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, on Motion for _________________
Summary Affirmance for appellee.
__________________
June 6, 1995
__________________
CYR, Circuit Judge. After a New Hampshire court CYR, Circuit Judge ______________
set aside his convictions on two charges of felonious sexual
assault against a child, pro se plaintiff Gordon C. Reid ___ __
initiated this civil rights action for compensatory and
punitive damages against, inter alia, Hillsborough County _____ ____
prosecutors Marguerite Wageling and Paul McDonough, Manches-
ter police officers Gary 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. We vacate the order dismissing the false
arrest and 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. The State Court Proceedings A. The State Court Proceedings ___________________________
Reid was arrested, without a warrant, on June 21,
1986, and charged with three counts of felonious sexual
2
assault upon a six-year-old girl, Misty ("Misty").1 ______
He was incarcerated immediately upon arrest. Manchester
Police Sergeant Gary Simmons testified at the probable cause
hearing ultimately held on August 22, 1986, and Reid was
bound over for trial. 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. After the jury acquitted
Reid on one count, he moved to set aside his convictions on
the two remaining counts.
Sometime in September 1988, in response to a fur-
ther motion to disclose exculpatory evidence, the State
produced documents tending to undermine the credibility of
Misty, her sister Wendy, and their mother. 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 arrest was made pursuant to New Hampshire Rev. Stat.
Ann. 594:10(II)(b), which provides that "[a]n arrest by a peace
officer without a warrant on a charge of a felony is lawful
whenever: ... The officer has reasonable ground to believe that
the person arrested has committed a felony." The New Hampshire
courts interpret "reasonable ground" as the substantial equiva-
lent of "probable cause." See State v. Vachon, 533 A.2d 384, 386 ___ _____ ______
(N.H. 1987).
3
Misty by other individuals.2 Reid also was provided with a
New Hampshire Department of Children & Youth Services ("DC-
YS") file on Misty and her family, which included reports
that Misty's mother had beaten and bruised Misty and engaged
in sexual intercourse with her boyfriend in front of Misty.
These allegations originated, in part, with Misty's sister,
Wendy. It further revealed that Misty's mother had charac-
terized Wendy's allegations as lies prompted by Wendy's drug
use and desire to move in with her boyfriend when Wendy was
only sixteen years old. The DCYS file also described aber-
rant sexual behavior by Misty herself, at age six, such as
performing fellatio on another child.3
Reid was released on bail while the superior court
conducted a "nonevidentiary hearing" on the motion to set
aside his convictions. The court concluded that the police
reports of prior sexual assaults constituted exculpatory
impeachment evidence which gave rise to a reasonable prob-
ability that the outcome of Reid's 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 reports do not indicate that Misty
falsely accused anyone. The 1985 report indicates that Misty had
been sexually abused by a person or persons unknown. The 1986
report states that Misty denied allegations made by a neighbor, ______
who complained 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.
-4- 4
mother. Under the New Hampshire Rape Shield Law, Rev. Stat.
Ann. 632-A:6, "a defendant must be afforded the opportunity
to show, by specific incidents of sexual conduct, that the
prosecutrix has the experience and ability to contrive a
statutory rape charge against him." State v. Howard, 121 _____ ______
N.H. 53, 61 (1981). On October 5, 1988, the superior court
set the two remaining convictions aside and ordered a new
trial. In December 1988, all charges against Reid were
dropped.
B. The Federal District Court Proceedings B. The Federal District Court Proceedings ______________________________________
(i) The Original Complaint (i) The Original Complaint ______________________
The original civil rights complaint in federal
district court alleged that between the date of arrest, June
1986, and the date his convictions were set aside, October
1988, prosecutors Wageling and McDonough caused Reid to be
deprived of his liberty without probable cause in violation
of the Fourth Amendment. It alleged that the prosecutors, by
withholding the exculpatory evidence, violated Reid's rights
to due process, a fair trial, equal protection of the laws,
and to confront and obtain witnesses. Reid further alleged
that he was arrested by Manchester Police Sergeant Gary
Simmons on the basis of unreliable information and that
Simmons continuously withheld exculpatory evidence between
June 1986 and October 1988. Finally, he alleged that Richard
Renfro, Esquire, deprived Reid of his Sixth Amendment right
-5- 5
to the effective assistance of counsel by failing to prepare
the case adequately for trial.
On June 19, 1989, a United States magistrate judge
recommended that all but one claim be dismissed.4 The re-
port and recommendation noted that prosecutors Wageling and
McDonough were absolutely immune from suit under Imbler v. ______
Pachtman, 424 U.S. 409 (1976), and that Reid had failed to ________
allege the requisite state action to sustain a claim against
defense counsel 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 defendants Gilman, Ahern and Paul. It alleged
that the police defendants arrested Reid on the 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 had instructed their
codefendants in the present civil rights action, and the
____________________
4The magistrate judge recommended that Reid be permitted to
submit further documentation on the claim against Sergeant
Simmons.
-6- 6
witnesses at Reid's criminal trial, not to mention the police
reports on prior sexual assault complaints relating to Misty,
thereby prompting these codefendants to respond falsely to
inquiries concerning the withheld evidence both before and
during the criminal trial. See Hilliard v. Williams, 465 ___ ________ ________
F.2d 1212, 1215 (6th Cir. 1972), rev'd, 540 F.2d 220, 221 _____
(6th Cir. 1976) (per curiam). The first amended complaint
reiterated Reid's allegation that the prosecutors deliber-
ately withheld the exculpatory evidence before, during, and
for fourteen months after Reid's criminal trial, resulting in
his unlawful conviction and imprisonment. Finally, it al-
leged that the defendant officers and prosecutors 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 allowed. Citing Imbler, 424 U.S. at 430, the ______
magistrate judge concluded, nonetheless, that the claims
against prosecutors Wageling and McDonough were barred by
absolute prosecutorial immunity. Finally, the report recom-
mended that the claim against Attorney Renfro be dismissed.
On March 22, 1991, the district court adopted the
Further Report and Recommendation, effectively dismissing
-7- 7
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, and naming additional police and
prosecutor defendants. The third amended complaint further
particularized the claims against the police defendants,
asserting that their failure to disclose exculpatory evidence
constituted actionable malicious prosecution and violated
Reid's constitutional rights. In contrast to the first
amended complaint, which indicated that the prosecutors knew
about the exculpatory evidence but instructed the police and
others to conceal it, Reid's third amended complaint, liber-
ally construed, see Estelle v. Gamble, 429 U.S. 97, 106 ___ _______ ______
(1976), asserted that the police defendants knew the police ___ ______ __________ ____ ___ ______
reports and the DCYS file existed, but concealed them from _______ ___ ___ ____ ____ _______ ___ _________ ____ ____
the prosecutors for almost two years, between June 1986 and ___ ___________ ___ ______ ___ _____
August 1988. Thus, the third amended complaint restated
Reid's previous allegations against the police defendants and
____________________
5Reid and the police defendants objected to the Further
Report and Recommendation. Although Reid did not object to
dismissal of the claim against Renfro, he reserved the 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.
-8- 8
pleaded distinct claims for negligence, false arrest, mali-
cious prosecution, wrongful withholding 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 of the exculpatory evidence but failed to
disclose the information to Renfro, or that the prosecutors __
disclosed the exculpatory information to Renfro but enlisted
him in their conspiracy to conceal the exculpatory informa-
tion from Reid. We turn to the various claims raised on
appeal.
II II
DISCUSSION DISCUSSION __________
A. The Claims Against the Prosecutors A. The Claims Against the Prosecutors __________________________________
Reid contends that the district court erred in
dismissing his claims against prosecutors Wageling and
McDonough. He argues that Imbler "absolute immunity" should ______
not extend to claims for withholding exculpatory evidence in
direct violation of 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
-9- 9
disclose was not a prosecutorial function at all, but merely
ministerial. Finally, he contends 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 suggesting that the
prosecutors had anything to do with the arrest. The com-
plaint therefore failed to state an actionable false arrest
claim.8
Second, under Imbler "it is 'now [a] well-settled ______
rule that a prosecutor cannot be held personally liable for
the knowing suppression of exculpatory information.'" Robin- ______
____________________
7Although the magistrate judge recommended that the claims
against the prosecutors be dismissed for "fail[ing] to state a
cause of action" language strongly suggesting a Rule 12(b)(6)
dismissal Reid was given notice of the deficiencies and a full
opportunity to amend the complaint. Thus, dismissal under 28
U.S.C. 1915(d) was proper. See Purvis v. Ponte, 929 F.2d 822, ___ ______ _____
826-27 (1st Cir. 1991).
8As New Hampshire recognizes the torts of false arrest and
malicious prosecution, see Stock v. Byers, 424 A.2d 1122, 1123 ___ _____ _____
(N.H. 1980), those claims should have been analyzed under state
law, rather than 1983. Given an adequate state-law remedy for
a procedural due process violation, no 1983 claim lies. Perez- ______
Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st 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).
-10- 10
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 Cir.), cert. de- _____ ______ _____ ___
nied, 484 U.S. 828 (1987).9 See Campbell v. Maine, 787 F.2d ____ ___ ________ _____
776, 777 (1st Cir. 1986) (per curiam); Hilliard v. Williams, ________ ________
540 F.2d 220, 221-22 (6th Cir. 1976) (per curiam). The
Imbler rule has been applied where prosecutors failed to ______
disclose exculpatory evidence specifically 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. In the first place, it is in- ______
accurate to assert, as Reid does, that there was no prosecu-
torial discretion left to be exercised respecting the dis-
closure of this evidence. On the contrary, 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 for
withholding exculpatory evidence, this claim is subject to 1983
analysis. See also Belcher v. Paine, 612 A.2d 1318, 1322-23 ___ ____ _______ _____
(N.H. 1992) (applying Imbler doctrine to malicious prosecution ______
claim under state law.)
-11- 11
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 disclosure.10 Cf. Buckley v. Fitzsimmons, ___ _______ ___________ ____
U.S. , 113 S. Ct. 2606, 2616 (1993) (when prosecutor _____
evaluates evidence and interviews witnesses in preparation
for trial, he functions within the scope of absolute immun-
ity). 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. Rev. Stat. Ann. 631-A:6, on its
face, bans evidence of prior sexual activity by a prosecutrix in
a rape case: "Prior consensual sexual activity between the
victim and any person other than the actor shall not be admitted
into evidence in any prosecution under this chapter." However,
the New Hampshire Supreme Court has read a constitutional limita-
tion into this statutory ban in statutory rape cases, so as to
preserve the statute from infirmity to constitutional attack.
Howard, 121 N.H. at 61 (state constitution requires that the jury ______
be informed of prior sexual experience of child prosecutrix in
statutory rape case, since jury otherwise could infer that the
prosecutrix must have gained her knowledge of sexual anatomy only
through the alleged sexual assault). Whether and when to admit
such evidence rests within the discretion of the trial court.
State v. Cox, 575 A.2d 1320, 1322-23 (N.H. 1990) (upholding trial _____ ___
court's exercise of discretion admitting Howard-type evidence ______
only during cross-examination of prosecutrix). Thus, these
prosecutors retained some discretion, at least, in evaluating ____
whether the putative prior attacks against Misty constituted
Brady evidence. We do not suggest, of 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. __ ______
-12- 12
dissent that absolute immunity should attach only if the
prosecutor has disclosed all facts which cast doubt on the
State's evidence was rejected by the Imbler Court because ______
such a requirement would interfere "with the legitimate __________
exercise of prosecutorial discretion." Id. at 432. Imbler ________ __ _____________ __________ ___ ______
thus implicitly acknowledged that prosecutors retain discre- _______
tion to determine what evidence is to be disclosed under ____
Brady and that absolute immunity attaches to their exercise _____
of discretion.
The further allegation that these prosecutors re-
peatedly misled the trial court in order to conceal their
alleged misconduct does not defeat absolute immunity. In
Burns v. Reed, 500 U.S. 478, 489-90, 111 S. Ct. 1934, 1941 _____ ____
(1991), the Court sustained absolute prosecutorial immunity
for "making false or defamatory statements in judicial pro-
ceedings (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 unredressed the wrongs done by dishonest officers
than to subject those who try to do their duty to the con- __ _____ ____
stant dread of retaliation.'" See Imbler, 424 U.S. at 428 ___ ______
(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. ________ ______
1949), cert. denied, 339 U.S. 949 (1950)).11 _____ ______
____________________
11Reid counters with Martinez v. Winner, 771 F.2d 424 (10th ________ ______
Cir. 1985) (holding that prosecutor is not entitled to absolute
immunity for filing false affidavit in bar disciplinary proceed-
-13- 13
Nor was absolute immunity forfeited because the
prosecutors continued to withhold the exculpatory evidence
long after Reid's conviction.12 Imbler specifically noted ______
that 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. Id. at 427; cf. ___ ___
Patterson v. Von Riesen, 999 F.2d 1235, 1238 (8th Cir. 1993) _________ __________
("The Supreme Court has created no requirement that prosecu-
tors reveal their trial mistakes to maintain their absolute
immunity . . . .").13
____________________
ing to cover up trial misconduct), and Briggs v. Goodwin, 569 ______ _______
F.2d 10 (D.C. Cir. 1977), cert. denied, 437 U.S. 904 (1978) _____ ______
(holding prosecutor not entitled to absolute immunity for alleg-
edly perjuring himself during grand jury proceedings, since
prosecutor was then acting in investigative capacity). These
cases are inapposite, as they involved prosecutors who were not
acting as
advocates for the State. Moreover, Martinez was reversed, see ________ ___
Martinez, 778 F.2d 553, 555-56 (10th Cir. 1985), as to the point ________
relied on by Reid, vacated by the Court, Tyus v. Martinez, 475 ____ ________
U.S. 1138 (1986), and later dismissed as moot, Martinez, 800 F.2d ________
230 (10th Cir. 1986). Finally, Briggs is no longer viable in ______
light of Briscoe v. LaHue, 460 U.S. 325 (1983) (all witnesses, _______ _____
including those who give perjured testimony, are absolutely
immune from civil suit under 1983). See Briggs v. Goodwin, 712 ___ ______ _______
F.2d 1444 (D.C. Cir. 1983), cert. denied, 464 U.S. 1040 (1984) _____ ______
(prosecutor who gives perjured testimony is entitled to absolute
immunity under Briscoe but not Imbler). _______ ______
12The first amended complaint alleged that these prosecu-
tors, unlike the prosecutor in Imbler, did not disgorge the ______
exculpatory evidence until more than a year after Reid was
convicted.
13We also reject the contention that their conduct following
Reid's conviction is actionable under Houston v. Partee, 758 F. _______ ______
Supp. 1228, 1230-31 (N.D. Ill. 1991) (holding that prosecutors
-14- 14
Reid further contends that the district court
failed to address his claim against the prosecutors in their
official capacities. In order to prevail on an "official ________ __________
capacity" claim, Reid would have to show that the 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), which its representatives were executing
with at least the tacit approval of governmental policy-
makers. Id. at 691 ("customs and usages" of local government ___
may satisfy Monell requirement). Reid insists that he plead- ______
ed actionable claims 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 (1993). The Houston plaintiffs were convicted of _______
shooting a gang member. While their appeals 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, did not disclose this information to defense
counsel. A few years after the convictions were affirmed on
appeal, the real killers confessed. The three prosecutors who
had been aware of the evidence neither disclosed it to defense
counsel nor to the court, and plaintiffs were unjustly imprisoned
for several more years.
Houston stressed that absolute immunity did not attach to _______
the prosecutors' conduct because they acquired the evidence in
their investigative capacity, at a time when they were not _____________ ________
representing the State in the post-conviction proceedings. See ___
978 F.2d at 366-67. Reid has not alleged that these prosecutors
did not represent the State after his conviction. Indeed, the
record suggests otherwise.
-15- 15
disclosed. We do not reach the question whether Reid
alleged the requisite custom or practice under Monell, since ______
he has not challenged the magistrate-judge's report and
recommendation on this basis. See Henley Drilling Co. v. ___ ____________________
McGee, 36 F.3d 143, 150 (1st Cir. 1994) (citing Park Motor _____ __________
Mart Inc. v. Ford Motor Co., 616 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 wishes further
appellate consideration.")). Accordingly, all claims against
the prosecutors were properly dismissed.
B. The Claims Against the Police Officers B. The Claims Against the Police Officers ______________________________________
After the false arrest claims were allowed to
proceed, the police defendants contended that the district
court had dismissed, as frivolous, the claim that the police
deprived Reid of due process of law and a fair trial by
concealing exculpatory evidence. Unable to obtain clarifica-
tion of the district court dismissal order, Reid pursued
further discovery in an attempt to establish each police
defendant's awareness of the exculpatory evidence and wheth-
er, and when, the officers had disclosed what they knew to
one another and to the prosecutors. The district court
ultimately permitted the third amended complaint, including
the false arrest claims and the concealment claims, to be
filed against the police defendants.
(i) The Third Amended Complaint (i) The Third Amended Complaint ___________________________
-16- 16
On February 14, 1992, the magistrate judge ordered
the police defendants to respond to Reid's interrogatories
and requests for production of documents. On June 10, Reid
filed a motion to compel further responses to interrogato-
ries, followed by motions to join additional defendants and
for permission to file the third amended complaint alleging,
inter alia, that the police defendants conspired with the _____ ____
prosecutors to conceal the exculpatory evidence. There fol-
lowed, in July 1992, another motion to compel production.
Prior to any disposition of Reid's June 10 motions
to 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 the exculpatory evidence. In
addition, Sergeant Simmons submitted an affidavit denying
that he had withheld police reports relating to Misty. On
August 27, 1992, Reid requested further time to respond to
the police defendants' motion for summary judgment, because
he was unable to do so 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. Nor
is it clear whether the police defendants were privy to its
contents prior to Reid's arrest or conviction.
-17- 17
In November, 1992, the case was transferred from
Rhode Island to New Hampshire and reassigned to a different
district judge. On December 14, the newly assigned judge
allowed Reid until January 11, 1993, to respond to the police
defendants' motion for summary judgment. At the same time,
the court directed that Reid's motions to compel discovery
and to substitute the third amended complaint be considered
"withdrawn" from the docket, without prejudice to their
renewal by January 4, 1993. Reid renewed each motion within
the deadline and again sought additional time to respond to
the motion for summary judgment.
On January 22, 1993, the district court allowed
Reid seven days to respond in writing to the motion for
summary judgment. The court denied Reid's motion to substi-
tute the third amended complaint insofar as it would add
claims against prosecutors Wageling and McDonough for mali-
cious prosecution, denial of due process of law and false
imprisonment caused by the failure to disclose the exculpato-
ry evidence, and against Attorney Renfro for conspiring with
the prosecutors to conceal the exculpatory evidence from
Reid. At the same time, the court allowed an amendment
adding a separate malicious prosecution claim against all
police defendants and restating the claim that the police
defendants had violated Reid's constitutional rights by con-
tinuously withholding the exculpatory evidence. Lastly, the
-18- 18
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 reports of the police investigation preceding Reid's
arrest, the 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 there was probable cause to
arrest Reid for sexually assaulting Misty, even assuming the
police defendants concealed the exculpatory evidence.15
The district court did not mention the malicious prosecution
claims relating to the alleged failure of the police defen-
dants to disclose the exculpatory evidence, but concluded
that "when probable cause exists notwithstanding the exis-
tence of some exculpatory evidence, no violation of the
Fourth Amendment occurs and the shield of qualified immunity _________ ________
____________________
15The district court did not have the exculpatory evidence
when it ruled on either the motion for summary judgment or the
motion for reconsideration. Those materials were in the district
court, however, for a single day February 10 after summary _____
judgment had been entered against Reid and before the motion for ______
reconsideration was filed. Nor did the court have the opportuni-
ty 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.
-19- 19
remains viable." (emphasis added). Final judgment was en-
tered dismissing all claims against the police defendants on
February 8.
On February 10, the district court clerk received
and docketed Reid's timely opposition to the motion for ______
summary judgment, together with his supporting affidavit,
exhibits, memorandum, and statement of 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 reports described how Misty and her sis-
ter, Wendy, had been physically abused by their mother. The
allegations were made by Wendy, and by a former roommate of _____
Misty's mother. The reports related that Misty's mother
engaged in sexual intercourse in Misty's presence. The
former roommate described how she had found Misty fellating
her four-year-old son on April 17, 1985. Misty's mother
____________________
16Weekends, legal holidays, and January 22 the date of
the denial of the motion to compel should have been excluded
from the running of the seven-day filing period. See Fed. R. ___
Civ. P. 6(a). Rule 6(e) further required that three days be
added to the prescribed response period since the court order had
been mailed to Reid. Fed. R. Civ. P. 6(e). Thus, he had until
February 5, 1993, to respond. Reid seasonably filed opposition
to the motion for summary judgment by depositing it with the
prison warden on February 5. See Houston v. Lack, 487 U.S. 266, ___ _______ ____
275 (1988) (holding that filing periods for prisoners are deter-
mined when submitted to prison 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). _____
-20- 20
denied the allegations and accused Wendy of making false
charges in order to force the mother into allowing her to
move in with a boyfriend, and because Wendy was under the
influence of drugs.
The DCYS reports further indicated that Wendy had
refused to return to her mother's residence for a period of
two weeks, and that the Manchester Police had attempted,
without success, to find Wendy and return her to her mother.
Wendy requested that she be placed in protective custody, but
that her request was denied "due to lack of concrete evi-
dence." Later, after joint counseling, Wendy voluntarily
returned home. 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 these materials established
that both Misty and 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 DCYS investigation
for abuse and neglect based on Wendy's allegations that the
mother repeatedly had beaten her and Misty.17
____________________
17Reid contended further that the police defendants had not
established their entitlement to summary judgment on his claim
that they withheld the exculpatory evidence. The Reid affidavit
attested that Sergeant Simmons had never disclosed at the
probable cause hearing his prior reports of contact with
Misty, nor "any other information which would lead a person to
[believe] that the allegation made by the complainant wasn't the
first such allegation made by her."
-21- 21
Although Reid's timely opposition and supporting
materials were received and docketed on February 10, the
police reports and the DCYS reports were returned to Reid the
same day by the clerk, pursuant to Local Rule 14 which pro-
vides that the clerk is 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. The district court
noted, however, that it had considered Reid's pro se objec- ___ __
tion and memorandum in opposition to the motion for summary
judgment, which described some of the exculpatory 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 order denying reconsideration for abuse of discre-
tion, Desenne v. Jamestown Boatyard, Inc., 968 F.2d 1388, _______ _________________________
1392 (1st Cir. 1992).
The district court prematurely granted summary
judgment on the claims that Reid was arrested without proba-
____________________
18The motion for reconsideration, accompanied by a support-
ing affidavit and memorandum, was served on February 16, within
ten days of the entry of the district court judgment on February
8, as required by Fed. R. Civ. P. 59(e).
-22- 22
ble cause and that the police failed to disclose the exculpa-
tory impeachment evidence to the prosecutors. As noted
above, see note 8 supra, a procedural due process claim may ___ _____
not be redressed under section 1983 where an adequate state
remedy exists. Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 __________ ______________
(1st Cir. 1994); Smith v. Massachusetts Dept. of Correction, _____ _________________________________
936 F.2d 1390, 1402 (1st Cir. 1991); Torres v. Superintendent ______ ______________
of Police, 893 F.2d 404, 410 (1st Cir. 1990). Since New _________
Hampshire recognizes the common-law torts of 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 that Reid was arrested without probable cause
should have been addressed under New Hampshire law, not
section 1983. Richardson v. Chevrefils, 552 A.2d 89, 92 __________ __________
(N.H. 1988); Opinion of the Justices, 493 A.2d 1189-90 (N.H. _______________________
1985); Merrill v. Manchester, 332 A.2d 378, 383 (N.H. 1974) _______ __________
(abrogating doctrine of municipal immunity); see also N.H. ___ ____
Rev. Stat. Ann. 491:24. On the other hand, the allegation
that the police withheld the exculpatory evidence from the
prosecutors does not state an actionable claim under New
Hampshire common law and thus must be analyzed under federal
law in accordance with section 1983 jurisprudence. See Walk- ___ _____
er v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992), __ _________________
cert. denied, 113 S. Ct. 1387 (1993), and cert. denied, 113 ____ ______ _____ ______
S. Ct. 1412 (1993); Henderson v. Fisher, 631 F.2d 1115, 1119 _________ ______
-23- 23
(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) provides a
safety valve for claimants genuinely in need of further time
to marshal "facts, essential 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 (1st Cir. 1995) (further discovery sought
under Rule 56(f) must be such as could establish a triable
issue). The Rule 56(f) motion must "(1) articulate a plausi-
ble basis for the belief that discoverable materials exist
which would raise a trialworthy issue and (2) demonstrate
good cause for failure to have conducted discovery earlier."
Id. We have held that where the movant satisfies the re- __
quirements of Rule 56(f), "a strong presumption arises in
favor of relief." Resolution Trust Corp. v. North Bridge _______________________ ____________
Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994). ______
Reid made a timely motion to defer ruling on the
summary judgment motion, supported by an affidavit suffi-
ciently describing the requested discovery. Prior to the
Rule 56(f) motion, moreover, the magistrate judge had ordered
the police defendants to respond to interrogatories previous-
ly filed by Reid. The police defendants have never complied
with the order to respond to these interrogatories. The
-24- 24
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 requested discovery was essential to Reid's
claims against the police defendants. When the individual
police defendants learned of the exculpatory evidence is
relevant to (1) whether the individual defendants reasonably
could have believed there was probable cause to arrest Reid
(false arrest claim) and (2) whether they initiated the
criminal prosecution knowing that probable cause was lacking
(malicious prosecution claim). When the exculpatory evidence
was transmitted to the prosecutors is relevant to determining
(3) whether the individual defendants attempted to withhold
Brady material from the prosecutors (section 1983 claim). _____
The unanswered interrogatories were pertinent to all these
matters. As the discovery sought is such that it could
arguably generate a trialworthy issue of material fact, we
must determine whether Reid complied with the other stric-
tures of Rule 56(f).
Given the direct police involvement in the bitter
dispute between Wendy and her mother, and the two police
reports relating prior sexual abuse of Misty, it cannot be
considered implausible in the least that the police had
access to the exculpatory information prior to Reid's arrest. ______
The requested information was within the control of the
-25- 25
police defendants, a factor which weighs heavily in favor of
relief under Rule 56(f). North Bridge Assoc., 22 F.3d at ___________________
1208 (reversing denial of Rule 56(f) motion). Furthermore,
Reid not only sought discovery in a timely manner, but ob-
tained a court order requiring the police defendants to
respond to his interrogatories. See Mattoon, 980 F.2d at 7 ___ _______
(failure of movant to pursue discovery with diligence permits
denial of Rule 56(f) motion). Finally, the Reid motion, af-
fidavit and interrogatories plainly identified the informa-
tion requested. See Murphy v. 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 abuse of ________
discretion in denying portion of Rule 56(f) motion which
clearly related facts which would generate a trialworthy
issue).
In these circumstances Reid was entitled to receive
responses to the unanswered interrogatories as previously
ordered by the court, 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 Court's holding that
the central issue governing plaintiff's claim was when state
-26- 26
officials actually acquired certain information). On remand,
therefore, Reid should be allowed to conduct reasonable
further discovery relating to the state-law and section 1983
claims against the police defendants.
C. The Conspiracy Claim Against Defense Counsel C. 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. We review for abuse of discretion.
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st _______________ __________________
Cir. 1990). "Where an amendment would be futile or would
serve no legitimate purpose, the district court should not
needlessly prolong matters." Id. ___
The allegation that Renfro saw the exculpatory
evidence, yet did not bring it to Reid's attention, is too
conclusory to state a viable conspiracy claim. See Hunt v. ___ ____
Bennett, 17 F.3d 1263, 1268 (10th Cir.) (allegation that _______
attorney provided incompetent defense held insufficient to
generate triable issue on conspiracy charge), cert. denied, _____ ______
115 S. Ct. 107 (1994). The conclusory allegation that Renfro
had access to the prosecution's file is insufficient to
generate a trialworthy issue as to whether he had actual
knowledge of the exculpatory evidence, since there is no
allegation that the prosecution materials made available to
Renfro included the exculpatory material. See Slotnick v. ___ ________
-27- 27
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 at the present time did not
constitute an abuse of discretion under the Correa-Martinez _______________
standard.19
III III
CONCLUSION CONCLUSION __________
For the foregoing reasons, we affirm the summary
judgment dismissing the claims against prosecutors Wageling
and McDonough and the conspiracy claim against defendant
Renfro. We vacate the judgment entered in favor of the
police defendants, Simmons, Gilman, Ahern and Paul, on the
false arrest, malicious prosecution, and due process claims,
and remand all claims against the police defendants for
further proceedings, including reasonable discovery. The ___
police defendants shall bear two-thirds of appellant's costs ______ __________ _____ ____ __________ __ ___________ _____
on appeal; all other costs are to be borne by the party who __ ______ ___ _____ _____ ___ __ __ _____ __ ___ _____ ___
incurred them. ________ ____
So ordered. So ordered. __ _______
____________________
19We note, nonetheless, that should further discovery result
in new evidence relating to the nature and timing of the prosecu-
tors' and defense counsel's acquisition of the exculpatory
evidence, we are confident that a responsive proposal to amend
the claim against Renfro would be accorded due consideration in
light of the appropriate equitable criteria. See Quaker State ___ ____________
Oil Refining v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir. _____________ ________________
1989).
-28- 28