Pierce v. Concord Police Dept et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rosemary D. Pierce
v. 	Case No. 22-cv-147-JL
Concord, New Hampshire Police Dep’t
Salem, Massachusetts Police Dep’t
REPORT AND RECOMMENDATION
Plaintiff Rosemary D. Pierce, appearing pro se, sued the
Salem, Massachusetts and Concord, New Hampshire Police
Departments. 	See Compl. (Doc. No. 1). 	On July 7, 2022, the
court granted Ms. Pierce 30 days to amend her complaint to
include additional facts in support of her claims. 	(Doc. No.
3). 	Ms. Pierce subsequently filed a “motion for trial” (Doc.
No. 4), which the court construes as an addendum to her
complaint. 	Ms. Pierce’s complaint and addendum are before this
magistrate judge for preliminary review, pursuant to 28 U.S.C. §
1915(e)(2) and LR 4.3(d)(1).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Ms. Pierce’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
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claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background
A. Salem Police Department
Ms. Pierce’s sole allegation against the Salem,
Massachusetts Police Department is that it inadequately
investigated the 2005 death of Ms. Pierce’s father. 	Compl.
(Doc. No. 1) at 1.1 	There is no cause of action for the failure
to investigate a crime, as there is no federal constitutional
right to have criminal wrongdoers investigated or brought to
justice. 	See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(“[A] private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.”). 	Accordingly,
1In her addendum, Ms. Pierce also asserts that she “needs
transportation getting to” the court in Salem, Massachusetts.
This assertion does not form the basis of any legal relief.
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the district judge should dismiss Ms. Pierce’s claim against the
Salem, Massachusetts Police Department.
B. Concord Police Department
Although her Complaint is often difficult to follow, Ms.
Pierce alleges that she has received a “summons from [the]
Concord Police.” 	Compl. (Doc. No.1) at 3. 	She further asserts
that the Concord Police have failed to follow up on her
complaint that she was run over in 2021, resulting in injuries
and hospitalization. 	Addendum (Doc. No 4) at 1.
Discussion
Construing the complaint and addendum liberally, the court
finds that Ms. Pierce is asserting a claim for false arrest, or
perhaps malicious prosecution, in violation of her rights under
the Fourth Amendment. 	42 U.S.C. § 1983 creates a cause of
action against those who, while acting under color of state law,
violate federal constitutional or statutory provisions.
See Gray v. Cummings, 917 F.3d 1, 7–8 (1st Cir. 2019) (citing 42
U.S.C. § 1983).
Malicious Prosecution
To succeed on a Fourth Amendment malicious prosecution
claim, Ms. Pierce 	must prove that police officers “(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,
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723 F.3d 91, 101 (1st Cir. 2013) (citation omitted). 	To
demonstrate liability for a § 1983 malicious prosecution claim
against the City of Concord, plaintiff must also show that the
“moving force” behind the asserted violation of her Fourth
Amendment rights was a town “policy or custom . . . made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.” 	Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978).
False Arrest
“The Fourth Amendment protects ‘[t]he right of the people
to be secure in their persons . . . against unreasonable . . .
seizures.’” 	Manuel v. City of Joliet, 137 S. Ct. 911, 917
(2017). 	“[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). 	A police 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.” 	Holder v. Town
of Sandown, 585 F.3d 500, 504 (1st Cir. 2009). 	Thus, to
properly assert a claim for false arrest, Ms. Pierce must allege
facts which show that the arresting officer lacked probable
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cause to believe that she, at the time of an arrest, had
committed a crime, was committing a crime or was about to commit
a crime. 	See Jordan v. Town of Waldoboro, 943 F.3d 532, 545
(1st Cir. 2019).
Even liberally construing the complaint, see Erickson, 551
U.S. at 94, the court cannot find that Ms. Pierce has stated the
minimum facts necessary for her claims to proceed. 	Indeed,
there are no facts within the complaint or addendum that tend to
show she was the victim of any prosecution or arrest. 	And any
claim that the Concord Police should have conducted a criminal
investigation is foreclosed for the same reason that such a
claim cannot proceed against the Salem Police Department.
Accordingly, the district judge should dismiss Ms. Pierce’s
claims against the Concord, New Hampshire Police Department.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety, for failure to state a
claim upon which relief can be granted. 	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.
Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district court.
See Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554,
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564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. Failure to file
any objections 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).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
July 19, 2022
cc: 	Rosemary D. Pierce, pro se
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