Coleman v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Coleman
v. Civil No. 16-cv-498-LM
New Hampshire et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Richard Coleman’s complaint
(Doc. Nos. 3, 9),2 filed pursuant to 42 U.S.C. § 1983. The case
is before this magistrate judge for preliminary review, pursuant
to 28 U.S.C. § 1915(e) and LR 4.3(d)(2).
Preliminary Review
I. Standard
In determining whether a pro se pleading states a claim,
1Plaintiff has identified the following defendants in this
action: the State of New Hampshire; the Town of Lee, New
Hampshire; the Town of Lee Selectmen; the Lee Police Department
(“LPD”); LPD Chief Chester Murch; LPD Officer Dronsfield, whose
first name is unknown (“FNU”); LPD Officer FNU Lyczak; Strafford
County Attorney Thomas Velardi; Assistant Strafford County
Attorney Kathryn A. Smykowski; Strafford County Grand Jury
Foreperson Sara B. Heuckley; and Natasha Cormier.
2A second case filed by plaintiff, Coleman v. New Hampshire,
No. 16-cv-499-JL, has been consolidated into this case and
closed. The complaint in that case was redocketed in this
consolidated case as Document No. 9.
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the court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a facially plausible claim to relief. Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Coleman asserts that on March 7, 2012, he was confronted in
his backyard in Lee, New Hampshire, by Lee Police Department
(“LPD”) Officer Dronsfield. Dronsfield accused Coleman of
exposing his genitals to Coleman’s neighbor, Natasha Cormier.
Coleman showed Dronsfield that he was wearing two layers of
garments. Coleman states that when Dronsfield confronted him,
Coleman was sitting in a place not visible from Cormier’s
apartment. Dronsfield left without further incident, but later
obtained a warrant for Coleman’s arrest for indecent exposure.
Coleman alleges that to obtain that warrant, Dronsfield
lied in the affidavit he submitted in support of the warrant, by
stating that Dronsfield had found Coleman exposing himself in
the yard on March 7, 2012 when he went to investigate Cormier’s
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report. Coleman further asserts that Dronsfield omitted from
the affidavit exculpatory information, including: Coleman’s
location at the time Dronsfield entered the yard; that Coleman
was wearing two layers of garments when Dronsfield entered the
yard; Cormier’s history of harassing Coleman and calling the LPD
to complain about Coleman, which was known to Dronsfield and
other members of the LPD; and information about Cormier’s
behavior and character that would tend to exculpate Coleman.
Three days later, on March 10, 2012, Dronsfield, LPD Chief
Chester Murch, and LPD Officer Lyszack arrested Coleman on the
warrant Dronsfield had obtained. Coleman was booked at the
police station, where his wallet was searched and its contents
inventoried before Coleman was released on bail later that day.
Coleman was subsequently prosecuted for indecent exposure
pursuant to the allegations made against him on March 7, 2012.
In January 2015, Coleman’s New Hampshire attorney advised him
that the indecent exposure charge had been dropped.
On June 20, 2013, while the indecent exposure charges was
pending, Coleman was indicted by a Strafford County Grand Jury
for witness tampering. The indictment charged that Coleman,
“‘between the SIXTEENTH day of OCTOBER and the THIRTY-FIRST day
of NOVEMBER in the year TWO THOUSAND AND TWELVE, . . . believing
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that an official proceeding was pending, . . . purposely
attempted to induce Natasha Cormier to inform falsely.’” Compl.
(Doc. No. 3), at 18. Coleman alleges that the description of
the offense in the indictment was not sufficiently specific to
allow him to identify what acts of his were alleged to have
constituted criminal witness tampering. In January 2015,
Coleman’s attorney advised Coleman that the witness tampering
charge had also been dropped.
Claims
Coleman asserts the following claims for relief:
1. LPD Officer Dronsfield violated Coleman’s Fourth
Amendment rights:
a. by entering Coleman’s back yard without permission
or a warrant;
b. by providing false information in the affidavit
supporting his application for a warrant for Coleman’s
arrest, and causing Coleman to be arrested on that
warrant, which was based on that false affidavit;
c. by subjecting Coleman to post-arrest/pre-bail
detention pursuant to an arrest that was not
legitimately supported by probable cause; and
d. by causing Coleman to be prosecuted maliciously on
the basis of false information.
2. LPD Officer Lyszack and LPD Chief Chester Murch
violated Coleman’s Fourth Amendment rights:
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a. by arresting Coleman on March 10, 2012, on a
warrant that was obtained using false information and
that therefore was not legitimately supported by
probable cause;
b. by subjecting Coleman to post-arrest/pre-bail
detention pursuant to an arrest that was not
legitimately supported by probable cause;
c. by causing Coleman to be prosecuted maliciously
based on the false information underlying the arrest
warrant.
3. LPD Officer Lyszack violated Coleman’s Fourth
Amendment right not to be subjected to an unreasonable
search of his property when, while booking Coleman at the
LPD on March 10, 2012, Lyszack seized, searched, and
inventoried the contents of Coleman’s wallet, without
probable cause.
4. The State of New Hampshire; the Town of Lee; the Lee
Selectmen; the LPD; LPD Chief Murch; LPD Officers
Dronsfield and Lyszack; and Natasha Cormier are liable to
Coleman for the torts of false arrest, false imprisonment,
malicious prosecution, and fraud, under state law, for
engaging in the alleged conduct underlying Claims 1 – 3
above, and, as to Cormier, for making false statements to
LPD Officer Dronsfield that led to Coleman’s arrest.
5. The State of New Hampshire; the Town of Lee; the Lee
Selectmen; the LPD; LPD Chief Murch; LPD Officers
Dronsfield and Lyszack; and Natasha Cormier conspired to
violate Coleman’s Fourth Amendment rights, and to commit
the torts of false arrest, false imprisonment, malicious
prosecution, and fraud, by engaging, or agreeing to engage,
in the conduct underlying Claims 1 – 4, above.
6. The State of New Hampshire; Strafford County Attorney
Thomas Velardi; Assistant Strafford County Attorney Kathryn
A. Smykowski; and Sara B. Heuckley, foreperson of the
Strafford County Grand Jury sitting on June 20, 2013,
obtained and/or issued an indictment against Coleman on
June 20, 2013 for witness tampering that did not give
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Coleman notice of the conduct upon which the charge against
him was based, in violation of Coleman’s:
a. Sixth Amendment right to a fair trial and to
confront the evidence against him; and
b. Coleman’s Fourteenth Amendment due process right to
notice of the charges against him.
IV. Discussion
A. Claims Related to March 2012 Arrest and Search
The statute of limitations for § 1983 claims arising out of
events occurring in New Hampshire is three years. See Gorelik
v. Costin, 605 F.3d 118, 121 (1st Cir. 2010); see also N.H. Rev.
Stat. Ann. (“RSA”) § 508:4. Federal law determines when the
statute of limitations begins to run. See Gorelik, 605 F.3d at
121. In “a section 1983 case, a claim ordinarily accrues,” and
the statute begins to run, “‘when the plaintiff knows, or has
reason to know, of the injury on which the action is based.’”
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d
1, 6 (1st Cir. 2005) (citation omitted). The same rules apply
to the analogous state law tort claims. See McNamara v. City of
Nashua, 629 F.3d 92, 95 (1st Cir. 2011) (discovery rule governed
accrual date for plaintiff’s state law tort claims).
For Fourth Amendment claims of false arrest or false
imprisonment, where the charges were later dropped or dismissed,
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the limitations period begins to run “at the time the claimant
becomes detained pursuant to legal process.” Wallace v. Kato,
549 U.S. 384, 388-89 (2007). “Where an individual is arrested
pursuant to a judicial warrant,” as in this case, “the
individual “becomes held pursuant to legal process at the moment
of arrest.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102 n.9
(1st Cir. 2013). The limitations period began to run on
Coleman’s claims asserting false arrest or false imprisonment on
the date of his arrest, March 10, 2015. The three-year
limitations period expired, therefore, on March 10, 2015.
Coleman filed his complaint in this case in the Eastern District
of North Carolina on February 1, 2016, more than ten months
after that deadline, rendering those claims untimely.3
The same dates for statute of limitations purposes apply
to: Coleman’s claims that Dronsfield violated his Fourth
Amendment rights by entering his backyard without a warrant on
3This consolidated case was initially filed as two separate
cases in the Eastern District of North Carolina, where Coleman
lives. That court transferred both cases, to this court, after
finding that venue was proper in the District of New Hampshire.
See Coleman v. State of N.H., No. 2:16-CV-3-FL, Order & Mem. &
Recom. (E.D.N.C. Oct. 26, 2016) (ECF No. 2), adopted by Order
(E.D.N.C. Nov. 14, 2016) (ECF No. 4); Coleman v. State of N.H.,
No. 2:16-cv-53-FL, Order & Mem. & Recom. (E.D.N.C. Oct. 26,
2016) (ECF No. 4), adopted by Order (E.D.N.C. Nov. 14, 2016)
(ECF No. 6).
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March 10, 2012; his claims that his wallet was illegally seized
and searched at the LPD; and his state law tort claims,
identified here as Claim 4, arising out of those events, as
plaintiff knew or had reason to know of the injuries relating to
the conduct on underlying those claims on March 10, 2012, more
than three years before he filed this action. Accordingly, the
court should dismiss, as untimely, Coleman’s Fourth Amendment
illegal search, privacy, false arrest, false imprisonment, and
wallet-related claims, identified in this Report and
Recommendation as Claims 1(a); 1(b); 1(c); 2(a); 2(b); 3; and 4
(to the extent Claim 4 is premised on the conduct underlying
Claims 1(a), 1(b), 1(c), 2(a), 2(b), and 3).
B. Malicious Prosecution
1. Police Officers
Coleman asserts malicious prosecution claims arising under
the Fourth Amendment and state tort law against defendant LPD
Officers Dronsfield, Murch, and Lyszack. Under New Hampshire
law, “[t]he four elements of a claim for malicious prosecution
are: (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
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Concord, 168 N.H. 430, 445 (2015). Similarly, “a plaintiff may
bring a suit under § 1983 ... [for a Fourth Amendment malicious
prosecution claim] if [he] can 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.’” Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (citation omitted).
In general, “an arrest is lawful if the police officer has
probable cause.” Holder v. Town of Sandown, 585 F.3d 500, 504
(1st Cir. 2009) (citation omitted). Because Coleman was
arrested on a warrant, the court focuses its inquiry on whether
Dronsfield, acting with intentional or reckless disregard for
the truth, made a false statement of fact in the arrest warrant
affidavit that was material to the finding that there was
probable cause for the warrant to issue. See Hernandez-Cuevas,
836 F.3d at 126.
At this stage in the proceedings, and without the affidavit
in question to review or additional facts regarding the
conditions of Coleman’s post-arraignment release,4 the court
4Cf. Harrington v. City of Nashua, 610 F.3d 24, 32–33 (1st
Cir. 2010) (“standard conditions of pretrial release” do not
rise to level of Fourth Amendment seizure, unless accompanied by
showing that plaintiff was also “detained after the initiation
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cannot preclude the possibility that Dronsfield made a false
statement in the warrant affidavit that was material to the
finding of probable cause, that the prosecution of Coleman on
indecent exposure charges was not also based on that false
statement; and that Coleman’s post-arraignment release
conditions were not a “seizure” for Fourth Amendment purposes.
Accordingly, in an Order issued simultaneously with this Report
and Recommendation, the court directs service of the malicious
prosecution claim asserted against Dronsfield, identified herein
as Claim 1(d), and Claim 4, to the extent it is premised on the
conduct alleged in Claim 1(d).
Coleman has also asserted malicious prosecution claims
against Murch and Lyszack for effecting Coleman’s arrest
pursuant to the warrant that Coleman alleges was obtained by
Dronsfield’s false statement. Coleman has not asserted facts to
suggest that either Murch or Lyszack made, or had knowledge of,
the false statements in the warrant affidavit. Accordingly,
Coleman’s malicious prosecution claims against Murch and
Lyszack, identified as Claim 2(c) in this Report and
of the criminal charge, forced to post a pecuniary bond,
subjected to travel restrictions, or otherwise burdened with any
significant deprivation of liberty”).
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Recommendation, and Claim 4, to the extent that claim concerns
the conduct alleged in Claim 2(c), should be dismissed.
2. Cormier
Coleman has also asserted malicious prosecution claims
against Cormier for falsely reporting to the LPD that Coleman
exposed himself to her, which led to Coleman’s arrest and
prosecution. The court can reasonably infer from the complaint
that Coleman is asserting that Cormier acted with the intent
that Coleman be prosecuted. The complaint asserts minimally
sufficient facts to assert a malicious prosecution claim based
on state tort law against Cormier, and the court will direct
that Cormier be served with that claim in an Order issued
simultaneously with this Report and Recommendation.
To the extent Coleman intends to assert a Fourth Amendment
malicious prosecution claim against Cormier, however, the claim
should be dismissed. Cormier is a private actor, and the
allegations in the complaint, including Coleman’s assertion that
Cormier, in March 2010, was a former LPD officer, are
insufficient to warrant treating Cormier as a state actor for
purposes of this action. See Blum v. Yaretsky, 457 U.S. 991,
1002 (1982) (Fourteenth Amendment “‘erects no shield against
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merely private conduct, however discriminatory or wrongful’”
(citation omitted)).
C. Conspiracy
Even construed liberally, Coleman’s complaint, stripped of
legal conclusions, fails to assert facts sufficient to support a
conspiracy between the defendants in this case. Accordingly,
Claim 5 should be dismissed.
D. Claims Related to 2013 Witness Tampering Indictment
Coleman has sued the State of New Hampshire, two Strafford
County prosecutors, and the foreperson of the Strafford County
grand jury that returned the witness tampering indictment
against him in 2013, alleging that they violated his rights by
issuing and/or obtaining and prosecuting an indictment that was
not sufficiently specific to protect his Sixth and Fourteenth
Amendment rights. Each of these entities is immune from suit.
The State of New Hampshire is protected from suits for
damages by the Eleventh Amendment. See Davidson v. Howe, 749
F.3d 21, 27-28 (1st Cir. 2014). Prosecutors are entitled to
absolute immunity from claims arising out of their
“prosecutorial actions that are ‘intimately associated with the
judicial phase of the criminal process.’” Van de Kamp v.
Goldstein, 555 U.S. 335, 341 (2009) (quoting Imbler v. Pachtman,
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424 U.S. 409, 430 (1976)). The defendant prosecutors are
absolutely immune from a suit for damages for the actions that
form the basis of Coleman’s claims against them, as set forth in
Claim 6 in this Report and Recommendation. Finally, like
prosecutors, grand jurors are protected by absolute immunity
because of their association with the judicial process. See
Runyon v. Lee, No. 12-CV-290-PB, 2013 WL 885947, at *6 (Feb. 14)
(citing Imbler, 424 U.S. at 438), R&R approved, 2013 WL 886302
(D.N.H. Mar. 8, 2013). Accordingly, Claim 6, asserted against
defendants who are immune from suit, should be dismissed.
Conclusion
For the foregoing reasons, all claims and defendants in
this action except for Claims 1(d) and 4 against defendant
Dronsfield and Claim 4 against defendant Cormier should be
dismissed from this case. 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
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(1st Cir. 2016); Fed. R. Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 18, 2017
cc: Richard Coleman, pro se
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