UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 05-cv-357-SM

Merrimack County Attorney, et al.

REPORT AND RECOMMENDATION

 In this complaint filed pursuant to 42 U.S.C. § 1983, pro

se plaintiff William J. Carey, an inmate at the Hillsborough

County Department of Corrections (“HCDOC”), alleges that

defendants have abridged his Fourteenth Amendment right to due

process under the United States Constitution (document no. 1). 

Seeking monetary relief, he brings this action against the

Merrimack County Attorney’s Office (“MCAO”) and Assistant County

Attorneys David Rotman, George Stewart and Mark Seymour.

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

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

the complaint be dismissed.

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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 as true,

and construing all reasonable inferences from the pleadings in

Carey’s favor, the material facts are as follows. This action

stems from alleged constitutional deprivations that occurred

during Carey’s state court criminal proceedings and pretrial

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detention in 2003 and 2004. He alleges that the MCAO and

Assistant County Attorneys Rotman, Stewart and Seymour

maliciously prosecuted him and charged him with stalking and

attempting to stalk Kristi Eglody. According to Carey, he was

acquitted of the charges following two separate jury trials in

2003. In 2004, however, he admittedly was found guilty of

stalking Eglody. Defendants allegedly fabricated charges against

him and subjected him to three years of pretrial confinement and

unreasonably high bail for his nonviolent misdemeanor charges. 

In addition, defendant Rotman allegedly “fabricated a competency

issue” with regard to Carey’s competency to stand trial. Carey

now brings this action pursuant to Section 1983, alleging that

defendants’ acts and omissions rise to the level of

constitutional deprivations.

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);

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

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

constitutional deprivation. See Monell v. Department of Social

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 during the course of his state court criminal

proceedings, defendants violated his Fourteenth Amendment right

to due process by subjecting him to malicious prosecution, three

years of pretrial confinement and unreasonably high bail.

Prosecutors enjoy absolute immunity under Section 1983 for

actions taken within the scope of their prosecutorial duties. 

See Briscoe v. LaHue, 460 U.S. 325, 334 (1983); Kalina v.

Fletcher, 522 U.S. 118, 123-29 (1997). “[I]n initiating a

prosecution and in presenting the State’s case, the prosecutor is

immune from a civil suit for damages under § 1983.” Imbler v.

Pachtman, 424 U.S. 409, 430-31 (1976); Burns v. Reed, 500 U.S.

478, 486 (1991). For absolute immunity to apply, the challenged

conduct must be “intimately associated with the judicial phase of

the criminal process.” Imbler, 424 U.S. at 430. Guzman-Rivera

v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir. 1995). The doctrine of

prosecutorial immunity, however, is not so broad as to cover all

actions of a prosecutor and will not shield a prosecutor when he

engages in conduct that casts him in the role of administrator or

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investigator, rather than as an advocate. See Kalina, 522 U.S.

at 125-26. Nor will immunity extend to prosecutorial actions

“deliberately based upon an unjustifiable standard such as race,

religion, or other arbitrary classification.” See Wayte v.

United States, 470 U.S. 598, 608 (1985).

Here, the challenged conduct arises from Carey’s state court

criminal proceedings and appears to be intimately associated with

those proceedings. There is no indication that defendants acted

in the capacity of administrators or investigators or

participated in any stage of the criminal process prior to

charges being filed against him. And Carey has not alleged

racial animus on the part of any defendant or any circumstances

giving rise to a plausible inference of discriminatory intent

based on race, religion or other arbitrary classification. 

Accordingly, I conclude that defendants are entitled to absolute

prosecutorial immunity based on their roles as prosecutors in the

criminal proceedings against Carey and recommend that the

individual capacity claims against them be dismissed. 

II. Official Capacity Claims

Carey brings official capacity claims against the MCAO and

Assistant County Attorneys Rotman, Stewart and Seymour. 

Municipalities and local government entities are “persons” within

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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).

To the extent Carey intends to pursue claims against the

MCAO, he must, at a minimum, allege that his constitutional

deprivations were the product of a municipal custom or policy. 

Liberally construing the complaint, no wrongful conduct is

ascribed to the MCAO or alleged to be the product of an

unconstitutional municipal custom or policy. Nor is there any

indication that the county or the mCAO was the “moving force”

behind the acts or omissions allegedly taken by the defendants. 

Accordingly, I conclude that the complaint fails to state a

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viable claim premised upon municipal liability against the MCAO.

The complaint names Rotman, Stewart and Seymour in their

official capacities as attorneys employed by the MCAO. 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

official capacities treated as suits against the municipality). 

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

that reasoning to defendants Rotman, Stewart and Seymour and

conclude that the official capacity claims against them fail. 

Conclusion

For the reasons stated above, I recommend that the complaint

(document no. 1) be dismissed. 

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. 

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Any further 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 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 27, 2006

cc: William J. Carey, pro se

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