UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Monique J. Harrington

v. Case No. 07-cv-299-PB

Opinion No. 2009 DNH 123

City of Nashua,

Nashua Police Department, and

Mark Schaaf

O R D E R

Monique J. Harrington has filed a motion for reconsideration

of my previous Order (Doc. No. 28), wherein I dismissed her

claims for false arrest and malicious prosecution. For the

reasons set forth below, I deny the motion for reconsideration.

As I explained in my prior Order, plaintiff has asserted

distinct constitutional claims for false imprisonment and

malicious prosecution. See Wallace v. Kato, 549 U.S. 384, 389-90

(2007); Nieves v. McSweeney, 241 F.3d 46, 49 (1st Cir. 2001). I

determined that plaintiff’s false imprisonment claim is barred by

the statute of limitations. I further determined that the

evidence will not support a viable malicious prosecution claim

because the prosecution did not result in a seizure under the

Fourth Amendment. See Nieves, 241 F.3d at 55-57.

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Plaintiff seeks reconsideration of my ruling concerning her

malicious prosecution claim. Her argument assumes that her

continued detention after the criminal complaint was filed was

the result of her prosecution rather than her arrest. This

assumption is incorrect. The undisputed evidence establishes

that plaintiff was arrested without a warrant. Once plaintiff

was arrested, the arresting officer was obligated to take

plaintiff before a court “without unreasonable delay, but not

exceeding 24 hours.” N.H. Rev. Stat. Ann. § 594:20-a. The

officer complied with his statutory duty by promptly bringing

plaintiff before a bail commissioner, who released her on her own

recognizance. Defs.’ Mot. for Summ. J., Doc. No. 11-2, at 5. 

Until plaintiff was presented to the bail commissioner, she was

detained based on the officer’s power to arrest a person who has

committed a misdemeanor in the officer’s presence. See N.H. Rev.

Stat. Ann. § 594:10 (authorizing arrest and detention without a

warrant for misdemeanors committed in the officer’s presence). 

The filing of the complaint played no role in plaintiff’s

continued detention. Thus, whether or not the prosecution in

this case was commenced when the complaint was filed, plaintiff’s

detention prior to her release on bail was the result of her

Case 1:07-cv-00299-PB Document 32 Filed 08/12/09 Page 2 of 4
 Plaintiff asserts that “[d]efendant Schaaf then 1

instituted legal process in the form of a criminal complaint

charging the plaintiff with making a False Report to Law

Enforcement . . . , based upon which legal process the plaintiff

was arrested.” Compl., Doc. No. 1, ¶ 45 (emphasis added). The

record, however, simply does not support this contention. If

plaintiff had been arrested based upon the filing of the

complaint rather than the officer’s power to arrest for a

misdemeanor committed in his presence, a warrant supported by an

affidavit establishing probable cause would have issued from the

judicial officer authorizing the arrest. N.H. Rev. Stat. Ann. §

592-A:8 (“A justice of the peace or justice of the district or

municipal court, upon such complaint, may issue a warrant for the

arrest of the person so charged with an offense committed or

triable in the county . . . .”); Whiteley v. Warden, Wyo. State

Penitentiary, 401 U.S. 560, 564 (1971) (filing of complaint

cannot support arrest absent probable cause). No arrest warrant

was obtained in this case. Thus, plaintiff was detained based

upon the officer’s warrantless arrest rather than the

commencement of a prosecution against plaintiff.

 I cannot determine from the record whether plaintiff was 2

detained at all after the complaint was filed in the district

court. In fact, it seems unlikely that the officer would have

filed the complaint prior to the plaintiff’s release on personal

recognizance at approximately 2:00 a.m. In any event, any

detention that plaintiff endured between the time the complaint

was filed and the time she was released on bail was so brief that

it cannot support a malicious prosecution claim even if I were to

accept plaintiff’s assertion that this short period of detention

is attributable to her prosecution rather than her arrest.

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arrest rather than her prosecution. Any constitutional claim 1

for damages resulting from this detention thus must be brought as

an unlawful detention claim rather than as a malicious

prosecution claim. Plaintiff’s motion for reconsideration ( 2 Doc.

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No. 30) is denied.

SO ORDERED. 

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

August 12, 2009

cc: Gordon R. Blakeney, Jr., Esq.

Brian J.S. Cullen, Esq.

 

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