Zinicola v. Mott MacDonald, LLC et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Matthew Zinicola
v. 	Case No. 16-cv-542-JL
Opinion No. 2018 DNH 082
Mott MacDonald, LLC, et al.
MEMORANDUM OPINION
This removed case stems from a planned natural gas pipeline
project in southern New Hampshire and a verbal confrontation
between pipeline opponent Matthew Zinicola and a project
surveyor. 	The confrontation led to Zinicola's local arrest for
felonious criminal threatening.1 	The criminal prosecution was
terminated approximately seven months later when the court
entered a conditional dismissal. 	Zinicola sued the companies
constructing the pipeline, Kinder Morgan Energy Partners, L.P.
and Tennessee Gas Pipeline Co., LLC (collectively "Kinder
Morgan"),2 the contractor retained to conduct field operations,
Hatch Mott MacDonald ("HMM"), the surveyor, David Shirley, the
arresting officer, Lt. Sean Cavanaugh and his employer, the Town
of New Ipswich, N.H. 	He asserts state-law claims of malicious
prosecution, intentional infliction of emotional distress and
violation of the New Hampshire Constitution. 	Zinicola also avers
1 See N.H. Rev. Stat. Ann. ' 631:4.
2 These two defendants are subsidiaries of Kinder Morgan, Inc.,
and refer to themselves collectively in their pleadings. 	The
court will do the same.
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that his arrest and prosecution give rise to liability under 42
U.S.C. ' 1983 for violations of his federal constitutional rights
under the First and Fourth Amendments and the New Hampshire
Constitution. 	Jurisdiction is based on 28 U.S.C. ' 1331 (federal
question); see also 28 U.S.C. ' 1441 (removal).
All defendants have moved for summary judgment. 	Fed. R.
Civ. P. 56. 	With respect to plaintiff's malicious prosecution
claim,3 the private defendants argue that the undisputed material
facts prove that there was probable cause for his arrest, that
the criminal proceedings did not terminate in Zinicola's favor,
and that they did not act with the requisite malice. 	Lt.
Cavanaugh argues that the existence of probable cause is fatal to
the constitutional claims asserted against him. 	The defendants
also argue that the undisputed facts establish no conduct
sufficient to support a claim for intentional infliction of
emotional distress. 	After reviewing the parties' written
submissions and conducting oral argument, the courts finds that
3 In Count 1, Zinicola asserts a state-law malicious prosecution
claim against Shirley, HMM and Kinder Morgan. 	In Count 4,
Zinicola invokes 42 U.S.C. ' 1983 and alleges that Lt. Cavanaugh,
acting under color of state law, is also responsible for his
unlawful, in violation of his constitutional rights. Plaintiff
withdrew a defamation claim following oral argument on Kinder
Morgan's motion to dismiss, which the court denied from the
bench. 	See Endorsed Order, May 17, 2017. 	Plaintiff also
withdrew Fifth and 14th Amendment claims against Lt. Cavanaugh
and constitutional claims against the Town of New Ipswich at oral
argument on the instant motion.
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there are no genuine issues of material fact and the defendants
are entitled to summary judgment on all counts.4
I. 	Applicable legal standard
Summary judgment is appropriate when the record reveals "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).
When ruling on a motion for summary judgment, the court
"constru[es] the record in the light most favorable to the
nonmoving party and resolv[es] all reasonable inferences in that
party's favor." 	Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301
(1st Cir. 2014). 	In the summary judgment analysis, "a fact is
'material' if it has the potential of determining the outcome of
the litigation." 	Maymi v. P.R. Ports. Auth., 515 F.3d 20, 25
(1st Cir. 2008). 	A factual dispute is genuine "if the evidence
about the fact is such that a reasonable jury could resolve the
point in the favor of the non-moving party." 	Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citation and
internal quotation marks omitted). 	Nevertheless, if the
nonmoving party's "evidence is merely colorable, or is not
significantly probative," no genuine dispute as to a material
fact has been proved, and "summary judgment may be granted."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249B50 (1986)
4 Lt. Cavanaugh also argues that he is entitled to qualified
immunity. 	In light of the court's findings herein, it does not
reach that defense.
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(citations omitted). 	With these guideposts in mind, the court
turns next to the facts of record, which are undisputed unless
otherwise noted.
II. 	Background
In 2014, defendants began work on what was known as the
Northeast Energy Direct project, a natural gas pipeline with
related infrastructure that was to be constructed along New
Hampshire's southern border. 	Kinder Morgan contracted with HMM
to conduct field operations that included survey work. 	The
project met with local resistance.5
At the time of the incident that gives rise to this lawsuit,
Shirley was employed by HMM as a surveyor.6 	He was part of a
three-man crew surveying land in New Ipswich. 	The property where
Shirley and his crew were working was under consideration as a
potential site for a compressor station.7
On September 8, 2015, Shirley and two surveying colleagues
were working near power lines just west of Route 45 in New
Ipswich.8 	They had arrived there in two vehicles, each of which
5 Complaint, doc. no. 1-1, at && 13-15.
6 Shirley Dep., doc. no. 39-3, at 32.
7 Id. at 10-14.
8 Id.
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was parked under the power lines to the west of Route 45.9
Haggerton and Hogg=s vehicle was closer to Route 45 than
Shirley=s, which was parked further along the access road along
the power lines.10 	At around 1:30 p.m., the men returned to
their vehicles to leave the area.11
Around this time, the Plaintiff was heading north on Route
45. 	As he reached the power lines, the Plaintiff saw the
Haggerton/Hogg car.12 	Believing that people associated with the
vehicle were trespassing, Zinicola pulled over on the east side
of Route 45, got out of his car and crossed the road to take
pictures of the surveyors' car. 	One of the other surveyors saw
Zinicola and told Shirley. 	The two other surveyors then drove
away from the scene. 13 	Shirley got in his own car and started to
drive down the access road, turning right when he reached Route
45.14
At this point the stories diverge. 	According to Shirley, he
slowed along Route 45 to take a picture of Zinicola's license
9 Route 45 cuts through the northeast corner of New Ipswich,
running roughly north-south. The power lines cross Route 45 at a
perpendicular. 	Affidavit of Chief Timothy Carpenter, doc. no 37-
4, &4.
10 Shirley Dep., doc. no. 39-3, at 32.
11 Id. at 18.
12 Zinicola Dep., doc. no. 37-3, at 10.
13 Id. at 14-15.
14 Shirley Dep., doc. no. 39-3, at 23-24.
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plate through a rolled-down window and told Zinicola he was doing
so.15 	Shirley testified in his deposition that Zinicola walked
toward Shirley's car and yelled, "Wait, I'm coming back with my
AR-15."16 	Zinicola claims that when he heard Shirley's car
approaching Route 45, he retrieved a "no pipeline" sign from the
back of his car, intending to display it to Shirley. 17 	He
asserts that he essentially told Shirley to stop trespassing on
private property. 18 	He also claims that he was holding the sign
when Shirley took the photo, but Shirley denies seeing a sign and
Zinicola is not holding one in a photo Shirley took. 19
Zinicola denies making that particular statement about the
gun and claims that Shirley "accelerated [towards him] in an
aggressive manner" with his car. 20 	Zinicola initially denied to
making any gun-related comment to Shirley, but later stated in
his Complaint, interrogatory answers and deposition that he asked
Shirley whether he would take Zinicola's sign seriously "'if I
were standing here protecting my property with my AR rifle,' or
words to that effect." 21
15 Id. at 23.
16 Id. at 24.
17 Zinicola Dep., doc. no. 39-2, at 17-19.
18 Id., at 25.
19 Shirley Dep., doc. no. 39-3, at 35; photograph, doc. no 39-9.
20 Zinicola Dep., doc. no. 39-2, at 28.
21 Complaint, doc. 1-1, & 24.
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Immediately following this encounter, both men drove to the
nearby Temple/Greenville Police Department, as they assumed the
incident occurred in Greenville. 22 	Shirley testified at his
deposition that he went to the police station because he felt
threatened by Zinicola's "AR" comment. 23 	Zinicola intended to
report Shirley's surveying crew's alleged trespass. 24 	The two
men spoke to the Greenville police separately. 	Shirley told the
officer that he had been threatened. 	The officer asked Shirley
if he had seen a gun. Shirley said he had not. 	The officer told
Shirley that he did not consider it a threat because he had not
seen a gun. 25 	Eventually both men were informed that the
incident actually took place in New Ipswich, and would have to be
reported there. 26
Zinicola then went directly to the New Ipswich Police
Department, where he spoke with the department=s administrative
assistant.27 	He reported that he had seen a vehicle at the power
lines on Route 45, which he believed might have been connected to
22 Zinicola Dep., doc. no. 39-2, at 28-29, 61; Shirley Dep., doc.
no. 39-3, at 63.
23 Shirley Dep., doc. no. 39-3, at 126.
24 Zinicola Dep., doc. no. 39-2 at 61-62.
25 Shirley Dep., doc. no. 39-3, at 69-69, 76.
26 Id. at 81.
27 Zinicola Dep., doc. no. 39-2, at 70.
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trespassing. 28 	He claims that Lt. Sean Cavanaugh was present
during this conversation with the assistant and interrupted him,
stating that they would not be looking into the matter any
further unless they heard from the property owner. 29 	Zinicola
did not make any mention of any threatening action by Shirley
towards him, recalling that he "didn=t even think about that
issue."30
Shirley did not go immediately to the New Ipswich police,
instead driving to Springfield, MA to attend to his elderly
mother.31 	He called the New Ipswich police department, however,
to report what happened, inform them that he would be in
following day, and that his surveying crew would now need a
police detail. 32 	He met with defendant Lt. Cavanaugh at the New
28 Id.
29 Id.
30 Id. at 71.
31 Shirley Dep., doc. no. 39-3, at 82. 	Plaintiff suggests that
Shirley's decision not to go directly to New Ipswich is somehow
inconsistent with what Shirley describes as a threat. 	See, e.g.,
Pltff. Obj., doc. no. 41-1, at 4-5 ("Then after this event, Mr.
Shirley drove to [Greenville] to report it, but did not drive
three miles away to report it at [NIPD] . . .; instead he drove
to his mother's house in Springfield."). 	Plaintiff supports this
assertion with a reference to page 83 of Shirley's deposition,
where Shirley agrees with that chronology. 	However, Plaintiff's
implication is undercut by Shirley's reference to his mother "not
doing well" on the preceding page. 	Given the full context of
Shirley's deposition testimony, the court draws no negative
inference from Shirley's decision to call the New Ipswich
Department on the day of the incident, and appear there the next
day.
32 Police report, doc. no. 39-4.
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Ipswich police department the next morning. 33 	Shirley told Lt.
Cavanaugh that while surveying at the power lines by Route 45, an
individual was taking pictures of one the employee vehicles. 34
Shirley said that he took a picture of the person, who then said,
"Wait for me while I go get my AR-15." 35 	Shirley described the
man=s tone as 'threatening' and stated that he appeared upset. 36
Lt. Cavanaugh asked if Shirley himself felt threatened, and
Shirley responded that he did. 37 	Shirley added that it was
serious enough to him that they were now requiring a police
detail at the site. 38 	Shirley showed him the photograph he had
taken, which Lt. Cavanaugh recognized as Zinicola. 39 	Shirley
provided a written statement, in which he stated that Zinicola
told him to "wait for him while he goes and gets his AR-15." 	He
33 Shirley Dep., doc. no. 39-3, at 36-37, 45.
34 Cavanaugh Dep., doc no. 37-9, at 71, 75.
35 Id. at 80.
36 Id. at 90.
37 Id. at 90, 94.
38 Id. at 92.
39 Id. at 102; doc. no. 37-10. 	Shirley testified that he took
one photograph and was uncertain whether he showed it to Lt.
Cavanaugh. 	Shirley Dep. doc. 39-3 at 45. 	He also said that he
might have shown it to Lt. Cavanaugh "to show the license plate,"
but was "not positive." 	Id. at 46. 	Lt. 	Cavanaugh testified
that Shirley showed him two pictures B one of Zinicola and one of
the car. 	Cavanaugh dep., doc 42-6, at 102. 	The photograph
entered into evidence showed both Zinicola and his vehicle. Doc.
no. 37-10.
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again described the Plaintiff as 'threatening and upset' to the
point that they now wanted a police detail daily. 40
Approximately one week later, Zinicola, at Lt. Cavanaugh's
request, met Lt. Cavanaugh at the police station to discuss the
incident.41 	During this meeting, Zinicola denied making a verbal
threat involving a gun, and further denied saying "anything about
a gun."42 	Zinicola claims that during his conversation with Lt.
Cavanaugh, the officer told him "they're pushing for a felony
because they're pissed about spending extra money on security
details." 43 	Lt. Cavanaugh denies saying that to Zinicola. 44 	At
some point during their conversation, Lt. Cavanaugh asked
Zinicola if he owned an AR-15. 	Zinicola admitted that he did. 45
Lt. Cavanaugh had not told, and did not tell, Zinicola that
Shirley reported the threat as involving that particular firearm.
40 Id. at 117; Shirley Stmt., doc. no. 39-11; Shirley Dep., doc.
no. 39-3, at 28
41 Zinicola Dep., doc. no. 39-2, at 177.
42 Id. at 50, 54, 182.
43 Id. at 49.
44 Cavanaugh Dep., doc. no. 39-16, at 133.
45 Zinicola Dep., doc. no. 39-2, at 49-50.
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Like Shirley, Zinicola provided a written report of the
encounter with Shirley. 46 	He stated that Shirley drove out onto
Route 45 and began to take photos or video of him. 47 	He
continued, "I shouted to him 'We better not find you illegally
trespassing on land you shouldn=t be on.'" 48 	He added, "At that
point in time, the vehicle veered toward me aggressively and left
at a high rate of speed" and that he (Zinicola) then drove to the
Greenville police station. 49
Zinicola's written statement lacks any reference to the AR-
15 question he admits posing to Shirley in his Complaint.
Zinicola blames the omission on a lack of recall at the time. 50
Although he claims that he remembered making the rifle reference
to Shirley two days after meeting with Lt. Cavanaugh, he concedes
that he made no attempt to correct his written statement. 51 	Most
recently, Zinicola claims that he "misquot[ed]" himself in his
written statement. 52 	He instead asserts that he actually made
two comments to Shirley, first saying, "We better not find you
illegally trespassing on land you shouldn=t be on" and, after
46 Zinicola Stmt., doc. no. 37-12.
47 Id.
48 Id.
49 Id.
50 Zinicola Dep., doc. no. 39-2, at 57-58.
51 Id. at 46-48, 58, 188-91.
52 Id. at 46.
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Shirley "accelerated towards him," asking Shirley "What would it
take for you to take these signs seriously? 	Would I have to be
standing there with my AR-15." 53 	The latter two statements are
consistent with the allegations in the Complaint. 54
Lt. Cavanaugh subsequently prepared a Criminal Complaint
charging Zinicola with criminal threatening in violation of N.H.
Rev. Stat. Ann. ' 631:4. 55 	He also prepared an affidavit in
support of an arrest warrant, attached to which were the
statements of Shirley and Zinicola. 56 	Lt. Cavanaugh submitted
the documents to the Eighth Circuit, District Division Court in
Jaffrey, and Judge Runyon of that court issued the arrest
warrant.57 	Zinicola turned himself in. 58 	A bail commissioner set
bail at personal recognizance and included as a condition of bail
that the Plaintiff have no contact with Hatch Mott & McDonald or
contractors or employees of Kinder Morgan. 59 	Trial was scheduled
for April 2016. 60
53 Id. at 27-28
54 Complaint, doc. 1-1, && 23-24.
55 Doc. no. 37-13.
56 Doc. no. 37-14.
57 Doc. no. 37-15.
58 Id., &35.
59 Doc. no. 37-16.
60 Doc. no. 37-17.
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In December 2015, Zinicola=s criminal defense attorney moved
for what is known in New Hampshire criminal practice as a
"Richards hearing," 61 claiming that Shirley had given a
"conflicting account" about the incident to the Greenville and
New Ipswich police, and therefore would be subjected to criminal
liability if he were called to testify in Zinicola=s criminal
trial. 	Prosecutor Michael Beausoleil disagreed, telling defense
counsel that "he did not see a Richards issue, or even
dishonesty." 62 	Thereafter, Zinicola=s lawyer and Beausoleil
discussed resolving the case. 63 	The charge against Zinicola was
subsequently resolved by a "conditional nolle prosequi" on April
26, 2016.64 	The conditional nolle prosequi agreement, signed by
the prosecutor and Zinicola's criminal attorney, contains the
notation "So ordered" above Judge Runyon's signature, and was
61 Doc. no. 39-17. 	See State v. Richards, 129 N.H. 669 (1987)
(purpose of hearing is to determine whether an individual's
Atruthful and complete response might be incriminating[.]@); see
also, Richard B. McNamara, New Hampshire Practice: Criminal
practice and Procedure, 5th ed. ' 28.18[4] ("Where a witness
called by a defendant declines to testify, claiming the privilege
against self-incrimination, the trial court must hold a hearing
to consider the question and make a determination as to whether
the claim of privilege is well taken.").
62 Id. at 7-8.
63 Doc. no. 39-19.
64 Case summary, doc. no. 39-20; Agreement, doc. no. 46-3.
"Nolle Prosequi" translates from Latin as "does not wish to
prosecute." Richard B. McNamara, New Hampshire Practice: Criminal
practice and Procedure, 5th ed. ' 28.18[4]. 	The entry of a nolle
prosequi serves as the functional equivalent of a dismissal;
thereafter, the case is no longer pending. 	State v. Allen, 150
N.H. 290, 292 (2003).
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stamped and dated by the Clerk of Court. 65 	Under the terms of
the agreement, Zinicola was required to maintain good behavior
(essentially, commit no crimes) for one year, otherwise the
criminal complaint would be reinstated. 66
A few months later, Zinicola filed suit in Hillsborough
County Superior Court. 	Defendants timely removed the case to
this court.
III. 	Analysis
A. 	Malicious prosecution
In Count 1, Zinicola alleges that Shirley, HMM and Kinder
Morgan tortiously instituted criminal charges against him.
Zinicola's claim for malicious prosecution requires proof that:
"(1) he 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
his favor." 	Ojo v. Lorenzo, 164 N.H. 717, 727 (2013).
Zinicola's claim satisfies neither the termination nor probable
cause elements.
65 Agreement, doc. no. 46-3. 	At oral argument, plaintiff's
counsel conceded that the lack of Zinicola's signature on the
Agreement has no bearing on the outcome of the pending motions.
66 Id.
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1. 	Termination in plaintiff's favor
As previously noted, it is undisputed that Zinicola's
prosecution for criminal threatening was terminated with the
entry of a conditional nolle prosequi agreement. 	The New
Hampshire Supreme Court has written extensively on the effect of
a nolle prosequi on a subsequent malicious prosecution case,
noting that whether a prior nolle prosequi is a "termination in
plaintiff's favor" depends on "whether the entry was procured by
the plaintiff or was made in consequence of a compromise to which
he was a party. 	If it was caused in either of these ways, it was
not such a termination of the case as will support [a malicious
prosecution] action . . . ." 	Lamprey v. H.P. Hood & Sons, 73
N.H. 384, 385 (1905) (emphasis added) (citing Woodman v.
Prescott, 66 N.H. 375 (1891)). 	The Court later elaborated:
By the overwhelming weight of authority, where the
prior proceeding was ended by a compromise or
settlement, voluntarily and understandingly consummated
by the accused, there is not such a favorable
termination as will support the action. . . . To show a
termination in his favor, the plaintiff must prove that
the court passed on the merits of the charge or claim
against him under such circumstances as to show his
innocence or nonliability, or show that the proceedings
were terminated or abandoned at the instance of the
defendant under circumstances which fairly imply the
plaintiff's innocence. 	Thus, if the complaint is
dismissed either by reason of insufficient evidence or
because the complaining witness fails to appear or
abandons the prosecution . . . the proceedings have
terminated in the plaintiff's favor. 	The result is the
same if there is a voluntary dismissal by the
prosecutor or an entry of a nolle prosequi when done
without the plaintiff's procurement. . . . Several
cases state or imply that if the accused has consented
to or procured the nol. pros. a cessation of the
prosecution will not be such a termination of the
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proceedings as will enable him to bring him an action
for malicious prosecution.
Robinson v. Fimbel Door. Co., 113 N.H. 348, 350-51 (1973)
(emphasis added) (internal citations and quotations omitted).
The Court in Robinson ultimately reversed the trial court's
denial of a nonsuit because the evidence "conclusively
established that the nolle prosequi was the result of a
compromise or settlement between the plaintiff and the defendant,
conditioned upon the plaintiff's agreement" to return certain
equipment he was accused of stealing to the defendant. 	Id. at
350. 	The court concluded that "a plaintiff cannot prevail in a
malicious prosecution action under these circumstances." 	Id.
The same reasoning applies here. 	The conditional nolle
prosequi agreement is conditioned upon Zinicola's agreement to
engage in "good behavior" for one year. 67 	There is no indication
that it represents any expression of his "innocence or
nonliability." 	Robinson, 113 N.H. at 351. 	In addition to the
substance of the agreement, the undisputed record shows that the
agreement was "procured" by the plaintiff, as it was the product
of negotiation between the prosecutor and Zinicola's defense
attorney.68 	On March 24, 2016, Prosecutor Beausoleil offered a
Conditional Nolle Prosequi based on a condition of two years of
67 Agreement, doc. no. 46-3.
68 Email thread, doc. no.41-29.
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good behavior and no contact with David Shirley. 69 	The same day,
defense counsel replied that a one year condition "would be an
easier sell" to his client, Zinicola. 70 	The next day, defense
counsel said that "Mr. Zinicola accept [sic] the conditional nol
pros" and also indicated his desire to file an annulment of the
arrest.71 	The final communication from defense counsel in the
record occurred approximately a week later, when he informed the
prosecutor that Zinicola "is expressing reservations about
entering the conditional nolle prosequi agreement." 72 	Defense
counsel signed the agreement on April 26, 2016, the same day it
was signed by the judge and entered on the court docket. 73
Plaintiff responds with three arguments, all of which are
incorrect factually, legally, or both. 	He argues first that
Robinson is not dispositive because the nolle prosequi agreement
entered in his case was not obtained through a compromise, and
second that it contains no conditions because the requirement of
committing no crimes "attaches to any New Hampshire citizen." 74
At oral argument, he also posited for the first time that
Robinson requires that a conditional nolle prosequi obligate the
69 Doc. no. 41-29, at 5; proposed agreement, doc no. 38-18.
70 Id. at 4.
71 Id. at 3.
72 Id. at 2.
73 Docket, doc. no. 37-17.
74 Pltff. Mem., doc. no. 41-1, at 20.
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criminal defendant to perform some type of "affirmative act" to
be considered a non-favorable termination. 75 	The court addresses
these arguments in reverse order.
First, neither Robinson nor any case of which the court is
aware requires an "affirmative act." 	It is true that in Robinson
the criminal defendant was required to return allegedly stolen
goods as a condition of the nolle prosequi. 	113 N.H. at 349-50.
But there is nothing in that case's holding or reasoning that
makes such an "affirmative act" a requirement, nor has the
plaintiff brought any such cases to the court's attention.
Indeed, Robinson relies in part on the seminal New Hampshire case
on this issue, Woodman v. Prescott, 66 N.H. 375 (1891), which
held, in a matter of first impression in New Hampshire, that "if
[plaintiff] has terminated the suit by paying what was demanded,
(unless the payment was made under duress) . . . or by
compromise, he cannot be admitted to say that the action was
commenced without probable cause, and consequently cannot have an
action for malicious prosecution." 	Id. at 375 (emphasis added).
The Court concluded that "if the proceeding has been terminated
in the plaintiff's favor, without procurement or compromise on
his part, in such a manner that it cannot be revived, it is a
75 The court does not ordinarily consider arguments raised for
the first time at oral argument. 	See Doe v. Friendfinder
Network, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H. 2008).
Given the relatively late discovery of the actual nolle prosequi
agreement, however, the court will consider plaintiff's newly-
raised argument.
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sufficient termination to enable him to bring an action for a
malicious prosecution." 	Id. at 377 (emphasis added). 	The
express terms of Zinicola's agreed-to disposition provided that
it could be revived, and what circumstances would trigger such
revival. 	Accordingly, the court rejects plaintiff's putative
"affirmative act" requirement.
But even if that argument had some merit, Zinicola's
conditional nolle prosequi satisfies the requirement, as Zinicola
is obligated to perform the "affirmative act" of engaging in good
behavior for one year. 	Contrary to plaintiff's assertion, the
"good behavior" condition is more than just a meaningless general
requirement attached "to every New Hampshire citizen." 76 	While
such a citizen could be prosecuted for criminal activity, that
citizen, unlike Zinicola, would not face the additional penalty
of having a previous case brought forward. 	Moreover, the fact
that the agreement explicitly allows for the criminal case to be
reinstated runs afoul of the holding in Woodman that the
possibility of revival bars a conclusion that the prosecution
terminated favorably. 	66 N.H. at 375.
The court also rejects the argument that the agreement was
not a product of compromise, as the email exchange between the
defense and prosecution is the very embodiment of negotiation and
76 Pltff. Mem., doc. no. 41-1, at 20.
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compromise.77 	At defense counsel's request, the prosecutor
eliminated proposed provisions that would bar Zinicola from
contacting Shirley and reduced the proposed "good behavior"
period from two years to one. 	Further evidence of the compromise
can be found in an affidavit from Zinicola's defense attorney,
which notes that Zinicola was reluctant to agree to terms that
required him to stay away from "the alleged victims." 78 	But the
agreement of record does not contain the "stay away" provision
originally proposed, further suggesting that negotiations led to
the final agreement. 	There is no dispute that Judge Runyon's
order adopting the conditional nolle prosequi was the final order
resolving his case. 	Under applicable law, that was not a
77 Plaintiff suggests that the prosecutor entered into the
agreement because he was concerned that Shirley had "perjured
himself." 	Pltff. Mem., doc no. 41-1, at 19; Pltff. Mem., doc.
no. 43-1, at 14. 	He cites no record evidence, and to the
contrary, the record evidence suggests the claim is baseless. 	At
the beginning of the email exchange between the prosecutor and
Zinicola's defense counsel, the latter provided a copy of his
motion for a Richards hearing, which called Shirley's credibility
into question. Doc. no 41-29, at 8. 	Prosecutor Beausoleil
responded with a relatively lengthy disagreement in which he
stated, "I don't see a Richards issue, or even dishonesty." 	Id.
at 7. 	He also stated his belief that "nothing [Shirley] says
would tend to incriminate him, or even suggest a lack of
truthfulness." 	Id. at 8. 	It is unfortunately ironic that in a
case where plaintiff is accusing others of making an unfounded
accusation against him B and in which the plaintiff has admitted
conduct (referring to his rifle) that he denied under police
questioning B plaintiff is making an accusation that is both
unsupported and directly contradicted by the undisputed record.
78 Doc. no. 41-27, & 5.
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resolution in plaintiff's favor sufficient to support a malicious
prosecution claim. 79
2. 	Probable cause
Even if there was a genuine issue of material fact as to the
termination of Zinicola's criminal case, there is no dispute that
the information Shirley and Zinicola provided to the police
established probable cause for Zinicola's arrest.
"Probable cause is defined to be such a state of facts in
the mind of the prosecutor as would lead a man of ordinary
caution and prudence to believe or entertain an honest and strong
suspicion that the person arrested is guilty." 	MacRae v. Brant,
108 N.H. 177, 180 (1967) (quoting Cohn v. Saidel, 71 N.H. 558,
567 (1902)). 	The same standard applies to a civilian who
provides information to the police that leads to prosecution.
See, e.g., id. at 179 (gas station owner); Martin v. Applied
Cellular Tech., Inc., 284 F.3d 1, 7-8 (1st Cir. 2001) (former
employer) (applying New Hampshire law). 80 	While the
79 As noted supra, n.66, plaintiff's counsel conceded at oral
argument that the absence of Zinicola's signature has no bearing
on the analysis. 	Regardless of that concession, plaintiff has
provided no reason why he shouldn't be bound by his attorney's
action, especially in light of the negotiations that led up to
the executed agreement and the fact that it is signed by the
presiding judge and ordered by the court.
80 Citing the Restatement (Second) of Torts and cases from other
jurisdictions, the defendants argue that "merely providing
information to the police" does not constitute "initiating
proceedings" if the police retain the choice to bring charges.
Def. Mem., doc. no 39-1, at 13-16. 	The New Hampshire Supreme
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22
determination of facts relevant to probable cause is left to a
factfinder, the existence of probable cause is ultimately a
question of law to be decided by the court. 	MacRae, 108 N.H. at
180.
Here, the undisputed facts show that Shirley was working on
a pipeline project in a rural area that had generated local
opposition. 	Also, that on the day in question, Zinicola, a
stranger to Shirley, made a statement that, at a minimum,
referenced the possibility of bringing a rifle to, or possessing
a rifle at, a place where Shirley encountered the stranger and
expected to work again.
Under these circumstances, it is beyond reasonable dispute
that Shirley "possess[ed] such knowledge of facts as would lead a
man of ordinary caution and prudence to believe," Saidel, 71 N.H.
at 567, that he had been threatened. 81 	The fact that the
prosecutor ultimately decided to resolve the claim through a
conditional nolle prosequi agreement does not impact this
analysis because a prosecutor=s decision to abandon criminal
Court has not so held, and several of the cases cited herein
involve civilian complaints to police. 	E.g., Cohn, supra;
Martin, supra. 	Indeed, in Hill v. Miles, 9 N.H. 9 (1837), the
Court found that a civilian victim's complaint to a Magistrate
could suffice to support a malicious prosecution claim. 	The
court therefore declines to follow defendants' suggested line of
cases.
81 Plaintiff does not suggest that Zinicola fabricated the
incident, or that his report to the police should have
distinguished between a felony and misdemeanor. 	See Part
III.C.1.a, infra.
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charges cannot be used as evidence of lack of probable cause.
See Stock v. Byers, 120 N.H. 844, 847-48 (1980) ("The logic
behind this rule is particularly forceful where someone other
than the defendant enters the nolle prosequi . . . since the
action of that other person has no bearing on the defendant's
state of mind at the time the criminal proceedings were
initiated.").
Finally, "[i]f the defendant had such information as would
reasonably lead him to believe that the accused had committed a
crime, it is immaterial that the defendant may have been actuated
by malice or by motives that were less than noble in bringing the
charge." 	Id. 	(citations omitted). 	Thus, Zinicola's argument
that the defendants' ulterior motives (quelling Zinicola's
pipeline dissent) were driving their decisions about his
prosecution is immaterial.
Plaintiff makes two arguments in support of his claim that
Shirley's accusations did not constitute probable cause. 	Neither
are persuasive. 	First, he asserts that because Zinicola's
version of the disputed comment, "Would you be taking this sign
seriously if I were standing here protecting property with my AR
rifle?", (which the court credits as it is more favorable to
plaintiff under Fed. R. Civ. P. 56) was made in the form of a
question, it is not a "true threat." 82 	Plaintiff offers no
support for this argument, and it is difficult to take seriously.
82 Pltff. Mem., doc. no. 43-1, at 16.
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The question, "How would you like a punch in the nose?" is
unquestionably threatening, so much in fact, that it is a
familiar, cliched way of making a threat. 	As previously noted,
Shirley expected to be working at the same location in the
future. 	The threatening implication that Zinicola might return
with a firearm, either immediately or on another work day, does
not depend on the punctuation mark at the end of his utterance.
Next, Zinicola argues that because Shirley was driving away, even
if Zinicola did say, "Wait, I'm coming back with my AR-15," it
could not have been taken seriously as a threat because it was
unlikely that Shirley would actually wait for Zinicola to
return.83 	The court is hard pressed to imagine the comment being
construed as a harmless idle threat or, as counsel suggested at
oral argument, that it was intended as a joke under the
circumstances, especially since Shirley was going to return to
the site in the future. 	At a minimum, the comment could cause "a
[person] of ordinary caution and prudence to believe" it was a
threat. 	Saidel, 71 N.H. at 567. 	As such, the court finds that
Shirley did not lack probable cause when he reported Zinicola's
conduct to the police.
The undisputed facts of record show that Zinicola's criminal
prosecution did not terminate in his favor, and that Shirley did
not lack probable cause to report to police the incident that
83 Id.
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formed the basis of that prosecutions. 	Shirley, HMM and Kinder
Morgan are therefore entitled to summary judgment on Count 1. 84
B. 	Intentional infliction of emotional distress
In Count 3, plaintiff alleges that all defendants except New
Ipswich are liable for intentional infliction of emotional
distress. 	The summary judgment record does not provide a basis
for this claim.
Intentional infliction of emotional distress requires proof
that the defendant "by extreme and outrageous conduct,
intentionally or recklessly cause[d] severe emotional distress to
another." 	Tessier v. Rockefeller, 162 N.H. 324, 341 (2011)
(quoting Morancy v. Morancy, 134 N.H. 493, 496 (1991)). 	To incur
liability for intentional infliction of emotional distress, the
defendant's actions must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." 	Tessier, 162 N.H. at 341 (internal
quotation marks omitted). 	"[F]alse accusations may be grounds
for liability under an intentional infliction of emotional
distress claim," particularly when joined with an abuse of
84 The court's findings as to termination and probable cause
inure to the benefit of HMM and Kinder Morgan, as their alleged
liability depends on these factors as well. 	Also, given the
court's findings on these issues, the court does not reach the
issue of defendants' alleged malice or whether agency principles
can be used to hold KM responsible for Shirley's actions.
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authority. 	Mikell v. School Admin. Unit No. 33, 158 N.H. 723,
729 (2009). 	The court may, in the first instance, determine
whether factual allegations fail, as a matter of law, to
establish a plaintiff's claim. 	Id. at 730-31.
A comparison with the facts in Mikell is instructive.
There, the New Hampshire Supreme Court upheld the trial court's
dismissal of an intentional infliction of emotional distress
claim in a case involving a student who committed suicide. 	The
Plaintiff alleged that a schoolteacher falsely reported a
disciplinary infraction against a student, causing emotional
distress that resulted in the student's suicide. 	Id. at 729.
The plaintiff claimed that the teacher's motive was to cause the
student's expulsion. 	Id. 	The Court held that while a "teacher
falsely reporting misconduct by a student is a reprehensible act,
the circumstances of this case are simply not beyond all possible
bounds of decency." 	Id. at 730. 	Even as alleged by the
plaintiff, nothing about Shirley's conduct could even be
characterized as "reprehensible," a characterization which itself
fell short of the mark in Mikell.
A decision by this court also provides guidance. 	In Banks
v. Hall, No. 10-cv-269-JL, 2012 WL 3263607 (D.N.H. Aug. 9, 2012),
the plaintiff sued several state troopers who allegedly kicked,
tasered, and sicced their police dog on him. 	Id. at *1.
Although the court found the allegations sufficient to deny the
officers summary judgment on plaintiff's excessive force case,
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27
the court granted summary judgment on plaintiff's emotional
distress claim "because, even if the defendants' conduct amounted
to excessive force, no rational factfinder could deem it
'atrocious, and utterly intolerable in a civilized society.'"
Id. at *2 (quoting Mikell, 158 N.H. at 728).
Here, the allegation against Shirley is that he reported to
the police what he believed to be a threat and, that "they"
(allegedly Shirley, HMM and KM) "pushed for a felony." 85 	Shirley
considering Zinicola's "AR rifle" comment as a threat, and
reporting that threat to the police can not be considered as
"extreme and outrageous" or "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." 	Moreover, as noted, infra, part
III.C.1.a, Zinicola's threat could be seen as felonious. 	As
such, Shirley, KM and HMM are entitled to summary judgment on
Count 3.
C. 42 U.S.C. ' 1983
In Count 4, Zinicola alleges that Lt. Cavanaugh violated his
rights under the First and Fourth Amendments to the United States
85 Pltff. Mem., doc. no. 43-1, at 17-18.
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Constitution when he was unlawfully arrested. 86 	The undisputed
facts of record warrant summary judgment in the defendant's
favor.
1. 	Fourth Amendment
The Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . ." 	U.S. Const. amend.
IV. 	It also requires that an arrest warrant be based upon
probable cause, "supported by Oath or affirmation," which may be
satisfied by a police officer's supporting affidavit. 	Kalina v.
Fletcher, 522 U.S. 118, 129 (1997). 	"A Fourth Amendment
violation may be established if a [plaintiff] can show that
officers acted in reckless disregard, with a 'high degree of
awareness of [the] probable falsity'" of statements made in
support of an arrest warrant. 	Burke v. Town of Walpole, 405 F.3d
66, 81 (1st Cir. 2004) (quoting Forest v. Pawtucket Police Dep't,
377 F.3d 52, 58 (1st Cir. 2004) (citation omitted), cert. denied,
543 U.S. 1149 (2005)). 	"Similarly, the intentional or reckless
omission of material exculpatory facts from information presented
to a magistrate may also amount to a Fourth Amendment violation."
Id. (citing DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990)
86 Complaint, doc. no. 1-1, & 68. 	At oral argument, plaintiff
withdrew claims originally asserted against Lt. Cavanaugh under
the Fifth and Fourteenth Amendments and against the Town of New
Ipswich.
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(upholding verdict for plaintiff where jury could have inferred
that defendant police detective deliberately or recklessly
excluded the exculpatory opinion of an important medical expert
from the affidavit)). 	"Reckless disregard for the truth in the
submission of a warrant application may be established where an
officer 'in fact entertained serious doubts as to the truth of
the allegations' or where 'circumstances evinc[ed] obvious
reasons to doubt the veracity of the allegations' in the
application. 	Id. (quoting United States v. Ranney, 298 F.3d 74,
78 (1st Cir. 2002)). 	Zinicola alleges that Lt. Cavanaugh failed
both tests by lacking probable cause for a felony charge and by
recklessly omitting material information from his warrant
application.
a. 	Probable cause for a felony charge
Zinicola first claims that Lt. Cavanaugh lacked probable
cause to charge him with felony criminal threatening, because
that crime requires proof that the defendant "use[d] a deadly
weapon" in the commission of the offense. 	N.H. Rev. Stat. Ann. '
631:4, II(a)(2). 	In the absence of firearm use, criminal
threatening is a misdemeanor. 	Id. ' 631:4, II(b). 	Because it is
undisputed that Zinicola did not possess a gun at the scene of
the confrontation with Shirley, Zinicola argues that he did not
"use" the rifle within the meaning of the statute and that Lt.
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30
Cavanaugh therefore lacked probable cause for the crime charged.
The law does not support this argument.
First, as defendants pointed out at oral argument, there is
some authority suggesting that the alleged facts could support
the felony count under New Hampshire law. 	The New Hampshire
Supreme Court has let stand a felony criminal threatening
conviction where the defendant threatened his ex-girl friend by
telephone by referring to the fact that he shot a bullet through
her teddy bear (outside of her presence) the day before. 	See
State v. McCabe, 145 N.H. 686 (2001). 	While not binding, because
the "use" question was not at issue in McCabe, 87 the fact that
the defendant in McCabe could be convicted of felony criminal
threatening when he did not possess or brandish a firearm during
the threat is of some significance to the court. 	Zinicola's
reference during the alleged threat to a weapon that he did not
physically possess at that moment, but later admitted owning
(after denying to police that he mentioned it all) could, in
light of McCabe, be a basis for a felony charge.
But regardless of whether Zinicola's threat involved "use of
a firearm" within the meaning of the statute, the court's
probable cause analysis does not focus on the specific crime
charged B here felony or misdemeanor B but upon whether there was
87 The issue before the Court in McCabe was whether the
purposeful mens rea required for the material elements of
"threatening to commit a crime against a person," under ' 631:4,
I(d) applied to the penalty enhancement provision of ' II(2).
145 N.H. at 692.
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probable cause to arrest. 	See United States v. Jones, 432 F.3d
34, 41 (1st Cir. 2005) (noting that "it is irrelevant that the
booking officer cited Jones for 'intent to rob while armed.' If,
on the facts known to the arresting officers, there was probable
cause to believe he was committing another crime, the arrest was
valid."). 	The court in Jones relied on Devenpeck v. Alford, 543
U.S. 146 (2004), in which the Supreme Court held that an arrest
for intent to commit robbery which lacked factual support would
nevertheless be upheld because the facts and circumstances known
to the arresting officer established probable cause for a
firearms violation. 	Id. at 153. 	Indeed, the Devenpeck Court
observed that the charged crime and the "other" crime did not
even have to be "closely related." 	Id. at 153-54.
While Zinicola acknowledges Devenpeck and its progeny, he
argues that it is limited to situations involving only
warrantless arrests, as occurred in Devenpeck and Jones. 88
Plaintiff, however, has cited no authority holding that Devenpeck
is so limited, and the court is aware of several cases involving
arrest warrants that invoked Devenpeck to support a finding of
probable cause for a crime other than the one charged. 	See,
e.g., Hall v. Metro. Gov't of Nashville & Davidson Cty., No.
3:17-cv-01268, 2018 WL 305751 (E.D. Tenn. Jan. 5, 2018); Pearson
v. Lorancaitis et al., Civ. No. 3:09cv1641(VLB), 2012 WL 162355
(Jan. 19, 2012); Stavis v Reynolds, No. C/A 2:09-2272-DCN-RSC,
88 Pltff. Mem., doc. no. 42-1, at 14.
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2010 WL 1294113 (D.S.C. Mar. 5, 2010) (recommendation adopted,
2010 WL 1257344 (Mar. 29, 2010)); Blackwell v. Wenninger, Civ.
No. C-1-09-646, 2010 WL 654267 (S.D. Ohio, Feb. 18, 2010); Shelly
v. Wilson, Civ. No. 04-02, 2008 WL 5244922 (W.D. Pa. Dec. 15,
2008).
Here, even if Cavanaugh lacked the factual predicate to
support a felony charge, there was probable cause nevertheless
supporting Zinicola's arrest for criminal threatening.
b. 	Omission of facts
Plaintiff next argues that Lt. Cavanaugh omitted material
facts from the warrant application, thus undercutting claim Judge
Runyon's finding of probable cause and issuance of the arrest
warrant. 	See Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975)
(observing that "maximum protection of individual rights" is
assured when an independent magistrate reviews the factual
justification prior to any arrest).
This argument boils down to a claim that Lt. Cavanaugh did
not independently investigate the entirety of the case before
seeking the arrest warrant and a laundry list of things that Lt.
Cavanaugh either should have done or said differently. 89 	But
this construct ignores controlling precedent from the First
Circuit Court of Appeals, pursuant to which "an officer normally
may terminate [his] investigation when [he] accumulates facts
89 Id. at 4-9.
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that demonstrate sufficient probable cause." 	Acosta v. Ames
Dep't Stores, 386 F.3d 5, 11 (1st Cir. 2004). 	Moreover, to the
extent that Zinicola argues that Shirley's word alone was
insufficient to establish probable cause, Acosta suggests
otherwise:
Victims' complaints are a prime source of
investigatory information for police
officers. In the absence of circumstances
that would raise a reasonably prudent
officer's antennae, there is no requirement
that the officer corroborate every aspect of
every complaint with extrinsic information.
The uncorroborated testimony of a victim or
other percipient witness, standing alone,
ordinarily can support a finding of probable
cause.
Id. at 10.
Here, there is nothing in the record that would support such
"antennae-raising." 	Shirley reported the threat by phone shortly
after it happened and then came to the station to meet with Lt.
Cavanaugh. He specifically told Lt. Cavanaugh that the Plaintiff
yelled at him, stating "Wait, I=m coming back with my AR-15."
Shirley also stated that he would be returning to the site the
next day and wanted a police detail for protection.
But Lt. Cavanaugh did not just take Shirley's version at
face value, as he later interviewed Zinicola and provided his
written statement with the warrant application. 	Given Zinicola's
response to the AR-15 question B denying making threats, but
admitting to owning the exact rifle that Shirley mentioned
without being told that Shirley mentioned it B Cavanaugh could
have also made a negative assessment of Zinicola's credibility as
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34
to the confrontation with Shirley. 90 	Once those two interviews
were complete, Lt. Cavanaugh had sufficient information to
believe that a crime had been committed. 	The probable cause
assessment did not, as Zinicola suggests, require Lt. Cavanaugh
to visit the scene of the dispute, take possession of Shirley's
photograph, ask whether HMM had previously required details,
figure out the precise distance between the two men when words
were exchanged, or whether one or both were in their vehicles at
the time.91 	See Acosta, 386 F.3d at 11 ("[p]robable cause
determinations are, virtually by definition, preliminary and
tentative.@).
Accordingly, the court finds that, as a matter of law, Lt.
Cavanaugh had probable cause to arrest Zinicola. 	The Fourth
Amendment claim therefore fails.
2. 	First Amendment
Zinicola also claims that Cavanaugh violated his First
Amendment rights in two ways: 1) by arresting him, which,
Zinicola claims, chilled his right to protest the pipeline
project (or anything else); and 2) by playing a role in
establishing the post-arrest bail conditions that he stay at
least 300 feet from where HMM or Kinder Morgan employees are
90 Zinicola's admission was also significant to Lt. Cavanaugh
because Shirley had no reason to know that Zinicola owned that
particular type of firearm.
91 Id. at 16-18.
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35
working and have no contact with them. 92 	This claim, however,
fails for the same reason that undercut his Fourth Amendment
claim B the existence of probable cause to arrest him. 	See
Hartman v. Moore, 547 U.S. 250, 265-66 (2006) (holding that a
plaintiff cannot state a claim of retaliatory prosecution in
violation of the First Amendment if the charges were supported by
probable cause).
Plaintiff cites no authority for his claim that bail
conditions can support a stand-alone First Amendment claim
separate from a lawful arrest. 	Regardless, during oral argument,
plaintiff's counsel disclaimed any argument that Lt. Cavanaugh
was retaliating against Zinicola's exercise of free speech. 	This
concession is fatal to Zinicola's claim that Lt. Cavanaugh's
recommendation regarding the "stay-away" condition violated his
1st Amendment rights. 	"To maintain a claim of retaliation,
[Zinicola] must show that the defendant's intent to retaliate
against him was a substantial factor in motivating the adverse
decision against him." 	Holder v. Town of Newton, 2010 DNH 212,
17 (citing Collins v. Nuzzo, 244 F.3d 246, 251B52 (1st Cir.
2001)). 	Given the existence of probable cause and absent
evidence of retaliatory motive, Lt. Cavanaugh is entitled to
summary judgment on Zinicola's First Amendment claim. 93
92 Complaint, doc. 1-1, & 37.
93 Zinicola acknowledges that dismissal of the federal
constitutional claims necessitates dismissal of his state
constitutional claims. 	See Pltff. Mem., doc. no. 42-1, at 24-25.
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36
IV. 	Conclusion
Defendants' motions for summary judgment 94 are GRANTED.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
April 17, 2018
cc: 	Kurt S. Olson, Esq.
Peter Malaguti, Esq.
Douglas N. Steere, Esq.
Clara E. Lyons, Esq.
W. Scott O’Connell, Esq.
Christopher Minue, Esq.
Brian J. S. Cullen, Esq.
94 Doc. nos. 37-39.
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