Bureau v. Dillon et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven P. Bureau
v. 	Civil No. 18-cv-892-PB
Theodore Dillon,
Howard Clark Preston,
Michael Lambert, and
Ryan Milligan1
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Steven P. Bureau’s
complaint (Doc. No. 1) filed pursuant to 42 U.S.C. § 1983,
alleging that officers of the Merrimack Police Department
(“MPD”) have violated his constitutional rights. 	The complaint
is before this magistrate judge for preliminary review, pursuant
to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(1). 	Also before this
magistrate judge is Bureau’s motion to amend the complaint (Doc.
No. 3).
Background
1The complaint itself does not name any defendants in this
action. 	The civil cover sheet (Doc. No. 1-1) attached to the
complaint names “Theodore Dillon et al.” as defendants. 	The
Clerk of Court obtained and docketed the names of defendants
Howard Clark Preston, Michael Lambert, and Ryan Milligan, from
the summonses Bureau filed. 	Bureau provides no other
identifying information for the four defendants, either in his
complaint or on the summons forms.
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Bureau alleges that on multiple unspecified dates,
unidentified officers of the MPD unlawfully arrested him. 	He
alleges further that on several of these occasions, MPD officers
tried to keep his incarceration a secret and that he missed two
arraignment dates. 	Compl. (Doc. No. 1).
Bureau alleges that on September 24, 2015, unidentified MPD
officers unlawfully removed him from his home. 	At the time of
the removal, Bureau informed the officers that his landlord
assaulted him and then denied him the use of a phone to call
911. 	He also alleges that one of the unidentified MPD officers
who removed him from his home is a friend of his landlord and
that he (Bureau) has copies of emails between the officer and
the landlord conspiring to remove Bureau from his home. 	Id.
Preliminary Review Standard
The court reviews complaints filed by pro se plaintiffs to
determine, among other things, whether plaintiff has asserted
any claim upon which relief might be granted. 	See 28 U.S.C. §
1915(e)(2), LR 4.3(d)(1). 	In determining whether a pro se
pleading states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation omitted). 	Disregarding any legal conclusions, the
court considers whether the factual content in the pleading and
inferences reasonably drawn therefrom, taken as true, state a
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claim to relief. 	Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-
03 (1st Cir. 2013) (citations omitted).
Discussion
Bureau contends that MPD officers violated his
constitutional rights when they: 	1) unlawfully arrested him; 2)
attempted to keep his incarceration a secret, causing him to
miss two arraignment dates; 3) unlawfully removed him from his
home on September 24, 2015; and 4) conspired with his landlord
to remove him from his home. 	Liberally construed, the complaint
appears to assert Fourth Amendment claims of false arrest and
false imprisonment under 42 U.S.C. § 1983. 	In addition, Bureau
asserts the MPD officers’ behavior constitutes malicious
prosecution under the Fourth Amendment and/or state tort law.
I. 	False Arrest and False Imprisonment
In general, an arrest is lawful under the Fourth Amendment
if the police officer has probable cause. 	See Holder v. Town of
Sandown, 585 F.3d 500, 504 (1st Cir. 2009). 	“[T]he general rule
[is] that Fourth Amendment seizures are ‘reasonable’ only if
based on probable cause to believe that the individual has
committed a crime.” 	Bailey v. United States, 568 U.S. 186, 192
(2013) (quoting Dunaway v. New York, 442 U.S. 200, 213 (1979)
(internal quotation marks omitted)). 	To that end, a police
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officer has probable cause when, at the time of the arrest, the
“facts and circumstances within the officer's knowledge ... are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.” 	Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); see
also Beck v. Ohio, 379 U.S. 89, 91 (1964); Acosta v. Ames Dep't
Stores, 386 F.3d 5, 9 (1st Cir. 2004) (citing Beck, 379 U.S. at
91; United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987)).
To prevail on a claim for false imprisonment, a plaintiff
must demonstrate that:
(1) the defendant acted with the intent of confining him
within 	boundaries 	fixed 	by 	the 	defendant; 	(2) 	the
defendant's 	act 	directly 	or 	indirectly 	resulted 	in 	the
plaintiff's confinement; (3) the plaintiff was conscious
of 	or 	harmed 	by 	the 	confinement; 	and 	(4) 	the 	defendant
acted without legal authority.
Ojo v. Lorenzo, 64 A.3d 974, 982 (N.H. 2013). 	“Although ‘a lack
of probable cause is not an element of false imprisonment’” that
must be pled under state common law, “probable cause is ‘a
defense to a [tort] claim for false imprisonment resulting from
a warrantless detention.’ ” 	Farrelly v. City of Concord, 130
A.3d 548, 560 (N.H. 2015).
Bureau has not pled that the defendants identified by name
on his summons forms are MPD officers, nor specified which
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defendants are liable for his Fourth Amendment claims. 	To the
extent Bureau can allege specific facts that demonstrate that an
identified MPD officer arrested and/or incarcerated him without
probable cause, and that he was harmed by such arrest and/or
incarceration, he may be able to state grounds for relief under
the Fourth Amendment. 	Accordingly, his claims of false arrest
and false imprisonment should not be dismissed at this stage of
the case, and in an Order issued simultaneously with this Report
and Recommendation, the court grants Bureau leave to amend his
complaint to identify the defendants to his Fourth Amendment
claims, and to state, with specificity, what each defendant did
that violated his rights, and what facts demonstrate that each
defendant acted without probable cause to arrest and/or
incarcerate him, or to remove him from his home.
II. 	Malicious Prosecution
“[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, 723 F.3d at 101 (citation omitted).
Similarly, under state law, the elements of malicious
prosecution are: 	“(1) the plaintiff was subjected to a criminal
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prosecution ... instituted by the defendant; (2) without
probable cause; (3) with malice; and (4) the prior action
terminated in the plaintiff’s favor.” 	Farrelly, 130 A.3d at
560.
Bureau does not name any defendant as having caused his
seizure or having instituted prosecution against him for a
criminal offense. 	Nor has he named any defendant as having
acted against him pursuant to legal process and without probable
cause. 	Finally, Bureau does not identify any criminal
proceeding involving one or more of the defendants that has
terminated in Bureau’s favor. 	Accordingly, the facts alleged
are insufficient at this time to state a malicious prosecution
claim upon which relief might be granted. 	See Iqbal, 556 U.S.
at 678.
In the Order issued simultaneously with this Report and
Recommendation, the court grants Bureau leave to amend his
complaint to assert additional facts sufficient to state one or
more malicious prosecution claims. 	To do so Bureau must amend
his complaint, and for each allegation of malicious prosecution:
1) identify the defendant(s) who seized or caused him to be
seized; 2) state when and how the seizure was made; 3) state
whether the seizure was made pursuant to a warrant or some other
legal process; 4) state whether there was probable cause for
issuance of the warrant or other legal process, or for the
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seizure; 	5) identify the criminal proceeding that occurred as a
consequence of the seizure; and 6) state whether the criminal
proceeding has terminated in Bureau’s favor.
III. 	Motion to Amend
Bureau has filed a document titled “Motion to Amend
Complaint (Add Defendants).” 	(Doc. No. 3). 	The Motion consists
of nothing but a caption and the title. 	Attached to the Motion
are summonses for 16 individuals who are identified only by name
and who are not mentioned in the motion to amend or the
complaint. 	Summons 1-32 (Doc. No. 3-1). 	The final summons is
for the Merrimack Police Department, which also is not mentioned
in the motion to amend or the complaint. 	Summons 33-34 (Doc.
No. 3-1).
Under Federal Rule of Civil Procedure 15(a), the court
should freely give leave to amend “when justice so requires.”
This liberal standard does not mean that every request for leave
to amend should be granted. 	See Manning v. Boston Med. Ctr.
Corp., 725 F.3d 34, 60 (1st Cir. 2013). 	Rather, a court may
deny a request for leave to amend when “the request is
characterized by undue delay, bad faith, futility, or the
absence of due diligence on the movant’s part.” 	Id. at 61
(citation, internal quotation marks and brackets omitted).
A “futile” amendment is one that “would fail to state a
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claim upon which relief could be granted.” 	Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). 	When,
as here, a plaintiff files a motion to amend to add defendants,
and the motion both fails to identify the defendants it seeks to
add and contains no factual allegations whatsoever, such an
amendment would be futile. 	Bureau’s motion to amend should be
denied, but without prejudice.
In the Order issued simultaneously with this Report and
Recommendation, the court grants Bureau leave to amend his
complaint to assert additional facts to state one or more false
arrest, false imprisonment, and/or malicious prosecution claims.
Bureau likewise may amend his complaint to add defendants whom
he believes participated in one or more constitutional
violations alleged in the amended complaint. 	To do so, however,
Bureau must identify those individuals by name in the amended
complaint and meet the other previously described pleading
requirements.
Conclusion
For the foregoing reasons, the district judge should deny
Bureau’s Motion to Amend to add defendants (Doc. No. 3). 	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
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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
June 6, 2019
cc: 	Steven P. Bureau, pro se
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