1Following preliminary review under 28 U.S.C. § 1915A, the

magistrate judge reported that Carey alleged sufficient facts

only as to the Fourth Amendment malicious prosecution claims

against Olson and Boufford and recommended that only those

defendants be served with those claims. The court approved the

report and recommendation. Subsequently, however, the court

concluded that Carey also stated a Fourth Amendment malicious

prosecution claim against Detective Peter Bartlett and ordered

that he also be served.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 05-cv-293-JD

Steven Olson and Michael Boufford

O R D E R

William J. Carey, proceeding pro se, alleges claims of

malicious prosecution in violation of the Fourth Amendment, under

42 U.S.C. § 1983, against Manchester Police Detective Steven

Olson, Detective Peter Bartlett, and Officer Michael Boufford.1

Carey’s claims arise from his arrest and prosecution on charges

of stalking and attempting to violate a stalking order. Olson

and Boufford move for judgment on the pleadings. Because

Bartlett was not a defendant when Olson and Boufford filed their

motion for judgment on the pleadings, that motion is considered

only as to Olson and Boufford.

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 1 of 13
2

Standard of Review

The standard for evaluating a motion for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) is the same

as that for a motion to dismiss under Rule 12(b)(6). Pasdon v.

City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005). Under that

standard, the court accepts all of the plaintiff’s properly

pleaded factual allegations as true and draws all reasonable

inferences in his favor. Id. “The motion should not be granted

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief.” Id. (internal quotation marks omitted).

With their motion for judgment on the pleadings, Olson and

Boufford filed a copy of an order in a related case in this

court; copies of filings and orders issued in the New Hampshire

criminal cases brought against Carey, case number 02-S-1213 and

case number 03-S-1078. Carey titled his response to the

defendants’ motion “Objection to Defendants’ Motion for Summary

Judgment” and appended copies of exhibits that he filed with his

complaint. “[C]ourts may consider not only the complaint but

also matters fairly incorporated within it and matters

susceptible to judicial notice without converting the motion to

dismiss into a motion for summary judgment.” Greene v. Rhode

Island, 398 F.3d 45, 48 (1st Cir. 2005). The court will consider

the exhibits submitted by Carey and by the defendants without

converting the motion to one for summary judgment.

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3

Background

The events leading to Carey’s claims against Detective Olson

and Officer Boufford have not been presented in a clear

chronological context in the complaint or in the defendants’

motion for judgment on the pleadings. It appears that Kristi

Eglody was acquainted with Carey when she lived in New Hampshire

in the early 1990s and that she now lives in North Carolina. In

2002, Eglody sought and obtained a protective order against Carey

in Manchester District Court based on her complaint that Carey

was stalking her. Eglody v. Carey, 02-cv-220 (April 29, 2002). 

That protective order has been extended several times. 

Carey has been prosecuted twice on state charges of stalking

and once for attempting to violate the protective order Eglody

obtained against him. He was charged with stalking in the first

criminal case, case number 02-S-1213. That trial ended in a

mistrial, due a deadlocked jury, in July of 2002, and those

charges were subsequently dropped. Carey was arrested and

charged in March of 2003 with attempting to violate the

protective order, case number 03-S-1078. He was found not guilty

on October 16, 2003. Sometime thereafter, Carey was again

charged with stalking, and it appears that he was convicted on

that charge in case number 04-S-2561. Therefore, his claims of

malicious prosecution pertain to the first two criminal cases,

docket numbers 02-S-1213 and 03-S-1078.

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 3 of 13
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Discussion

Carey alleges a Fourth Amendment claim of malicious

prosecution against Detective Olson based on events beginning in

2003. Carey alleges a Fourth Amendment claim of malicious

prosecution against Officer Boufford based on his actions from

2002 to 2004. Olson and Boufford move for judgment on the

pleadings in their favor, asserting that no Fourth Amendment

violation occurred.

The court notes that the First Circuit has not decided

whether a claim of malicious prosecution violates the Fourth

Amendment. See, e.g., Nieves v. McSweeney, 241 F.3d 46, 54 (1st

Cir. 2001); Bloomquist v. Albee, --- F. Supp. 2d ---, 2006 WL

618586, at *17 (D. Me. Mar. 9, 2006); Cabrera-Negron v.

Municipality of Bayamon, --- F. Supp. 2d ---, 2006 WL 401667, at

*4 (Feb. 13, 2006). For that reason, other courts in this

circuit have concluded that officers are entitled to qualified

immunity as to § 1983 claims of Fourth Amendment malicious

prosecution. Bloomquist, 2006 WL 618586, at *17; Sheppard v.

Aloisi, 384 F. Supp. 2d 478, 491 (D. Mass. 2005); Hernandez-Lopez

v. Pereira, 380 F. Supp. 2d 30, 33 (D. P.R. 2005). The

defendants here, however, have not raised qualified immunity. 

To the extent such a claim is recognized at all, malicious

prosecution in violation of the Fourth Amendment occurs when the

defendants effect an unreasonable seizure of the plaintiff

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 4 of 13
5

“pursuant to legal process.” Nieves, 241 F.3d at 53. “In order

to state a cause of action for malicious prosecution, a plaintiff

must allege that criminal proceedings were initiated against him

without probable cause and for an improper purpose and were

terminated in his favor.” Meehan v. Town of Plymouth,

167 F.3d 85, 88-89 (1st Cir. 1999). If the plaintiff was

arrested based upon a warrant, the arrest warrant constitutes the

legal process that initiated the prosecution. Nieves, 241 F.3d

at 53. An arrest pursuant to a warrant that is supported by

probable cause does not violate the Fourth Amendment. Meehan,

167 F.3d 89. 

“In short, the ultimate question for determining whether an

arrest violates the Fourth Amendment is, in this context as in

any other, whether there was probable cause to believe that the

arrestee had committed or was committing a crime.” Wilson v.

City of Boston, 421 F.3d 45, 55 (1st Cir. 2005). Probable cause

is “the conclusion that a crime had been committed (or was about

to be committed) and that [the arrestee] likely was one of the

perpetrators.” Id. (internal quotation marks omitted). “In sum,

the existence of probable cause . . . is gauged by an objective

standard; as long as the circumstances surrounding the event

warrant the officer’s reasonable belief that the action taken is

appropriate, the arrest is justified.” Logue v. Dore, 103 F.3d

1040, 1044 (1st Cir. 1997).

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 5 of 13
6

A. The First Criminal Prosecution, Case Number 02-S-1213

Carey alleges that Olson’s involvement with his case began

in 2003, with events that led to his prosecution in case number

03-S-1078. Therefore, Carey makes no claim against Olson based

on the first prosecution, case number 02-S-1213, which began in

early 2002.

With respect to Boufford, Carey alleges that Kristi Eglody

called the Manchester Police Department from North Carolina,

where she lived, and spoke to Boufford, apparently about packages

she had received from Carey in December of 2001. He alleges that

Boufford received a letter from Eglody in January of 2002 in

which she claimed to know nothing about Carey except his address

but asked Boufford to harass Carey. He alleges that in February

of 2002, Officer Bartlett along with other police officers,

detectives, and domestic violence advocates met Carey when he

returned to his apartment. Barlett informed Carey that they were

there because Carey was stalking Eglody, and Carey responded that

he had sent her two bottles of perfume for her birthday and for

Christmas. He says that Bartlett yelled at him and threatened

him with arrest and that his apartment was searched.

Carey further alleges that he went to the Manchester Police

Station with the police, although he was not under arrest. Carey

gave a statement to Bartlett and Boufford. He contends that

Boufford chose to disregard Carey’s side of the story and to

believe Eglody, despite contradictions in what she had told him. 

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 6 of 13
7

He also alleges that Boufford and Bartlett arrested him in

February of 2002 at his place of employment, but he provides no

pertinent detail pertaining to that arrest.

Carey states that Boufford testified against him “at the

Manchester District Court trial in June of 2002.” He says 

Boufford testified that Eglody had telephoned him in 1993 and

complained about Carey but that there was no police report of

that complaint. Carey alleges that the Manchester Police

Department later fabricated a police report by Officer Czarnec

about complaints by Eglody against him in 1993, which report is

included in the record. 

To show that probable cause existed to arrest Carey on the

charges that were prosecuted in case number 02-S-1213, the

defendants primarily rely on a decision issued in another case in

this court, Carey v. Eglody, Civil No. 05-cv-010-SM. In that

case, Carey brought suit against Kristi Eglody, alleging claims

of defamation, tortious interference with contractual relations,

and malicious prosecution. The court granted in part and denied

in part Eglody’s motion for summary judgment. Id., Op. No. 2006

DNH 032, Mar. 17, 2006. 

The defendants assume, without explanation, that the

decision in Carey v. Eglody, id., is binding for purposes of

their motion for judgment on the pleadings in this case. In the

absence of any reasoned analysis to support the defendants’

reliance on that decision, it cannot be considered here to

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 7 of 13
8

establish the issue of probable cause. See, e.g., Harlow v.

Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005) (explaining

“law of the case” doctrine); Gonzalez-Pina v. Rodriguez, 407 F.3d

425, 430 (1st Cir. 2005) (explaining collateral estoppel);

Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978 (1st Cir.

1995) (same).

Alternatively, the defendants contend that probable cause

was established during the trial of case number 02-S-1213. They

rely on the first page of Carey’s motion for reconsideration of

the denial of his motion to dismiss the charge and the notice of

decision denying Carey’s motion. The defendants argue that

because the state court found there was adequate evidence to

submit the stalking charge to the jury, that conclusion “should

be preclusive on the issue of probable cause.” Def. Mem. at 8. 

The court does not follow the defendants’ reasoning.

To be entitled to judgment on the pleadings, the defendants

must show that Carey failed to “allege that criminal proceedings

were initiated against him without probable cause and for an

improper purpose and were terminated in his favor.” Meehan,

167 F.3d at 88-89. “Generally, the offending legal process comes

either in the form of an arrest warrant (in which case the arrest

would constitute the seizure) or a subsequent charging document

(in which case the sum of post-arraignment deprivations would

comprise the seizure).” Nieves, 241 F.3d at 54. Whether or not

there was sufficient evidence at the criminal trial to allow the

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 8 of 13
9

case to go to the jury does not address the issue of probable

cause for the legal process that initiated the prosecution.

Although Carey’s allegations might be interpreted to suggest

probable cause to arrest him in February of 2002, under the

standard for judgment on the pleadings, those allegations must be

taken in the light most favorable to him. Therefore, the

defendants have not shown that Carey failed to allege a Fourth

Amendment malicious prosecution claim based on case number 02-S1213. 

B. The Second Criminal Prosecution, 03-S-1078

Carey alleges that Olson’s involvement in the circumstances

that led to the second criminal prosecution, case number 03-S1078, constitutes malicious prosecution. The arrest warrant in

that case was issued on March 3, 2003, by Justice William H.

Lyons, based on the affidavit sworn by Manchester Police Officer

Martin F. Swirko on the same day. The arrest warrant charges

Carey with attempting to violate the protective order obtained

against him by Eglody. 

Under New Hampshire law, a person commits the offense of

stalking if he “[p]urposely, knowingly, or recklessly engages in

a course of conduct targeted at a specific person which would

cause a reasonable person to fear for his or her personal safety,

. . . engages in a course of conduct targeted at a specific

individual, which the actor knows will place that individual in

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 9 of 13
10

fear for his or her personal safety, . . . [or] engages in a

single act of conduct that both violates the provisions of [a

protective] order and is listed in paragraph II(a)” after being

served with or provided notice of the protective order. RSA

633:3-a, I. Paragraph II(a) lists prohibited conduct, including

“[t]hreatening the safety of the targeted person,” “[f]ollowing,

approaching, or confronting that person,” and “[p]lacing an

object on the person’s property, either directly or through a

third person.” RSA 633:3-a, II. “A person is guilty of an

attempt to commit a crime if, with a purpose that a crime be

committed, he does or omits to do anything which, under the

circumstances as he believes them to be, is an act or omission

constituting a substantial step toward the commission of the

crime.” RSA 629:1, I.

Officer Swirko submitted a four-page affidavit in support of

his application for an arrest warrant. In the affidavit, Swirko

said that Carey’s mother, Judith Macdonald, came into the

Manchester police station on February 28, 2003, while he was on

duty, and asked to speak to an officer. Macdonald told Swirko

that she was afraid that Carey was planning to kill himself and

possibly another person, Kristi Eglody. She said that Carey had

been arrested and charged with stalking Eglody in 2002.

After investigating police department files, Swirko found

that Eglody met Carey in about 1992 while attending college in

New Hampshire. Although Eglody and Carey were friendly at first,

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 10 of 13
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Carey began to arrive uninvited at places where Eglody would be,

call her continuously, and drive by her home. Eglody moved to

Hawaii where she continued to receive hang-up calls that she

believed were from Carey. After she moved to Charlotte, North

Carolina, she received packages there sent by Carey.

Swirko further stated that Eglody sought and was granted a

“Stalking Protective Order” against Carey, issued by the

Manchester District Court, with a final order in effect since

April 29, 2002. Eglody reported to the Manchester police in

February of 2002 that Carey had been sending her gifts and

letters, using a return address of “Bill and Kristi Carey” at her

former address in Manchester and making hang-up calls to her

home. Carey had admitted that he had sent gifts and called

Eglody. 

Swirko also stated that Carey had another stalking order

entered against him because he was leaving notes and gifts on

another victim’s car in 2001. He was charged with violating a

protective order, stalking, and harassing that victim, and he was

found guilty of stalking. Although he appealed that decision,

his mother told Swirko that he would plead guilty to that charge.

Macdonald also told Swirko that she found lyrics that Carey

had written about dying and that he had talked about not caring

about his life. Because of her concerns for him, Macdonald

searched a box in Carey’s room and found an advertisement and

admission for a gun show in Seabrook for March 2 and 3, 2003, and

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 11 of 13
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a Greyhound Bus Ticket to Charlotte, North Carolina, issued in

Manchester to “Armand Useforce,” useable until April 7, 2003. 

She also found Mapquest directions from the Greyhound Bus

Terminal in Charlotte to Kristi Eglody’s home in Charlotte. 

Macdonald told Swirko that she believed her son was going to buy

a gun, travel to Charlotte, and kill himself and possibly Eglody.

The information provided by Officer Swirko in his affidavit

provided an ample basis for probable cause to arrest Carey for an

attempt to violate the protective order that had been entered

against him. Although Carey alleges that Olson “secured

[Carey’s] mother’s cooperation to ‘set [him] up’ and ‘throw [him]

in jail,’” that conclusory allegation does not undermine Judith

Macdonald’s account to Officer Swirko about her concerns as to

Carey’s plans with respect to Eglody. Therefore, Detective Olson

is entitled to judgment on the pleadings as to Carey’s malicious

prosecution claim against him. Officer Boufford is entitled to

judgment on the pleadings on Carey’s malicious prosecution claim

against him to the extent it is based on Boufford’s role in

prosecuting criminal case number 03-S-1078.

Case 1:05-cv-00293-JD Document 21 Filed 04/21/06 Page 12 of 13
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Conclusion

For the foregoing reasons, the defendants’ motion for

judgment on the pleadings (document no. 16) is granted in part

and denied. The claim against Detective Olson is dismissed,

leaving no claims against him in this case. That part of the

claim against Officer Boufford that is based on case number 03-S1078 is also dismissed.

The issues raised in the defendants’ motion would be more

appropriately addressed in a properly supported motion for

summary judgment.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 21, 2006

cc: William J. Carey, pro se

Robert J. Meagher, Esquire

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