McNeil v. Williams et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James R. McNeil
v. 	Case No. 21-cv-261-JL
Hooksett Police Department
Detective Brian Williams et al.1
REPORT AND RECOMMENDATION
Plaintiff James R. McNeil, a prisoner at the Northern New
Hampshire Correctional Facility, has filed a civil rights
complaint, pursuant to 42 U.S.C. § 1983, alleging violations of
his federal constitutional rights, the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and his
rights under state law. 	The complaint (Doc. No. 1) is before
the court for preliminary review pursuant to 28 U.S.C. §
1915A(a) and LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints seeking relief from government employees or entities.
1 In his complaint, the plaintiff identifies the following
defendants: Hooksett Police Department Det. Brian Williams, New
Hampshire Attorney General Drug Task Force (“DTF”) Det. Sgt.
Frank Cassidy, DTF Dets. Timothy Beers and Kendra Neri, and DTF
Comd. Scott Sweet.
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See 28 U.S.C. § 1915A(a); LR 4.3(d)(1). 	In conducting
preliminary review, the court determines whether, stripped of
legal conclusions, and with all reasonable inferences construed
in the plaintiff’s favor, the complaint contains “sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” 	Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). 	The court
construes pro se filings liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam). 	Claims may be dismissed sua
sponte if, among other things, the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. 	See §§
1915(e(2), § 1915A(b)(1); LR 4.3(d)(1)(A).
Background
In May 2018, Mr. McNeil was on probation pursuant to a
sentence imposed on March 26, 2018 in State v. McNeil, No. 217-
2017-CR-00179 (N.H. Super. Ct., Merrimack Cty.). 	Mr. McNeil
alleges that while he was on probation, pursuant to the March
26, 2018 sentence, he was participating in the Merrimack County
Drug Court (“Drug Court”), a program through which he was
receiving intensive outpatient mental health and substance abuse
treatment.
Mr. McNeil alleges that in May 2018 members of the New
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Hampshire Attorney General’s Drug Task Force (“DTF”) were
investigating heroin sales in Laconia. 	The DTF’s “Metro Team,”
overseen by DTF Commander Scott Sweet, consisted of Hooksett
Police Department Detective Brian Williams, DTF Detective
Sergeant Frank Cassidy, Laconia Police Detective (“LPD”) Kendra
Neri, and DTF Detective Timothy Beers. 	Mr. McNeil became a
target of that investigation when a confidential informant, who
the DTF referred to as “IT” (hereinafter “CI”) told DTF members
that Mr. McNeil was selling heroin and methamphetamine in
Laconia.
On May 31, 2018, the DTF Metro Team arranged for the CI to
purchase drugs from Mr. McNeil while wearing a wire. 	Det.
Williams searched the CI and the CI’s car before and after the
transaction. 	Det. Neri participated in the search of the CI’s
car after the transaction. 	During the post-transaction search
of the CI’s car, Det. Williams found a plastic Ziplok bag with
powdery residue inside. 	Det. Williams described the bag as
containing a white powder and stated it was tucked between the
cushions of the driver’s seat, while Det. Neri reported that the
bag Det. Williams found in the CI’s car contained a brown powder
and was found in the center console of the car.
After the transaction, the CI got into his car and drove to
a different location to meet with the detectives. 	Once there,
the CI gave the detectives a plastic bag, purportedly purchased
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from Mr. McNeil, that contained a brown powdery substance which
was later identified as Fentanyl.2 	When confronted with the
plastic baggie found in his/her car, the CI denied that the
plastic bag belonged to him/her, and said that he/she did not
know how it got into the car. 	The CI told Dets. Neri and
Williams that he/she had just gotten the car back from an
acquaintance, who had used it without the CI’s permission.3
Det. Williams’s initial police report, dated May 31, 2018,
state that both searches of the CI’s car resulted in “negative
findings.” 	May 31, 2018 Det. Brian Williams DTF Initial
Investigation Report (Doc. No. 1, at 49-50). 	That report did
not include any reference to the baggie found in the CI’s car.
Det. Sgt. Cassidy later reported that when he met with
Dets. Williams, Neri, and Beers on May 31, 2018, after the
transaction, Det. Williams stated that he found the CI’s
explanation that someone other than the CI had put the bag in
the CI’s car to be credible. 	Det. Sgt. Cassidy directed Det.
Neri to log the baggie with powdery residue found in the CI’s
car into evidence at the LPD, and “instructed Det. Neri and
2 According to Mr. McNeil, the defendants’ reports of the
alleged May 31, 2018 sale do not say that the CI specifically
stated that the brown powdery substance had been purchased from
Mr. McNeil.
3 The CI refused to identify his/her acquaintance to the DTF
Metro Team detectives.
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Williams to let the CI know that it had been placed into
evidence in the event that anything else was ever found on the
CI again, then I would refer case [sic] for prosecution.” 	Jan.
22, 2019 Det. Sgt. Frank Cassidy Investigation Report (Doc. No.
1, at 73). 	Det. Neri placed the baggie in evidence, as
instructed, in a separate case and did not identify the baggie
as evidence in or related to the alleged drug sale by Mr.
McNeil.
On September 18, 2018, Det. Williams applied for an arrest
warrant for Mr. McNeil based on Mr. McNeil’s alleged May 31,
2018 sale of Fentanyl to the CI. 	In the affidavit submitted in
support of his arrest warrant application, Det. Williams stated:
that he searched the CI and the CI’s car before the transaction,
and those searches “resulted in negative findings,” Doc. 1, at
42; that while he and Det. Neri followed the CI, the CI drove to
Mr. McNeil’s house; that Det. Sgt. Cassidy drove past Mr.
McNeil’s house during the alleged transaction and saw the CI’s
car parked in the driveway; that Dets. Williams and Neri saw the
CI then get into his/her car, back out of the driveway, and
drive to a prearranged meeting place; that the CI then got out
of the CI’s car, handed Det. Williams a bag containing “tan
powder,” and then got into Det. Neri’s car; that Det. Williams
then searched the CI’s car “with negative results,” id. at 43;
and that Det. Williams listened to the recording from the wire
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worn by the CI during the alleged sale, “but the conversation
was too low to make out what was said,” id. at 44.
A justice of the peace issued the arrest warrant on
September 18, 2018. 	On October 1, 2018, Mr. McNeil was arrested
on that warrant at the Merrimack County Superior Court (“MCSC”)
while he was attending a Drug Court hearing. 	On October 1,
2018, Det. Williams submitted a “Probable Cause Affidavit” to
the Belknap County Superior Court reiterating his previous
statements that his searches of the CI’s car before and after
the May 18, 2018 transaction resulted in “negative findings.”
Oct. 1, 2018 Probable Cause Aff. (Doc. No. 1, at 46).
On October 2, 2018, Mr. McNeil’s probation officer
submitted a violation of his against Mr. McNeil in the MCSC
based on Mr. McNeil’s October 1, 2018 arrest for the alleged May
31, 2018 drug sale. 	Mr. McNeil was held without bail on the
probation violation, pursuant to a detention order issued by the
New Hampshire Department of Corrections. 	On December 6, 2018,
Mr. McNeil was indicted by a grand jury sitting in Belknap
County on one count for the alleged May 31, 2018 sale of
narcotic drugs to the CI.
On December 7, 2018, the day after Mr. McNeil was indicted
and more than six months after the alleged drug sale, Det.
Williams completed a supplemental report about the May 31, 2018
transaction, stating that when searching the CI’s car after the
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alleged drug transaction, he found a plastic bag containing a
white powdery substance in the CI’s car. 	On January 22 and 23,
2019, almost eight months after the alleged drug sale, Det.
Neri, Det. Sgt. Cassidy, and Det. Beers each completed
supplemental investigative reports concerning the May 31, 2018
transaction. 	Each of those supplemental reports stated that the
DTF Metro Team members involved in the alleged controlled drug
purchase from Mr. McNeil on May 31, 2018 met on that day and
discussed the plastic bag Det. Williams found in the CI’s car
after the transaction.
On March 20, 2019, the indictment charging Mr. McNeil with
selling narcotic drugs on May 31, 2018 was dismissed by the
prosecution. 	On March 26, 2019, Mr. McNeil admitted that he had
violated his probation, and was sentenced in the MCSC to serve
two to five years in prison. 	He is currently serving that
sentence.
In this action, Mr. McNeil alleges that Det. Williams lied
about the circumstances of the alleged drug sale on May 31, 2018
in his initial report, in the affidavit submitted in support of
the arrest warrant issued on September 18, 2018, and in the
October 1, 2018 probable cause affidavit, in that he falsely
stated that he did not find anything when he searched the CI’s
car after the alleged transaction, when in fact he found a
Ziploc plastic bag containing a powdery residue during that
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search of the CI’s car. 	Mr. McNeil also asserts that the other
defendants made misrepresentations concerning the bag found in
the CI’s car, and that Comd. Sweet failed to review the evidence
and the audio recording concerning the alleged sale which were
submitted to him for review.
Claims
The Court construes the complaint to assert the following
claims in this action:
1. 	Det. Brian Williams violated James McNeil’s Fourth
Amendment right not to be subjected to false arrest,
malicious prosecution, and wrongful imprisonment by causing
Mr. McNeil to be arrested and detained without probable
cause, in that Mr. McNeil was arrested pursuant to an
arrest warrant obtained by Det. Williams, and detained
pursuant to Det. Williams’s October 3, 2018 affidavit,
filed in the Belknap County Superior Court, in support of
probable cause, as both affidavits contained material false
statements, and omitted material exculpatory information,
resulting in Mr. McNeil’s October 1, 2018 arrest, December
6, 2018 indictment, and his detention without bail from
October 1, 2018 until March 20, 2019.
2. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers violated James McNeil’s
Fourth Amendment right not to be subjected to false arrest,
malicious prosecution, and wrongful imprisonment, by
causing Mr. McNeil to be arrested and detained without
probable cause, by failing to timely report Det. Williams’s
material false statements and omission of material
exculpatory information in his initial report, arrest
warrant affidavit, and probable cause affidavit, resulting
in Mr. McNeil’s October 1, 2018 arrest, December 6, 2018
indictment, and his detention without bail from October 1,
2018 until March 20, 2019.
3. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers violated James McNeil’s
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Fourteenth Amendment right to procedural due process, and
his Sixth Amendment rights to a fair trial and the
effective assistance of counsel, by providing false
information in support of Mr. McNeil’s arrest warrant and
prosecution, and by failing to produce exculpatory
information to Mr. McNeil’s attorney, which hampered Mr.
McNeil’s ability to defend himself and obtain release from
detention prior to March 20, 2019.
4. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers violated James McNeil’s
Fourteenth Amendment right to substantive due process by
engaging in the conduct underlying Claims 1-3, above, which
constituted conduct so egregious so as to be conscience-
shocking.
5. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers violated James McNeil’s
Fourteenth Amendment right to equal protection, by engaging
in the conduct underlying Claims 1-3, above.
6. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers violated James McNeil’s
Eighth Amendment right not to be subjected to cruel and
unusual punishment, by engaging in the conduct underlying
Claims 1 - 3, above.
7. 	Det. Sgt. Frank Cassidy, Det. Brian Williams, Det.
Kendra Neri, and Det. Timothy Beers committed crimes by
engaging in the conduct underlying Claims 1-3, above.
8. 	DTF Metro Team Comd. Scott Sweet violated James
McNeil’s Sixth, Eighth, and Fourteenth Amendment rights,
based on his responsibility for the acts and omissions of
his subordinate DTF Metro Team members underlying Claims 1-
3, as identified above, based on a theory of supervisory
liability.
9. 	The defendants violated James McNeil’s rights under
the ADA by arresting Mr. McNeil on October 1, 2018 during a
Drug Court hearing, and incarcerating him from that date
through March 20, 2019, thereby interfering with the
treatment he was receiving through Drug Court for his
mental health and substance abuse problems.
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Discussion
I. 	Claims Which May Be Served (Claims 1-4)
The Court finds that Mr. McNeil has asserted sufficient
facts in his complaint to allow the claims identified in this
Report and Recommendation (“R&R”) as Claims 1, 2, 3, and 4 to be
served on the defendants identified in those claims.
Accordingly, in an Order issued simultaneously with this Report
and Recommendation, the Court directs service of those claims on
the defendants identified therein.
II. 	Equal Protection (Claim 5)
“To establish an equal protection claim, a plaintiff must
show that, ‘compared with others similarly situated, the
plaintiff was treated differently because of an improper
consideration,’” such as racial or religious discrimination.
Perrier-Bilbo v. United States, 954 F.3d 413, 432 (1st Cir.
2020) (quoting Kuperman v. Wrenn, 645 F.3d 69, 77–78 (1st Cir.
2011)), cert. denied, 141 S. Ct. 818 (2020). 	In his complaint,
Mr. McNeil makes only a passing reference to “equal protection,”
and has not stated any facts sufficient to show that the
defendants have treated him differently than anyone with whom he
is similarly situated, or that he was so treated based on an
improper consideration. 	Accordingly, Mr. McNeil has failed to
state a Fourteenth Amendment equal protection claim, and the
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District Judge should dismiss Mr. McNeil’s equal protection
claim identified in this R&R as Claim 5.
III. Cruel and Unusual Punishment (Claim 6)
Mr. McNeil asserts that the defendants’ conduct violated
his Eighth Amendment right not to be subjected to cruel and
unusual punishment. 	The Eighth Amendment, however, only serves
to prohibit cruel and unusual punishment of convicted prisoners.
See Kingsley v. Hendrickson, 576 U.S. 389, 400-01 (2015). 	Mr.
McNeil was not a sentenced prisoner, with regard to the May 31,
2018 transaction with which this action is concerned, at any
time relevant to his claims in this matter. 	Accordingly, the
District Judge should dismiss Mr. McNeil’s Eighth Amendment
claim identified in this R&R as Claim 6.
IV. 	Criminal Conduct Claim (Claim 7)
Mr. McNeil asserts that the defendants have engaged in
criminal conduct, including perjury, false swearing, and
tampering with evidence, by virtue of the acts underlying the
claims asserted. 	“Private citizens lack a judicially cognizable
interest in the prosecution or nonprosecution of another.” 	In
re Compact Disc Minimum Advert’d Price Antitr. Litig., 456 F.
Supp. 2d 131, 145 (D. Me. 2006) (quoting Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973)) (internal quotation marks and
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alterations omitted). 	Mr. McNeil, therefore, cannot state a
private cause of action based on the defendants’ alleged
violation of criminal laws. 	Accordingly, the district judge
should dismiss Mr. McNeil’s claim based on the defendants’
alleged criminal conduct identified in this R&R as Claim 7.
V. 	Supervisory Liability Claim (Claim 8)
Mr. McNeil alleges that Comd. Sweet is liable for the
actions of his subordinates on the DTF Metro Team which violated
Mr. McNeil’s constitutional rights, because Comd. Sweet failed
to review his subordinates’ investigative reports and other
materials, and thus failed to prevent the violations of Mr.
McNeil’s rights alleged in this action. 	Generally, a
supervisory official, such as Comd. Sweet, is liable for a
constitutional violation under § 1983 only if his own actions or
inactions caused the violation, or if his conduct “led
inexorably to” a subordinate’s violation of the plaintiff’s
constitutional rights. 	Penate v. Hanchett, 944 F.3d 358, 367
(1st Cir. 2019); see also Justiniano v. Walker, 986 F.3d 11, 20
(1st Cir. 2021).
Mr. McNeil does not allege that Comd. Sweet himself engaged
in conduct which violated his rights. 	Mr. McNeil also does not
allege that Comd. Sweet was aware that the DTF Metro Team
detectives had met and discussed the plastic bag with powdery
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residue found in the CI’s car. 	Therefore, he has not
demonstrated that reviewing the DTF Metro Team’s pertinent
reports would have caused him to take any different action
concerning Mr. McNeil’s charges, or would have resulted in the
earlier production of the supplemental reports concerning the
baggie found in the CI’s car to Mr. McNeil and his attorney.
Stripped of legal conclusions, the complaint does not
contain facts which demonstrate that, to the extent Comd. Sweet
failed to review police reports prepared by his subordinates,
that his actions “led inexorably” to a violation of Mr. McNeil’s
rights by his subordinates. 	Accordingly, the District Judge
should dismiss Mr. McNeil’s supervisory liability claims
asserted against Comd. Sweet, identified in this R&R as Claim 8,
and should dismiss Comd. Sweet from this action.
VI. 	ADA Claim (Claim 9)
Mr. McNeil alleges that the defendants violated the ADA by
arresting him during a Drug Court hearing, as the hearing was
part of his treatment for mental health issues and substance
abuse disorder. 	The ADA protects qualified individuals with
disabilities against discrimination based on their disabilities.
See Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006).
Assuming, without deciding, that Mr. McNeil could assert facts
to demonstrate that he is a qualified individual with a
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disability, Mr. McNeil has not alleged facts to show that the
defendants, in arresting him at a Drug Court hearing,
discriminated against him because of his alleged mental health
and substance abuse disabilities. 	Accordingly, the District
Judge should dismiss Mr. McNeil’s ADA claim, identified in this
R&R as Claim 9.
Conclusion
For the foregoing reasons, the District Judge should
dismiss the claims identified in this R&R as Claims 4-9, and
should also dismiss DTF Metro Team Comd. Scott Sweet from this
action. 	Any objections to this R&R must be filed within
fourteen days of receipt of this notice. 	Fed. R. Civ. P.
72(b)(2). 	The fourteen-day period may be extended upon motion.
Failure to file objections within the specified time waives the
right to appeal the district court’s order. 	Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
November 15, 2021
cc: 	James R. McNeil, pro se
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