann, the court reviewed these factors and
determined that the officer was not shielded from liability
8
because of 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 Chief Strout actively participated in any of Briand’s bail
proceedings. Nor is there any indication that Chief Strout
initiated bail activity, nor that he in any way controlled or
limited Blanchette or Judge Bornstein’s sources of information
about Briand. Chief Strout’s participation in Briand’s bail
proceedings is not comparable to that of the officer in
Wagenmann.
With respect to Sergeant Strout, the record does not
indicate that she had any involvement in Blanchette’s bail
determination of August 3 , 2002. She did, however, assist
Officer Morin during the August 5 , 2002, bail proceedings.
The court has already determined that there is no
evidentiary support for the proposition that it was “‘to be
9
expected’ that Judge Bornstein would accept [Morin’s] bail
recommendation.” See Briand, Opinion N o . 2003 DNH 27 (quoting
Wagenmann,
829 F.2d at 2 1 2 ) . Therefore, the lesser involvement
of Sergeant Strout by merely assisting Officer Morin in shaping a
bail recommendation, also cannot have been expected to determine
the bail Judge Bornstein would set.
In this case, the bail proceedings “occurred in the normal
course of police department procedure and were not the product of
a police officer manipulating or initiating bail activity.”
Briand, Opinion N o . 2003 DNH 2 7 . Briand has not provided any
evidence, aside from the unsupported, conclusory allegations in
his complaint and objection, from which the court can conclude
that either Chief Strout or Sergeant Strout manipulated bail
proceedings in order to secure excessive bail for him.4
Although Briand asserts that Sergeant Strout has tried to
deceive the court by offering untruthful information in her sworn
affidavits, Briand has offered no specific evidence indicating
the untruthfulness of any statement in Sergeant Strout’s
4
"Mere assertions of counsel made in a legal memorandum are
insufficient to establish the existence of a genuine issue of
material fact." See Transurface Carriers, Inc. v . Ford Motor Co.,
738 F.2d 4 2 , 46 (1st Cir. 1984). The plaintiff’s unsupported
assertions regarding Sergeant Strout’s participation in a
subsequent probable cause hearing before Judge Bornstein likewise
do not raise a genuine issue as to Sergeant Strout’s conduct in
this case.
10
affidavit.
After reviewing the undisputed evidence of record in light
of the Restatement factors, the court concludes that Chief
Strout’s and Sergeant Strout’s actions were not the legal cause
of the bail determinations made by Blanchette and Judge Bornstein
under the circumstances presented in this case. Furthermore,
the court again notes that, given the charges that were brought
against the plaintiff, his criminal record and the determinations
by the U.S. Probation Officer that he was both a flight risk and
a danger to others, bail in the amount of $100,000 was not
excessive. See Briand, Opinion N o . 2003 DNH 2 7 . Therefore, both
Chief Strout and Sergeant Strout are entitled to summary judgment
on Briand’s § 1983 claim.
II.
18 U.S.C. § 241 Conspiracy
The defendants also seek summary judgment as to Briand’s 18
U.S.C. § 241 count on the ground that Briand 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 (citing Dugar v . Coughlin,
613 F. Supp. 849 (S.D.N.Y. 1985);
see also Fiorino v . Turner,
476 F. Supp. 962 (D. Mass. 1979)).
11
Because Briand is a private citizen, he cannot assert an 18
U.S.C. § 241 claim, and the defendants are entitled to summary
judgment.
Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document n o . 11) is granted. The clerk shall
enter judgment accordingly, and close the case.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
May 2 9 , 2003
cc: John Briand, pro se
Steven E . Hengen, Esquire
12
