1The plaintiff names the following defendants to this

action: The Town of Danbury, Danbury Police Chief Dale Cook,

Danbury Police Officer Andrew Ware, Danbury Selectman Twila Cook,

Danbury Selectman Steven Gordon, Danbury Workshop, Inc. (“DWI”),

DWI Board member James Larkin, DWI Board Chairperson Audrey

Pellegrino, DWI Board Treasurer Sara Blay, DWI Director Terri

Towle, and Thomas Blay. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Philip Giroux

v. Civil No. 06-cv-250-PB

Town of Danbury, New Hampshire, et al.1

REPORT AND RECOMMENDATION

Philip Giroux has filed a complaint (document no. 1)

pursuant to 42 U.S.C. §§ 1983 & 1985(3) alleging that the

defendants have conspired to violate his constitutional and

statutory rights. Because Giroux is proceeding both pro se and

in forma pauperis, the matter is before the Court for preliminary

review to determine whether the complaint states any claim upon

which relief might be granted. See 28 U.S.C. § 1915(e)(2);

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(1)(B). 

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2

Standard of Review

Under this Court’s local rules, when a nonincarcerated

plaintiff commences an action both pro se and in forma pauperis,

the magistrate judge is directed to conduct a preliminary review

and to prepare a report and recommendation determining whether

the complaint or any portion thereof should be dismissed because:

the allegation of poverty is untrue, the action is 

frivolous, malicious, or fails to state a claim upon 

which relief may be granted, or seeks monetary relief 

from a defendant who is immune from such relief under 28 

U.S.C. § 1915(e)(2); or it fails to establish subject 

matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(1)(B). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

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3

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,” but not “bald assertions” or “unsupportable

conclusions,” must be accepted as true). This review ensures

that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Dir. of C.I.A., 843 F.2d 46, 49

(1st Cir. 1988). 

Background

Philip Giroux is a resident of Danbury, New Hampshire

(“Town”), a town governed by a Board of Selectmen pursuant to

N.H. Rev. Stat. Ann. (“RSA”) 41:2. The Danbury Workshop, Inc.

(“DWI”) is a non-profit organization created and incorporated in

1995 by the Town Board of Selectmen to manage and operate the 

Danbury Community Center (“DCC”). The DWI board of directors

runs the DCC, which employs a director, staff and volunteers.

Giroux alleges that he previously served as the Facilities

Manager on the DWI Board of Directors, but that he voluntarily

stepped down from that position on May 13, 2003. Although Giroux

does not specify what events led to his resignation, he does

state that Audrey Pellegrino, the DWI Board Chairperson, agreed

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4

that Giroux’s departure from the DWI Board was due, in part, to

Giroux’s seeming lack of ability or desire to work diplomatically

with the Town and with the Board of Selectmen. Giroux alleges

that when he resigned his Board position, he did not intend to

stop participating in DCC functions, volunteering at the DCC or

completing the coat rack he was making for the DCC at the time of

his resignation.

On June 11, 2003, Terri Towle, the DCC director, had a

Danbury police officer deliver a letter from Towle and the DWI

Board to Giroux asking Giroux not to go to or call the DCC or

contact any of the DCC staff. Giroux has not provided the Court

with a copy of the letter and the narrative of the complaint does

not reveal Towle’s reason or reasons for making this request. 

At around the same time, Giroux alleges that Thomas Blay,

and his wife Sara, who was the DWI Board treasurer, started a

rumor that Giroux was a child molester. Giroux alleges that this

rumor damaged Giroux’s standing in the community. At the end of

June 2003, Giroux sent a letter to Pellegrino notifying her of

the rumor and denying any involvement in criminal activity. On

July 9, 2003, Pellegrino wrote to Giroux and advised him to

ignore the gossip. Pellegrino also threatened Giroux with “court

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5

action” if he did not stop contacting Towle, the DWI Board, and

the DCC staff. 

On August 3, 2003, Giroux wrote to Pellegrino requesting

that the well supplying the Town Hall and DCC with water be

monitored according to state law. Giroux alleges that he was

concerned because the well was located too close to two septic

tanks according to the relevant state regulations.

On August 12, 2003, Giroux mailed a certified letter to

Pellegrino asserting his right to go to the DCC, and requested

that she provide him with a reason why he was being denied access

to the DCC. Pellegrino did not respond to Giroux’s letter.

On August 26, 2003, the Town Board of Selectmen met. Giroux

requested that the Board of Selectmen assist him in dealing with

the DWI Board. Giroux also attended the meeting to discuss the

location of the Town Hall well and the monitoring of the well

water. At that meeting, defendants Steven Gordon and Twila Cook

told Giroux that they would not get involved in his dealings with

the DCC. Giroux claims this was an abrogation of their

responsibility to protect his rights regarding access to public

places in Danbury. 

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At the August 26 meeting, Giroux was not given an

opportunity to clear his name regarding the “child molester”

rumors. In response, he requested that the selectmen amend a

building permit that had been granted to Sara Blay to indicate

that the Blays were installing radiant heat at their home. 

Giroux alleges that Thomas and Sara Blay installed radiant heat

in their home while claiming that their home was heated only by a

woodstove. This resulted in the Blays’ property taxes being

falsely lowered, as they were taxed for an “unheated” home rather

than a home heated with radiant heat.

On August 27, 2003, Pellegrino mailed a certified letter to

Giroux, the Town Board of Selectmen, the Danbury Police

Department and the DWI Board members stating that Giroux, as a

taxpayer, was entitled to attend adult functions at the DCC, and

advised Giroux to stop contacting Towle to avoid prosecution for

stalking and harassment. The letter also stated that Giroux had

thrown his keys at Towle, which Giroux denies. The letter made

reference to the rumors that Giroux was a child molester, and

stated that due to those rumors and the fact that Giroux was

banned from the DCC, parents utilizing the DCC had expressed

concern that Giroux might attend or be involved in child

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7

activities at the DCC. The letter restricted Giroux’s presence

at the DCC to adult functions, which Giroux alleges conveys an

inference that Giroux is a child molester. The letter did not

respond to Giroux’s request for an opportunity to clear his name

regarding the molestation rumors. 

Pellegrino’s August 27th letter also assured Giroux that the

well that Giroux was concerned about was being appropriately

monitored. Despite these assurances, Giroux contacted the New

Hampshire Department of Environmental Services to have the well

inspected. The well was inspected and placed on the New

Hampshire Safe Drinking Water Act oversight program in June of

2004. Giroux’s complaint implies that the drinking water in

question is unsafe as a result of collusion between Pellegrino

and the Board of Selectmen, as it was Pellegrino’s brother who

did the well’s waterline work when the well was drilled. Giroux

alleges that this alleged collusion evidences a complicated

system of familial, personal and professional connections between

the defendants to this action which have resulted in them

conspiring to violate Giroux’s rights in retaliation for his

outspoken concern with matters relevant to the public concern in 

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8

Danbury, such as the Town Hall drinking water or the honesty of

the town’s elected officials.

On September 2, 2003, the Town Board of Selectmen and the

DWI Board met in a closed executive session. Giroux states that

the minutes taken at that meeting indicate that the meeting was

held, at least in part, to discuss “the alleged harassment and

stalking of Terri Towle, Director of the [DCC], by [Giroux].” 

Giroux claims that he was not told of the reason for the meeting,

and complains that as the meeting affected his right to utilize

public spaces, he had a right to be notified of the reason for

the meeting. Giroux asserts that the defendants had an

obligation, as state actors, to protect his constitutional rights

by giving him notice and the opportunity to be heard prior to

depriving him of his right to access public places.

On September 2, 2003, prior to the Executive Session

meeting, Thomas Blay alerted the Danbury Police Department that

Giroux had assaulted him by poking him in the chest and grabbing

his shirt, and that Giroux claimed to be in possession of a gun

and a permit to carry a concealed weapon and might be on his way

to Town Hall. Thomas Blay advised the police that he believed

that Giroux was bringing a gun to the meeting to be held that

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9

evening at the Town Hall in order to shoot people at the meeting. 

Giroux admits that on September 2, 2003, the day of the Executive

Session meeting, he did apply for a permit to carry a pistol, but

states that he did not have the permit at the time of the

meeting. In his application for a permit to carry a gun, Giroux

stated that Blay had given Giroux “the finger” on August 29,

2003, that on August 31, 2003, Giroux found a piece of plywood

leaning against his truck, which Giroux believed to be “a

possible sign from Thomas Blay, or someone hearing about the

defamatory rumor that Thomas Blay started, or Audrey Pellegrino.” 

On September 2, 2003, Giroux was denied access to the

Executive Session meeting. On that evening, Giroux parked his

truck in the Town Hall parking lot. Giroux had affixed signs to

his truck disputing allegations that he had engaged in criminal

activity and further alleging that Sarah Blay, who was in

attendance at the meeting in her capacity as the DWI Board

treasurer, was engaged in possible tax fraud. 

That evening, outside the board meeting, Giroux was arrested

by Chief Cook, without a warrant, on two counts of stalking. At

the time of his arrest, Giroux was not in possession of a gun on

his person or in his truck. The State of New Hampshire took the

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2Giroux alleges that the following bail conditions were

imposed pursuant to his arrest on stalking charges: (1) Giroux

could not go within 50 yards of Town Hall personnel or their

workplaces; (2) Giroux could not go within 50 yards of DCC

personnel or their workplaces; (3) Giroux could not have any

contact with Towle, Blay, or any member of their families. 

10

position, during pretrial litigation in Giroux’s criminal

stalking case, that the sign on Giroux’s truck was not an act of

political speech entitled to First Amendment protections, but was

“a continuation of threatening behavior to place the board

members in fear that they were going to be shot at [their]

meeting with the selectmen.” Giroux alleges that the information

relied upon by Chief Cook in arresting and charging Giroux was

unreliable and that Cook had reason to know it was unreliable,

inaccurate, and insufficient to form the basis for making an

arrest. Ultimately, the stalking charges were dismissed by the

Franklin District Court. Giroux now contends that his arrest and

detention and the bail conditions2 subsequently imposed were

intended to deny him access to the Town Hall and the DCC and, in

effect, the public road that ran in front of the Town Hall and

the DCC, in retaliation for Giroux’s exercise of his right to

free speech and to petition the government for a redress of

grievances by questioning and challenging the actions of the Town

government and its individual officials. 

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Giroux further alleges a continuing violation of his rights

by Danbury Police officer Andrew Ware, serving in his function as

the Danbury Police prosecutor, in failing to assure that probable

cause was determined by a magistrate, justice of the peace, or

judge within forty-eight hours of Giroux’s warrantless arrest. 

Giroux further alleges that in writing the charging documents,

Ware advanced materially false statements in his efforts to

secure a criminal stalking action against Giroux. Giroux charges

that Ware and Chief Cook falsely arrested and imprisoned Giroux

and engaged in a malicious prosecution.

In a state court civil action undertaken to obtain minutes

from the September 2 Executive Session meeting, Towle and two DWI

Board members stated during proceedings that Giroux was

attempting to obtain the names and ages of children attending DCC

programs. Giroux asserts that his efforts to obtain information

about people using the DCC, including how many people were using

the preschool and afterschool programs, was to insure that the

DCC and Town Hall well was being properly monitored, as he

suspected that the Board of Selectmen was providing artificially

low numbers to the Department of Environmental Safety.

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342 U.S.C. § 1983 states, in relevant part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

12

Giroux states that in 2003, Sara Blay was hired by the DCC

to be the DCC’s bookkeeper without the Town first posting the job

opening, in violation of N.H. Rev. Stat. Ann. § 292:6-a which

forbids a non-profit board member from being a paid employee. 

Also in 2003, Chief Cook appointed his daughter as a police

officer in the Danbury Police Department without posting the job

opening in violation of state and federal law. The appointment

was approved by Chief Cook’s wife, Twila Cook, who was then

serving on the Board of Selectmen. Giroux alleges that this

violated the Town of Danbury’s obligation, as an equal

opportunity employer, to post the job opening prior to hiring. 

Giroux does not allege how, or whether, these actions affected

him or his rights.

Discussion

Giroux attempts to bring his claims against the defendants

under the auspices of 42 U.S.C. §§ 1983 & 1985(3).3 Giroux

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injured in an action at law, suit in equity, or 

other proper proceeding for redress. . . .

42 U.S.C. § 1985(3) states, in relevant part:

If two or more persons in any State or Territory 

conspire or go in disguise on the highway or on the 

premises of another, for the purpose of depriving, 

either directly or indirectly, any person or class 

of persons of the equal protection of the laws, or 

of equal privileges and immunities under the laws; 

or for the purpose of preventing or hindering the 

constituted authorities of any State or Territory 

from giving or securing to all persons within such 

State or Territory the equal protection of the 

laws; . . . in any case of conspiracy set forth in 

this section, if one or more persons engaged 

therein do, or cause to be done, any act in 

furtherance of the object of such conspiracy, 

whereby another is injured in his person or 

property, or deprived of having and exercising any 

right or privilege of a citizen of the United 

States, the party so injured or deprived may have 

an action for the recovery of damages occasioned 

by such injury or deprivation, against any one or 

more of the conspirators.

13

alleges that he was subjected to violations of his federal

constitutional due process rights, his First Amendment rights,

his right to equal protection of the laws, his right to be secure

in his person, and state law right not to be subjected to false

arrest and imprisonment, malicious prosecution, defamation, and

the intentional and negligent infliction of emotional distress. 

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1. Equal Protection Claim

Giroux has alleged that the defendants conspired to violate

his rights as he is a member of the “peasant” class acting to

challenge the local government rule. The Equal Protection clause

of the Fourteenth Amendment guarantees that “all persons

similarly situated should be treated alike.” City of Cleburne,

Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 

Therefore, in order to establish a claim for an equal protection

violation, Giroux would have to allege that the defendants gave

differential treatment to persons who were similarly situated to

Giroux but who were not members of the “peasant” class, on the

basis that he is a member of the peasant class. Giroux would

also have to demonstrate that “peasants” are a distinct group of

people presumptively discriminated against and therefore

protected by the equal protection clause of the Fourteenth

Amendment. Giroux has failed to do so.

A “peasant” is defined as “(1) one of a chiefly European

class of persons tilling the soil as small landowners or as

laborers, or (2) a person of low social status especially when

comparatively uneducated or uncouth.” Webster’s Seventh New

Collegiate Dictionary at 620 (Merriam-Webster 1967). I can find

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no recognition by the federal courts of such a class of persons

who have been systematically subjected to discrimination and

Giroux provides no such authority. However, even assuming,

arguendo, that a case could be made that a class of “peasants”

exists and merits the protection of the Fourteenth Amendment,

Giroux has not alleged sufficient facts to identify himself as a

peasant. Further, Giroux has not identified any facts upon which

the Court could conclude that in acting as alleged, any of the

defendants was motivated by Giroux’s social status, education, or

his degree of couth. Accordingly, as Giroux has not alleged any

facts upon which an Equal Protection claim might succeed, I

recommend that the claim be dismissed from this action. 

2. Due Process Claims

The Fourteenth Amendment protects an individual from being

deprived of life, liberty, or property without due process of

law. U.S. Const. amend. XIV, § 1. The proscription against such

a deprivation applies to municipalities and municipal agencies. 

DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (citing

Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 286-87

(1913)). 

The Due Process clause has both procedural and 

substantive components. In its procedural aspect, 

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due process ensures that government, when dealing 

with private persons, will use fair procedures. In 

its substantive aspect, due process safeguards 

individuals against certain offensive government 

actions, notwithstanding that facially fair 

procedures are used to implement them.

DePoutot, 424 F.3d at 118 (internal citations omitted). 

A. Procedural Due Process

Giroux voluntarily resigned from the DCC board. Giroux

alleges, however, that he did not agree to discontinue his role

as a volunteer at DCC events, which included participation in

adult events, chaperoning field trips for children, and building

a coat rack and other items for the DCC. Giroux alleges that he

was denied procedural due process when he was terminated from his

volunteer position based on false rumors that he was a child

molester. Giroux further alleges that those rumors damaged his

standing in the community, and that he was not given an adequate

opportunity to clear his name. 

Giroux’s procedural due process claim is dependent in the

first place on his having a property interest in his position at

the DCC. See Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 569 (1972). Neither the Supreme Court or the First Circuit

has ever held that public employment would include a volunteer 

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17

position. Lynch v. City of Boston, 180 F.3d 1, 14 (1st Cir.

1999). 

Giroux’s property interest in his volunteer position is

protected by the Due Process clause only if he can demonstrate

that his property interest rises “to the level of a legitimate

claim of entitlement sufficient to trigger due process

protections.” Acevedo-Feliciano v. Ruiz-Hernandez, 447 F.3d 115,

121 (1st Cir. 2006). The complaint is silent with respect to

referencing any contract, rule or policy that would have given

rise to a legitimate expectation that Giroux was constitutionally

entitled to continuing in his volunteer position unless he was

terminated pursuant to some established procedure. Accordingly,

I cannot find that Giroux has alleged any procedural due process

claim arising out of his termination, and I recommend that the

claim be dismissed.

B. Substantive Due Process

Giroux’s complaint next tries to assert a substantive due

process claim against the defendants for their actions in

effecting his arrest on September 2, 2003. A substantive due

process violation claim against the executive authority of a

municipality, such as a law enforcement officer, must allege that

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the challenged conduct of the official in question “shocks the

contemporary conscience.” DePoutot, 424 F.3d at 18 (citing

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “Mere

violations of state law, even violations resulting from bad

faith, do not necessarily amount to unconstitutional deprivations

of substantive due process.” Depoutot, 424 F.3d at 119 (citing

Amsden v. Moran, 904 F.2d 748, 757 (1st Cir. 1990)). 

Giroux alleges that the law enforcement officers in question

responded to a report that Giroux might be at the Town Hall

meeting with a gun to shoot attendees at that meeting. The

officers responded by arresting Giroux, who was not carrying a

gun on his person or in his truck, on stalking charges arising at

least in part from the presence of a sign accusing one of the

meeting attendees of possible tax fraud. Giroux further alleges

that the law enforcement defendants detained and prosecuted him

on these charges, but due to the fact that no proper stalking

charge had been alleged, his arrest and detention were without

probable cause and his prosecution was malicious. These facts,

if true, amount, at most, to erroneous legal decisions or law

enforcement overreaching. They do not involve the kind of

“stunning” or “egregious” behavior required to state a

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19

substantive due process claim. Accordingly, I recommend that

any intended substantive due process violation against the law

enforcement defendants be dismissed from this action.

C. Defamation/Name-Clearing Hearing

Giroux alleges that the termination of his position on the

DCC board and subsequent dismissal as a DCC volunteer occurred

contemporaneously with defamatory comments being made and spread

about him by Thomas Blay in conjunction with other defendants. 

“[D]efamation, even from the lips of a government actor, does not

in and of itself transgress constitutionally assured rights.” 

Wojcik v. Mass. State Lottery Comm’n, 300 F.3d at 92, 102 (1st

Cir. 2002) (citing Pendleton v. Haverhill, 156 F.3d 57, 62-63

(1st Cir. 1998) and Paul v. Davis, 424 U.S. 693, 700-01 (1976)). 

However, excepted to this rule is the circumstance where a

public-sector employer “creates and disseminates a false and

defamatory impression about an employee in connection with the

employee’s discharge.” Wojcik, 300 F.3d at 103. In such

circumstances, a public employer is required to provide the

employee with an adequate name-clearing opportunity and the

failure to do so is actionable as a due process violation under §

1983. Id. (citing Codd v. Velger, 429 U.S. 624, 627-28 (1977)). 

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While Giroux has stated that he was not discharged from the DWI

Board, but resigned voluntarily, he also alleges that the

defamatory statements in question were made in connection with

the dissolution of his relationship with the DWI Board and the

DCC. However, as stated earlier, Giroux has not alleged facts

that suffice to establish that he had a property interest in his

volunteer position at the DCC that entitled him to the protection

of the constitution for circumstances surrounding the loss of the

position. I therefore recommend that any claim for a denial of

due process occasioned by the denial of a name-clearing hearing

be dismissed. 

3. First Amendment Claims

The First Amendment states that “[c]ongress shall make no

law . . . abridging the freedom of speech or of the press . . .”

U.S. Const. amend. I. Freedom of speech is “among the

fundamental personal rights and liberties which are protected by

the Fourteenth Amendment from invasion by state action.” Lovell

v. City of Griffin, Ga., 303 U.S. 444, 450 (1938). There is no

question that Giroux’s display of a sign questioning the legality

of the actions of a public figure, or of the safety of

government-maintained facilities, is protected speech. This

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right is enforceable against police officers who, by their

official actions, suppress this right instead of protecting it. 

“[U]ncontrolled official suppression of the speaker ‘cannot be

made a substitute for the duty to maintain order.’” Edwards v.

South Carolina, 372 U.S. 229, 245 (1963) (quoting Hague v.

C.I.O., 307 U.S. 496, 516 (1939)).

Further, the First Amendment’s guarantee of a right to

petition the government for a redress of grievances has been

characterized as “among the most precious of the liberties

safeguarded by the Bill of Rights.” United Mine Workers v. Ill.

State Bar Ass’n, 389 U.S. 217, 222 (1967). Giroux alleges that

his efforts to address the well conditions and his complaints

regarding the legality of the Blays’ building permit were efforts

to petition the Town in order to seek a remedy of his grievances

as a person with an interest in the public spaces and the conduct

of public officials in the town where he lived. 

In order to recover under § 1983 for a violation of First

Amendment rights, a plaintiff must allege that the defendant

intended to inhibit speech protected by the First Amendment,

Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994), and that his

“speech was in fact chilled or intimidated.” Sullivan v.

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Carrick, 888 F.2d 1, 4 (1st Cir. 1989). Giroux alleges that his

First Amendment rights were abridged by his arrest on stalking

charges when Giroux was appearing in a public place and engaging

in constitutionally protected speech, and that his arrest was

intended to retaliate against him for the exercise of his right

to speak freely and his right to petition the government for a

redress of grievances.

Giroux’s allegations give rise to a cause of action against

the officers for what could be construed as a willful suppression

of Giroux’s constitutionally protected speech, and further, that

their actions in fact chilled or intimidated Giroux’s speech as

he was removed from the location and not permitted to continue

his protest. Accordingly, I will direct that the First Amendment

claims alleging an abridgement of Giroux’s right to free speech

and to petition the government for a redress of grievances may

proceed against Danbury Police Chief Dale Cook and Danbury Police

officer Andrew Ware in an Order issued simultaneously with this

Report and Recommendation. 

4. Failure to Protect

Giroux alleges that he sought the assistance of Twila Cook

and Steven Gordon in redressing his problems with the DCC and the

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DWI Board on August 26, 2003. Giroux does not identify what

legal right he feels that these defendants violated by refusing

to intervene on his behalf with the DWI board. As no such right

is apparent on the face of the facts alleged, I recommend that

this claim be dismissed.

5. Illegal Seizure of Person Claims

A. False Arrest

Giroux alleges that he was arrested without a warrant and

without probable cause and that therefore his arrest, detention,

and subsequently-imposed bail conditions violated his

constitutional right to be secure in his person as guaranteed by

the Fourth and Fourteenth Amendments. While Giroux has referred

to these claims in a number of ways, to the extent that he

intends to cite the lack of probable cause for his arrest as the

reason for a constitutional violation, his arrest-related claims

are properly viewed as stating a claim for a violation of his

right to be free from an unreasonable seizure. Pena-Borrero v.

Estremeda, 365 F.3d 7, 12 n.8 (1st Cir. 2004) (citing CamiloRobles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998)) (“The right to be

free from unreasonable seizure (and, by extension, unjustified

arrest and detention) is clearly established in the jurisprudence

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of the Fourteenth Amendment (through which the Fourth Amendment

constrains state action).”). The right to be free from

unreasonable seizure is actionable pursuant to the Fourth

Amendment’s guarantee of an individual’s “right ‘to be secure in

their persons . . . against unreasonable . . . seizures’ of the

person.” Pena-Borrero, 365 F.3d at 12; see Graham v. Connor, 490

U.S. 386, 394 (1989). “The constitutionality of a warrantless

arrest ‘depends . .. upon whether, at the moment the arrest was

made, the officer [] had probable cause to make it.’” Logue v.

Dore, 103 F.3d 1040, 1044 (1st Cir. 1997) (quoting Beck v. Ohio,

379 U.S. 89, 91 (1964)). Probable cause to make an arrest exists

if the facts and circumstances of which the arresting officer is

aware “are sufficient to lead an ordinarily prudent officer to

conclude that an offense has been, is being, or is about to be

committed” by the arrestee. Logue, 103 F.3d at 1044. The Fourth

Amendment requires that the States provide “a fair and reliable

determination of probable cause as a condition for any

significant pretrial restraint of liberty . . . the probablecause determination ‘must be made by a judicial officer either

before or promptly after arrest.’” Baker v. McCollan, 443 U.S.

137, 142-43 (quoting Gerstein v. Pugh, 420 U.S. 103, 125 (1975)). 

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Construing the complaint liberally, I find that Giroux has

alleged that no timely and appropriate determination of probable

cause was made in his case, and that when an impartial judicial

officer did finally examine the case, he determined that no

charge had been stated against Giroux and dismissed the case. 

Giroux complains of his arrest, his detention, and his bail

conditions. Accordingly, I find that Giroux attempts to state a

false arrest claim against the arresting officer, Chief Cook and

Officer Ware, the officer who supported the arrest and provided

information to Chief Cook in order to assist Cook in effecting

the arrest.

While it may ultimately prove true that the officers were

aware of enough facts to make an arrest based on probable cause,

if Giroux’s allegations are construed liberally, as they must be

for purposes of preliminary review, Giroux describes an arrest

made without probable cause. Initially, Giroux contends, he was

stopped and searched by the police on suspicion that he was

armed, but the police found no weapon on his person or in his

vehicle. Giroux claims he was then arrested for “stalking,”

because he was standing outside a town meeting in a public place

with a sign on his truck accusing a public official of possible

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4Giroux has named the prosecutor, Andrew Ware, but not the

judge, as a defendant to this action. Liberally construing the

complaint, however, I find that Giroux has attempted to bring

26

tax fraud. Giroux alleges, therefore, that he was arrested for

simply exercising his free speech rights and not on the basis of

conduct amounting to probable cause to believe any criminal

activity was afoot. Accordingly, I find that Giroux has stated

the minimum facts necessary to allege that his warrantless arrest

was without probable cause and therefore violated the Fourth

Amendment. In an Order issued contemporaneously with this Report

and Recommendation, I will direct that the False Arrest claim be

served on Chief Cook and Officer Ware.

B. False Imprisonment

Giroux alleges that due to his unconstitutional arrest, he

was held in custody, and then restricted by bail conditions,

before the charges against him were dismissed. Giroux alleges a

separate “false imprisonment” claim as a result of being detained

or subject to restrictive conditions of release for that period. 

To the extent that Giroux intends to state a false imprisonment

claim separate from his false arrest claim, based on allegations

of improper detention and bail conditions, he is attempting to

state an action against the arraigning judge and the prosecutor.4

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suit against the judicial officer who set his bail conditions

without first properly making a determination that probable cause

existed to hold Giroux for prosecution.

27

Because, as discussed below, I find that both of these defendants

are immune from suit based on Giroux’s allegations, I recommend

the false imprisonment claim be dismissed from this action.

C. Malicious Prosecution

In order to state a malicious prosecution claim that is

cognizable under § 1983, a plaintiff must establish that the

criminal charges at issue resulted in some deprivation of liberty

consistent with the concept of seizure. Britton v. Maloney, 196

F.3d 24, 28-29 (1st Cir. 1999), cert. denied, 530 U.S. 1204

(2000). Malicious prosecution claims are cognizable under § 1983

if they allege a violation of the Fourth Amendment. See Nieves

v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001). Giroux alleges

that the prosecution of the charges against him was conducted in

a manner that unreasonably delayed the dismissal of the case

because no impartial judicial officer was afforded the

opportunity to make a determination of probable cause in a timely

fashion. This claim, liberally construed, attempts to allege a

malicious prosecution claim against the police prosecutor

responsible for seeking such a determination. The malicious

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prosecution cause of action permits damages for a deprivation of

liberty pursuant to a legal process; the plaintiff must establish

that (1) the criminal action was initiated and instigated by the

defendant or defendants, (2) the prosecution culminated in favor

of the plaintiff, (3) the defendant or defendants acted with

malice and absent probable cause, and (4) the plaintiff suffered

damages. Meehan v. Town of Plymouth, 167 F.3d 85, 88-89 (1st

Cir. 1999). The First Circuit has concluded that a plaintiff

cannot “bring a malicious prosecution claim based upon his arrest

because his arrest [did] not constitute the ‘initiation of the

proceedings’ against [the plaintiff],” and that a warrantless

arrest, as was the arrest here, could not be the basis of a

malicious prosecution claim because it did not constitute legal

process. Id. at 89. Therefore, Giroux cannot bring a malicious

prosecution claim based on the lack of probable cause for his

arrest. Accordingly, this claim, if it is to survive, rests

solely on his allegation that the prosecutor or judge

unreasonably seized his person after the initiation of criminal

proceedings by holding him on unreasonable bail, or failing to

proceed quickly with the preparation and ultimate dismissal of

the criminal charges. Again, because I find that both of these

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29

defendants are immune from suit for these claims, I recommend the

malicious prosecution claim be dismissed from this action.

D. Prosecutorial and Judicial Immunity

Absolute immunity from suit has been extended to those who

perform official functions in the judicial process, including

judges, prosecutors, and others acting under color of law during

the judicial process. Briscoe v. LaHue, 460 U.S. 325, 334

(1983). The initiation of criminal charges, setting of bail,

preparation of a criminal case by investigation, and ultimately

the decision to dismiss a case are judicial functions taken in

the normal course of a criminal prosecution. I find that no

individual acting in the role of prosecutor or judge in this case

is alleged to have committed acts that would render him or her

amenable to suit for their actions. Accordingly, I recommend

that the false imprisonment claim alleged against defendant Ware

in his prosecutorial capacity, and the unnamed judicial officer

who was responsible for setting bail conditions in Giroux’s case

be dismissed from this action. 

6. Conspiracy - Section 1985(c) Claim

Giroux alleges a claim against the defendants under 42

U.S.C. § 1985(3), which creates a private cause of action “for

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30

injuries occasioned when ‘two or more persons . . . conspire . ..

for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws,

or of equal privileges and immunities under the laws.’” Diva’s

Inc. v. City of Bangor, 411 F.3d 30, 38 (1st Cir. 2005) (citing

Burns v. State Police Ass’n of Mass., 230 F.3d 8, 12 n.3 (1st

Cir. 2000) (quoting 42 U.S.C. § 1985(3))). To state a claim

under § 1985(3), the plaintiff must allege that the

conspiratorial conduct complained of was motivated by some

“racial, or perhaps otherwise class-based, invidiously

discriminatory animus.’” Aulson, 83 F.3d at 3 (quoting Griffin

v. Breckenridge, 403 U.S. 88, 91 (1971)).

As previously discussed, Giroux has not alleged that he is a

member of any constitutionally protected class of persons or that

he was otherwise the object of any kind of invidious

discrimination by the defendants. Because Giroux does not allege

facts sufficient to state a § 1985(3) civil rights action against

the defendants, I recommend that this claim be dismissed for

failure to establish the subject matter jurisdiction of this

Court.

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7. Failure to Post Job Openings

Giroux alleges that in 2003, the DWI Board filled a job

opening that they were legally required to post without making

the required posting. Giroux further alleges that in 2003

Danbury Police Chief Cook appointed his daughter to the Danbury

Police Department, again without posting the job opening as

required, and that Chief Cook’s wife, Twila Cook, approved the

appointment in her position as a member of the Board of

Selectmen. 

In all stages of federal judicial proceedings, the parties

must have a personal stake in the outcome of the action. Spencer

v. Kemna, 523 U.S. 1, 7 (1998) (internal citations omitted). 

This means that Giroux’s complaint must allege some injury to

himself that could be redressed by a favorable judicial decision. 

Id. A suit is moot if it fails to present a live case or

controversy. Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir.

2003). Giroux’s claim challenges the procedure that resulted in

certain job postings and hiring decisions that occurred in

Danbury in 2003. Giroux has not stated how he was affected or

injured by those actions, or how any injury to himself could be

redressed by a favorable judicial decision in this matter. 

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32

Giroux has alleged only that the actions in question were

generally against the law. I find, therefore, that Giroux has

not presented a live case or controversy for this Court to

resolve regarding these claims and I recommend they be dismissed.

8. State Law Claims

Giroux has alleged several state law tort claims based on

the same facts alleged in support of his civil rights claims. 

Under 28 U.S.C. § 1367, this Court may exercise supplemental

jurisdiction over state law claims that arise out of the same

facts and circumstances as those alleged to give rise to the

federal claims properly before the Court.

Because this court has original federal question

jurisdiction of the First Amendment and false arrest claims

pursuant to 28 U.S.C. § 1331, I will exercise jurisdiction over

the pendant state law claims arising out of the facts that give

rise to those claims, as I find they form part of the same case

or controversy pursuant to 28 U.S.C. § 1367. Specifically, I

will, in the Order issued simultaneously with this Report and

Recommendation, direct that the defendants served with the

federal claims also be served with the state claims alleging

false arrest, and the intentional and negligent infliction of

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33

emotional distress. As I find that facts giving rise to the

other state claims alleged do not give rise to any federal cause

of action, I recommend that the state tort claims of defamation, 

false imprisonment, and malicious prosecution be dismissed

without prejudice to refiling in the state court. 

9. Claims Against Thomas Blay

The United States Constitution “erects no shield against

merely private conduct, however . . . wrongful.” Blum v.

Yaretsky, 457 U.S. 991, 1002 (1982). A plaintiff claiming an

infringement of his civil rights by individual defendants must

establish that (i) the defendants deprived plaintiff of a right

secured by the Constitution or laws of the United States, and

that (ii) the defendants acted under “color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory of the District of Columbia.” 42 U.S.C. § 1983; see

Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir. 2003). In relation

to the second requirement, a private actor can be held to be a

state actor under only three circumstances: “(i) where there is a

sufficiently close nexus between the state and the challenged

action of the private party so that the action of the party may

be fairly treated as that of the state itself, (ii) where the

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34

private party has exercised powers that are ‘traditionally the

exclusive prerogative of the state,’ or (iii) where the state has

exercised coercive power or has provided such significant

encouragement, either overt or covert that the action of the

private party must in law be deemed to be that of the state.” 

Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex. 1993)

(quoting Blum, 457 U.S. at 1004); see also Jackson v. Metro.

Edison Co., 419 U.S. 345, 357 (1974). 

Here, Giroux has alleged that Thomas Blay reported actions

to the Danbury Police which resulted in Giroux’s arrest, that

Thomas Blay was married to a member of the DWI Board, and that he

had contact and conversations that defamed Giroux with town

officials and employees. None of these allegations are

sufficient to allow this action to proceed against Thomas Blay as

a de facto state actor. While he may have agreed with or even

requested that certain state actions be taken against Giroux,

Blay did not act as a state actor in any of the incidents

discussed in Giroux’s complaint. Accordingly, I find that the

claims against Thomas Blay do not invoke the subject matter

jurisdiction of this Court and I recommend that he be dismissed

from this action. Fed. R. Civ. P. 12(h)(3); LR 4.3(d)(1)(B)(i).

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35

10. Municipal Liability

Under 42 U.S.C. § 1983, a municipality may be liable for

damages to a plaintiff “who is subjected to a deprivation of his

constitutional rights as a result of official action taken

pursuant to a ‘custom or usage’ of the municipality.” Mahan v.

Plymouth County House of Corr., 64 F.3d 14, 16 (1st Cir. 1995)

(citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658,

691 (1978)). Although in some instances a single incident of

constitutional deprivation may provide “some proof” of a

municipal policy, “a single incident is insufficient, in and of

itself, to establish a municipal ‘custom or usage’.” Mahan, 64

F.3d at 16; see also City of Oklahoma City v. Tuttle, 471 U.S.

808, 823 (1985) (proof of single incident by lower level

employees does not establish either an official policy or

custom). In this instance, where I find that the only

constitutional claims properly alleged by Giroux concern a single

incident -- his November 2, 2003 arrest, I find that he has

failed to allege any widespread policy, custom or practice

sufficient to allege the liability of the Town of Danbury or any

of the Town defendants in their official capacities. 

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11. Supervisory Liability

Supervisory liability under § 1983 cannot be based on a

respondeat superior theory, but instead must arise from a

supervisor’s own acts or omissions. See Bowen v. City of

Manchester, 966 F.2d 13, 20 (1st Cir. 1992). To state a claim

against the Danbury selectmen, the board members of the DCC, or

the Danbury Police Chief in their individual supervisory

capacities, Giroux must show that the individual supervisor was a

“primary actor involved in” or “prime mover behind” the

misconduct of his or her inferior. Camilo-Robles v. Zapata, 175

F.3d 41, 43-44 (1st Cir. 1999). There must be an affirmative

link between the supervisor’s activity and the harm suffered by

the plaintiff. Id. at 44. Here, Giroux has stated his First

Amendment and false arrest claims against Chief Cook in his

individual capacity. Giroux has not described how any

supervisory person was responsible for or primarily involved in

any of the claims which I am directing be served in my Order

issued this date. Accordingly, I recommend dismissal of the

supervisory liability claims alleged by Giroux.

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Conclusion

In an Order issued simultaneously with this Report and

Recommendation, I direct that the federal First Amendment claims,

the federal False Arrest claim, and the state law false arrest

and intentional and negligent infliction of emotional distress

claims, be served on defendants Dale Cook and Andrew Ware. I

recommend that the remaining claims and defendants be dismissed

from this action as they fail to state any claim upon which

relief might be granted.

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 Unauth. Practice of Law

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 31, 2006

cc: Philip Giroux, pro se 

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