UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

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

Manchester Police Department, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff William J. Carey has filed a complaint

pursuant to 42 U.S.C. § 1983, alleging claims for malicious

prosecution under the Fourth and Fourteenth Amendments to the

United States Constitution and claims of defamation, tortious

interference with contractual relations and intentional

interference with prospective contractual relations under New

Hampshire law. Seeking monetary relief, he brings this action

against the Manchester Police Department (“MPD”) and MPD

employees Detectives Steven Olson and Peter Bartlett and Officer

Michael Boufford. 

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

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(“LR”) 4.3(d)(2). For the reasons stated below, I find that

Carey has alleged Fourth Amendment malicious prosecution claims

against Olson and Boufford. I recommend dismissal of all

remaining claims.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Carey’s

complaint.

Background

Crediting the factual allegations in the complaint in the

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1N.H. Rev. Stat. Ann. § 633:3-a I(c) provides:

After being served with, or otherwise provided notice

of, a protective order pursuant to RSA 173-B, RSA

458:16, or paragraph III-a of this section, or an order

pursuant to RSA 597:2 that prohibits contact with a

specific individual, purposely, knowingly, or

recklessly engages in a single act of conduct that both

violates the provisions of the order and is listed in

paragraph II(a).

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light most favorable to Carey, the material facts are as follows. 

Carey is currently a pretrial detainee at the Hillsborough County

House of Corrections. This action stems from state court

criminal proceedings initiated against him in 2002 when he was

charged with stalking Kristie Eglody, a former New Hampshire

resident who currently resides in North Carolina. While the

state court procedural history is unclear, it appears that Carey

was criminally prosecuted for stalking Eglody or violating a

protective order and was acquitted twice and convicted once. He

has provided this Court with only one return issued by the New

Hampshire Superior Court (Hillsborough County), reflecting that

on October 16, 2003 he was found “not guilty” of an “attempted

violation stalking order RSA: 629:1 and 633:3-a I(c).”1

Claims Against Olson

Construed liberally, Count One of the complaint alleges that

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from 2003 to the present, Olson maliciously prosecuted Carey. In

March 2003, he allegedly coerced Carey into giving false

statements outside the presence of an attorney and subsequently

used those statements to prosecute him. According to Carey,

Olson repeatedly brought charges against him on behalf of Eglody

and caused him to be incarcerated for nearly two and one half

years as a pretrial detainee. Carey allegedly was found “not

guilty” of the charges.

Claims Against Bartlett

Construed liberally, Count Two of the complaint alleges that

from 2002 to 2004, Bartlett maliciously prosecuted Carey and

interfered with his employment. In 2002, Bartlett and Boufford

charged Carey with stalking Eglody and arrested him for sending

two bottles of perfume on two separate occasions to her North

Carolina address. Bartlett allegedly arranged for Eglody’s

roundtrip airfare from North Carolina to New Hampshire on two

occasions so that she could obtain a restraining order against

Carey, testify against him and facilitate his conviction in New

Hampshire state court. 

Carey further alleges that in February 2002, Bartlett and

Boufford surrounded his place of employment at Energy To Go and

arrested him, thereby causing him to lose his position as

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assistant manager. In February 2002, Carey interviewed for a

position at the Easter Seal Jolicoeur Center in Manchester, New

Hampshire and was expecting to receive an offer of employment. 

When he subsequently arrived at his residence, he was confronted

by uniformed MPD officers, MPD detectives and domestic violence

advocates. At that time, Bartlett discovered that Carey had

returned from an interview at the Jolicoeur Center and allegedly

used that information to interfere with his prospective

employment. While confronting Carey at his residence, Bartlett

allegedly accused him of stalking Eglody in North Carolina and

threatened him with arrest. Subsequently, Carey agreed to

warrantless search of his apartment and claims that he was

encouraged to walk down to the MPD but was not placed under

arrest so that his interrogation appeared to be voluntary. While

at the MPD, he was encouraged to give a statement outside the

presence of an attorney. Bartlett allegedly fabricated

statements and admissions against Carey, without tape-recording

the interrogation, and used the statements against him at trial. 

Carey allegedly was convicted of the above charges.

Claims Against Boufford

Construed liberally, Count Three of the complaint alleges

that from 2002 to 2004, Boufford maliciously prosecuted Carey and

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interfered with his employment. In January 2002, Boufford

allegedly received a letter from Eglody in which she claimed to

“know nothing about” Carey and asked Boufford to harass Carey at

his place of employment. When Eglody subsequently admitted to

being acquainted with Carey, Boufford allegedly disregarded her

admission. 

Carey further alleges that Boufford interfered with his

employment. As stated previously, in February 2002, Boufford and

Bartlett arrested Carey at his place of employment at Energy To

Go and caused him to lose his position as assistant manager. 

Carey also alleges that while out on bail, he was hired as a

temporary employee by Unicast and within a few weeks was given an

application for permanent employment. Soon afterwards, a

uniformed MPD police officer appeared at Unicast and served him

with a stalking petition. As a result, Carey lost his

prospective employment opportunity with Unicast. Without

providing any supporting facts, he further claims that he lost a

part-time position teaching oil painting at Timberline High

School. The record fails to allege any involvement by Boufford

with regard to the incidents at Unicast and Timberline. Lastly,

Carey alleges that Boufford testified at his state court trial in

June 2002 and submitted fabricated statements against him that

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were premised upon an incident that occurred more than 10 years

prior to trial. Carey allegedly was acquitted of all charges.

Claims Against the MPD

In Count One of the complaint and supporting documents,

Carey alleges that the MPD made slanderous and libelous

statements against him to his landlord, employer, University of

New Hampshire, Manchester Union Leader, Nashua Telegraph and

Concord Monitor. The sole basis of his claim is that the

newspapers “featured articles full of outright lies with glaring

omissions, all straight from the MPD reports in [his] cases.”

Carey now brings this Section 1983 action against the MPD,

Olson, Bartlett and Boufford in which he alleges claims of

malicious prosecution under the Fourth and Fourteenth Amendments

to the United States Constitution and claims of defamation,

tortious interference with contractual relations and intentional

interference with prospective contractual relations under New

Hampshire law.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

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Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). The premise of Carey’s Section 1983 action is

that Olson, Bartlett and Boufford subjected him to malicious

prosecution in violation of his rights under the Fourth and

Fourteenth Amendments to the United States Constitution. 

A. Malicious Prosecution

To the extent Carey alleges a Fourteenth Amendment malicious

prosecution claim, Section 1983 is not a proper vehicle by which

to vindicate due process rights, whether procedural or

substantive. See Meehan v. Town of Plymouth, 167 F.3d 85, 88

(1st. Cir. 1999)(“[a] § 1983 malicious prosecution claim is not

properly based on either a procedural or substantive due process

violation.”)). The availability of a state law remedy defeats

any procedural due process claim for malicious prosecution. See

Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st

Cir. 1996) (“a garden-variety claim of malicious prosecution

garbed in the regalia of § 1983 must fail.”). Because New

Hampshire provides an adequate remedy for the common law tort of

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malicious prosecution, see Martin v. Applied Cellular Tech., 284

F.3d 1, 7 (1st Cir. 2002)(citing ERG, Inc. v. Barnes, 137 N.H.

186, 190, 624 A.2d 555 (1993)), Carey’s procedural due process

claims are barred under Section 1983. Accordingly, I recommend

that the Fourteenth Amendment claims against Olson, Bartlett and

Boufford be dismissed in their entirety.

For purposes of preliminary review, I will assume that Carey

also seeks to vindicate his Fourth Amendment rights. To

ultimately prevail, he must demonstrate that “criminal

proceedings were initiated against him without probable cause and

for an improper purpose and were terminated in his favor.” See

McCarthy v. Town of Milford, No. Civ. 02-372-M, 2004 WL 307090,

at *6 (D.N.H. Feb. 18, 2004)(quoting Landrigan v. Warwick, 628

F.2d 736, 745 n.6 (1st Cir. 1980)). See also Meehan, 167 F.3d at

89 (“Thus, a § 1983 malicious prosecution action based upon a

deprivation of Fourth Amendment rights requires a showing of the

absence of probable cause to initiate proceedings.”). To the

extent Carey alleges that criminal proceedings were initiated

against him for improper purposes and without probable cause, I

conclude that he has alleged sufficient predicate facts to

withstand preliminary review with regard to the two proceedings

in which he was acquitted. Accordingly, I conclude that he has

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alleged sufficient facts to assert Fourth Amendment claims

against Olson and Boufford. As to the malicious prosecution

claim against Bartlett, Carey concedes that the charges against

him resulted in conviction. I therefore conclude that he has

failed to allege a cognizable Fourth Amendment claim and

recommend that this claim be dismissed. 

II. Municipal Liability

Construed liberally, the complaint names the MPD as a

defendant in this action. Municipalities and local government

entities are “persons” within the meaning of Section 1983. See

Monell, 436 U.S. at 690. A municipal entity cannot be held

liable under Section 1983 on a theory of respondeat superior or

vicarious liability; rather the municipality itself must

proximately cause the constitutional injury, through promulgation

or tacit approval of a policy or custom. See City of Canton v.

Harris, 489 U.S. 378, 385 (1989). To state a viable Section 1983

claim, a plaintiff must allege in substance that the challenged

municipal custom or policy was the “moving force” behind the

constitutional violations. See Board of the County Comm’rs v.

Brown, 520 U.S. 397, 404 (1997); McCabe v. Life-Line Ambulance

Serv., 77 F.3d 540, 544 (1st Cir. 1996) (citations omitted).

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If Carey intends to pursue claims against the MPD he must,

at a minimum, allege that his constitutional deprivations were

the product of a municipal custom or policy. Even liberally

construing the complaint, I cannot reasonably conclude that the

wrongful conduct ascribed to the defendants was the product of

any unconstitutional municipal custom or policy. Instead, the

complaint plainly alleges that the wrongful conduct to which

Carey was subjected resulted from the actions taken by individual

defendants and not as the result of a policy statement,

ordinance, regulation or officially adopted decision. See

Monell, 436 U.S. at 690. Nothing in the complaint demonstrates

how the MPD was the “moving force” behind the actions or

omissions the defendants. Accordingly, I conclude that the

complaint fails to state a viable claim premised upon municipal

liability and, therefore, recommend dismissal of the federal

claims against the MPD.

Construed liberally, the complaint names Olson and Boufford

in their official capacities as employees of the MPD. Official

capacity suits against officers of an agency are simply “another

way of pleading an action against an entity of which an officer

is an agent.” Monell, 436 U.S. at 690 n.55. See also Brandon v.

Holt, 469 U.S. 464, 471 (1985)(suits against parties in their

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official capacities treated as suits against the municipality). 

Because I find no municipal liability as to the MPD, I extend

that reasoning to Olson and Boufford and conclude that any

official capacity claims against them must fail.

III. State Law Claims

Carey asserts claims under New Hampshire law premised upon 

defamation, tortious interference with contractual relations and 

intentional interference with prospective contractual relations. 

A. Defamation

To establish defamation under New Hampshire law, a plaintiff

must show that the defendant failed to exercise reasonable care

in publishing, without a valid privilege, a false and defamatory

statement of fact about the plaintiff to a third party. See Moss

v. Camp Pemigewassett, Inc., 312 F.3d 503, 507 (1st Cir. 2002);

accord Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 143

(D.N.H. 2005). Here, Carey broadly alleges that “the Manchester

Union Leader, Nashua Telegraph, and Concord Monitor have all

featured articles full of outright lies with glaring omissions,

all straight from the MPD reports from [his] cases.” He does not

allege that the particular defendants in this action caused any

false or defamatory statements to be published. Nor does he

identify the content of the alleged defamatory statements. 

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Because the complaint is lacking in sufficient predicate facts to

support a defamation claim against any of the named defendants, I

recommend dismissal of such claim in its entirety.

B. Interference with Contractual Relations

This court has discussed the essential elements of both a

claim for tortious interference with contractual relations and

intentional interference with prospective contractual relations:

To prove a tortious interference with contractual

relations claim under New Hampshire law, [plaintiff]

must prove that: (1) it had a contractual relationship

with [a third party]; (2) [defendant] knew of the

contractual relationship; (3) [defendant wrongfully

induced [the third party] to breach the contract; and

(4) [plaintiff’s] damages were proximately caused by

[defendant’s] interference. Roberts v. General Motors

Corp., 138 N.H. 532, 539, 643 A.2d 956 (1994); National

Employment Serv. Corp., 145 N.H. 158, 162, 761 A.2d 401

(2000). “‘Only improper interference is deemed

tortious in New Hampshire.’” Id. (quoting Roberts, 138

N.H. at 540.

Alternative Sys. Concepts v. Synopsys, Inc., 229 F. Supp. 2d 70,

73-74 (D.N.H. 2002). 

Here, Carey alleges that in February 2002, Boufford and

Bartlett surrounded his place of employment at Energy To Go and 

arrested him, thereby causing him to lose his position as

assistant manager. Without providing any supporting facts, he

further alleges that he lost a part-time position teaching oil

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painting at Timberline High School. Assuming that Carey had a

contractual relationship with the above employers, he has not

adequately alleged that defendants improperly interfered with

those relationships. He alleges no contact whatsoever between

the defendants and the employers. Even liberally construing the

complaint, I cannot discern any conduct on the part of the

defendants that constitutes improper interference with an

employment relationship. Accordingly, I concluded that Carey has

failed to allege sufficient facts for a claim of intentional

interference with contractual relations and recommend dismissal

of this claim in its entirety.

Carey also alleges that defendants interfered with his

prospective contractual relations by interfering with an

anticipated employment offer. “The elements of this tort are

described as follows: “One who, without a privilege to do so,

induces or otherwise purposely causes a third person not to . . .

enter into or continue a business relation with another is liable

to the other for the harm caused thereby.” Id. When the claim

is for intentional interference with prospective contractual

relations, “the court has limited actionable claims to those

situations in which the plaintiff seeks relief for the

defendants’ interference with already existing relationship that

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gives rise to a reasonable expectation of economic advantage.” 

Heritage Home Health, Inc. v. Capital Region Health Care Corp.,

No. 95-558-JD, slip op. at 10-11, 1996 WL 655793 (D.N.H. Oct. 1,

1996)(quotation marks omitted).

In February 2002, Carey successfully interviewed for a

position at the Easter Seal Jolicoeur Center and was expecting to

receive an offer of employment. He broadly alleges that Bartlett

and Boufford interfered with his anticipated offer of employment. 

He further alleges that while was out on bail, he was hired as a

temporary employee by Unicast and was expecting to become a

permanent employee. When a uniformed MPD police officer appeared

at Unicast and served Carey with a stalking petition, he

allegedly lost his prospective employment opportunity with

Unicast.

While Carey has alleged harm in being denied prospective

employment, he has not adequately alleged that defendants induced

or otherwise purposely caused the employers not to enter into or

continue a business relation with him. Nor is there any

indication that any of the named defendants had contact with the

above employers. Accordingly, I concluded that Carey has failed

to allege sufficient facts for a claim of intentional

interference with prospective contractual relations and recommend

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dismissal of this claim in its entirety.

Conclusion

For the reasons stated above, I find that Carey has alleged

Fourth Amendment malicious prosecution claims against Olson and

Boufford in their individual capacities. I recommend dismissal

of all remaining claims.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

Unauthorized Practice of Law Committee v. Gordon, 979 F.2d 11,

13-14 (1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d

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4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 17, 2006

 cc: William J. Carey, pro se

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