Brady v. Roberts et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darren Brady
v. 	Case No. 20-cv-209-SM
Wendy E. Roberts et al.
REPORT AND RECOMMENDATION
Plaintiff Darren Brady, proceeding pro se, has filed a
civil rights action under 42 U.S.C. § 1983 alleging that the
defendants — Lancaster Prosecutor Wendy E. Roberts, Lancaster
Police Officer Anthony Havalotti (in his individual capacity),
and Lancaster Town Manager Ed Samson – unlawfully arrested and
prosecuted him, thus depriving him of his constitutional rights.
His complaint (Doc. No. 1) is before the magistrate judge for
preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and
LR 4.3(d)(2).
I. 	Preliminary review standard
The court conducts a review of cases filed by pro se
plaintiffs to determine, among other things, whether the
complaint states any claim upon which relief may be granted, see
28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	To survive preliminary
review, 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
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treats as true all well-pled factual allegations and construes
all reasonable inferences in plaintiff’s favor. 	See Ocasio-
Hernandez v. Fortuno-Burset, 640 F.3d 1, 12-13 (1st Cir. 2011).
The court may also consider “documents incorporated by reference
in [the complaint], matters of public record, and other matters
susceptible to judicial notice.” 	Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (citations omitted). 	The court may
dismiss a pro se plaintiff’s case at any time if the complaint
fails to state a claim on which relief may be granted, the
defendant is immune from the relief sought, or the action is
frivolous or malicious. 	See 28 U.S.C. § 1915(e)(2).
II. 	Background
Report of an indecent exposure
On May 1, 2019, Theresa Blaisdell – a non-party to this
litigation – contacted the Lancaster, New Hampshire Police
Department (“LPD”) to report an indecent exposure that had
occurred at her apartment building, located at 4 Elm Street,
Lancaster, New Hampshire. 	See LPD Report (Doc. No. 1-3, at 4).
According to Blaisdell, one of her tenants – Aubury Boudle – had
seen a man expose himself in the parking lot earlier that day.
Defendant Havalotti, an LPD officer, responded to the call and
told Blaisdell that he would contact Boudle. 	Id.
Later that day, Havalotti made contact with Boudle and
asked him about what had transpired. 	Id. 	Boudle allegedly told
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Havalotti that he went to open the shades of his apartment
window, which faced the parking lot, and noticed a black male
urinating against the building. 	Id. 	Two weeks later, Havalotti
returned to Boudle’s apartment and specifically asked if Boudle
saw the male’s penis, to which Boudle confirmed he did. 	Id.
Boudle elaborated that he also saw the male grab small bags from
a car before giving them to tenant Donald Wells. 	Id. 	Boudle
had learned from Wells that the male referred to himself by the
nickname “N***a D”. 	Id. 	When Boudle later spoke to Blaisdell
about the incident, Blaisdell told Boudle that the man’s legal
name was Darren Brady. 	Id. 	Boudle included this information in
a second written statement for Havalotti, which the officer
retrieved later that night. 	Id.
Initiation of criminal process
On May 20, 2019, Havalotti filed a criminal complaint
against Brady in New Hampshire Circuit Court, 1st Circuit –
District Division – Lancaster, for indecent exposure, a Class A
misdemeanor. 	Indecent Exposure Crim. Compl., State v. Brady,
No. 451-19-CR-198 (N.H. Cir. Ct., 1st Cir., Dist. Division –
Lancaster) (Doc. No. 1-3, at 5). 	On an unspecified date
thereafter, Lancaster police arrested Brady. 	The Circuit Court
then released Brady on personal recognizance pending his
arraignment. 	See Circuit Court Bail Order, State v. Brady, No.
451-19-CR-198 (Doc. No. 1-3, at 1).
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In July 2019, Brady was arraigned on the indecent exposure
charge, as well as on charges of criminal trespass and
disorderly conduct, for events occurring at the 4 Elm Street
apartment complex in April 2019. 	See id.; Case Summary, State
v. Brady, Nos. 451-19-CR-194 and -198 (N.H. Cir. Ct., 1st Cir.,
Dist. Div. – Lancaster) (filed in Brady v. Roberts, No. 20-cv-
208-PB, ECF No. 1-1, at 4-5). 1
On September 30, 2019, a trial was held on the indecent
exposure, criminal trespass, and disorderly conduct charges.
See Doc. No. 1-3, at 1. 	Defendant Wendy E. Roberts served as
prosecutor for the LPD. 	Compl. (Doc. No. 1, at 1). 	The court
found Brady not guilty on the indecent exposure charge. 	Case
Summaries, State v. Brady, No. 451-19-CR-194 & -198 (filed in
Brady v. Roberts, No. 19-cv-147-PB (ECF No. 1-5, at 1-5)).
Additionally, it dismissed the criminal trespass and disorderly
conduct charges for lack of prosecution. 	Id.
Brady’s claims for relief in this case
Construed liberally, Brady’s complaint attempts to assert
the following four claims against defendants Wendy Roberts,
1 In addition to the instant lawsuit, Brady filed a second
complaint in this court against a set of defendants that
includes two of the defendants here (Lancaster Police Prosecutor
Wendy E. Roberts and Town Manager Ed Samson), concerning an
allegedly false arrest in April 2019. 	See Brady v. Roberts et
al., No. 20-cv-208-PB (ECF No. 1). 	The court takes judicial
notice of that case and the documents submitted by Brady therein
to aid its understanding of Brady’s instant claims for purposes
of this preliminary review.
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Anthony Havalotti, in his individual capacity, and Lancaster
Town Manager Ed Samson.
1. 	Malicious prosecution. 	Brady asserts that that the
defendants maliciously prosecuted him, in violation of his
Fourth and/or Fourteenth Amendment rights and thus 42 U.S.C.
§ 1983, by waiting seventeen days to investigate the reported
incident and initiating criminal charges on the uncorroborated
and unreliable word of Boudle. 	See Compl. (Doc. No. 1, at 1, 4)
(further alleging that Boudle is a “junkie” and “has to do
anything” Blaisdell tells him to do). 	In Brady’s view, the
indecent exposure prosecution was part of a pattern of malicious
and false actions by state officials, which he has allegedly
succeeded at defeating on at least some occasions. 	Compl. (Doc.
No. 1, at 4); see also Brady Criminal History (Doc. No. 1-3, at
8); Brady Notes (Doc. No. 1-3, at 32-34).
2. 	False arrest. 	Brady contends the defendants violated
his Fourth and Fourteenth Amendment rights by unreasonably
searching and seizing his person in connection with the alleged
false arrest for indecent exposure. 	Compl. (Doc. No. 1, at 1).
3. 	Reputational harm. 	Brady argues that the defendants
unlawfully invaded his privacy because Havalotti’s false arrest,
based on Boudle’s non-credible report, got Brady’s “name in the
newspaper” and “police internet website,” and caused Brady to
lose his job and home. 	Id. at 6. 	He further asserts that he is
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“having a very hard time finding work in [his] field because of
being falsely arrested in public over and over . . . .” 	Id.
His complaint intimates that these acts violated unspecified
rights owed to him under the U.S. Constitution.
4. 	Right to a grand jury. 	Brady alleges that the
defendants violated his Fifth and Sixth Amendment rights by
accusing him of a serious crime without a grand jury
investigation or indictment. 	Id. at 2.
III. Analysis
The court finds that Brady has sufficiently stated two
claims upon which relief may be granted that survive preliminary
review – specifically, his claims of malicious prosecution
(Claim 1) and false arrest (Claim 2). 	The district judge should
dismiss, however, all claims against defendants Ed Samson and
Wendy Roberts, as well as Brady’s third claim concerning
reputational harm and his fourth claim concerning his right to a
grand jury, as these claims cannot be sustained or saved.
Dismissal of defendant Ed Samson
In his complaint, Brady names Ed Samson, the Town Manager
of Lancaster at the time of the above-alleged events, as a
defendant. 	Brady does not allege that Samson engaged in or
contributed to any actions that violated his constitutional
rights. 	To the contrary, Brady concedes that Samson “personally
did nothing wrong and his name is only on this legal form to
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keep up with a previous (sic) made response (motion to dismiss
by W.E. Roberts) on a previous case that stated in short – my
claim should be dismissed because I didn’t serve the right
people.” 	Compl. (Doc. No. 1, at 5). 	Brady does not provide
further details about why Samson was a necessary party in his
previous case or why Samson is a necessary party in this
proceeding. 	Brady has not named the Town of Lancaster or any
municipal agency as a defendant. 	Moreover, he seeks only
monetary damages ($300,000) for the claims identified herein,
and thus has not sought injunctive relief requiring that the
Lancaster Town Manager be named as a defendant. 	Accordingly,
the district judge should dismiss Claims 1-4 to the extent they
are asserted against Samson and drop Samson as a defendant in
this case.
Prosecutorial immunity
Brady names Roberts, the prosecutor in his indecent
exposure case, as a defendant. 	“[P]rosecutors are absolutely
immune in exercising the core prosecutorial functions of
‘initiating a prosecution and . . . presenting the State’s
case,’” 	Penate v. Kaczmarek, 928 F.3d 128, 135 (1st Cir. 2019)
(quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)), “‘and
which occur in the course of [the prosecutor’s] role as an
advocate for the State,’” 	id. at 136 (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993)).
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Roberts’s conduct, as alleged, occurred entirely as part of
the core prosecutorial functions of bringing and maintaining
criminal cases for the State. 	Accordingly, to the extent Brady
seeks damages for those claims, Roberts enjoys absolute immunity
from suit. 	The district judge should dismiss Claims 1-4 to the
extent they are asserted against Roberts and drop Roberts as a
defendant in this case.
Claim 1: Malicious prosecution
Brady first contends that the defendants maliciously
prosecuted him in violation of 42 U.S.C. § 1983 and his
constitutional rights. 	In advancing these allegations, Brady
makes passing references to his Fifth Amendment rights, which do
not apply to state government actors. 	See U.S. Const. amend V.
(restricting the federal government). 	At times, he also
describes the events above as “prosecutorial misconduct.” 	The
court liberally construes these allegations as essentially
pleading a malicious prosecution claim arising under state law
and the Fourth and Fourteenth Amendments of the United States
Constitution.
“[A] plaintiff may bring a suit under § 1983” against State
officials for a malicious prosecution claim if he or she “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
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favor.’” 	Hernandez-Cuevas v. Taylor, 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, 168 N.H. 430 (2015).
Here, Brady alleges that Havalotti successfully initiated
criminal process against him, based upon personal animus and
information that he knew to be false; that this prosecution was
part of a pattern of false and malicious prosecutions; and that
the criminal proceedings for indecent exposure terminated in
Brady’s favor. 	These and other allegations in the complaint are
sufficient to state a claim for malicious prosecution that
survives preliminary review. 	In an Order issued this date, the
court has directed service of Brady’s malicious prosecution
claims against Havalotti.
Claim 2: False arrest and false imprisonment claims
Brady contends the defendants violated his Fourth and
Fourteenth Amendment rights by unreasonably searching and
seizing his person in connection with the allegedly false arrest
for indecent exposure. 	“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.
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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) (internal
quotation marks and citation omitted). 	To assert a false arrest
claim under the Fourth Amendment, a plaintiff must state facts
showing that he was arrested without probable cause. 	Similarly,
to prevail on a state law claim for self-imprisonment, a
plaintiff must demonstrate that “(1) the defendant acted with
the intent of confining him or her 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,” such as probable cause. 	Ojo v.
Lorenzo, 164 N.H. 717, 726 (2013) (citations omitted); see also
Wallace v. Kato, 549 U.S. 384, 388 (2007) (“False arrest and
false imprisonment overlap; the former is a species of the
latter. 	‘Every confinement of the person is an
imprisonment[.]’” (internal citation omitted)).
Here, Brady alleges that Havalotti arrested him, or
successfully sought a warrant for his arrest, based upon
personal animus and information that he knew to be false; that
as a result of his arrest, he was detained pretrial; and that he
has been unable to find work in his chosen field and has
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suffered economic, mental, and emotional harm due, in part, to
this arrest and detention. 	These and other allegations, taken
as true for purposes of initial review, sufficiently state a
claim for false imprisonment and false arrest, to survive
initial review. 	In an Order issued this date, the court has
directed service of Brady’s false imprisonment and false arrest
claims against Havalotti.
Claim 3: Reputational Harm
Brady argues that the defendants unlawfully harmed his
reputation, as his allegedly false arrest and prosecution were
publicized in the newspaper, making it difficult for Brady to
find work. 	The court liberally construes Brady’s allegations as
an attempt to seek relief for reputational harm through a § 1983
due process claim under either an unreasonable government
interference or stigmatization theory. 	Brady’s allegations,
taken as true for purposes of preliminary review, fall short of
stating a due process claim under either theory.
“The right to hold private employment and to pursue one’s
chosen profession free from unreasonable government interference
is encapsulated” in the Fourteenth Amendment’s Due Process
Clause. 	Mead v. Indep. Ass’n, 684 F.3d 226, 232 (1st Cir.
2012). 	To state a due process claim based on unreasonable
government interference, a plaintiff must show the that the
government directly and unambiguously interfered with his or her
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right “to hold private employment” or “to pursue one’s chosen
profession,” such as when a city official demands that a
restaurant fire its bartender . . . .” 	Id. (citing Helvey v.
City of Maplewood, 154 F.3d 841, 843–44 (8th Cir. 1998)).
Additionally, to state a due process claim based on reputational
stigmatization, a must allege “stigma-plus . . 	a change in the
injured person’s status or rights under substantive state or
federal law.” 	Silva v. Worden, 130 F.3d 26, 32 (1st Cir. 1997).
Brady’s allegations do not satisfy either of these
requirements. 	Brady has not alleged that Havalotti or any other
state official directly and unambiguously interfered with his
employment, such as by directly contacting his employer.
Additionally, he has not alleged that his publicized arrest and
prosecution resulted in a change to his status or rights under
state or federal law. 	The district judge should therefore
dismiss Brady’s reputation-based claim.
Claim 4: Grand jury
Lastly, Brady argues that the defendants violated his Fifth
and Sixth Amendment rights by accusing him of a serious crime
without a grand jury investigation or indictment. 	“The Fifth
Amendment right to a grand jury does not apply to a state
prosecution. 	A state defendant cannot complain if the State
forgoes the institution of the grand jury and proceeds against
him instead through prosecutorial information, as many States
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prefer to do.” 	Castaneda v. Partida, 430 U.S. 482, 509 (1977)
(citing Gerstein v. Pugh, 420 U.S. 103, 116–119 (1975); Hurtado
v. California, 110 U.S. 516 (1884)).
New Hampshire is one such state that forgoes grand juries
specifically in the criminal misdemeanor context. 	In New
Hampshire, “no person shall be tried for any offense, the
punishment of which may be death or imprisonment for more than
one year, unless upon an indictment found against such person by
the grand jury.” 	N.H. Rev. Stat. § 601:1; see also N.H. R.
Crim. P. 7 & 8 (discussing charging procedures in Superior
Court, which include an indictment returned by a grand jury).
Consistent with the New Hampshire Constitution, however, the
State may charge a misdemeanor through an information” or
criminal complaint, which does not require a grand jury, if the
punishment for the offense is less than one year. 	State v.
Smith, 144 N.H. 1, 4 (1999) (finding that a misdemeanant was not
entitled to a grand jury even when he faced a potential sentence
enhancement exceeding one year of imprisonment based on prior
convictions); State v. Gerry, 68 N.H. 495, 499 (1896); N.H. R.
Crim. P. 4 (initial criminal proceedings in circuit court-
district division). 	Felony offenses, of course, must still be
charged with an indictment. 	See N.H. Rev. Stat. § 601:1.
Here, the criminal complaint against Brady for the events
of May 1, 2019 charge him with indecent exposure as a Class A
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misdemeanor. 	See also N.H. Rev. Stat. § 645:1 (indecent
exposure/gross lewdness statute). 	Under N.H. Rev. Stat.
§ 651:2, “a person convicted of . . . a Class A misdemeanor may
be sentenced to imprisonment, probation, conditional or
unconditional discharge, or a fine.” 	And if “a sentence of
imprisonment is imposed, the court shall fix the maximum thereof
which is not to exceed . . . One year for a class A
misdemeanor.” 	Id. 	Accordingly, the defendants were under no
requirement to charge Brady for indecent exposure through an
indictment returned in Superior Court and acted well-within
their legally authorized discretion by filing a complaint in
Circuit Court.
Brady’s allegations, construed liberally, fail to state a
claim regarding the denial of grand jury proceedings. 	The
district judge should thus dismiss Brady’s grand jury claim.
IV. 	Conclusion
For the reasons set forth in this Order, the district judge
should dismiss Claims 1-4 to the extent they are asserted
against Ed Samson and Wendy Roberts, drop Samson and Roberts as
defendants, and dismiss Brady’s reputational claim (Claim 3) and
his grand jury claim (Claim 4) in their entirety. 	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 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
January 14, 2021
cc: 	Darren Brady, pro se
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