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-208-PB
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 Rian Matthews (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 criminal trespass
On April 7, 2019, Darren Brady parked his vehicle in a
tenant parking lot located at 4 Elm Street, Lancaster, New
Hampshire, while visiting his friend, Donald Wells, who resided
at that address. 	See Compl. (Doc. No. 1, at 3). 	The building’s
landlord, Theresa Blaisdell, a non-party to this litigation,
noticed Brady’s car in the tenant parking lot and asked him to
leave. 	Brady did not comply, prompting Blaisdell to contact the
Lancaster, New Hampshire Police Department (“LPD”) to remove
Brady from the property. 	See Criminal Compl., State v. Brady,
No. 451-19-CR-194 (N.H. Cir. Ct., 1st Cir., Dist. Div. –
Lancaster) (Doc. No. 1-1, at 9).
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LPD Officer Matthews (and possibly other officers) arrived
at the apartment building thereafter and allegedly blocked part
of the driveway exit with a police vehicle. 	According to Brady,
Matthews refused to leave him alone, causing him to fear for his
life. 	Brady Handwritten Notes (Doc. No. 1-1, at 23-25). 	Brady
further alleges that he attempted to record and broadcast the
encounter on a civil-rights-group-affiliated social media
application, and that he called the Lancaster Sheriff’s
Department for help against the LPD. 	Id.; see also Brady
Handwritten Notes (Doc. No. 1-1, at 4-14). 	Though the complaint
is unclear on what exactly occurred after the LPD arrived, it
appears that Brady was eventually able to maneuver around the
LPD’s parked vehicle and drive away from the apartment building
without arrest or sustained police pursuit.
Initiation of criminal process
On April 23, 2019, Officer Matthews executed a criminal
complaint against Brady for criminal trespass and disorderly
conduct, both Class B misdemeanors. 	Criminal Compl., State v.
Brady, No. 451-19-CR-194 (Doc. No. 1-1, at 9). 	Court records
for that criminal proceeding indicate that the complaint was
filed in that case on May 23, 2019, and that on the same day,
the Circuit Court either released Brady or permitted him to
remain on personal recognizance pending his arraignment. 	See
Case Summary, id. (Doc. No. 1-5, at 4).
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Brady claims that Matthews and the LPD prosecutor, Wendy
Roberts, presented a falsified “TENANTS ONLY” sign to the
Circuit Court in order to obtain an arrest warrant for Brady and
unlawfully initiate criminal process against him. 	Compl. (Doc.
No. 1, at 3); see also Picture of “TENANTS ONLY” Parking Sign
(Doc. No. 1-1, at 18); June 28, 2020 Statement of Lori Wells
(Doc. No. 1-1, at 17) (unsworn written statement asserting that
the “TENANTS ONLY” caution sign is not the original sign for the
4 Elm Street apartment building parking lot). 	He further
maintains that, at the time of the April 7 incident, there were
no visible signs in the parking lot stating that the parking
spaces were only for tenants and permitted visitors of tenants.
Compl. (Doc. No. 1, at 3).
On September 30, 2019, the Circuit Court held a trial on
the criminal trespass and disorderly conduct charges, as well as
on an indecent exposure charge for events occurring at the 4 Elm
Street apartment complex in May 2019. 1 	See Case Summary, State
v. Brady, Nos. 451-19-CR-194 & -198 (Doc. No. 1-5, at 1-5). 	The
court found Brady not guilty on the indecent exposure charge.
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 (Wendy E. Roberts and Ed
Samson), concerning an allegedly false arrest in May 2019. 	See
Brady v. Roberts et al., No. 20-cv-209-SM (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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Id. 	Additionally, it dismissed the criminal trespass and
disorderly conduct charges for lack of prosecution. 	Id.
Brady’s claims for relief in this case
1. 	Violations of Criminal Law
In his complaint, Brady cites several state and federal
criminal statutes and regulations as claims for relief,
including: (1) N.H. Rev. Stat. § 641:5 (tampering with witnesses
and informants); (2) 18 U.S.C. § 1503 (obstruction of justice);
(3) N.H. Rev. Stat. § 641:6 (falsifying physical evidence);
(4) 18 U.S.C. § 241 (conspiracy against rights); (5) 18 U.S.C.
§ 1503 (influencing or injuring officer); (6) 18 U.S.C. § 1510
(obstruction of criminal investigation) ; (7) 18 U.S.C. § 1512
(tampering with a witness, victim, or informant); (8) 18 U.S.C.
§ 1513 (retaliating against a witness, victim, or informant);
(9) 18 U.S.C. § 1519 (tampering with evidence); (10) 18 U.S.C.
§ 1519 (destruction of records); and (11) 25 C.F.R. § 11.440
(fabricating physical evidence). 	Brady – a private individual –
cannot prosecute persons on criminal charges through a civil
complaint filed in federal district court under 42 U.S.C.
§ 1983. 	“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)) (alterations omitted). 	Because Brady cannot
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state a private cause of action based on the defendants’ alleged
violation of criminal laws, the district judge should dismiss
Brady’s claims based on the defendants’ allegedly criminal
conduct.
2. 	Malicious prosecution.
The court construes the remainder of Brady’s pro se
complaint liberally to determine whether it states any other
claims for relief that survives preliminary review. 	Construed
liberally, Brady’s allegations appear to assert that that the
defendants maliciously prosecuted him, in violation of his
Fourth and/or Fourteenth Amendment rights and state law, by
presenting a false “TENANTS ONLY” sign to the Circuit Court in
order to initiate criminal process against him. 	In his view,
the 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. 	See Brady Handwritten
Notes, Brady v. Roberts, No. 220-cv-209-SM (ECF. No. 1-1, at
27).
3. 	False arrest.
Construing his allegations liberally, Brady similarly
appears to contend that the defendants violated his Fourth and
Fourteenth Amendment rights and his rights under state law by
unreasonably seizing his person in connection with his allegedly
false arrest for criminal trespass and disorderly conduct.
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III. Analysis
The court finds that Brady has sufficiently stated two
claims upon which relief may be granted that survive preliminary
review: (1) malicious prosecution and (2) false arrest. 	As
detailed below, service of these claims is directed to
defendants Roberts and Matthews without prejudice to their
ability to move to dismiss on any proper basis.
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. 	Accordingly, the district judge should dismiss Brady’s
claims to the extent they are asserted against Samson and drop
Samson as a defendant in this case.
Claim 1: Malicious prosecution
The court construes Brady’s complaint as contending that
the defendants maliciously prosecuted him in violation of his
Fourth and Fourteenth Amendment rights, as well as his rights
under state law. 	“[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
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plaintiff’s 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 Roberts and Matthews successfully
initiated criminal process against him, based upon personal
animus and information that they knew to be false, by presenting
knowingly falsified documentary evidence and testimony regarding
a “TENANTS ONLY” caution sign to the Circuit Court. 	Brady’s
submitted court records further show that the criminal
proceedings based on this purportedly falsified evidence
terminated in Brady’s favor. 	These and other allegations in the
complaint are sufficient to state claims for malicious
prosecution under the federal constitution and state tort law
that survive preliminary review. 	In an Order issued this date,
the court has directed service of Brady’s malicious prosecution
claims against Roberts and Matthews.
Claim 2: False arrest and false imprisonment claims
The court also construes Brady’s complaint as contending
that the defendants violated his rights by unreasonably seizing
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his person in connection with the allegedly false arrest for
criminal trespass and disorderly conduct. 	“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) (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. 	See id. 	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)).
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Here, Brady alleges that Roberts and Matthews successfully
sought a warrant for his arrest based upon personal animus and
information that they knew to be false – specifically, falsified
documentary and testimonial evidence concerning a “TENANTS ONLY”
parking sign; that as a result of his arrest, he was detained
for some unspecified period of time pretrial; and that he has
been unable to find work in his chosen field and has 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 claims,
under federal constitutional and state tort law, for false
imprisonment and false arrest that survives preliminary review.
In an Order issued this date, the court has directed service of
Brady’s false imprisonment and false arrest claims against
Roberts and Matthews.
IV. 	Conclusion
For the reasons set forth in this Order, the district judge
should dismiss Claims 1-2, as numbered above, to the extent they
are asserted against Ed Samson and drop Samson as a defendant.
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
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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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