2012-510, Osahenrumwen Ojo v. Joseph C. Lorenzo & a.

plaintiff by the arm, placed him against his unmarked pol ice cruiser, patted plaintiff while he was walking on Hall Street in Manchester. Lorenzo pulled the 778 (2011). On May 9, 2010, at a pproximately 1:00 a.m., Lorenzo stopped the established as a matter of law. See Morrissey v. Town of Lyme, 162 N.H. 777, summons, which we accept as true for purposes of this ap peal, or are The following facts are taken from the allegations in the plaintiff’s writ of

(MPD). We affirm in part, reverse in part, and remand. defendant s, Officer Joseph C. Lorenzo and the Manchester Police Departmen t Superior Court (Brown, J.) granting a motion to dismiss filed by the LYNN, J. The plaintiff, Osahenrumwen Ojo, appeals an order of the

(Robert J. Meagher on the brief), for the defendants. McDonough, O'Shaugh nes sy, Whaland & Meagher, PLLC, of Manchester

Osahenrumwen Ojo, self - represented party, on the memorandum of law.

No. 2012 - 510 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.sta te.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

not a party to this appeal. appeal, neither party refers to Atto rney Walsh. Accordingly, we conclude that Attorney Walsh is and the MPD, and there is no evidence that Attorney Walsh was served as a defendant. On the state.” The caption of the plaintiff’s writ, however, named as defendants only Officer Lorenzo The plaintiff’s writ also named as a defendant “Robert Walsh, hillsborough county attorney for p. 2 2 the probable cause heari ng was held on May 24. conclude that the plaintiff’s appearance in the district court on May 10 was his arraignment and plaintiff received notice that the district court found probable cause on May 24. Accordingly, we preliminary examination (i.e., “probable cause hearing”) was scheduled for May 24, and the the district court on May 10 was for a probable cause hearing. The record, however, reveals that a The plaintiff’s writ alleges, and the defendants do not dispute, that the plaintiff’s appearance in 1

male, was, however, thirty - three years old with a bald head and a clean - shaven or eleven inches tall, with short dark hair and a beard. The plaintiff, a black had described the assailant as a black male, in his early twenties, five feet ten description of the alleged kidnappe r. According to the writ, the alleged victim identification procedures. The writ alleged that the plaintiff did not match the ( p. 2 2) empl oyed unnecessarily suggestive, unreliable, and untrustworthy and prudently conduct their investigation before placing him under arrest; and Manchester Police Department: (1) ignored their duties to fully, reasonably, against the defendants alleging, among other things, that officers of the 2 In April 2012, the plaintiff, unrepresented by counsel, filed a civil lawsuit

witness allegedly moved to Germany. Corrections, the State nol prossed all of the charges because the complaining seventeen months in pretrial custody at th e Hillsborough County House of with simple assault. In October p. 2 2011, after the plaintiff spent approximat ely falsifying physical evidence, and the State filed an in formation charging him jury later returned indictments against the plaintiff for kidnapping and RSA 596 - A:4, :7 (2001); RSA 592 - A:4 (2001). A Hillsborough County grand 1 ordered the plaintiff bound over to the superior court on both charges. See examination (also known as a probable cause hearing) and subsequently N.H. 413, 419 (199 2). On May 24, the district cou rt held a preliminary physical evidence. See RSA 594:20 - a, I (Supp. 2012); State v. Hughes, 135 in the Manchester District Court on the charges of kidnapping and falsifying simple assault, see RSA 631:2 - a (2007). On May 10, the plaintiff was arraigned see RSA 633:1 (2007), falsifying physical evidence, see RSA 641:6 (2007), and The State charged the plaintiff by criminal complaint with kidnapping,

and that he matched the victim’s description of the assailant. him that a kidnapping victim had identified him from a photo graphic line - up the plaintiff asked why he was under arrest, an unidentified officer informed additional officer s arrived on the scene, Lorenzo arrested the plaintiff. When i n the day and that he wanted to avoid “unnecessary problems.” After earlier. He explained that he and his brother had had “an altercation” earlier The plaintiff replied that he had left his brother’s apartment a couple of hours him down, and asked him where he was coming from and where he was going. p. 3 3

entitle the defendants t o immunity under RSA 507:8 - d or to official immunity. (1986). We consider whether the indictments returned against the plaintiff committed a particular crime.” Moody v. Cunningham, 127 N.H. 550, 554 grand jury that probable cause exists to believe that a defendant has prosecution of the plaintiff. “An indictment represents the conclusion of a from suit because the grand jury found probable cause in the prior criminal We first address the trial court’s ruling that the defendants are immune

and ellipses omitted). Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010) (citation, qu otation, official public records[,] or documents sufficien tly referred to in the [writ].” . . . documents the authenticity of which are not disputed by the parties[,] inquiry, we may also consider “documents attached t o the plaintiff’s pleadings, Bel Air Assocs., 154 N.H. at 2 p. 3 31 (quotation omitted). In conducting this threshold inquiry that tests the facts in the [writ] against the applicable law.” conclusions of law. Mo rrissey, 162 N.H. at 780. “We then engage in a however, assume the truth o f statements in the pleadings that are merely N.H. Dep’t of Health & Human Servs., 154 N.H. 228, 231 (2006). We need not, all reasonable inferences from them in the plaintiff’s favor. Bel Air Assocs. v. assume the well - pleaded allegations of fact in the writ to be true, and construe construction that would permit recovery. Morrissey, 162 N.H. at 780. We allegations in the plaintiff’s pleadings are reasonably susceptible of a In reviewing a motion to dismiss, our task is to determine whether the

followed. Department are, under those circumstances, immune from suit.” This appeal by the Hillsborough County Grand Jury and the Defendant Officer and Police states, in its entirety: “Mo tion to D ismiss granted. Probable cause was found The superior court granted the defendants’ motion. The court’s order

defendants with respect to plaintiff’s malicious prosecution claim. 202 (2007). Finally, the defendants argued they were not the proper party - (2010) and official immunity under Everitt v. General Elec tric Co., 156 N.H. defendants argued that they were entitled to immunity under RSA 507:8 - d probable cause in the earlier criminal prosecution. Alternatively, the not prevail on either claim because the d istrict court and grand jury found both false imprisonment and malicious prosecution and that the plaintiff could claim. The defendants argued that a lack of probable cause is an element of malicious prosecuti on, the defendants moved to dismiss for failure to state a Construing the plaintiff’s writ to assert claims for false imprisonment and

unlawful punishment, and substantial loss of property. mentioned. The plaintiff claimed that he suffered unne cessary imprisonment, face. He also had visible scars on both cheek s that the victim had not p. 4 4

Falls, 395 F.3d 291, 308 n. 13 (6th Cir. 2005) (“after - the - fact grand jury pr obable cause at the moment of arrest. See Radvansky v. City of Olmsted arrest indictments do not operate retroactively to establish the existence of Ex Parte United States, 287 U.S. 2 p. 4 41, 250 (1932), it is equally true that post existence of probable cause for the purpose of holding the accused to answer,” face, by a properly constituted grand jury, conclusive ly determines the Although it is black - letter law that “the finding of an indictment, fair upon its entitle the defendants to immunity under RSA 507:8 - d or official immunity. We conclude that the indict ments returned against the plaintiff do not

(quotation omitted). employing the individual, but it is not an automatic grant.” Id. at 221 immunity “generally may be vicariously extended to the government entity process.” Id. at 218. When available to an individual police officer, official energies otherwise deflected by litigation, at times a lengthy and cumbersome their judgment shaded out of fear of subsequent lawsuits or to have their indivi duals charged with securing and preserving community safety to have erroneous police decisions,” the “public simply cannot afford for those “immunity can be fundamentally unfair to our citizens who are injured by between competing policies. Id. at 216 - 18. It recognizes that although trial.” Id. at 221 (quotation omitted). The doc trine is a necessary compromise against liability, and is effectively lost if a case is erroneously permitted to go to immunity is to operate as a bar to a lawsuit, rather than as a mere defense wanton or reckless manner.” E veritt, 156 N.H. at 219. “[T]he purpose of employment; (2) discretionary, rather than ministerial; and (3) not made in a made within the scope of their official duties while in the course of their are immune from personal liability for decisions, acts or omissions that are: (1) The doctrine of official immunity provides that “municipal police officers

suit under RSA p. 5 507:8 - d. RSA 59 p. 4 4:10, II(b) and the officer’s employer may be entitled to immunity from that a polic e officer with probable cause to make a warrantless arrest under 253, 255 (1996) (quotation omitted). For purposes of this appeal, we assume arrestee has committed an offense.” Hartgers v. Town of Plaistow, 141 N.H. warrant a person of reasonable caution and prudence in believing that the arresting officer has knowledge and trustworthy informati on sufficient to Vachon, 130 N.H. 37, 40 (1987). “Probable cause to arrest exists when the arrestee has committed a felony. RSA 594:10, II(b) (Supp. 2012); State v. a warrantless arrest if th e officer has probable cause to believe that the justifiable when it is authorized by law.” By statute, a police officer may make circumstances specifically dealt with in other sections of this chapter, is (2007), “[a]ny conduct, other than the use of physical force under constitute justification pursuant to RSA [chapter] 627.” Under RSA 627: 2, I another person by taking any action against such person which would RSA 507:8 - d provides: “No person shall incur any civil liability to 5

pre - indictment investigation occurred in this case. arrest was made. The record before us contains no information as to what, if any, post - arrest, finding of probable cause at the time the indictment is returned that did not exist at the time the For example, an investigation condu cted between the arrest and indictment may support a 3

found probable cause; (3) the plaintiff’s claims for false imprisonme nt and plaintiff; (2) they are entitled to official immunity because the district court alleged by the p laintiff establish that Lorenzo had probable cause to arrest the entitled to immunity under RSA p. 5 507:8 - d and officia l immunity because facts seeking affirmance of the trial court’s order. They argue that: (1) they are On appeal, the defendants advance several alternative arguments

the arrest. the indictmen ts do not concl usively establish that probable cause supported jury had considered whether Lorenzo had probable cause to arrest the plaintiff, petition, appear before, or testify before a grand jury.”). Thus, even if the grand being investigated by a grand jury has no right, constitutional or otherwise, to also 38 Am. Jur. 2d Grand Jury § 44, at 927 (2010) (“One whose conduct is proceedings should be instituted against any person.” (quotation omitted)); see determine whether a crime has been committed and whether criminal proceed ing is not an adversary hearing. . .. [I] t is an ex parte investigation to proceeding. See State v. Hall, 1 p. 5 52 N.H. 374, 376 (2005) (“A grand jury proceeding and had no full and fair opportunity to litigate issues raised in that 508, 511 - 12 (1982). Here, t he plaintiff was not a party to the grand jury in the prior criminal prosecution. See Hopps v. Utica Mut. Ins. Co., 127 N.H. warranted only when the plaintiff had “a fair opportunity to litigate the issue” plaintiff, we note that “estoppel as between criminal and lat er civil actions” is effect on the issue of whether Lorenzo had probable cause to arrest the Furthermore, to the extent the trial court gave the indictments preclusive

Everitt, 1 p. 5 5 p. 6 6 N.H. at 219. arrest or that his arrest was not “made in a wanton or reckless manner.” grand jury does not establish that probable cause supported the plaintiff’s contrary to the conclusion of the trial court, the probable cause found by the committed an offense.” Hartgers, 141 N.H. at 255 (quotation omitted). Thus, 3 person of reasonable caution and prudence in believing that the arrestee . . . officer had “knowledge and trustworthy information sufficient to warrant a a grand jury does not consider whether, at the time of arrest, the arresting exists to believe that a crime has been committed, see Moody, 127 N.H. at 554; is sound: a grand jury considers whether, at the time it acts, probable cause cause for a false arrest that had already taken place”). T he reason for the rule (“subsequent grand jury indictment does not retroactively provide p robable taken place.”); Kent v. Katz, 146 F. Supp. 2d 450, 460 n. 8 (D. Vt. 2001) does not retroactively provide probable cause for an arrest that has already County, Ga., 878 F.2d 1406, 1409 (11t h Cir. 1989) (“A subsequent indictment involvement cannot serve to validate a prior arrest”); Garmon v. Lumpkin 6

finally on the merits; and (3) the party to be estopped must have each action; (2) the first action must have resolved the issue satisfied: (1) the issue subject to es toppel must be identical in For collateral estoppel to apply, three basic conditions must be

probable cause supported the plaintiff’s arrest. We disagree. determination should be given collateral estoppel effect on the issue of whether manner.” Everitt, 15 p. 6 6 N.H. at 219. The defendants appear to argue that this establishes that Lorenzo did not arrest the plaintiff “in a wanton or reckless authority – that the probable cause determination of the district court falsifying physical evidence. The defend ants argu e – without citing any plaintiff bound over to the superior court on the charges of kidnapping and immunity because the district court found probable cause in ordering the Nor are we persuaded that the defendants are entitled to official

criminal case.” simply “derived from the discovery which was supplied by the State in [his] court the plaintiff specifically noted that “the facts asserted” therein were submitted as part of the record before us, and in his motion filed with this appeal. The plaintiff’s objection to the d ef endants’ motion to dismiss was not supreme court,” we cannot accept these facts as true for purposes of this filed with thi s court, titled “Plaintiff’s motion for brief statement per order of the his objection to the defen dants’ motion to dismiss and in a separate motion although the defendants direct our attention to facts alleged by the plaintiff in victim, in fact, identified the plaintiff from a photo line - up. Furthermore, accept the underlying truth of the statement, i.e., that the alleged kidnap p ing a kidnapping victim had identified him from a photo line - up, we need not we must accept as true that an unidentified police officer told the plaintiff that “made in a wanton or reckless manner.” Everitt, 15 p. 6 6 N.H. at 219. Although Lorenzo had probable cause to arrest the plaintiff or that the a rrest was not age, hairstyle, and facial hair, we conclude that the w r it does not establish that kidnap ping victim’s description of the assailant, including inconsistencies in between his physical appearance on the morning of his arrest and the alleged true that Lorenzo arrested the plaintiff despite substantial inconsistencies immunity under RSA 507:8 - d or official immunity. Because we must accept as the facts alleged by the plaintiff establish that the defendants are entitled to Guglielmo v. WorldCom, 148 N.H. 309, 312 (2002), we reject the argument that writ, and construing all reasonable inferences from them in his favor, see Limiting our review to the well - pleaded allegations of fact in the plaintiff’s

turn. See Sherryland v. Snuffer, 150 N.H. 2 p. 6 62, 26 p. 7 7 (2003). has not alle ged that Lorenzo acted with malice. We address each argument in the malicious prosecution claim fails as a matter of law because the plainti ff probable cause and the plaintiff cannot prove a lack of probable cause; and (4) malicious prosecution must be dismissed becaus e both claims require a lack of 7

the defendant for trial”); Morley v. Walker, 1 p. 7 75 F.3d 756, 760 - 61 (9th Cir. sim ply not the same as – l et alone identical to – t hat of sufficient cause to hold 2007) (“issue of ‘probable cause’ to arrest (or sufficient cause to detain) is suspect.”); Schmidlin v. City of Palo Alto, 69 Cal. Rptr. 3d 365, 395 (Ct. App. has been committed, not whether there was probable cause to arrest a preliminary examination is whether or not there is pro bable cause that a crime 2006 WL 798959, at *2 (E.D. Mich. March 29, 2006) (“The issue at a Kumar, 862 F. Supp. at 217; see also Broughton v. Hazerloth, No. 01 - 70074,

the first issue does not resolve the second. arresting officers had probable cause to make the arrest. Resolution of over the charged party is different from the question of whether the determinations, the question of whether there is probable cause to bind [A]lthough both determinations are referred to as ‘probable cause’

Kumar v. Chicago Housing Authority, 862 F. Supp. 213 (N.D. Ill. 1994): to beli eve that the plaintiff had committed an o ffense. Id. As explained in district court did not find that at the time of arrest Lorenzo had probable cause probable cause to believe that the plaintiff had committed an offense. The the evidence presented to it at the time of the hearing, the district court found an offense.” Hartgers, 141 N.H. at 255 (quotation omitted). Thus, ba sed up on reasonable caution and prudence in believing that the arrestee has committed knowledge and trustworthy information sufficient to warrant a person of By contrast, “[p]robable cause to arrest e xists when the arresting officer has pending grand jury action”); State v. Chase, 109 N.H. 296, 29 p. 7 7 (1969) (same). hearing “is to determine whether probable cause exists for . . . detention Smith v. O’Brien, 109 N.H. 317, 318 (1969) (the purpose of a probable cause State v. St. Arnault, 114 N.H. 216, 217 - 18 (1974) (quotation omitted); see prob able cause exists to believe that an offense has been committed . . . .” To bind over a criminal defendant for trial, a court must “determine whether defendant for trial and the issue of probable cause to arrest are not identical. be satisfied. First, the issue of probable cause to bind over a criminal Here, two of the three basic conditions to apply collater al estoppel cannot

novo.” Tyler v. Hannaford Bros., 161 N.H. 242, 246 (2010). “The applicability of collateral estoppel is a question of law that we review de Stewart v. Bader, 154 N. H. p. 7 75, 80 - 81 (2006) (quotation and citation omitted).

issue or fact in question. must have had a full and fair prior opportunity to litigate the requirement, that a party against whom estoppel is pleaded understood, in turn, as particular elements of the more general with someone who did so. These co nditions must be appeared as a party in the first action, or have been in privity p. 8 8

prosecution, a plaintiff must demonstrate that: (1) he was subjected to a malicious prosecution must be dismissed. To prevail on a claim for malicious We agree with the defendants, however, that the plaintiff’s claim for

Lorenzo had probable cause to arrest the plaintiff. the well - pl eaded allegations of fact in the plaintiff’s writ, do not establish that probable cause determinations of the district court and grand jury, as well as Stores, 93 N.H. 375, 375 (1945). For the reasons discussed above, the for fa lse imprisonment resulting from a warrantless detention. See Larreault v. imprisonment or false arrest”). Instead, probable cause is a defense to a claim prosecution . .. [are] all elements of ma licious prosecution, but not of fal se (1970) (“allegations of malice, want of probable cause and dismissal of the false imprisonment. See Hickox v. J.B. Morin Agency, Inc., 110 N.H. 43 p. 8 8, 442 We have explicitly stated that a lack of probable cause is not an element of 158 N.H. 476, 482 (2009); cf. Restatement (Second) of Torts § 35, at 52 (1965). and (4) the defendant acted without legal autho rity. See MacKenzie v. Linehan, confinement; (3) the plaintiff was conscious of or harmed by the confinement; defendant; (2) the defendant’s act directly or indirectly resulted in the plaintiff’s defendant acted with the intent of confining him within boundaries fixed by the claim for false imprisonment, a plaintiff must demonstrate that: (1) the lack of probable cause is an element of false imprisonment. To prevail on a As an initial matter, we note that the defendants are mistaken that a

established.” “based on the facts alle ged in the plaintiff’s writ of summons, probable cause is court and the grand jury, probable cause was present in this case”; and (2) prove a lack of probable cause because: (1) “[g]iven the findings by the district prove a lack of probable cause. The defendants argue that the plaintiff cannot lack of probable cause is an element of both claims and the plaintiff cannot false imprisonment and malicious prosecution must be dismissed becaus e a We turn next to the defendants’ contention that the plaintiff’s claims for

the criminal case” (emphasis added)). a subsequent civil proceeding as to the issues actually litigated and decided in N.H. 422, 42 p. 8 8 (1987) (“prior criminal conviction has collateral estoppel effect in s tand trial.” St. Arnault, 114 N.H. at 218. Compare Aubert v. Aubert, 129 the responsibility to the grand jury to decide whether the defendant should prosecution. As we explained in St. Arnault, the district court “merely passes determination of the district court is merely a preliminary step in the criminal said to have resolved the issue finally on the merits. T he probable cause to bind over a defendant for trial were identical, the district court cannot be Second, even if the issues of probable cause to arrest and probable cause

bind over a defendant for trial). 1 p. 9 999) (court refused to equate probable cause to arrest with probable cause to 9

to immunity from suit, or that probable cause supported the plaintiff’s arrest. o f the proceeding, the defendants have not demonstrated that they are entitled securing and preserving public safety.” Id. at 217. Nonetheless, at this stage trusted with one of the most basic and necessary functions of civilized society, process.” Everitt, 156 N.H. at 218. We understand that “[p]olice officers are energies otherwise deflected by litigation, at times a lengthy an d cumbersome their judgment shaded out of fear of subsequent lawsuits or to have their individuals charged with securing and preserving community safety to have In conclusion, we repeat that the “public simply cannot afford for those

or false imprisonment under 42 U.S.C. § 1 p. 9 983. instance whether the plaintiff’s writ asserts a cognizable claim for false arrest false imprisonme nt, we leave for the trial court to determine in the first any such claims. Because we reverse the dismissal of the plaintiff’s claim for U.S.C. § 1983. The defendants contend that the plaintiff’s writ fails to allege he has a cognizable claim for false arrest or false imprisonment under 42 Finally, we note that the plaintiff asserts in his memorandum of law that

criminal charges were instituted against him without probable cause. against him. Thus, the allegations in his writ do n ot permit a finding that Department engaged in improprie ty when procuring the indictments returned writ does not allege that Lorenzo or any other member of the Manchester P olice were otherwise significant ly irreg ular” (quotation omitted)). Here, the plaintiff’s indictment resulted from perjured testimony or [if] the grand jury proceedings Ohio malicious prosecution claim, which may be overcome only if “the 200 p. 9 9) (indictment is prima facie evidence of probable cause for purposes of an (quotation omitted)); Beckett v. Ford, 613 F. Supp. 2d 970, 982 (N.D. Ohio suppression of evidence or other police conduct undertaken in bad faith” overcome only if “the indictment was procured by fraud, perjury, the indictment creates a rebuttable presumptio n of probable cause, which may be 453 Fed. Appx. 56, 58 - 59 (2d Cir. 2011) (construing New York law to hold that presenting false testimony to the grand jury”); Alvarado v. City of New York, that “the d efendants wrongfully obtained the indictment by knowingly establishes probable cause” unless, at the pleading stage, the plaintiff asserts United States I.N.S., 405 F.3d 45, 49 (1st Cir. 2005) (indictment “definit iv ely Probable C ause, 28 A.L.R.3d 7 48 (1969) (Supp. 2012); Gonzalez Rucci v. Annotation, Malicious Prosecution: Effect of Grand Jury Indictment on Issue of defendant engaged in impropriety when procuring the indictment. S ee defeats a claim for malicious prosecut ion unless the plaintiff alleges that the C ourts are nearly uniform in holding that t he return of an indictment

747, 74 p. 9 9 (2006). See Stock v. Byers, 120 N.H. 844, 84 6 (1980); Paul v. Sherburne, 153 N.H. probable cause; (3) with malice; and (4) the prior action terminated in his favor. criminal prosecution or civil pro ceeding instituted by the defendant; (2) without p. 10 10

DALIANIS, C.J.