UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 05-293-JD

Steven Olson, Michael Boufford,

and Peter Bartlett

O R D E R

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

malicious prosecution in violation of the Fourth Amendment, under

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

Olson, Sergeant Peter Bartlett, and Officer Michael Boufford. 

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

of stalking and attempting to violate a stalking order. Carey’s

claim against Detective Olson and his claim against Officer

Boufford, arising out of case number 03-S-1078, were previously

dismissed. Detective Bartlett and Officer Boufford move for

summary judgment on the remaining claims. Carey failed to file a

response to their motion.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 1 of 8
2

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

Because Carey did not file a response to the defendants’

motion for summary judgment, “[a]ll properly supported material

facts set forth in the moving party’s factual statement shall be

deemed admitted.” LR 7.2(b)(2). Nevertheless, an unopposed

motion for summary judgment can only be granted if the moving

party is entitled to judgment on the merits of the motion, viewed

in light of Rule 56. See Carmona v. Toledo, 215 F.3d 124, 134

n.9 (1st Cir. 2000).

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 2 of 8
3

Background

Kristi Eglody was acquainted with William Carey when she

lived in New Hampshire in the early 1990s. Officer Michael

Boufford states in his affidavit that he was contacted in 1993 by

Kristi Eglody who complained that William Carey was repeatedly

contacting her and that she did not want him to do that. 

Boufford met with Carey and told him to stop contacting Eglody. 

Eglody moved from New Hampshire to North Carolina. 

In the fall of 2001, Eglody again called Boufford and

reported that Carey had located her in North Carolina and was

sending her unwanted packages and making hang-up calls to her at

her home. Eglody sent Boufford two of the packages she had

received from Carey in North Carolina that showed a return

address to “Bill & Kristi Carey” at Eglody’s former address in

Manchester. Sergeant Peter Bartlett states in his affidavit that

he received a telephone call from Kristi Eglody on February 5,

2002, in which she complained that she had been receiving

packages in the mail from William Carey on a regular basis. He

further states that Eglody told him that she was afraid of Carey. 

Carey voluntarily came to the police station and in an interview

admitted that he had sent Eglody the packages and that he was

obsessed with her.

On February 15, 2002, Bartlett completed an application for

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 3 of 8
4

a warrant to arrest William Carey on counts of stalking Eglody

and violating a stalking order obtained by another person against

Carey. The arrest warrant issued the same day. Bartlett and

Boufford arrested Carey on February 20, 2002, pursuant to the

warrant. 

A criminal complaint was issued on February 15, 2002,

charging Carey with stalking Eglody in violation of New Hampshire

Revised Statutes Annotated (“RSA”) § 633:3-a, II(7). The return

on the complaint shows that Carey was tried and found guilty on

that charge in the district court. On appeal in Hillsborough

County Superior Court, case number 02-S-1213, the jury could not

reach a verdict and a mistrial was declared. Carey was not

retried on that charge. 

Discussion

Carey alleges a Fourth Amendment claim of malicious

prosecution against Officers Boufford and Bartlett for their

actions leading to his arrest and prosecution on the stalking

charge in case number 02-S-1213. Boufford and Bartlett move for

summary judgment on the grounds that Carey’s malicious

prosecution claim fails on the merits and that they are entitled

to qualified immunity. As noted above, Carey has not filed a

response to the defendants’ motion.

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 4 of 8
5

Although the defendants assert qualified immunity only as a

fallback from their first argument on the merits, a

constitutional right to be free from malicious prosecution based

on the Fourth Amendment was not clearly established in 2002 so

that the defendants are entitled to qualified immunity. See

Bloomquist v. Albee, 421 F. Supp. 2d 162, 186 (D. Me. 2006)

(quoting Rodriguez-Mateo v. Fuentes-Agostini, 2003 WL 21243479,

66 Fed. Appx. 212, 214 (1st Cir. 2003) (unpublished)). Even if

that were not the case, Carey’s claims also fail on the merits.

Malicious prosecution in violation of the Fourth Amendment

occurs, if at all, when the defendants effect an unreasonable

seizure of the plaintiff “pursuant to legal process.” Nieves v.

McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). When the plaintiff

was arrested based upon a warrant, the arrest warrant constitutes

the legal process that initiated the prosecution. Id. An arrest

pursuant to a warrant that is supported by probable cause does

not violate the Fourth Amendment. Meehan v. Town of Plymouth,

167 F.3d 85, 89 (1st Cir. 1999). 

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.” ” Wilson v. City of

Boston, 421 F.3d 45, 55 (1st Cir. 2005) (internal quotation marks

omitted). “In sum, the existence of probable cause . . . is

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 5 of 8
6

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).

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,

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

individual, which the actor knows will place that individual in

fear for his or her personal safety. 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,” “[p]lacing an object on the person’s

property, either directly or through a third person,” and “[a]ny

act of communication.” RSA 633:3-a, II. A person is guilty of

harassment if he “[m]akes a telephone call, whether or not a

conversation ensues, with a purpose to annoy or alarm another, or

. . . [w]ith the purpose to annoy or alarm another, having been

previously notified that the recipient does not desire further

communication, communicates with such person, when the

communication is not for a lawful purpose or constitutionally

protected.” RSA 644:4,I. Communication in these statutes means

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 6 of 8
7

“to impart a message by any method of transmission, including but

not limited to telephone or . . . sending or having delivered any

information or material by written or printed note or letter,

package, mail, . . . .” RSA 644:4,II. 

The arrest warrant established ample probable cause for

Carey’s arrest on charges of stalking and harassment. Bartlett’s

affidavit submitted in support of the application for the warrant

recounted that Eglody met Carey in 1992 while they were students

at University of New Hampshire, that she complained about his

unwanted contacts with her then, and that Boufford told Carey not

to have contact with Eglody. The affidavit continued that

beginning six months previously, approximately in the fall of

2001, Eglody contacted Boufford to complain that Carey was

sending her unwanted gifts and calling her home at all hours. On

February 5, 2002, Boufford received a package from Eglody of two

items addressed to her at her home in North Carolina sent from

the Manchester, New Hampshire, post office in November of 2001. 

Boufford spoke to Eglody by telephone and Eglody stated that she

had been receiving packages on a regular basis from Carey, that

she had returned many of them to him, and that the packages were

frightening to her because the return address was to Eglody and

Carey as a couple living at her old Manchester address. Eglody

also stated that she had had hang up calls which stopped when she

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 7 of 8
8

changed her answering machine. She told Boufford that she was

afraid of Carey because he had “tracked her down” after she left

Manchester and that she would like to press charges against him.

Because the undisputed facts shown on the record in this

case establish that probable cause existed to arrest Carey based

on the arrest warrant, Boufford and Bartlett are entitled to

summary judgment on Carey’s malicious prosecution claim against

them.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 25) is granted. The clerk of

court shall enter judgment accordingly, see also Order issued on

April 21, 2006 (document no. 21), and close the case. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 21, 2006

cc: Robert J. Meagher, Esquire

William J. Carey, pro se

Case 1:05-cv-00293-JD Document 26 Filed 08/21/06 Page 8 of 8