1In addition to the State of New Hampshire, Walsh has named

Concord Police Officer Buelte, the unnamed individual who was the

Chief of the Concord Police Department in 2004, and Bail

Commissioner Tucker as defendants to this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Patrick S. Walsh

v. Civil No. 08-cv-327-JL

State of New Hampshire, et al.1

REPORT AND RECOMMENDATION

Patrick Walsh has filed this action, pursuant to 42 U.S.C. §

1983, alleging that his constitutional rights have been violated

as a result of his improper arrest in the spring of 2004, and his

resulting detention and prosecution. Because Walsh is a prisoner

filing pro se, his complaint is before me for preliminary review

to determine whether he has stated any claim upon which relief

might be granted. See 28 U.S.C. § 1915A(a); United States

District Court District of New Hampshire Local Rule (“LR”)

4.3(d)(2). As explained fully herein, I recommend dismissal of

this complaint.

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Standard of Review

Under this Court’s local rules, when an incarcerated

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

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

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Background

In the spring of 2004, Walsh was in the parking lot in front

of the apartment complex in Concord, New Hampshire where his

girlfriend lived. Walsh states that Concord Police Officer

Buelte arrested him on a charge that he possessed an open

container of alcohol, in violation of a Concord city ordinance. 

The officer then placed handcuffs on him, searched him, and

transported him to the Police Department and/or the Merrimack

County House of Corrections. The following day, Walsh was

released from the Merrimack County House of Corrections after

paying a $30 bail fee to Bail Commissioner Tucker. 

Plaintiff alleges that he went to trial on the violation 

that he illegally possessed an open container of alcohol and was

convicted in the Concord District Court. On July 30, 2004,

plaintiff appealed his conviction to the New Hampshire Supreme

Court. On September 6, 2005, the New Hampshire Supreme Court

granted the State’s motion to vacate the conviction and remand

the matter to the Concord District Court for revocation of the

sentence and dismissal of the charges. 

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2The claims as identified in this Report and Recommendation

will be considered for all purposes to be the claims raised in

the complaint. If Walsh disagrees with the identification of the

claims herein, he must do so by properly objecting to this Report

and Recommendation or by filing a motion to amend his complaint.

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Discussion

I. The Claims2

A. False Arrest and False Imprisonment

Walsh alleges that his arrest and subsequent overnight

detention on a violation-level city ordinance, punishable only by

a fine, violated his constitutional right to be secure in his

person as guaranteed by the Fourth and Fourteenth Amendments to

the United States Constitution. See U.S. Const. amend. IV (“The

right of the people to be secure in their persons, . . . against

unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, . . ..” To

comport with the strictures of the Fourth amendment, a

warrantless arrest must be supported by probable cause. See

United States v. Link, 238 F.3d 106, 109 (1st Cir. 2001)

(“Probable cause exists if, at the time of the arrest, the

collective knowledge of the officers involved was sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense.”). Walsh does not deny

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that he was, at the time of the arrest, committing the offense of

possessing an open container of alcohol, or that Buelte lacked

probable cause to believe that he had committed that offense. 

Instead, Walsh appears to have grounded this action solely on his

belief that it was illegal to subject him to arrest and detention

for a violation level city ordinance.

The First Circuit has held that a custodial arrest for a

fine-only ordinance, and subsequent detention thereupon, “is not

inevitably unreasonable,” and thus does not constitute a per se

violation of the arrestee’s Fourth Amendment rights. Diaz v.

City of Fitchburg, 176 F.3d 560, 564 (1st Cir. 1999)

(acknowledging that there may be circumstances where a custodial

arrest and detention for a fine-only ordinance violation would be

unreasonable, but finding that there is no presumption of

unreasonableness in such a case) (emphasis in original). It is

the wiser course to examine whether the conduct of the government

in a particular case was reasonable under the circumstances. Id.

While Walsh characterizes his arrest and detention as a

“kidnapping,” and his handcuffing as an “assault,” he does not,

beyond those editorializations, provide a single fact from which

this Court could conclude or infer that the conduct of the

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arresting officer was unreasonable, or that the arrest was based

on anything less than probable cause. Accordingly, Walsh has

failed to allege a violation of his Fourth Amendment rights, and

I recommend that the claims alleging false arrest and false

imprisonment be dismissed.

B. Malicious Prosecution

In order to assert a cause of action for a malicious

prosecution claim under § 1983, a plaintiff must establish that

the criminal charges at issue resulted in some deprivation of

liberty consistent with the concept of seizure that violated the

Fourth Amendment. See Nieves v. McSweeney, 241 F.3d 46, 54 (1st

Cir. 2001); Britton v. Maloney, 196 F.3d 24, 28-29 (1st Cir.

1999). A plaintiff alleging malicious prosecution must also

establish that (1) the criminal action in question 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). Walsh baldly

alleges that “Concord District Court case # 04-CR-02941 was a

malicious prosecution against plaintiff.” Walsh has not alleged

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a single fact that would permit the inference that any of the

defendants named acted with malice or absent probable cause in

pursuing charges against Walsh, or that the plaintiff suffered

damages as a result of being convicted, and then absolved, of an

open container violation. I find, therefore, that Walsh has

failed to allege sufficient facts to support a cause of action

for malicious prosecution, and I recommend the dismissal of that

claim.

C. Right of Association

The First Amendment protects an individual’s right to

freedom of association. See U.S. Const. amend. I. Walsh was

arrested in the parking lot in front of his girlfriend’s

apartment complex. He alleges that his arrest, therefore,

violated his right to freely associate with his girlfriend, in

violation of the First Amendment. If his arrest was not

unlawful, however, the reasonable restraint of his liberty

pursuant to that arrest was proper, and did not violate any right

protected by the First Amendment. See Bemis v. Kelley, 671 F.

Supp. 837, 842 (D. Mass. 1987) (finding no violation of freedom

of association when the subject of a proper warrantless arrest is

involuntarily transported to the police department after arrest). 

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As previously stated, the facts alleged by Walsh do not support a

finding that the police officer’s actions constituted an

unreasonable restraint of Walsh’s liberty. It follows that there

was, therefore, no violation of Walsh’s associational rights, and

I recommend dismissal of this claim.

II. The Defendants

A. The Concord Police Officers

Walsh has alleged false arrest and malicious prosecution

claims against Officer Buelte as well as the person who was Chief

of the Concord Police Department in 2004, based on his failure to

properly supervise and train the officers, presumably in relation

to proper arrest and prosecution procedures. Because I recommend

that the claims alleged against the Concord Police Officers be

dismissed, I recommend that these officers also be dismissed from

this action.

B. Bail Commissioner Tucker

Under New Hampshire law, bail commissioners are authorized

to fix and receive bail in the same manner as the court, except

in cases where an arrestee is charged with murder. N.H. Rev.

Stat. Ann. §§ 597:15 & 597:18 (2001). Quasi-judicial immunity

shields bail commissioners from civil liability for actions taken

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in that capacity. See Briand v. Morin, No. Civ. 02-540-JD, 2003

WL 540185, *1 (D.N.H. Feb. 25, 2003) (citing Thompson v. Sanborn,

568 F. Supp. 385, 391 (D.N.H. 1983)). Walsh alleges that Tucker

acted in his capacity as a bail commissioner in fixing Walsh’s

bail and receiving the bail fee from Walsh. Accordingly, quasijudicial immunity shields Tucker from liability, and I recommend

that he be dismissed from this action.

C. The State of New Hampshire

Walsh names the State of New Hampshire as a defendant to

this action. Walsh has not alleged any specific acts by the

State except that it was the prosecuting authority in his open

container case. Because I find that Walsh has not stated any

viable claim related to his prosecution, I recommend the State of

New Hampshire be dismissed from this action.

Conclusion

I find that Walsh has failed to state any claim upon which

relief might be granted. Accordingly, I recommend that this

action be dismissed in its entirety. 

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

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appeal the district court’s order. See Unauthorized 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: February 5, 2009 

cc: Patrick S. Walsh, pro se

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