Bureau et al v. Nashua Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven P. Bureau
Norman T. Bureau
v. 	Case No. 20-cv-800-PB
Nashua Police Department
Officer Richard Debarros
Officer Adam Fisher
REPORT AND RECOMMENDATION
Pro se plaintiffs Steven P. Bureau (“Steven”) and Norman T.
Bureau (“Norman”) 1 have filed a complaint against the Nashua, New
Hampshire, Police Department (“NPD”) and two NPD officers,
Richard Debarros and Adam Fisher (Doc. No. 1). 	The complaint is
before the court for preliminary review pursuant to LR 4.3(d)(2)
and 28 U.S.C. § 1915(e)(2).2
Background
Steven alleges that as he drove his truck to a hotel in
Nashua, Officer Debarros pulled up behind him in a marked police
cruiser and subsequently informed Steven that one of the truck’s
headlights was out. 	Officer Debarros then left Steven to speak
1 When appropriate, the court uses the plaintiffs’ first
names solely to differentiate them, not out of disrespect.
2 In conducting this preliminary review, the court applies
the same standard set forth in its January 6, 2021, Order.
(Doc. No. 5).
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with Officer Fisher, who had just arrived on the scene. 	Steven
asserts that after about “fifteen minutes of looking around
[Steven’s] vehicle, [Steven] was arrested on a false charge” and
his truck was seized. 	Although Steven does not indicate what
charge was lodged against him, he alleges that the charge was
eventually nol prossed 3 and that his record was expunged. 	Compl.
(Doc. No. 1) at 3.
While Officers Debarros and Fisher were conferring, Steven
called his father, Norman, and told him that he (Steven) was
being harassed by the police. 	Norman then came to the scene and
entered the driver’s side of Steven’s truck. 	When he did so,
Officer Fisher demanded that Norman exit the truck. 	When Norman
told Officer Fisher that he had come to take the truck, Officer
Fisher threatened to arrest him for interfering with Steven’s
arrest. 	It is not clear from the complaint how the interaction
between Norman and Officer Fisher concluded.
3 “Nol pros,” or “Nolle Prosequi,” translates from Latin as
“does not wish to prosecute.” 	Richard B. McNamara, 2 New
Hampshire Practice: Criminal Practice and Procedure § 22.05 (6th
ed. 2020). 	“The entry of a nolle prosequi serves as the
functional equivalent of a dismissal; thereafter, the case is no
longer pending.” 	State v. Allen, 837 A.2d 324, 326-27 (N.H.
2003).
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Discussion
I. 	Plaintiff Norman Bureau
In its January 6, 2021 order (Doc. No. 5) (“January 6
Order”), the court directed plaintiffs to amend their complaint
to state additional facts with respect to Norman’s Fourth
Amendment claim, which the court found deficient as set forth in
plaintiff’s original complaint. 	As plaintiffs have not amended
their complaint, the district judge should dismiss Norman
Bureau’s claim for failure to state a claim, as set forth in the
January 6 Order.
II. 	Plaintiff Steven Bureau
Liberally construed, Steven appears to assert claims 42
U.S.C § 1983, alleging that the defendants subjected him to
false arrest, malicious prosecution, and seizure of his truck
without probable cause, in violation of his Fourth Amendment
rights not to be subjected to an unreasonable search of his
person and property.
Claim 1: 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,
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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, Steven must allege
facts which show that the arresting officer lacked probable
cause to believe that Steven, at the time of his 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).
Here, however, stripped of legal conclusions such as
Steven’s assertion that he was arrested on a “false charge,” the
complaint fails to state any facts relevant to the probable
cause analysis. 	Accordingly, the district judge should dismiss
Steven’s false arrest claim (Claim 1).
Claim 2: Malicious Prosecution
“A plaintiff may bring 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,
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723 F.3d 91, 101 (1st Cir. 2013) (citation omitted). 	Similarly,
under state law, the elements of malicious prosecution are: “(1)
the plaintiff was subjected to a criminal prosecution ...
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 Concord, 130 A.3d 548,
560 (N.H. 2015).
This claim suffers from the same defect as Steven’s false
arrest claim. 	That is, there are no factual allegations which
could support a claim that the officers lacked probable cause to
arrest him. 	Nor could the court entertain such an analysis in
the absence of any indication of what charges were lodged
against him. 	Accordingly, the district judge should dismiss
Steven’s malicious prosecution claim (Claim 2).
Claim 3: 	Seizure of Steven’s Truck
In order to succeed on a Fourth Amendment claim based on
the seizure of his truck, Steven must show that: (1) the
defendants acted under the color of law; (2) there was a search
or seizure; and (3) that search or seizure was unreasonable.
Brower v. Cty. of Inyo, 489 U.S. 593, 599 (1989). 	Here, while
the complaint alleges sufficient facts to establish the first
two elements, there are no facts alleged relating to the search
and seizure of his truck which demonstrate that the seizure was
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unreasonable. 4 	The district judge should therefore dismiss
Steven’s property seizure claim (Claim 3).
Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge dismiss this case in its
entirety for failure to state a claim for 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. 	Failure to file 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
September 7, 2021
cc: 	Steven Bureau, pro se
Norman Bureau, pro se
4 The allegation that his truck was “illegally seized” is an
unsupported legal conclusion.
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