Coleman v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Coleman
v. 	Case No. 16-cv-498-LM
State of New Hampshire, et al.
REPORT AND RECOMMENDATION
Pro se plaintiff Richard Coleman alleges that Thomas
Dronsfield of the Lee Police Department maliciously prosecuted
him in violation of state and federal law.1 	Across numerous
motions and other filings, each party now asks the court to
enter summary judgment in his favor. 	These requests have been
referred to the undersigned magistrate judge for report and
recommendation. 	As discussed below, the court recommends that
the district judge deny Coleman’s request for summary judgment,
grant Dronsfield’s request for summary judgment, and deny as
moot several other attendant motions.
1 Coleman also has claims pending against Natasha Cormier,
who has been defaulted for failure to appear. 	See doc. no. 34.
Coleman twice moved for an entry of default judgment against
Cormier, see doc. nos. 37, 47, which the court both times denied
without prejudice, see Sept. 29, 2017 Order (doc. no. 44); Jan.
9, 2018 Order (doc. no. 60). 	Coleman subsequently suggested
that he wished to have Cormier “deleted” from this suit, see
doc. no. 71 ¶ 16, but has not formally sought to dismiss her
under Federal Rule of Civil Procedure 41, see April 3, 2018
Report and Recommendation (doc. no. 82) at 4 n. 2. 	Beyond the
confines of this footnote, the court does not address Coleman’s
claims against Cormier in this Report and Recommendation.
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I. 	Overview of Claims
For the purposes of context, the court briefly summarizes
Coleman’s claims against Dronsfield as alleged in his complaint.
A more comprehensive discussion of these claims can be found in
the undersigned’s April 18, 2017 Report and Recommendation. 	See
doc. no. 19. 	Coleman alleges that in March 2012, his neighbor,
Natasha Cormier, falsely reported to law enforcement that
Coleman was exposing his genitals to her. 	Dronsfield, then a
Sergeant with the Lee Police Department, responded to Coleman’s
residence and confronted Coleman, but did not arrest Coleman at
that time. 	Dronsfield subsequently obtained an arrest warrant
for indecent exposure, and Coleman alleges that Dronsfield lied
in the affidavit he submitted to secure that warrant and
intentionally omitted exculpatory information from the
affidavit. 	Coleman was arrested and prosecuted, but the charges
were ultimately dropped in January 2015. 	Coleman brings
malicious-prosecution claims against Dronsfield under the Fourth
Amendment by way of 42 U.S.C. § 1983 and under state tort law.
II. 	Pending Motions
As noted, there are numerous motions and other filings
currently pending. 	These documents can be separated into six
categories. 	The first comprises Coleman’s initial motion for
summary judgment (doc. no. 70), Dronsfield’s objection (doc. no.
75), Coleman’s “motion to deny” that objection (doc. no. 79),
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and Dronsfield’s response to the “motion to deny” (doc. no. 81).
The second includes Dronsfield’s motion for summary judgment
(doc. no. 76), Colemans’ “motion to deny” that motion (doc. no.
88), Dronsfield’s response to that “motion to deny” (doc. no.
90), and Coleman’s subsequent objection to Dronsfield’s
underlying motion for summary judgment (doc. no. 95). 	The third
is composed of Dronsfield’s motion to strike Coleman’s objection
to Dronsfield’s motion for summary judgment (doc. no. 97),
Coleman’s “motion to deny” that motion (doc. no. 3), and
Dronsfield’s response thereto (doc. no. 105). 	The fourth
consists of Coleman’s motion for amended summary judgment (doc.
no. 102) and Dronsfield’s objection (doc. no. 106). 	The fifth
includes Coleman’s motion to supplement his motion for summary
judgment (doc. no. 113) and Dronsfield’s objection (doc. no.
114). 	The last comprises Coleman’s motion to charge Dronsfield
with perjury, obstruction of justice, and fraud, and to charge
Dronsfield’s former attorney, Matthew Cairns, with subornation
of perjury (doc. no. 100), Dronsfield’s objection (doc. no.
104), Coleman’s “motion to deny” that objection (doc. no. 109),
and Dronsfield’s response to that “motion to deny” (doc. no.
111).
As an initial matter, all of Coleman’s “motions to deny”
are, in substance if not form, responses to the filings he seeks
to have denied. 	The court therefore construes these “motions to
deny” as objections or replies, as may be appropriate, rather
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than as separate motions. 	The court likewise construes
Dronsfield’s responses to those filings as replies or surreplies
rather than separate responses.
Additionally, in deference to Coleman’s pro se status, the
court will consider all of Coleman’s filings, whether timely or
not, when analyzing the respective requests for summary
judgment. 	Thus, for the purposes of the present analysis, the
court construes Coleman’s requests for summary judgment to
consist of his initial motion (doc. no. 70), his subsequent
motion (doc. no. 102), and his recent motion to supplement (doc.
no. 112). 	Similarly, the court considers Coleman’s objection to
Dronsfield’s motion for summary judgment to consist of his
“motion to deny” that motion (doc. no. 88) and his subsequent
objection (doc. no. 95).
As noted, the court also has for consideration Dronsfield’s
motion to strike and Coleman’s motion seeking criminal charges
against Dronsfield and Attorney Cairns. 	As the latter motion
does not directly relate to the merits of the summary-judgment
motions, the court takes it under advisement and will address it
in a separate ruling. 	And because the court concludes that
Dronsfield is entitled to summary judgment even if it considers
the documents subject to the motion to strike, the court need
not reach that motion and instead recommends below that it be
denied as moot.
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In sum, despite the plethora of filings currently pending,
the court is, in essence, presented with cross motions for
summary judgment. 	The court focuses its analysis accordingly.
III. Standard of Review
When analyzing cross motions for summary judgment, the
court applies the same standard to each motion. 	See Fadili v.
Deutsche Bank Nat’l Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a); see also
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). 	“An issue is ‘genuine’ if it can be resolved in favor of
either party, and a fact is ‘material’ if it has the potential
of affecting the outcome of the case.” 	Xiaoyan Tang, 821 F.3d
at 215 (internal quotation marks and citations omitted). 	At the
summary judgment stage, the court “view[s] the facts in the
light most favorable to the non-moving party” and “draw[s] all
reasonable inferences in the nonmovant's favor . . . .” 	Garmon
v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016)
(citation and quotation marks omitted). 	The court will not,
however, credit “conclusory allegations, improbable inferences,
and unsupported speculation.” 	Fanning v. Fed. Trade Comm’n, 821
F.3d 164, 170 (1st Cir. 2016) (citation and quotation marks
omitted) cert. denied, 137 S. Ct. 627 (2017).
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“A party moving for summary judgment must identify for the
district court the portions of the record that show the absence
of any genuine issue of material fact.” 	Flovac, Inc. v. Airvac,
Inc., 817 F.3d 849, 853 (1st Cir. 2016). 	Once the moving party
makes the required showing, “the burden shifts to the nonmoving
party, who must, with respect to each issue on which he would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in his favor.” 	Id.
(citation omitted). 	“This demonstration must be accomplished by
reference to materials of evidentiary quality, and that evidence
must be more than ‘merely colorable.’” 	Id. (citations omitted).
The nonmoving party’s failure to make the requisite showing
“entitles the moving party to summary judgment.” 	Id.
IV. 	Coleman’s Motion for Summary Judgment
Coleman moves for summary judgment on both of his
malicious-prosecution claims. 	He does not, however, attach any
affidavits or other evidence to his summary-judgment filings.
See Fed. R. Civ. P. 56(c)(1). 	Rather, Coleman raises a series
of arguments as to why, in his view, he is entitled to summary
judgment. 	The court addresses each of these arguments in turn.
Coleman first argues that he is entitled to summary
judgment because Judge McCafferty previously concluded, in her
September 29, 2017 Order denying Dronsfield’s motion to dismiss,
that Coleman’s malicious-prosecution claims were not barred by
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res judicata. 	This argument is unpersuasive. 	In that Order,
Judge McCafferty concluded that a previous lawsuit brought by
Coleman in 2012 did not bar his malicious-prosecution claims in
this case because Coleman could not have brought those claims
until January 2015, when the underlying criminal prosecution was
dismissed. 	See 2017 DNH 213, 3-5. 	She reached this conclusion
because termination of criminal charges in the plaintiff’s favor
is an essential element of malicious prosecution under state and
federal law. 	See id. at 4. 	She was not asked to reach the
merits of Coleman’s claims, and she did not do so in her Order.
Her decision therefore cannot reasonably be read to suggest that
Coleman would ultimately prevail on those claims, let alone as a
matter of law. 	As such, the September 29, 2017 Order provides
no basis to enter summary judgment in Coleman’s favor.
In a similar vein, Coleman contends that the court should
enter summary judgment in his favor based on the undersigned’s
April 18, 2017 Report and Recommendation following preliminary
review. 	To this end, Coleman asserts that the undersigned
concluded in that Report and Recommendation that Coleman had
presented sufficient evidence to support his malicious-
prosecution claims. 	Coleman contends that he is entitled to
summary judgment because Dronsfield has failed to meaningfully
counter that evidence.
This argument misapprehends the scope of the court’s
analysis on preliminary review. 	When conducting a preliminary
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review of a complaint, the court focuses solely on whether the
allegations in the complaint, when construed liberally, state a
facially plausible claim for relief. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007); Hernandez-Cuevas v. Taylor, 723 F.3d 91,
102-03 (1st Cir. 2013). 	At no point does the court consider
whether a party has proffered evidence in support of those
allegations. 	Thus, in recommending that Coleman’s malicious-
prosecution claims be allowed to proceed, the court concluded
only that Coleman plausibly alleged those claims, not that
Coleman had presented evidence sufficient to support recovery.
Coleman’s reliance on the April 18, 2017 Report and
Recommendation is therefore misplaced.
Coleman next argues that the court should enter summary
judgment in his favor due to Dronsfield’s egregious conduct
during the course of this litigation. 	This is a recurring
contention in Coleman’s filings, and the court addresses it in
greater detail below. 	See infra pp. 21-22. 	Suffice it for now
to say that even if the relief Coleman seeks were within the
court’s power, but see Fed. R. Civ. P. 56(h), Coleman has not
identified any conduct by Dronsfield that would warrant such a
drastic sanction. 	This argument is accordingly without merit.
Finally, Coleman contends that he is entitled to summary
judgment because Dronsfield unwittingly admitted that Coleman
did not commit indecent exposure as defined under New Hampshire
law. 	In support of this argument, Coleman notes that Dronsfield
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stated in his summary-judgment affidavit that on the day in
question he observed “a small washcloth covering [Coleman’s]
genitals” and that “Coleman was shaved and void of any hair in
his genital area.” 	See doc. no. 77-1 ¶ 5. 	According to
Coleman, this proves that he did not commit the crime of
indecent exposure, because it is only a crime under New
Hampshire law to expose one’s “genitals,” not one’s “genital
area.” 	Coleman asks the court to infer from this fact that
Dronsfield lied in securing the arrest warrant. 	This argument
fails for several reasons.
First, Coleman emphasizes one sentence from Dronsfield’s
summary-judgment affidavit, while ignoring other portions of
that affidavit less favorable to his position. 	For instance,
Dronsfield also states in his affidavit that he observed Coleman
“seated in a lawn chair . . . not wearing any undergarments” and
that Dronsfield “startled” Coleman, causing him to “pull the
right side of the towel over his lap.” 	Id. ¶ 4. 	These
statements, when viewed in the light most favorable to the non-
moving party — at this juncture, Dronsfield — support a
reasonable inference that Dronsfield observed Coleman exposing
his genitals. 	Thus, Dronsfield’s summary-judgment affidavit in
no way conclusively demonstrates that Coleman’s genitals were
not exposed.
Moreover, even were the court to assume that Coleman’s
genitals were covered when Dronsfield first made contact with
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him, nothing in Dronsfield’s summary-judgment affidavit
conclusively demonstrates that Dronsfield lied in securing the
arrest warrant. 	Dronsfield did not submit the affidavit in
support of the arrest warrant in this case; it was signed and
submitted by a Sergeant Brian W. Huppe. 	See doc. no. 77-4 at 3.
And while that affidavit does state that Dronsfield observed
Coleman “exposing his genitals,” see id. ¶ III, Dronsfield’s own
narrative report of his interactions with Coleman on the day in
question mirrors his summary-judgment affidavit nearly verbatim,
compare doc. no. 77-2 at 1 with doc. no. 77-1 ¶ 4-5. 	Thus, even
accepting Coleman’s contention that Dronsfield’s summary-
judgment affidavit is materially different from the statement in
the affidavit supporting the arrest warrant, Coleman has still
failed to point to any meaningful inconsistency in what
Dronsfield personally avers he observed that day.
Coleman is likewise incorrect in his contention that if
Dronsfield did not personally observe Coleman exposing his
genitals, Coleman could not have committed the crime of indecent
exposure. 	Dronsfield represents, in both his narrative report
and his summary-judgment affidavit, that Natasha Cormier
personally observed Coleman exposing his genitals on the day in
question. 	See doc. no. 77-2 at 1; doc. no. 77-1 ¶ 3. 	This is
consistent with Cormier’s own statement to law enforcement. 	See
doc. no. 77-3. 	And the arrest warrant itself specifically
states that Coleman committed the crime of indecent exposure by
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knowingly exposing his genitals “in view of another tenent [sic]
from her kitchen window.” 	Doc. no. 77-4 at 1. 	In light of this
evidence, the court cannot conclude that Dronsfield’s personal
observations necessarily served as the sole basis for Coleman’s
arrest.
Finally, and perhaps most fundamentally, Coleman’s
contention that one must expose one’s genitals to commit
indecent exposure under New Hampshire law is simply wrong. 	As
relevant here, indecent exposure occurs when a person “exposes
his or her genitals, or performs any other act of gross lewdness
under circumstances which he or she should know will likely
cause affront or alarm.” 	N.H. Rev. Stat. Ann. § 645:1, I
(emphasis added). 	Based on this definition, the court would be
unable to conclude as a matter of law that Coleman did not
commit indecent exposure even were the record confined to
Dronsfield’s statements that he observed “a small washcloth
covering [Coleman’s] genitals” and that “Coleman was shaved and
void of any hair in his genital area.” 	The court rejects
Coleman’s argument to the contrary.
“It is . . . a rare case in which the party with the burden
of proof will be entitled to summary judgment.” 	Guardian Angel
Credit Union v. MetaBank, 2011 DNH 111, 22 (Barbadoro, J.).
This is not such a case. 	Coleman has not pointed to an absence
of genuine issues of material fact in the record or otherwise
furthered a compelling argument as to why he is entitled to
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judgment as a matter of law. 	The district judge should
accordingly deny Coleman’s motion for summary judgment (doc. no.
70), motion for amended summary judgment (doc. no. 102), and
motion to supplement his motion for summary judgment (doc. no.
112).
V. 	Dronsfield’s Motion for Summary Judgment
Having concluded that Coleman is not entitled to summary
judgment on his malicious-prosecution claims, the court now must
separately analyze the evidence in the record to determine
whether Dronsfield is entitled to summary judgment on those
claims. 	See Fadili v. Deutsche Bank Nat’l Tr. Co., 772 F.3d
951, 953 (1st Cir. 2014). 	This evidence, taken in the light
most favorable to Coleman, informs the following background.
A. 	Background
On March 7, 2012, Cormier observed Coleman, her neighbor,
from the kitchen window of her residence in Lee, New Hampshire.
Doc. no. 77-3. 	Coleman was wearing a small green wrap around
his waist, but appeared to otherwise be naked. 	Id. 	Coleman sat
in a beach chair with a book and a razor in one hand and a small
hand towel in the other hand. 	Id. 	He then opened the green
wrap and began shaving his genitals. 	Id.
Cormier called the Lee Police Department and reported what
she observed. 	Id.; doc. no. 77-2. 	Dronsfield responded to
Cormier’s apartment, and she informed Dronsfield that Coleman
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was behind the house. 	Doc. no. 77-2. 	Dronsfield walked around
the house and made contact with Coleman near the southeast
corner. 	Id. 	Coleman was sitting on a towel on a lawn chair and
was not wearing undergarments. 	Id. 	Dronsfield startled
Coleman, who pulled the right side of the towel over his lap.
Id. 	Dronsfield asked Coleman was he was doing, and Coleman
replied “nothing.” 	Id. 	Dronsfield asked Coleman why he would
expose himself within view of his neighbors’ windows. 	Id.
Coleman responded that he was not exposing himself and pulled
back the towel from his lap. 	Id. 	Dronsfield observed a small
washcloth covering Coleman’s genitals and that Coleman’s genital
area was “shaved and void of any hair.” 	Id. 	Dronsfield
suggested that Coleman had exposed himself while he was shaving,
and Coleman replied that he “d[id] this all of the time and she
never complained before.” 	Id.
After telling Coleman that he would be in touch, Dronsfield
walked back around the house to speak with Cormier. 	Id.
Cormier indicated that this was not the first time she observed
Coleman exposing himself. 	Id. 	Dronsfield asked Cormier to
provide a statement about her observations and any other similar
incidents involving Dronsfield. 	Id. 	Cormier provided a one-
page statement the following day. 	Doc. no. 77-1 ¶ 7.
Based on Cormier’s statements and his own observations,
Dronsfield believed there was sufficient probable cause to
arrest Coleman for indecent exposure and lewdness, a Class B
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misdemeanor under New Hampshire Revised Statutes Annotated
§ 645:1. 	Id. ¶ 9. 	On March 9, 2012, two days after the
incident, Sergeant Brian W. Huppe of the Lee Police Department
applied for an arrest warrant in the New Hampshire Circuit
Court. 	Doc. no. 77-4.
In support of this application, Huppe submitted an
affidavit describing the events of March 7. 	Id. at 3. 	Huppe’s
description is largely consistent with the above narrative, save
that Huppe averred that Cormier observed Coleman with a towel
around his waist rather than “green wrap” and that when
Dronsfield went around the building, he observed Dronsfield
“sitting on the towel exposing his genitals.” 	Id. ¶¶ II, III.
Based on this affidavit, a justice of the peace issued a
complaint charging Coleman with Class B misdemeanor indecent
exposure and lewdness and a warrant for Coleman’s arrest. 	Id.
at 1, 2. 	On March 10, 2012, Coleman was arrested and
transported to the Lee Police Department, where he was booked
and released on $1,000 personal recognizance bail. 	Doc. no. 77-
5; doc. no. 77-6.
Following legal machinations not relevant to Dronsfield’s
motion, see doc. no. 77-11 at 1-2, the Strafford County
Attorney’s Office entered a nolle prosequi on the Class B
misdemeanor charge (doc. no. 77-8 ¶ 4). 	The county attorney’s
office then refiled the charge via an information as a Class A
misdemeanor in Strafford County Superior Court. 	Id. 	While that
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charge was pending, Coleman was indicted for witness tampering
due to a letter he sent Cormier’s attorney. 	See doc. no. 77-13;
doc. no. 77-12. 	Dronsfield was not involved in the
investigation of the witness-tampering charge. 	Doc. no. 77-9 ¶
6. 	After Coleman rejected a plea negotiated on his behalf by
his attorney, the county attorney’s office entered nolle
prosequis on both charges because Coleman lived outside of the
states from which the county attorney’s office typically
extradited defendants and the county attorney’s office had
concerns regarding Coleman’s mental capacity and competence to
stand trial. 	Doc. no. 77-9 ¶¶ 8-9; doc. no. 77-15; doc. no. 1-
2. This action followed.
B. 	Discussion
Under state and federal law, claims for malicious
prosecution contain similar, but not identical, elements. 	In
New Hampshire, malicious prosecution has four elements: “(1) the
plaintiff was subjected to a criminal prosecution or civil
proceeding instituted by the defendant; (2) without probable
cause; (3) with malice; and (4) the prior action terminated in
the plaintiff’s favor.” 	Farrelly v. City of Concord, 168 N.H.
430, 445 (2015). 	A plaintiff bringing a Fourth Amendment
malicious-prosecution claim under § 1983 must establish that
“the defendant (1) caused (2) a seizure of the plaintiff
pursuant to legal process unsupported by probable cause, and (3)
criminal proceedings terminated in plaintiff’s favor.”
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Hernandez-Cuevas, 723 F.3d at 101 (citations and internal
quotation marks omitted).
Dronsfield raises numerous arguments as to why he is
entitled to summary judgment on both of Coleman’s claims. 	Among
these, Dronsfield contends that the undisputed facts in the
record demonstrate that there was probable cause to arrest
Coleman for indecent exposure on the day in question. 	Because
the court agrees, it limits its inquiry to the probable cause.
1. 	Probable Cause
As noted, lack of probable cause is an element of malicious
prosecution under both state and federal law. 	Probable cause
exists under the Fourth Amendment “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 defendant had
committed or was committing an offense.” 	United States v.
Pardue, 385 F.3d 101, 107 (1st Cir. 2004) (citation omitted).
Similarly, in the context of a state-law malicious-prosecution
claim, “probable cause is defined as such a state of facts in
the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe or entertain an honest and
strong suspicion that the person arrested is guilty.” 	Paul v.
Sherburne, 153 N.H. 747, 749 (2006) (brackets, internal
quotation marks, and citations omitted).
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Dronsfield points to significant record evidence
demonstrating that there was probable cause under either
definition to arrest Coleman for indecent exposure. For
instance, Dronsfield submits evidence demonstrating that Cormier
contacted the Lee Department and reported that on the day in
question she observed Coleman with his genitals exposed shaving
his genital area within view of her kitchen window. 	Dronsfield
further points to evidence demonstrating both that he personally
observed Coleman sitting on a towel on a lawn chair with only a
washcloth covering his genital area and that he personally
observed that Coleman’s groin area appeared to be shaved. 	Even
when viewed in the light most favorable to Coleman, this
evidence supports the conclusion that was probable cause under
both state and federal law to believe that on the day in
question Coleman exposed his genitals or performed another act
of gross lewdness under circumstances which he should have known
would likely cause affront or alarm. 	See N.H. Rev. Stat. Ann.
§ 645:1, I. 	Dronsfield has therefore met his initial burden
under the summary-judgment standard. 	See Flovac, 817 F.3d at
853.
The burden accordingly shifts to Coleman to cite to
“materials of evidentiary quality” demonstrating that “the trier
of fact could reasonably resolve [the probable cause] issue in
his favor.” 	Flovac, 817 F.3d at 853. Coleman has not done so
here. 	As was the case with his own motion for summary judgment,
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Coleman does not attach any affidavits or other evidence to his
objections to Dronsfield’s motion. 	He similarly makes little
meaningful attempt to demonstrate that genuine disputes of fact
exist within the evidence Dronsfield has submitted.
Instead, Coleman largely rests on a general assertion,
present in this case since its inception, that Dronsfield lied
in securing the arrest warrant by falsely stating that he
personally observed Coleman exposing his genitals. 	Once again,
the only evidence Coleman points to in support of this assertion
is the perceived discrepancy between Dronsfield’s summary-
judgment affidavit and the affidavit supporting the application
for the arrest warrant. 	This argument fails for the reasons
stated above: namely, that Huppe, not Dronsfield, applied for
the arrest warrant and prepared the supporting affidavit and
that Dronsfield’s summary-judgment affidavit and his narrative
report from the date of the incident do not conflict. 	In other
words, Coleman has provided no basis to infer that Dronsfield in
any way misled the justice of the peace who issued the arrest
warrant.
This would remain so even if the discrepancy at issue were
somehow attributable to Dronsfield. 	It is well established that
a facially valid arrest warrant creates a presumption of
probable cause that is only overcome by demonstrating that law
enforcement secured the warrant with evidence “that was not to
be believed or appropriately accepted by the officer as true.”
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Hernandez-Cuevas, 723 F.3d at 101 (brackets and internal
quotation marks omitted) (quoting Franks v. Delaware, 438 U.S.
154, 165 (1974)). This requires more than “allegations of police
negligence or innocent mistake”; rather, an officer must have
made statements amounting to “deliberate falsehood or reckless
disregard for the truth” and those statements must have been
“necessary to the . . . probable cause determination.” 	Id.
(ellipsis, internal quotation marks, and brackets omitted)
(quoting Franks, 438 U.S. at 171). There is nothing in the
record to suggest that, even when attributed to Dronsfield, the
discrepancy at issue here was anything more than negligence or
an innocent mistake. 	Additionally, Coleman has failed to
demonstrate that the statement he challenges was somehow
necessary to the probable-cause determination. 	Coleman’s
reliance on this purported discrepancy is therefore unavailing.
Coleman points to no other evidence to support his
assertion that Dronsfield lied in securing the arrest warrant.
Absent evidentiary support, this assertion amounts to nothing
more than unsupported speculation, which cannot defeat summary
judgment. See Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d
307, 313 (1st Cir. 2016). 	Coleman has accordingly not
demonstrated that there is a genuine dispute of fact as to
whether probable cause existed for his arrest. 	As probable
cause is an essential element of both of Coleman’s malicious-
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prosecution claims, the district judge should grant Dronsfield’s
motion for summary judgment on this basis.
2. 	Coleman’s Allegations of Misconduct
As suggested above, Coleman repeatedly alleges in his
filings that Dronsfield and his attorney have engaged in
misconduct throughout the course of this litigation. 	Indeed,
this serves as Coleman’s primary argument as to why he is
entitled to summary judgment (or, at least, why Dronsfield is
not entitled to summary judgment). 	After careful review of all
of Coleman’s filings, however, the court cannot identify any
instance of misconduct during this litigation attributable to
Dronsfield or his counsel. 	Rather, Coleman’s allegations appear
to be rooted in a misunderstanding of this court’s previous
recommendations and rulings in this case and of the adversarial
nature of our judicial system. 	As discussed above, the previous
decisions in this case only determined that Coleman had stated
facially plausible claims for malicious prosecution under state
and federal law, not that he had conclusively proved those
claims. 	See supra pp 7-8. 	And a party does not commit fraud or
perjury merely by taking a position contrary to that of an
opposing party or by asserting facts inconsistent with an
opposing party’s own recollection or understanding. 	In short,
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the court rejects Coleman’s allegations of misconduct by
Dronsfield and his attorney.2
VI. 	Conclusion
Based on the foregoing, the court recommends that the
district judge deny Coleman’s request for summary judgment and
grant Dronsfield’s request for summary judgment. 	To effectuate
this outcome, the court recommends that the district judge:
• 	deny Coleman’s summary-judgment documents (doc. nos.
70, 102, and 112);
• 	grant Dronsfield’s motion for summary judgment (doc.
no. 76);
• 	construe Coleman’s “motions to deny” (doc. nos. 79,
88, and 103) as objections or replies, as may be
appropriate, and terminate them as moot; and
• 	deny Dronsfield’s motion to strike (doc. no. 97) as
moot in light of the disposition of the motions for
summary judgment.
The undersigned takes Coleman’s motion seeking criminal charges
against Dronsfield and Attorney Cairns (doc. no. 100) under
advisement and will issue a ruling under separate caption.
2 Nor are this court’s adverse rulings, past or present,
evidence of bias or partiality, as Coleman appears to suggest.
See United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976).
The court has impartially assessed this case from the outset and
ruled in favor of both parties along the way. 	The court’s
present recommendation is not based on any bias for Dronsfield
or against Coleman, but rather because Dronsfield has marshaled
evidence demonstrating that Coleman’s arrest was supported by
probable cause and Coleman has not countered that evidence with
any of his own.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 16, 2018
cc: 	Richard Coleman, pro se
Charles P. Bauer, Esq.
Matthew Vernon Burrows, Esq.
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