USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

__________________

No. 93-1579
GORDON C. REID,

Plaintiff, Appellant,

v.

STATE OF NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

__________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

__________________

Gordon C. Reid on brief pro se.

______________
Robert G. Whaland,
___________________

William A. Grimes
___________________

and

McDonough &
____________

O'Shaughnessy on brief for appellee.

_____________
Carolyn M. Kirby, Assistant County Attorney,
_________________
Summary Affirmance for appellee.

on Motion for

__________________

June 6, 1995
__________________

CYR, Circuit Judge.

CYR, Circuit Judge
______________

set aside his convictions on

assault

against a

initiated

this

child,

civil

punitive damages

After a New

two charges of felonious sexual

pro se
___ __

rights

against,

officers Gary

plaintiff Gordon

action

C. Reid

for compensatory

inter alia,
_____ ____

prosecutors Marguerite Wageling

ter police

Hampshire court

Hillsborough

and

County

and Paul McDonough, Manches-

Simmons, Ronald Paul,

James Ahern

and Richard Gilman, and defense attorney Richard Renfro.

The

district court dismissed all claims, and Reid appealed.

For

the reasons

hereinafter discussed,

we affirm

the district court order dismissing the claims against prose-

cutors

Wageling and

McDonough,

as well

as the

claim that

Renfro

conspired with the prosecutors to conceal exculpatory

evidence from Reid.

arrest and

We vacate the order dismissing the false

malicious prosecution

claims against

the police

defendants and the due process claim alleging that the police

defendants

intentionally

concealed exculpatory

impeachment

evidence from the prosecutors.

I
I

BACKGROUND
BACKGROUND
__________

A.
A.

The State Court Proceedings

The State Court Proceedings
___________________________

Reid was

1986,

and

arrested, without a warrant,

charged with

three

counts

on June 21,

of felonious

sexual

assault upon a

six-year-old girl, Misty

("Misty").1
______

He

was incarcerated

immediately

Police Sergeant Gary Simmons

hearing

ultimately held

bound over for trial.

upon

arrest.

Manchester

testified at the probable cause

on August

22, 1986,

and

Reid was

Between September 9, 1986 and June 24,

1987, with assistance from

stand-by counsel, Reid filed five

successful motions to compel

disclosure of exculpatory

evi-

dence.

Reid

represented

himself

at

trial,

personally

cross-examining

the State's witnesses, including Misty, with

assistance from

stand-by counsel.

Reid on one

count, he moved to set

After

the jury acquitted

aside his convictions on

the two remaining counts.

Sometime in

ther

motion

to

produced documents

September 1988, in response

disclose exculpatory

tending to

Misty, her sister Wendy,

evidence,

undermine the

and their mother.

to a fur-

the

State

credibility of

Among

the docu-

ments were Manchester Police Department reports, dated Decem-

ber 20, 1985

("1985 Report")

and April 4,

1986 ("1986

Re-

port"), prepared by Sergeant Simmons, containing questionable

accounts of previous sexual

assaults allegedly made

against

____________________

1The
Ann.
officer

arrest was made

pursuant to New

Hampshire Rev. Stat.

594:10(II)(b), which provides that "[a]n arrest by a peace

without a

whenever: ... The

warrant on

of a

felony

officer has reasonable ground

the person arrested has

courts interpret

a charge

committed a felony."

"reasonable ground" as the

lent of "probable cause."

The

is lawful

to believe that

New Hampshire

substantial equiva-

See State v. Vachon, 533 A.2d 384, 386

___ _____
______

(N.H. 1987).

Misty by other individuals.2

New Hampshire

YS") file

Reid also was provided

Department of Children &

on Misty

and her

Youth Services ("DC-

family, which

included reports

that Misty's mother had beaten and bruised Misty and

in sexual intercourse

These allegations

Wendy.

engaged

with her boyfriend in

front of Misty.

originated, in part, with

Misty's sister,

It further revealed

terized Wendy's allegations as

use and desire to move

only sixteen years old.

rant

with a

that Misty's mother had charac-

lies prompted by Wendy's drug

in with her boyfriend when Wendy

The DCYS file also

sexual behavior by Misty

was

described aber-

herself, at age

six, such as

performing fellatio on another child.3

Reid was released on

conducted

aside

reports

a "nonevidentiary

his convictions.

of prior

ability that

hearing" on

The court

sexual

impeachment evidence

bail while the superior court

the outcome

to set

concluded that the police

assaults

which gave

the motion

constituted

rise to a

of Reid's

exculpatory

reasonable prob-

trial

would have

been

different had the evidence been disclosed to the trial court,

since it directly

undermined the testimony of Misty

and her

____________________

2On

their face,

the

falsely accused anyone.

been sexually

complained

not

indicate that

Misty

The 1985 report indicates that Misty had

abused by a person

report states that Misty

who

reports do

or persons unknown.

The 1986

denied allegations made by a

______

neighbor,

that Misty

had been

sexually

abused by

a man

referred to simply as "George."

3It

is not clear whether the DCYS file was before the state

court.

-44

mother.

Ann.

Under the New Hampshire Rape Shield Law, Rev. Stat.

632-A:6, "a defendant must be afforded the opportunity

to show,

by specific incidents

prosecutrix

has the

experience

of sexual conduct,

and ability

that the

to contrive

statutory rape

charge against

N.H. 53, 61 (1981).

him."

State v.
_____

On October 5, 1988, the

set the

two remaining

trial.

In

convictions aside

December 1988,

all

Howard, 121
______

superior court

and ordered a

charges against

Reid

new

were

dropped.

B.
B.

The Federal District Court Proceedings

The Federal District Court Proceedings
______________________________________

(i)
(i)

The Original Complaint

The Original Complaint
______________________

The

original

civil

rights complaint

in

federal

district court alleged that between the date of arrest,

1986, and

the date his

1988, prosecutors

deprived of

convictions were set

Wageling and

aside, October

McDonough caused Reid

his liberty without probable

June

to be

cause in violation

of the Fourth Amendment.

It alleged that the prosecutors, by

withholding the exculpatory

to due process, a

and to confront

that

he

fair trial, equal protection of

and obtain witnesses.

was arrested

Simmons

on

the basis

Simmons

continuously

Reid

the laws,

further alleged

by

Manchester

Police Sergeant

Gary

of

unreliable

information and

that

withheld exculpatory

June 1986 and October 1988.

Renfro, Esquire,

evidence, violated Reid's rights

evidence between

Finally, he alleged that Richard

deprived Reid of his

-55

Sixth Amendment right

to the effective assistance of counsel

by failing to prepare

the case adequately for trial.

On June 19, 1989,

recommended

a United States magistrate judge

that all but one

port and recommendation noted

McDonough were

Pachtman,
________

claim be dismissed.4

that prosecutors Wageling

absolutely immune

424 U.S. 409 (1976),

from suit under

and that Reid

allege the requisite state action to sustain

defense counsel

The re-

and

Imbler v.
______

had failed to

a claim against

Renfro under Polk County v. Dodson, 454 U.S.

___________

______

312, 320-21 (1981).

(ii) The First Amended Complaint

(ii) The First Amended Complaint
___________________________

Reid filed

an amended

pro se complaint,
___ __

alleging

federal and state civil rights violations and adding Manches-

ter Police

that

defendants Gilman,

the police

defendants

Ahern and

arrested Reid

Paul.

on the

It alleged

basis of

unreliable information, in violation of the Fourth Amendment,

and deliberately

suppressed

exculpatory evidence

from

the

time of his arrest until after his trial, in violation of his

right to equal protection,

the effective assistance of coun-

sel, a fair trial, due process, and the right to confront and

obtain witnesses.

The first amended

complaint also alleged

that prosecutors Wageling and McDonough

codefendants

in the

present

had instructed their

civil rights

action, and

the

____________________

4The magistrate judge recommended

submit

further

documentation

on

the

that Reid be permitted to

claim

against

Sergeant

Simmons.

-66

witnesses at Reid's criminal trial, not to mention the police

reports on prior sexual assault complaints relating to Misty,

thereby prompting

inquiries

these codefendants to

concerning the

during the

withheld evidence both

criminal trial.

See
___

F.2d 1212, 1215

(6th Cir.

(6th Cir. 1976)

(per curiam).

reiterated

ately

respond falsely

Hilliard v.
________

1972), rev'd, 540

_____

before and

Williams, 465
________

F.2d 220,

The first amended

Reid's allegation

that the

withheld the exculpatory

to

221

complaint

prosecutors deliber-

evidence before, during, and

for fourteen months after Reid's criminal trial, resulting in

his unlawful

leged that

conviction and

the defendant

imprisonment.

Finally,

officers and prosecutors

it al-

had con-

spired to deprive Reid of his constitutional rights.

The magistrate

judge issued

a Further

Report and

Recommendation on February 6,

1990, which concluded that the

first amended complaint stated an actionable Fourth Amendment

claim for false arrest against the police defendants and that

Reid's motion to add police defendants Gilman, Ahern and Paul

should

be

magistrate

against

allowed.

judge

Citing Imbler,
______

concluded,

prosecutors Wageling

424

nonetheless,

and McDonough

absolute prosecutorial immunity.

Finally,

U.S. at

that

430, the

the claims

were barred

by

the report recom-

mended that the claim against Attorney Renfro be dismissed.

On March

Further

Report

and

22, 1991, the district

court adopted the

Recommendation, effectively

-77

dismissing

prosecutors

Wageling

and

McDonough,

and

defense

counsel

Renfro, as defendants.5

(iii)

The Third Amended Complaint6

(iii)

The Third Amended Complaint6

____________________________

On June 10, 1992, following further discovery, Reid

requested leave

to file

the third amended

complaint, reas-

serting all claims against the prosecutors, adding a conspir-

acy claim

against Renfro,

prosecutor defendants.

particularized

the

and naming additional

police and

The third amended complaint

claims

against the

police

further

defendants,

asserting that their failure to disclose exculpatory evidence

constituted

Reid's

actionable

constitutional

malicious

rights.

In

amended complaint, which indicated

about the exculpatory evidence

others to conceal it,

ally

construed,

(1976), asserted

reports and
_______ ___

prosecution and

contrast

violated

to the

first

that the prosecutors knew

but instructed the police and

Reid's third amended complaint, liber-

see Estelle
___ _______

v.

Gamble, 429
______

that the police defendants

___ ______ __________

the DCYS file

___ ____ ____

the prosecutors for almost

U.S.

97, 106

knew the police

____ ___ ______

existed, but concealed

_______ ___ _________

them from
____ ____

two years, between June

1986 and

___ ___________ ___ ______

August

1988.

Thus,

___ _____

the third

amended complaint

restated

Reid's previous allegations against the police defendants and

____________________

5Reid
Report

and the

police

and Recommendation.

dismissal of the claim

defendants objected
Although Reid

did

to the

Further

not object

against Renfro, he reserved the

to

right to

amend it following discovery.

6A second

amended complaint, naming a

former New Hampshire

governor as a defendant, was dismissed by the district court.

-88

pleaded distinct claims

cious

for negligence, false arrest,

prosecution, wrongful withholding

mali-

of exculpatory evi-

dence, and conspiracy.

As for

the prosecutors

and

Attorney Renfro,

the

third amended complaint alleged, in the alternative, that the

prosecutors knew

disclose the

of the

exculpatory evidence but

information to Renfro, or
__

disclosed the exculpatory information to

him in

tion

their conspiracy to conceal

from Reid.

appeal.

We

turn to the

failed to

that the prosecutors

Renfro but enlisted

the exculpatory informa-

various claims

raised on

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Claims Against the Prosecutors

The Claims Against the Prosecutors
__________________________________

Reid contends

dismissing

his

claims

McDonough.

He argues

not extend to claims

direct violation of

that

the district

against

prosecutors

court

erred

Wageling

in

and

that Imbler "absolute immunity" should

______

for withholding exculpatory evidence in

trial court orders, where it

is alleged

that the prosecutors repeatedly misled the trial court itself

throughout the

criminal proceedings.

Reid claims

that the

disclosure orders issued by the trial court displaced whatev-

er discretion the prosecutors may have had concerning disclo-

sure of exculpatory

evidence, consequently their

failure to

-99

disclose was not a prosecutorial function

ministerial.

Finally,

he

contends

at all, but merely

that the

prosecutors

repeatedly lied to the trial court about the existence of the

exculpatory evidence, whereas in Imbler the prosecutor volun______

tarily disclosed

the evidence shortly after

learning of it.

The district court dismissed the claims against the

prosecutors

as

frivolous under

28

U.S.C.

1915(d).

We

review only for abuse of discretion, see Watson v. Caton, 984

___ ______
_____

F.2d 537, 539 (1st Cir. 1993), and find none.7

First, Reid

alleged no facts

prosecutors had anything

plaint therefore

to do

suggesting that

with the arrest.

failed to state an

The

the

com-

actionable false arrest

claim.8

Second, under

rule

the

Imbler "it is 'now

______

that a prosecutor cannot be

[a] well-settled

held personally liable for

knowing suppression of exculpatory information.'" Robin-

______

____________________

7Although the

magistrate judge recommended that

against the prosecutors

cause of

action"

dismissal

"fail[ing] to state

language strongly suggesting a Rule 12(b)(6)

Reid was given notice of the deficiencies and a full

opportunity to amend
U.S.C.

be dismissed for

the claims

the complaint.

1915(d) was proper.

Thus,

dismissal under

28

See Purvis v. Ponte, 929 F.2d 822,

___ ______
_____

826-27 (1st Cir. 1991).

8As New Hampshire

malicious

prosecution, see Stock

___ _____

(N.H. 1980),
law,

recognizes the torts of

v. Byers, 424
_____

those claims should have been

rather than

1983.

false arrest and

A.2d 1122, 1123

analyzed under state

Given an adequate state-law remedy for

a procedural due process violation, no

1983 claim lies.

Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st

____
______________

Perez______

Cir. 1994); Smith v.

_____

Massachusetts Dep't. of Correction, 936 F.2d 1390, 1402 (1st Cir.

__________________________________

1991); Torres v. Superintendent of Police, 893 F.2d 404, 410 (1st

______
________________________
Cir. 1990).

-1010

son v. Volkswagenwerk AG,

___
_________________

940 F.2d 1369, 1372-73

(10th Cir.

1991) (citation omitted), cert. denied, 502 U.S. 1091 (1992);

_____ ______

Myers
_____

v. Morris, 810 F.2d

______

1437, 1446 (8th

nied, 484 U.S. 828 (1987).9

____

776, 777 (1st Cir. 1986)

540

F.2d

220, 221-22

Cir.), cert. de_____ ___

See Campbell v. Maine,

___ ________
_____

787 F.2d

(per curiam); Hilliard v. Williams,

________
________

(6th Cir.

1976)

(per curiam).

The

Imbler
______

rule has

disclose

been

applied where

prosecutors failed

exculpatory evidence specifically

to

requested by the

defense, see Jones v. Shankland, 800 F.2d 77, 78-80 (6th Cir.
___ _____
_________

1986), cert. denied, 481 U.S. 1048 (1987), and where prosecu_____ ______

tors misled the trial court in order to conceal their failure

to disclose exculpatory evidence, see Wilkinson v. Ellis, 484

___ _________
_____

F. Supp. 1072, 1082 (E.D. Pa. 1980).

Thus, we think the trial court discovery orders did

not displace Imbler immunity.

______

accurate

is in-

to assert, as Reid does, that there was no prosecu-

torial discretion

closure of

In the first place, it

left to

this evidence.

be exercised respecting

On the contrary,

the dis-

the disclosure

orders were issued

in response to

motions for "any

'excul-

patory' evidence which could assist [Reid] in the preparation

and presentation of his defense," broad language indicating a

general request

for Brady material.

_____

The orders accordingly

____________________

9As

New

Hampshire law

apparently

affords

no remedy

withholding exculpatory evidence, this claim is subject to

analysis.
(N.H. 1992)

See
___

also Belcher
____ _______

v. Paine,
_____

(applying Imbler doctrine

______

claim under state law.)

-1111

612 A.2d
to malicious

for

1983

1318, 1322-23

prosecution

left the

prosecutors with something more

than a ministerial

function to perform.

The prosecutors were required to deter-

mine what evidence in

their possession was "exculpatory" and

subject to

U.S.

disclosure.10

113 S.

Cf.
___

Buckley v. Fitzsimmons,
_______
___________ ____

Ct. 2606, 2616

(1993) (when prosecutor

_____

evaluates

for

ity).

evidence and

interviews witnesses

trial, he functions within

in preparation

the scope of absolute immun-

Imbler expressly recognized that requiring prosecutors

______

to defend

in section 1983 actions

decisions concerning

the

"materiality of

evidence

not revealed

to the

defense

could impose unique and intolerable burdens upon a prosecutor

responsible annually for hundreds of indictments and trials."

Imbler, 424 U.S. at 425-26.

______

The view expressed in the Imbler

______

____________________

10We recognize that N.H.

face,
a

Rev. Stat. Ann.

on its

bans evidence of prior sexual activity by a prosecutrix in

rape case:

"Prior consensual

sexual

activity between

victim and any person other than the actor shall

into

631-A:6,

evidence in any prosecution

the

not be admitted

under this chapter."

However,

the New Hampshire Supreme Court has read a constitutional limitation into this statutory
preserve

the statute

ban in statutory rape

from

infirmity to

cases, so as

to

constitutional attack.

Howard, 121 N.H. at 61 (state constitution requires that the jury

______
be informed

of prior sexual

statutory rape case,

experience of child

since jury otherwise

prosecutrix in

could infer that

the

prosecutrix must have gained her knowledge of sexual anatomy only

through the alleged sexual
such evidence

rests within

assault).

Whether and when

the discretion

of the trial

to admit

court.

State v. Cox, 575 A.2d 1320, 1322-23 (N.H. 1990) (upholding trial
_____
___

court's exercise

of

discretion admitting

only during

cross-examination

prosecutors

retained

whether

the

putative

Brady evidence.
_____

of

Howard-type
______

prosecutrix).

some discretion,
____
prior attacks

We do not suggest, of

at least,
against

evidence

Thus,

these

in evaluating

Misty constituted

course, that the prosecu-

tors were free to disregard the state court disclosure order, nor
that

there were no alternative means of avoiding a violation, as

by submitting the evidence for in camera review.

__ ______

-1212

dissent

that absolute

immunity should attach only

if the

prosecutor

has disclosed all

State's evidence

such a

was rejected

requirement

would

exercise of prosecutorial
________ __ _____________

to determine

Brady and
_____

doubt on the

by the Imbler Court because

______

interfere

"with

discretion."
__________

thus implicitly acknowledged

tion
____

facts which cast

the

Id. at
___

legitimate
__________

432.

Imbler
______

that prosecutors retain discre_______

what evidence

is to

that absolute immunity attaches

be

disclosed under

to their exercise

of discretion.

The further allegation

peatedly misled

alleged

Burns v.

the trial

misconduct does

that these prosecutors

court in order

not defeat

Reed, 500 U.S. 478,

to conceal

absolute immunity.

489-90, 111 S.

re-

their

In

Ct. 1934, 1941

_____

(1991),

____

the Court sustained

for "making

ceedings

absolute prosecutorial immunity

false or defamatory statements

in judicial pro-

(at least so long as the statements were related to

the proceeding), and also

for eliciting false and defamatory

testimony from witnesses."

Imbler stated that it is "'better

______

to leave

than to

unredressed the

wrongs done by

subject those who try

stant dread

of retaliation.'"

(quoting Gregoire
________

v. Biddle,
______

dishonest officers

to do their duty
__ _____ ____

See Imbler,
___ ______

177

F.2d 579,

1949), cert. denied, 339 U.S. 949 (1950)).11

_____ ______

____________________

to the con-

424 U.S.

581 (2nd

at 428

Cir.

11Reid counters with Martinez v. Winner, 771 F.2d

________
______
Cir. 1985) (holding

that prosecutor is not entitled

immunity for filing false

424 (10th

to absolute

affidavit in bar disciplinary proceed-

-1313

Nor

prosecutors

long after

that

was

absolute immunity

continued to

withhold the

Reid's conviction.12

forfeited

because the

exculpatory evidence

Imbler specifically
______

noted

absolute prosecutorial immunity is an essential guaran-

tee that

reviewing courts focus exclusively

on the fairness

of the underlying trial, not upon any collateral consequences

a reversal might portend for the prosecutor.

Patterson
_________

Id. at 427; cf.

___
___

v. Von Riesen, 999 F.2d 1235, 1238 (8th Cir. 1993)

__________

("The Supreme Court has

tors reveal

created no requirement that prosecu-

their trial mistakes to

maintain their absolute

immunity . . . .").13

____________________

ing to cover
F.2d

10

up trial

(D.C. Cir.

misconduct), and Briggs

______
1977), cert.
_____

(holding prosecutor not entitled

edly

perjuring

prosecutor

himself

was then

acting as

437 U.S.

569

904 (1978)

to absolute immunity for alleg-

during grand

acting in

cases are inapposite, as

denied,
______

v. Goodwin,
_______

jury

proceedings,

investigative capacity).

they involved prosecutors who

since

These

were not

advocates

for the State.

Moreover, Martinez
________

was reversed, see

___

Martinez, 778 F.2d 553, 555-56 (10th Cir. 1985), as to the

________
relied on

by Reid, vacated by

the Court, Tyus

____

point

v. Martinez, 475
________

U.S. 1138 (1986), and later dismissed as moot, Martinez, 800 F.2d
________
230 (10th
light

Cir. 1986).

Finally, Briggs
______

of Briscoe v. LaHue,
_______
_____

including those

who

give

460 U.S. 325

perjured

immune from civil suit under

F.2d

is no longer

1444 (D.C. Cir. 1983),

(1983) (all witnesses,

testimony,

1983).

are

absolutely

See Briggs v. Goodwin, 712

___ ______
_______

cert. denied, 464

_____ ______

(prosecutor who gives perjured

viable in

U.S. 1040 (1984)

testimony is entitled to absolute

immunity under Briscoe but not Imbler).

_______
______

12The first
tors,

unlike

exculpatory

amended complaint

the prosecutor
evidence

until

in

alleged that
Imbler, did
______

more than

year

these prosecu-

not

disgorge the

after

Reid was

convicted.

13We also reject the contention that their conduct following

Reid's conviction is
Supp. 1228,

actionable under Houston v. Partee,

_______
______

1230-31 (N.D.

Ill. 1991) (holding

-14-

758 F.

that prosecutors

14

Reid

failed

further

contends

that

the

district

court

to address his claim against the prosecutors in their

official capacities.
________ __________

In

order to

prevail on

capacity" claim, Reid would have to show that the

an "official

particular

governmental entity had an unconstitutional custom or policy,

Monell v. New York City Dep't. of Social Servs., 436

______
________________________________________

U.S.

658,

690 (1978),

with

at least

makers.

which its

the

representatives were

tacit approval

executing

of governmental

policy-

Id. at 691 ("customs and usages" of local government

___

may satisfy Monell requirement).

______

ed actionable claims

Reid insists that he plead-

against the County

Prosecutor's office

and the County of Hillsborough by alleging that the defendant

prosecutors, themselves

policymaking officials, continuously

refused to produce the exculpatory evidence the court ordered

____________________

are not entitled to absolute immunity for suppressing exculpatory

evidence first acquired
_____ ________

after
_____

1983 plaintiffs' murder

convic-

tions), aff'd, 978 F.2d 362 (7th Cir. 1992), cert. denied, 113 S.
_____
_____ ______
Ct.

1647

shooting

(1993).

The

gang

member.

Houston
_______
While

plaintiffs were
their

appeals

convicted

of

were pending,

another gang member, in the context of a different investigation,

informed

the

prosecutor

as to

the

identities

of

the actual

killers.Theprosecutor, nolongerrepresentingtheState inplaintiffs'

criminal appeals,
counsel.
appeal,
had

did not

few years

after the

the real killers

been aware of the

disclose this information

convictions were

confessed.

The

to defense

affirmed on

three prosecutors who

evidence neither disclosed

it to defense

counsel nor to the court, and plaintiffs were unjustly imprisoned

for several more years.
Houston stressed that absolute
_______
the prosecutors'
their

conduct because

investigative
_____________

representing the

they acquired the

a

time

when they

State in the post-conviction

978 F.2d at 366-67.

did

capacity, at
________

immunity did not attach to

Reid has not alleged that

not represent the State

were

not

proceedings.

See
___

these prosecutors

after his conviction.

record suggests otherwise.

-1515

evidence in

Indeed, the

disclosed.

We do not reach the question whether Reid

alleged the requisite custom

he

has

not

recommendation

McGee,
_____

challenged

the

on this

basis.

36 F.3d 143, 150

Mart Inc. v.
_________

or practice under Monell, since

______

magistrate-judge's

See
___

Henley Drilling Co. v.

____________________

(1st Cir. 1994)

Ford Motor Co., 616

_______________

report and

(citing Park Motor

__________

F.2d 603,

605 (1st

Cir.

1980) ("A party may file objections within ten days or he may

not, as he chooses, but

he shall do so if he

appellate consideration.")).

wishes further

Accordingly, all claims against

the prosecutors were properly dismissed.

B.
B.

The Claims Against the Police Officers

The Claims Against the Police Officers
______________________________________

After

proceed, the

the false

arrest

police defendants

of due

process

concealing exculpatory evidence.

tion

of the

further

district

discovery in

defendant's awareness

of law

to

the district

and a

fair trial

by

Unable to obtain clarifica-

attempt to

order, Reid

pursued

establish each

police

of the exculpatory evidence and wheth-

er,

and when, the officers

one

another and

to

allowed

the claim that the police

court dismissal

an

were

contended that

court had dismissed, as frivolous,

deprived Reid

claims

had disclosed what

the prosecutors.

ultimately permitted the

they knew to

The district

third amended complaint,

court

including

the false

arrest claims

and the

concealment claims,

to be

filed against the police defendants.

(i)
(i)

The Third Amended Complaint

The Third Amended Complaint
___________________________

-1616

On February 14, 1992, the

the

police defendants to

respond to

magistrate judge ordered

Reid's interrogatories

and requests for production

filed a

motion to

ries, followed

by motions to join

alia, that
____

On June

compel further responses

for permission to file

inter
_____

of documents.

10, Reid

to interrogato-

additional defendants and

the third amended complaint alleging,

the police

prosecutors to conceal the

defendants conspired

exculpatory evidence.

with the

There fol-

lowed, in July 1992, another motion to compel production.

Prior to any disposition

to

of Reid's June 10 motions

compel responses to interrogatories and for leave to file

the third amended complaint,

the police defendants moved for

summary judgment on qualified immunity grounds based on their

contention that other evidence in their possession was suffi-

cient

to establish

probable

cause for

Reid's arrest

even

assuming

they had

withheld

addition, Sergeant

that

Simmons

he had withheld police

August 27, 1992,

the police

the exculpatory

submitted an

affidavit

reports relating to

Reid requested further

In

denying

Misty.

On

time to respond

to

defendants' motion for summary

he was unable to do so

evidence.

judgment, because

until the district court ruled on his

discovery requests.14

____________________

14Although Sergeant Simmons made reference to earlier police

reports relating to Misty, he did not mention the DCYS file.
is

it

clear whether

the police

defendants

contents prior to Reid's arrest or conviction.

-1717

were privy

Nor

to its

In November, 1992,

Rhode Island to

district judge.

the case

was transferred

New Hampshire and reassigned to

On

December 14,

the newly

from

a different

assigned judge

allowed Reid until January 11, 1993, to respond to the police

defendants' motion for summary judgment.

the court

and to

directed that

Reid's motions to

substitute the third amended

"withdrawn"

from

the

At

docket,

the same

time,

compel discovery

complaint be considered

without prejudice

to

their

renewal

by January 4, 1993.

the deadline and again

Reid renewed each motion within

sought additional time to

respond to

the motion for summary judgment.

On

Reid

seven

January 22,

days to

summary judgment.

tute

the third

claims

cious

1993, the

respond in

The court

amended

district

writing

to the

motion for

denied Reid's motion to substi-

complaint insofar

against prosecutors Wageling

prosecution, denial of

court allowed

as it

would add

and McDonough for mali-

due process

of law

and false

imprisonment caused by the failure to disclose the exculpato-

ry evidence, and against

the

Reid.

prosecutors to

At the

Attorney Renfro for conspiring with

conceal

same time,

the

the

exculpatory evidence

court allowed

from

an amendment

adding

separate malicious

police

defendants and

prosecution claim

restating the

claim that

against all

the police

defendants had violated Reid's constitutional rights by

tinuously

withholding the exculpatory evidence.

con-

Lastly, the

-1818

district

court

rejected

Reid's

motion to

compel

further

discovery under Fed. R. Civ. P. 56(f), on the ground that the

discovery sought was not

substantially related to the police

defendants' qualified immunity claims.

On

February 5,

1993, the

district

court granted

summary judgment for all police defendants.

Relying primari-

ly on

preceding Reid's

reports of

arrest, the

the police investigation

court reasoned

that the police

defendants were

entitled to qualified immunity because an objectively reason-

able police officer, based on all the evidence, including the

exculpatory

information withheld until August of 1988, none-

theless could have believed that

arrest Reid for sexually

police

defendants

assaulting Misty, even assuming the

concealed

The district court did

there was probable cause to

the

exculpatory

evidence.15

not mention the malicious prosecution

claims

relating to the alleged

dants

to disclose

that

"when probable

tence

of

the

failure of the police defen-

exculpatory evidence,

but concluded

cause exists notwithstanding

some exculpatory

Fourth Amendment occurs and

evidence,

no

the exis-

violation of

the

the shield of qualified immunity

_________ ________

____________________

15The district
when it ruled on

court did not have

either the motion

motion for reconsideration.

court, however, for a
judgment

for summary judgment or

the

Those materials were in the district

single day

February 10

after summary
_____

had been entered against Reid and before the motion for
______

reconsideration was filed.

ty

the exculpatory evidence

Nor did the court have the opportuni-

to consider Reid's pro se memorandum in opposition to summary

judgment before granting summary

judgment against him, though it

did so prior to ruling on the motion for reconsideration.

-1919

remains viable."

(emphasis added).

tered dismissing all claims

Final judgment

was en-

against the police defendants on

February 8.

On February 10,

and

docketed

summary

exhibits,

the district court

Reid's timely
______

judgment, together

memorandum, and

opposition

with

to

clerk received

the motion

his supporting

statement of

for

affidavit,

contested and

unc-

ontested

facts.16

The

supporting

materials

included the

1985 and 1986 police reports, which recorded prior complaints

of

sexual assaults against Misty, as well as portions of the

DCYS reports describing relevant family history.

The DCYS

ter,

reports described how Misty

and her sis-

Wendy, had been physically abused by their mother.

allegations were made by

Misty's

mother.

engaged

in

The

Wendy, and by a former

_____

reports related

sexual intercourse

former roommate

in

described how she had

her four-year-old

son on

April 17,

roommate of

that Misty's

Misty's

The

presence.

mother

The

found Misty fellating

1985.

Misty's

mother

____________________

16Weekends, legal holidays,

and January 22

the date

of

the denial of the motion to

from the

running of the

Civ. P. 6(a).

Rule

compel

should have been

seven-day filing

6(e) further

period.

required that

See
___

excluded

Fed. R.

three days

be

added to the prescribed response period since the court order had
been mailed to Reid.
February 5,
to

Fed. R. Civ. P. 6(e).

1993, to respond.

the motion

prison warden

for summary

Reid

seasonably filed opposition

judgment by

on February 5.

submitted to prison

depositing it

with the

See Houston v. Lack, 487 U.S. 266,

___ _______
____

275 (1988) (holding that filing periods

mined when

Thus, he had until

for prisoners are deter-

warden) (analogous

FRAP 4

con-

text); Oliver v. Commissioner of Massachusetts Dep't. of Correc______

________________________________________________
tions, 30 F.3d 270, 272 (1st Cir. 1994) (same).
_____

-2020

denied

the allegations

charges in order

move in with

and

to force

a boyfriend,

accused Wendy

of making

the mother into

false

allowing her

to

was under

the

indicated that Wendy

had

and because Wendy

influence of drugs.

The DCYS reports further

refused to return to

two

weeks, and

without

that

her mother's residence for a

the Manchester

Police had

period of

attempted,

success, to find Wendy and return her to her mother.

Wendy requested that she be placed in protective custody, but

that her request

dence."

was denied

Later, after

returned home.

joint

"due to lack

of concrete

counseling, Wendy

evi-

voluntarily

Finally, the DCYS reports reflect that during

1985

the year

before Reid's arrest

Misty's

mother was

under investigation for child abuse and neglect.

Reid

contended

that both Misty and

that

these materials

established

her mother were unreliable and

that the

mother had an ulterior motive for fabricating charges against

Reid since she had

been the subject of a

for abuse and neglect

DCYS investigation

based on Wendy's allegations

that the

mother repeatedly had beaten her and Misty.17

____________________

17Reid contended further that

established their
that they

entitlement to

that Sergeant

probable

cause

hearing

Simmons had
his

nor "any other information

[believe]

summary judgment on

withheld the exculpatory evidence.

attested

Misty,

the police defendants had not

The Reid affidavit

never disclosed

prior reports

his claim

of

which would lead

at

the

contact with

a person to

that the allegation made by the complainant wasn't the

first such allegation made by her."

-2121

Although

materials

Reid's

were received

timely opposition

and

docketed on

and supporting

February 10,

the

police reports and the DCYS reports were returned to Reid the

same day

vides

by the clerk, pursuant to

that the

clerk is

Local Rule 14 which pro-

not required

to retain

discovery

materials.

On February 22, Reid moved for reconsideration of

the summary judgment order entered February 8.18

Reconsider-

ation was summarily denied on May 10, 1993, though the excul-

patory evidence was not before the court.

noted, however, that it

tion and memorandum

The district court

had considered Reid's pro

___

in opposition to the motion

judgment, which described some

of the exculpatory

se objec__

for summary

evidence.

Reid appealed.

We

review

the

summary judgment

order

de
__

novo,
____

Lallemand v. University of Rhode Island, 9 F.3d 214, 215 (1st

_________
__________________________

Cir. 1993),

the Rule

56(f) order

for abuse of

discretion,

Mattoon v. City of Pittsfield, 980 F.2d 1, 7 (1st Cir. 1992),

_______
__________________

and the

tion,

order denying

Desenne
_______

reconsideration for abuse

of discre-

v. Jamestown Boatyard, Inc., 968 F.2d

_________________________

1388,

1392 (1st Cir. 1992).

The

district

court

prematurely

granted

judgment on the claims that Reid was arrested without

summary

proba-

____________________

18The motion for reconsideration, accompanied by

a support-

ing

affidavit and memorandum, was served

ten

days of the entry of the district court judgment on February

8, as required by Fed. R. Civ. P. 59(e).

-2222

on February 16, within

ble cause and that the police failed to disclose the exculpa-

tory

impeachment

above, see note 8

___

not be

evidence to

the

prosecutors.

supra, a procedural due process

_____

redressed under section 1983 where

remedy exists.

Perez-Ruiz v.
__________

(1st Cir. 1994); Smith

_____

As

noted

claim may

an adequate state

Crespo-Guillen, 25 F.3d 40, 42

______________

v. Massachusetts Dept. of Correction,

_________________________________

936 F.2d 1390, 1402 (1st Cir. 1991); Torres v. Superintendent

______
______________

of Police,
_________

Hampshire

893 F.2d

404, 410

(1st Cir.

recognizes the common-law

1990).

torts of

Since

New

false arrest,

Hickox v. Morin, 272 A.2d 321, 323 (N.H. 1970), and malicious
______
_____

prosecution, Stock v. Byers, 424 A.2d 1122, 1123 (N.H. 1980),

_____
_____

the

claim

should

section

that Reid

have

was

arrested

been addressed

1983.

Richardson v.
__________

under

without probable

New

Hampshire law,

Chevrefils, 552
__________

(N.H. 1988); Opinion of the Justices, 493 A.2d

_______________________

1985);

Merrill v. Manchester, 332

_______
__________

(abrogating doctrine

Rev. Stat. Ann.

that the

police withheld

prosecutors

does not

A.2d 89,

see also
___ ____

the exculpatory evidence

Hampshire common law and thus

92

1189-90 (N.H.

On the other hand, the

state

not

A.2d 378, 383 (N.H. 1974)

of municipal immunity);

491:24.

cause

an actionable

N.H.

allegation

from the

claim under

New

must be analyzed under federal

law in accordance with section 1983 jurisprudence.

er
__

v. City of New York, 974

_________________

cert. denied, 113 S.

____ ______

S.

F.2d 293, 300

See Walk___ _____

(2d Cir. 1992),

Ct. 1387 (1993), and cert.

_____

denied, 113
______

Ct. 1412 (1993); Henderson v. Fisher, 631 F.2d 1115, 1119

_________
______

-2323

(3d Cir. 1980) (per

curiam); Taylor v. Hansen, 731

______
______

F. Supp.

72, 78 (N.D.N.Y. 1990); Carter v. Harrison, 612 F. Supp. 749,

______
________

758 (E.D.N.Y. 1985).

Federal

Rule of

Civil Procedure 56(f)

safety valve for claimants genuinely

to marshal "facts, essential

provides a

in need of further time

to justify [their] opposition .

. to a summary judgment motion."

Mattoon, 980 F.2d at 7;

_______

see Morrissey v. Boston Five Cents Savings Bank, No. 94-2220,

___ _________
______________________________

slip op. at 17-20

under

(1st Cir. 1995) (further discovery

Rule 56(f) must be

issue).

ble basis

such as could

sought

establish a triable

The Rule 56(f) motion must "(1) articulate a plausi-

for the

belief that discoverable

materials exist

which

would raise

a trialworthy

good cause for failure

Id.
__

We

favor

of Rule

where the movant

56(f), "a

of relief."

(2) demonstrate

to have conducted discovery earlier."

have held that

quirements

issue and

satisfies the

strong presumption

Resolution Trust Corp. v.

_______________________

re-

arises in

North Bridge
____________

Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994).

______

Reid made a

timely motion to

summary

judgment motion,

ciently

describing the

supported by

defer ruling on

an affidavit

requested discovery.

Prior

the

suffi-

to the

Rule 56(f) motion, moreover, the magistrate judge had ordered

the police defendants to respond to interrogatories previous-

ly

with

filed by Reid.

the order

The police defendants have never complied

to respond

to these

interrogatories.

The

-2424

unanswered interrogatories directly concern the critical DCYS

reports

on Misty, Wendy and their mother, and when the vari-

ous police defendants became aware of these reports.

The

claims against

requested

the police

discovery was

defendants.

essential

When

to Reid's

the individual

police

defendants learned

relevant to (1) whether

of

the

arrest

is

the individual defendants reasonably

could have believed there was

(false

exculpatory evidence

claim) and

probable cause to arrest

(2)

whether

they initiated

criminal prosecution knowing that probable cause was

(malicious prosecution claim).

Reid

the

lacking

When the exculpatory evidence

was transmitted to the prosecutors is relevant to determining

(3) whether

Brady
_____

the individual defendants attempted

material from

the prosecutors

The unanswered interrogatories

matters.

As the

arguably generate

must determine

a trialworthy

whether Reid

(section 1983

were pertinent

discovery sought

to withhold

is

claim).

to all

these

such that

it could

issue of material

fact, we

complied with the

other stric-

tures of Rule 56(f).

Given the

dispute

direct police involvement in

between Wendy

reports relating prior

considered

implausible

and her

mother, and

sexual abuse of

in the

least

the bitter

the two

police

Misty, it cannot

that

the police

be

had

access to the exculpatory information prior to Reid's arrest.

______

The

requested

information was

-2525

within

the

control of

the

police defendants, a factor which weighs

relief under Rule

1208 (reversing

Reid

tained

56(f).

North Bridge Assoc.,

___________________

denial of Rule 56(f)

not only sought discovery

court order

heavily in favor of

motion).

in a timely

requiring

respond to his interrogatories.

the

22 F.3d

at

Furthermore,

manner, but ob-

police defendants

See Mattoon, 980 F.2d

___ _______

to

at 7

(failure of movant to pursue discovery with diligence permits

denial

of Rule 56(f) motion).

fidavit and

tion

Finally, the Reid motion, af-

interrogatories plainly identified

requested.

See
___

Murphy
______

v.

the informa-

Timberlane Regional Sch.

_________________________

Dist., 22
_____

F.3d 1186,

1197 (1st Cir.)

(upholding denial

of

Rule 56(f) motion where movant failed to identify information

sought and to submit supporting affidavit), cert. denied, 115

_____ ______

S.

Ct. 489 (1994); Nestor Colon Medina & Sucesors, Inc. v.

______________________________________

Custodio, 964 F.2d 32,

________

39 (1st Cir. 1992) (finding

discretion

portion

clearly

in denying

related facts

which

of Rule

abuse of

56(f) motion

would generate

which

trialworthy

issue).

In these circumstances Reid was entitled to receive

responses to

the

unanswered interrogatories

ordered by the court,

as

previously

and the additional discovery requested

in the Rule 56(f) motion.

See generally Farmer v. Brennan,

___ _________ ______
_______ _

U.S.

, 114 S. Ct. 1970, 1985 (1994) (remanding Rule 56(f)

___

ruling for

reconsideration in light of

the central issue governing

Court's holding that

plaintiff's claim was when state

-2626

officials actually acquired certain information).

On remand,

therefore,

reasonable

Reid

should

be

allowed

to conduct

further discovery relating to

the state-law and section 1983

claims against the police defendants.

C.
C.

The Conspiracy Claim Against Defense Counsel

The Conspiracy Claim Against Defense Counsel
____________________________________________

Lastly, Reid challenges the denial of his motion to

amend the third

amended complaint by

adding the claim

that

Attorney Renfro conspired with the prosecutors to conceal the

exculpatory

evidence.

Correa-Martinez v.
_______________

Cir. 1990).

serve no

We review

of discretion.

Arrillaga-Belendez, 903 F.2d

__________________

"Where an

amendment would be

legitimate purpose,

needlessly prolong matters."

The

for abuse

allegation

49, 59 (1st

futile or

the district court

would

should not

Id.
___

that

Renfro

saw

the exculpatory

evidence,

yet did not bring

conclusory to state a

it to Reid's

viable conspiracy claim.

Bennett,
_______

17 F.3d

attorney

provided incompetent

1263,

1268 (10th

generate triable issue on

115 S. Ct. 107 (1994).

had

access

generate a

knowledge

to the

See
___

Hunt v.
____

Cir.) (allegation

defense held

that

insufficient to

conspiracy charge), cert.

_____

denied,
______

The conclusory allegation that Renfro

prosecution's

trialworthy issue

of the

attention, is too

as

exculpatory

file

is insufficient

to whether

he had

evidence, since

allegation that

the prosecution materials

Renfro included

the exculpatory

-2727

material.

to

actual

there is

no

made available to

See
___

Slotnick v.
________

Garfinkle, 632 F.2d 163, 165-66 (1st Cir. 1980) (per curiam).
_________

Accordingly, we conclude that the refusal to allow yet anoth-

er amendment to

the complaint

constitute an abuse

at the present

of discretion under

standard.19

III

time did

not

the Correa-Martinez
_______________

III

CONCLUSION
CONCLUSION
__________

For the

judgment

and

foregoing reasons,

dismissing the claims

McDonough and

Renfro.

We vacate

police defendants,

the

we affirm the

summary

against prosecutors Wageling

conspiracy

the judgment

claim against

entered

Simmons, Gilman,

defendant

in favor

of the

Ahern and Paul,

on the

false arrest, malicious prosecution, and due process

and

remand

all claims

further proceedings,

against

including

police defendants shall bear

______ __________ _____ ____

on
__

the

police defendants

reasonable discovery.

for

The
___

two-thirds of appellant's costs

__________ __ ___________ _____

appeal; all other costs are to

______ ___ _____ _____ ___ __

incurred them.

claims,

be borne by the party who

__ _____ __ ___ _____ ___

________ ____

So ordered.
So ordered.
__ _______

____________________

19We note, nonetheless, that should further discovery result

in new evidence relating to the nature and timing of the prosecutors'

and

defense

evidence, we

counsel's

are confident that

the claim against Renfro

light of

acquisition

of

the

exculpatory

a responsive proposal

would be accorded due

the appropriate equitable

criteria.

Oil Refining v. Garrity Oil Co., 884 F.2d

_____________
________________
1989).

-2828

to amend

consideration in
See
___

Quaker State
____________

1510, 1517 (1st Cir.