Reid v. New Hampshire

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1579
GORDON C. REID,

Plaintiff, Appellant,

v.

STATE OF NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Gordon C. Reid on brief pro se.

Robert G. Whaland, William A. Grimes and McDonough &

O'Shaughnessy on brief for appellee.

Carolyn M. Kirby, Assistant County Attorney, on Motion for

Summary Affirmance for appellee.

June 6, 1995

CYR, Circuit Judge. After a New Hampshire court
CYR, Circuit Judge

set aside his convictions on two charges of felonious sexual

assault against a child, pro se plaintiff Gordon C. Reid

initiated this civil rights action for compensatory and

punitive damages against, inter alia, Hillsborough County

prosecutors Marguerite Wageling and Paul McDonough, Manches-

ter police officers Gary Simmons, Ronald Paul, James Ahern

and Richard Gilman, and defense attorney Richard Renfro. The

district court dismissed all claims, and Reid appealed.

For the reasons hereinafter discussed, we affirm

the district court order dismissing the claims against prose-

cutors Wageling and McDonough, as well as the claim that

Renfro conspired with the prosecutors to conceal exculpatory

evidence from Reid. We vacate the order dismissing the false

arrest and malicious prosecution claims against the police

defendants and the due process claim alleging that the police

defendants intentionally concealed exculpatory impeachment

evidence from the prosecutors.

I
I

BACKGROUND
BACKGROUND

A. The State Court Proceedings
A. The State Court Proceedings

Reid was arrested, without a warrant, on June 21,

1986, and charged with three counts of felonious sexual

2

assault upon a six-year-old girl, Misty ("Misty").1

He was incarcerated immediately upon arrest. Manchester

Police Sergeant Gary Simmons testified at the probable cause

hearing ultimately held on August 22, 1986, and Reid was

bound over for trial. Between September 9, 1986 and June 24,

1987, with assistance from stand-by counsel, Reid filed five

successful motions to compel disclosure of exculpatory evi-

dence.

Reid represented himself at trial, personally

cross-examining the State's witnesses, including Misty, with

assistance from stand-by counsel. After the jury acquitted

Reid on one count, he moved to set aside his convictions on

the two remaining counts.

Sometime in September 1988, in response to a fur-

ther motion to disclose exculpatory evidence, the State

produced documents tending to undermine the credibility of

Misty, her sister Wendy, and their mother. Among the docu-

ments were Manchester Police Department reports, dated Decem-

ber 20, 1985 ("1985 Report") and April 4, 1986 ("1986 Re-

port"), prepared by Sergeant Simmons, containing questionable

accounts of previous sexual assaults allegedly made against

1The arrest was made pursuant to New Hampshire Rev. Stat.
Ann. 594:10(II)(b), which provides that "[a]n arrest by a peace
officer without a warrant on a charge of a felony is lawful
whenever: ... The officer has reasonable ground to believe that
the person arrested has committed a felony." The New Hampshire
courts interpret "reasonable ground" as the substantial equiva-
lent of "probable cause." See State v. Vachon, 533 A.2d 384, 386

(N.H. 1987).

3

Misty by other individuals.2 Reid also was provided with a

New Hampshire Department of Children & Youth Services ("DC-

YS") file on Misty and her family, which included reports

that Misty's mother had beaten and bruised Misty and engaged

in sexual intercourse with her boyfriend in front of Misty.

These allegations originated, in part, with Misty's sister,

Wendy. It further revealed that Misty's mother had charac-

terized Wendy's allegations as lies prompted by Wendy's drug

use and desire to move in with her boyfriend when Wendy was

only sixteen years old. The DCYS file also described aber-

rant sexual behavior by Misty herself, at age six, such as

performing fellatio on another child.3

Reid was released on bail while the superior court

conducted a "nonevidentiary hearing" on the motion to set

aside his convictions. The court concluded that the police

reports of prior sexual assaults constituted exculpatory

impeachment evidence which gave rise to a reasonable prob-

ability that the outcome of Reid's trial would have been

different had the evidence been disclosed to the trial court,

since it directly undermined the testimony of Misty and her

2On their face, the reports do not indicate that Misty
falsely accused anyone. The 1985 report indicates that Misty had
been sexually abused by a person or persons unknown. The 1986
report states that Misty denied allegations made by a neighbor,

who complained that Misty had been sexually abused by a man
referred to simply as "George."

3It is not clear whether the DCYS file was before the state
court.

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mother. Under the New Hampshire Rape Shield Law, Rev. Stat.

Ann. 632-A:6, "a defendant must be afforded the opportunity

to show, by specific incidents of sexual conduct, that the

prosecutrix has the experience and ability to contrive a

statutory rape charge against him." State v. Howard, 121

N.H. 53, 61 (1981). On October 5, 1988, the superior court

set the two remaining convictions aside and ordered a new

trial. In December 1988, all charges against Reid were

dropped.

B. The Federal District Court Proceedings
B. The Federal District Court Proceedings

(i) The Original Complaint
(i) The Original Complaint

The original civil rights complaint in federal

district court alleged that between the date of arrest, June

1986, and the date his convictions were set aside, October

1988, prosecutors Wageling and McDonough caused Reid to be

deprived of his liberty without probable cause in violation

of the Fourth Amendment. It alleged that the prosecutors, by

withholding the exculpatory evidence, violated Reid's rights

to due process, a fair trial, equal protection of the laws,

and to confront and obtain witnesses. Reid further alleged

that he was arrested by Manchester Police Sergeant Gary

Simmons on the basis of unreliable information and that

Simmons continuously withheld exculpatory evidence between

June 1986 and October 1988. Finally, he alleged that Richard

Renfro, Esquire, deprived Reid of his Sixth Amendment right

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to the effective assistance of counsel by failing to prepare

the case adequately for trial.

On June 19, 1989, a United States magistrate judge

recommended that all but one claim be dismissed.4 The re-

port and recommendation noted that prosecutors Wageling and

McDonough were absolutely immune from suit under Imbler v.

Pachtman, 424 U.S. 409 (1976), and that Reid had failed to

allege the requisite state action to sustain a claim against

defense counsel Renfro under Polk County v. Dodson, 454 U.S.

312, 320-21 (1981).

(ii) The First Amended Complaint
(ii) The First Amended Complaint

Reid filed an amended pro se complaint, alleging

federal and state civil rights violations and adding Manches-

ter Police defendants Gilman, Ahern and Paul. It alleged

that the police defendants arrested Reid on the basis of

unreliable information, in violation of the Fourth Amendment,

and deliberately suppressed exculpatory evidence from the

time of his arrest until after his trial, in violation of his

right to equal protection, the effective assistance of coun-

sel, a fair trial, due process, and the right to confront and

obtain witnesses. The first amended complaint also alleged

that prosecutors Wageling and McDonough had instructed their

codefendants in the present civil rights action, and the

4The magistrate judge recommended that Reid be permitted to
submit further documentation on the claim against Sergeant
Simmons.

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witnesses at Reid's criminal trial, not to mention the police

reports on prior sexual assault complaints relating to Misty,

thereby prompting these codefendants to respond falsely to

inquiries concerning the withheld evidence both before and

during the criminal trial. See Hilliard v. Williams, 465

F.2d 1212, 1215 (6th Cir. 1972), rev'd, 540 F.2d 220, 221

(6th Cir. 1976) (per curiam). The first amended complaint

reiterated Reid's allegation that the prosecutors deliber-

ately withheld the exculpatory evidence before, during, and

for fourteen months after Reid's criminal trial, resulting in

his unlawful conviction and imprisonment. Finally, it al-

leged that the defendant officers and prosecutors had con-

spired to deprive Reid of his constitutional rights.

The magistrate judge issued a Further Report and

Recommendation on February 6, 1990, which concluded that the

first amended complaint stated an actionable Fourth Amendment

claim for false arrest against the police defendants and that

Reid's motion to add police defendants Gilman, Ahern and Paul

should be allowed. Citing Imbler, 424 U.S. at 430, the

magistrate judge concluded, nonetheless, that the claims

against prosecutors Wageling and McDonough were barred by

absolute prosecutorial immunity. Finally, the report recom-

mended that the claim against Attorney Renfro be dismissed.

On March 22, 1991, the district court adopted the

Further Report and Recommendation, effectively dismissing

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prosecutors Wageling and McDonough, and defense counsel

Renfro, as defendants.5

(iii) The Third Amended Complaint6

(iii) The Third Amended Complaint6

On June 10, 1992, following further discovery, Reid

requested leave to file the third amended complaint, reas-

serting all claims against the prosecutors, adding a conspir-

acy claim against Renfro, and naming additional police and

prosecutor defendants. The third amended complaint further

particularized the claims against the police defendants,

asserting that their failure to disclose exculpatory evidence

constituted actionable malicious prosecution and violated

Reid's constitutional rights. In contrast to the first

amended complaint, which indicated that the prosecutors knew

about the exculpatory evidence but instructed the police and

others to conceal it, Reid's third amended complaint, liber-

ally construed, see Estelle v. Gamble, 429 U.S. 97, 106

(1976), asserted that the police defendants knew the police

reports and the DCYS file existed, but concealed them from

the prosecutors for almost two years, between June 1986 and

August 1988. Thus, the third amended complaint restated

Reid's previous allegations against the police defendants and

5Reid and the police defendants objected to the Further
Report and Recommendation. Although Reid did not object to
dismissal of the claim against Renfro, he reserved the right to
amend it following discovery.

6A second amended complaint, naming a former New Hampshire
governor as a defendant, was dismissed by the district court.

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pleaded distinct claims for negligence, false arrest, mali-

cious prosecution, wrongful withholding of exculpatory evi-

dence, and conspiracy.

As for the prosecutors and Attorney Renfro, the

third amended complaint alleged, in the alternative, that the

prosecutors knew of the exculpatory evidence but failed to

disclose the information to Renfro, or that the prosecutors

disclosed the exculpatory information to Renfro but enlisted

him in their conspiracy to conceal the exculpatory informa-

tion from Reid. We turn to the various claims raised on

appeal.

II
II

DISCUSSION
DISCUSSION

A. The Claims Against the Prosecutors
A. The Claims Against the Prosecutors

Reid contends that the district court erred in

dismissing his claims against prosecutors Wageling and

McDonough. He argues that Imbler "absolute immunity" should

not extend to claims for withholding exculpatory evidence in

direct violation of trial court orders, where it is alleged

that the prosecutors repeatedly misled the trial court itself

throughout the criminal proceedings. Reid claims that the

disclosure orders issued by the trial court displaced whatev-

er discretion the prosecutors may have had concerning disclo-

sure of exculpatory evidence, consequently their failure to

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disclose was not a prosecutorial function at all, but merely

ministerial. Finally, he contends that the prosecutors

repeatedly lied to the trial court about the existence of the

exculpatory evidence, whereas in Imbler the prosecutor volun-

tarily disclosed the evidence shortly after learning of it.

The district court dismissed the claims against the

prosecutors as frivolous under 28 U.S.C. 1915(d). We

review only for abuse of discretion, see Watson v. Caton, 984

F.2d 537, 539 (1st Cir. 1993), and find none.7

First, Reid alleged no facts suggesting that the

prosecutors had anything to do with the arrest. The com-

plaint therefore failed to state an actionable false arrest

claim.8

Second, under Imbler "it is 'now [a] well-settled

rule that a prosecutor cannot be held personally liable for

the knowing suppression of exculpatory information.'" Robin-

7Although the magistrate judge recommended that the claims
against the prosecutors be dismissed for "fail[ing] to state a
cause of action" language strongly suggesting a Rule 12(b)(6)
dismissal Reid was given notice of the deficiencies and a full
opportunity to amend the complaint. Thus, dismissal under 28
U.S.C. 1915(d) was proper. See Purvis v. Ponte, 929 F.2d 822,

826-27 (1st Cir. 1991).

8As New Hampshire recognizes the torts of false arrest and
malicious prosecution, see Stock v. Byers, 424 A.2d 1122, 1123

(N.H. 1980), those claims should have been analyzed under state
law, rather than 1983. Given an adequate state-law remedy for
a procedural due process violation, no 1983 claim lies. Perez-

Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994); Smith v.

Massachusetts Dep't. of Correction, 936 F.2d 1390, 1402 (1st Cir.

1991); Torres v. Superintendent of Police, 893 F.2d 404, 410 (1st

Cir. 1990).

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son v. Volkswagenwerk AG, 940 F.2d 1369, 1372-73 (10th Cir.

1991) (citation omitted), cert. denied, 502 U.S. 1091 (1992);

Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir.), cert. de-

nied, 484 U.S. 828 (1987).9 See Campbell v. Maine, 787 F.2d

776, 777 (1st Cir. 1986) (per curiam); Hilliard v. Williams,

540 F.2d 220, 221-22 (6th Cir. 1976) (per curiam). The

Imbler rule has been applied where prosecutors failed to

disclose exculpatory evidence specifically requested by the

defense, see Jones v. Shankland, 800 F.2d 77, 78-80 (6th Cir.

1986), cert. denied, 481 U.S. 1048 (1987), and where prosecu-

tors misled the trial court in order to conceal their failure

to disclose exculpatory evidence, see Wilkinson v. Ellis, 484

F. Supp. 1072, 1082 (E.D. Pa. 1980).

Thus, we think the trial court discovery orders did

not displace Imbler immunity. In the first place, it is in-

accurate to assert, as Reid does, that there was no prosecu-

torial discretion left to be exercised respecting the dis-

closure of this evidence. On the contrary, the disclosure

orders were issued in response to motions for "any 'excul-

patory' evidence which could assist [Reid] in the preparation

and presentation of his defense," broad language indicating a

general request for Brady material. The orders accordingly

9As New Hampshire law apparently affords no remedy for
withholding exculpatory evidence, this claim is subject to 1983
analysis. See also Belcher v. Paine, 612 A.2d 1318, 1322-23

(N.H. 1992) (applying Imbler doctrine to malicious prosecution

claim under state law.)

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left the prosecutors with something more than a ministerial

function to perform. The prosecutors were required to deter-

mine what evidence in their possession was "exculpatory" and

subject to disclosure.10 Cf. Buckley v. Fitzsimmons,

U.S. , 113 S. Ct. 2606, 2616 (1993) (when prosecutor

evaluates evidence and interviews witnesses in preparation

for trial, he functions within the scope of absolute immun-

ity). Imbler expressly recognized that requiring prosecutors

to defend in section 1983 actions decisions concerning

the "materiality of evidence not revealed to the defense

could impose unique and intolerable burdens upon a prosecutor

responsible annually for hundreds of indictments and trials."

Imbler, 424 U.S. at 425-26. The view expressed in the Imbler

10We recognize that N.H. Rev. Stat. Ann. 631-A:6, on its
face, bans evidence of prior sexual activity by a prosecutrix in
a rape case: "Prior consensual sexual activity between the
victim and any person other than the actor shall not be admitted
into evidence in any prosecution under this chapter." However,
the New Hampshire Supreme Court has read a constitutional limita-
tion into this statutory ban in statutory rape cases, so as to
preserve the statute from infirmity to constitutional attack.
Howard, 121 N.H. at 61 (state constitution requires that the jury

be informed of prior sexual experience of child prosecutrix in
statutory rape case, since jury otherwise could infer that the
prosecutrix must have gained her knowledge of sexual anatomy only
through the alleged sexual assault). Whether and when to admit
such evidence rests within the discretion of the trial court.
State v. Cox, 575 A.2d 1320, 1322-23 (N.H. 1990) (upholding trial

court's exercise of discretion admitting Howard-type evidence

only during cross-examination of prosecutrix). Thus, these
prosecutors retained some discretion, at least, in evaluating

whether the putative prior attacks against Misty constituted
Brady evidence. We do not suggest, of course, that the prosecu-

tors were free to disregard the state court disclosure order, nor
that there were no alternative means of avoiding a violation, as
by submitting the evidence for in camera review.

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dissent that absolute immunity should attach only if the

prosecutor has disclosed all facts which cast doubt on the

State's evidence was rejected by the Imbler Court because

such a requirement would interfere "with the legitimate

exercise of prosecutorial discretion." Id. at 432. Imbler

thus implicitly acknowledged that prosecutors retain discre-

tion to determine what evidence is to be disclosed under

Brady and that absolute immunity attaches to their exercise

of discretion.

The further allegation that these prosecutors re-

peatedly misled the trial court in order to conceal their

alleged misconduct does not defeat absolute immunity. In

Burns v. Reed, 500 U.S. 478, 489-90, 111 S. Ct. 1934, 1941

(1991), the Court sustained absolute prosecutorial immunity

for "making false or defamatory statements in judicial pro-

ceedings (at least so long as the statements were related to

the proceeding), and also for eliciting false and defamatory

testimony from witnesses." Imbler stated that it is "'better

to leave unredressed the wrongs done by dishonest officers

than to subject those who try to do their duty to the con-

stant dread of retaliation.'" See Imbler, 424 U.S. at 428

(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.

1949), cert. denied, 339 U.S. 949 (1950)).11

11Reid counters with Martinez v. Winner, 771 F.2d 424 (10th

Cir. 1985) (holding that prosecutor is not entitled to absolute
immunity for filing false affidavit in bar disciplinary proceed-

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Nor was absolute immunity forfeited because the

prosecutors continued to withhold the exculpatory evidence

long after Reid's conviction.12 Imbler specifically noted

that absolute prosecutorial immunity is an essential guaran-

tee that reviewing courts focus exclusively on the fairness

of the underlying trial, not upon any collateral consequences

a reversal might portend for the prosecutor. Id. at 427; cf.

Patterson v. Von Riesen, 999 F.2d 1235, 1238 (8th Cir. 1993)

("The Supreme Court has created no requirement that prosecu-

tors reveal their trial mistakes to maintain their absolute

immunity . . . .").13

ing to cover up trial misconduct), and Briggs v. Goodwin, 569

F.2d 10 (D.C. Cir. 1977), cert. denied, 437 U.S. 904 (1978)

(holding prosecutor not entitled to absolute immunity for alleg-
edly perjuring himself during grand jury proceedings, since
prosecutor was then acting in investigative capacity). These
cases are inapposite, as they involved prosecutors who were not
acting as
advocates for the State. Moreover, Martinez was reversed, see

Martinez, 778 F.2d 553, 555-56 (10th Cir. 1985), as to the point

relied on by Reid, vacated by the Court, Tyus v. Martinez, 475

U.S. 1138 (1986), and later dismissed as moot, Martinez, 800 F.2d

230 (10th Cir. 1986). Finally, Briggs is no longer viable in

light of Briscoe v. LaHue, 460 U.S. 325 (1983) (all witnesses,

including those who give perjured testimony, are absolutely
immune from civil suit under 1983). See Briggs v. Goodwin, 712

F.2d 1444 (D.C. Cir. 1983), cert. denied, 464 U.S. 1040 (1984)

(prosecutor who gives perjured testimony is entitled to absolute
immunity under Briscoe but not Imbler).

12The first amended complaint alleged that these prosecu-
tors, unlike the prosecutor in Imbler, did not disgorge the

exculpatory evidence until more than a year after Reid was
convicted.

13We also reject the contention that their conduct following
Reid's conviction is actionable under Houston v. Partee, 758 F.

Supp. 1228, 1230-31 (N.D. Ill. 1991) (holding that prosecutors

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Reid further contends that the district court

failed to address his claim against the prosecutors in their

official capacities. In order to prevail on an "official

capacity" claim, Reid would have to show that the particular

governmental entity had an unconstitutional custom or policy,

Monell v. New York City Dep't. of Social Servs., 436 U.S.

658, 690 (1978), which its representatives were executing

with at least the tacit approval of governmental policy-

makers. Id. at 691 ("customs and usages" of local government

may satisfy Monell requirement). Reid insists that he plead-

ed actionable claims against the County Prosecutor's office

and the County of Hillsborough by alleging that the defendant

prosecutors, themselves policymaking officials, continuously

refused to produce the exculpatory evidence the court ordered

are not entitled to absolute immunity for suppressing exculpatory
evidence first acquired after 1983 plaintiffs' murder convic-

tions), aff'd, 978 F.2d 362 (7th Cir. 1992), cert. denied, 113 S.

Ct. 1647 (1993). The Houston plaintiffs were convicted of

shooting a gang member. While their appeals were pending,
another gang member, in the context of a different investigation,
informed the prosecutor as to the identities of the actual
killers.Theprosecutor, nolongerrepresentingtheState inplaintiffs'
criminal appeals, did not disclose this information to defense
counsel. A few years after the convictions were affirmed on
appeal, the real killers confessed. The three prosecutors who
had been aware of the evidence neither disclosed it to defense
counsel nor to the court, and plaintiffs were unjustly imprisoned
for several more years.
Houston stressed that absolute immunity did not attach to

the prosecutors' conduct because they acquired the evidence in
their investigative capacity, at a time when they were not

representing the State in the post-conviction proceedings. See

978 F.2d at 366-67. Reid has not alleged that these prosecutors
did not represent the State after his conviction. Indeed, the
record suggests otherwise.

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disclosed. We do not reach the question whether Reid

alleged the requisite custom or practice under Monell, since

he has not challenged the magistrate-judge's report and

recommendation on this basis. See Henley Drilling Co. v.

McGee, 36 F.3d 143, 150 (1st Cir. 1994) (citing Park Motor

Mart Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.

1980) ("A party may file objections within ten days or he may

not, as he chooses, but he shall do so if he wishes further

appellate consideration.")). Accordingly, all claims against

the prosecutors were properly dismissed.

B. The Claims Against the Police Officers
B. The Claims Against the Police Officers

After the false arrest claims were allowed to

proceed, the police defendants contended that the district

court had dismissed, as frivolous, the claim that the police

deprived Reid of due process of law and a fair trial by

concealing exculpatory evidence. Unable to obtain clarifica-

tion of the district court dismissal order, Reid pursued

further discovery in an attempt to establish each police

defendant's awareness of the exculpatory evidence and wheth-

er, and when, the officers had disclosed what they knew to

one another and to the prosecutors. The district court

ultimately permitted the third amended complaint, including

the false arrest claims and the concealment claims, to be

filed against the police defendants.

(i) The Third Amended Complaint
(i) The Third Amended Complaint

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On February 14, 1992, the magistrate judge ordered

the police defendants to respond to Reid's interrogatories

and requests for production of documents. On June 10, Reid

filed a motion to compel further responses to interrogato-

ries, followed by motions to join additional defendants and

for permission to file the third amended complaint alleging,

inter alia, that the police defendants conspired with the

prosecutors to conceal the exculpatory evidence. There fol-

lowed, in July 1992, another motion to compel production.

Prior to any disposition of Reid's June 10 motions

to compel responses to interrogatories and for leave to file

the third amended complaint, the police defendants moved for

summary judgment on qualified immunity grounds based on their

contention that other evidence in their possession was suffi-

cient to establish probable cause for Reid's arrest even

assuming they had withheld the exculpatory evidence. In

addition, Sergeant Simmons submitted an affidavit denying

that he had withheld police reports relating to Misty. On

August 27, 1992, Reid requested further time to respond to

the police defendants' motion for summary judgment, because

he was unable to do so until the district court ruled on his

discovery requests.14

14Although Sergeant Simmons made reference to earlier police
reports relating to Misty, he did not mention the DCYS file. Nor
is it clear whether the police defendants were privy to its
contents prior to Reid's arrest or conviction.

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In November, 1992, the case was transferred from

Rhode Island to New Hampshire and reassigned to a different

district judge. On December 14, the newly assigned judge

allowed Reid until January 11, 1993, to respond to the police

defendants' motion for summary judgment. At the same time,

the court directed that Reid's motions to compel discovery

and to substitute the third amended complaint be considered

"withdrawn" from the docket, without prejudice to their

renewal by January 4, 1993. Reid renewed each motion within

the deadline and again sought additional time to respond to

the motion for summary judgment.

On January 22, 1993, the district court allowed

Reid seven days to respond in writing to the motion for

summary judgment. The court denied Reid's motion to substi-

tute the third amended complaint insofar as it would add

claims against prosecutors Wageling and McDonough for mali-

cious prosecution, denial of due process of law and false

imprisonment caused by the failure to disclose the exculpato-

ry evidence, and against Attorney Renfro for conspiring with

the prosecutors to conceal the exculpatory evidence from

Reid. At the same time, the court allowed an amendment

adding a separate malicious prosecution claim against all

police defendants and restating the claim that the police

defendants had violated Reid's constitutional rights by con-

tinuously withholding the exculpatory evidence. Lastly, the

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district court rejected Reid's motion to compel further

discovery under Fed. R. Civ. P. 56(f), on the ground that the

discovery sought was not substantially related to the police

defendants' qualified immunity claims.

On February 5, 1993, the district court granted

summary judgment for all police defendants. Relying primari-

ly on reports of the police investigation preceding Reid's

arrest, the court reasoned that the police defendants were

entitled to qualified immunity because an objectively reason-

able police officer, based on all the evidence, including the

exculpatory information withheld until August of 1988, none-

theless could have believed that there was probable cause to

arrest Reid for sexually assaulting Misty, even assuming the

police defendants concealed the exculpatory evidence.15

The district court did not mention the malicious prosecution

claims relating to the alleged failure of the police defen-

dants to disclose the exculpatory evidence, but concluded

that "when probable cause exists notwithstanding the exis-

tence of some exculpatory evidence, no violation of the

Fourth Amendment occurs and the shield of qualified immunity

15The district court did not have the exculpatory evidence
when it ruled on either the motion for summary judgment or the
motion for reconsideration. Those materials were in the district
court, however, for a single day February 10 after summary

judgment had been entered against Reid and before the motion for

reconsideration was filed. Nor did the court have the opportuni-
ty to consider Reid's pro se memorandum in opposition to summary
judgment before granting summary judgment against him, though it
did so prior to ruling on the motion for reconsideration.

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remains viable." (emphasis added). Final judgment was en-

tered dismissing all claims against the police defendants on

February 8.

On February 10, the district court clerk received

and docketed Reid's timely opposition to the motion for

summary judgment, together with his supporting affidavit,

exhibits, memorandum, and statement of contested and unc-

ontested facts.16 The supporting materials included the

1985 and 1986 police reports, which recorded prior complaints

of sexual assaults against Misty, as well as portions of the

DCYS reports describing relevant family history.

The DCYS reports described how Misty and her sis-

ter, Wendy, had been physically abused by their mother. The

allegations were made by Wendy, and by a former roommate of

Misty's mother. The reports related that Misty's mother

engaged in sexual intercourse in Misty's presence. The

former roommate described how she had found Misty fellating

her four-year-old son on April 17, 1985. Misty's mother

16Weekends, legal holidays, and January 22 the date of
the denial of the motion to compel should have been excluded
from the running of the seven-day filing period. See Fed. R.

Civ. P. 6(a). Rule 6(e) further required that three days be
added to the prescribed response period since the court order had
been mailed to Reid. Fed. R. Civ. P. 6(e). Thus, he had until
February 5, 1993, to respond. Reid seasonably filed opposition
to the motion for summary judgment by depositing it with the
prison warden on February 5. See Houston v. Lack, 487 U.S. 266,

275 (1988) (holding that filing periods for prisoners are deter-
mined when submitted to prison warden) (analogous FRAP 4 con-
text); Oliver v. Commissioner of Massachusetts Dep't. of Correc-

tions, 30 F.3d 270, 272 (1st Cir. 1994) (same).

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denied the allegations and accused Wendy of making false

charges in order to force the mother into allowing her to

move in with a boyfriend, and because Wendy was under the

influence of drugs.

The DCYS reports further indicated that Wendy had

refused to return to her mother's residence for a period of

two weeks, and that the Manchester Police had attempted,

without success, to find Wendy and return her to her mother.

Wendy requested that she be placed in protective custody, but

that her request was denied "due to lack of concrete evi-

dence." Later, after joint counseling, Wendy voluntarily

returned home. Finally, the DCYS reports reflect that during

1985 the year before Reid's arrest Misty's mother was

under investigation for child abuse and neglect.

Reid contended that these materials established

that both Misty and her mother were unreliable and that the

mother had an ulterior motive for fabricating charges against

Reid since she had been the subject of a DCYS investigation

for abuse and neglect based on Wendy's allegations that the

mother repeatedly had beaten her and Misty.17

17Reid contended further that the police defendants had not
established their entitlement to summary judgment on his claim
that they withheld the exculpatory evidence. The Reid affidavit
attested that Sergeant Simmons had never disclosed at the
probable cause hearing his prior reports of contact with
Misty, nor "any other information which would lead a person to
[believe] that the allegation made by the complainant wasn't the
first such allegation made by her."

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Although Reid's timely opposition and supporting

materials were received and docketed on February 10, the

police reports and the DCYS reports were returned to Reid the

same day by the clerk, pursuant to Local Rule 14 which pro-

vides that the clerk is not required to retain discovery

materials. On February 22, Reid moved for reconsideration of

the summary judgment order entered February 8.18 Reconsider-

ation was summarily denied on May 10, 1993, though the excul-

patory evidence was not before the court. The district court

noted, however, that it had considered Reid's pro se objec-

tion and memorandum in opposition to the motion for summary

judgment, which described some of the exculpatory evidence.

Reid appealed.

We review the summary judgment order de novo,

Lallemand v. University of Rhode Island, 9 F.3d 214, 215 (1st

Cir. 1993), the Rule 56(f) order for abuse of discretion,

Mattoon v. City of Pittsfield, 980 F.2d 1, 7 (1st Cir. 1992),

and the order denying reconsideration for abuse of discre-

tion, Desenne v. Jamestown Boatyard, Inc., 968 F.2d 1388,

1392 (1st Cir. 1992).

The district court prematurely granted summary

judgment on the claims that Reid was arrested without proba-

18The motion for reconsideration, accompanied by a support-
ing affidavit and memorandum, was served on February 16, within
ten days of the entry of the district court judgment on February
8, as required by Fed. R. Civ. P. 59(e).

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22

ble cause and that the police failed to disclose the exculpa-

tory impeachment evidence to the prosecutors. As noted

above, see note 8 supra, a procedural due process claim may

not be redressed under section 1983 where an adequate state

remedy exists. Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42

(1st Cir. 1994); Smith v. Massachusetts Dept. of Correction,

936 F.2d 1390, 1402 (1st Cir. 1991); Torres v. Superintendent

of Police, 893 F.2d 404, 410 (1st Cir. 1990). Since New

Hampshire recognizes the common-law torts of false arrest,

Hickox v. Morin, 272 A.2d 321, 323 (N.H. 1970), and malicious

prosecution, Stock v. Byers, 424 A.2d 1122, 1123 (N.H. 1980),

the claim that Reid was arrested without probable cause

should have been addressed under New Hampshire law, not

section 1983. Richardson v. Chevrefils, 552 A.2d 89, 92

(N.H. 1988); Opinion of the Justices, 493 A.2d 1189-90 (N.H.

1985); Merrill v. Manchester, 332 A.2d 378, 383 (N.H. 1974)

(abrogating doctrine of municipal immunity); see also N.H.

Rev. Stat. Ann. 491:24. On the other hand, the allegation

that the police withheld the exculpatory evidence from the

prosecutors does not state an actionable claim under New

Hampshire common law and thus must be analyzed under federal

law in accordance with section 1983 jurisprudence. See Walk-

er v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992),

cert. denied, 113 S. Ct. 1387 (1993), and cert. denied, 113

S. Ct. 1412 (1993); Henderson v. Fisher, 631 F.2d 1115, 1119

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23

(3d Cir. 1980) (per curiam); Taylor v. Hansen, 731 F. Supp.

72, 78 (N.D.N.Y. 1990); Carter v. Harrison, 612 F. Supp. 749,

758 (E.D.N.Y. 1985).

Federal Rule of Civil Procedure 56(f) provides a

safety valve for claimants genuinely in need of further time

to marshal "facts, essential to justify [their] opposition .

. . to a summary judgment motion." Mattoon, 980 F.2d at 7;

see Morrissey v. Boston Five Cents Savings Bank, No. 94-2220,

slip op. at 17-20 (1st Cir. 1995) (further discovery sought

under Rule 56(f) must be such as could establish a triable

issue). The Rule 56(f) motion must "(1) articulate a plausi-

ble basis for the belief that discoverable materials exist

which would raise a trialworthy issue and (2) demonstrate

good cause for failure to have conducted discovery earlier."

Id. We have held that where the movant satisfies the re-

quirements of Rule 56(f), "a strong presumption arises in

favor of relief." Resolution Trust Corp. v. North Bridge

Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994).

Reid made a timely motion to defer ruling on the

summary judgment motion, supported by an affidavit suffi-

ciently describing the requested discovery. Prior to the

Rule 56(f) motion, moreover, the magistrate judge had ordered

the police defendants to respond to interrogatories previous-

ly filed by Reid. The police defendants have never complied

with the order to respond to these interrogatories. The

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unanswered interrogatories directly concern the critical DCYS

reports on Misty, Wendy and their mother, and when the vari-

ous police defendants became aware of these reports.

The requested discovery was essential to Reid's

claims against the police defendants. When the individual

police defendants learned of the exculpatory evidence is

relevant to (1) whether the individual defendants reasonably

could have believed there was probable cause to arrest Reid

(false arrest claim) and (2) whether they initiated the

criminal prosecution knowing that probable cause was lacking

(malicious prosecution claim). When the exculpatory evidence

was transmitted to the prosecutors is relevant to determining

(3) whether the individual defendants attempted to withhold

Brady material from the prosecutors (section 1983 claim).

The unanswered interrogatories were pertinent to all these

matters. As the discovery sought is such that it could

arguably generate a trialworthy issue of material fact, we

must determine whether Reid complied with the other stric-

tures of Rule 56(f).

Given the direct police involvement in the bitter

dispute between Wendy and her mother, and the two police

reports relating prior sexual abuse of Misty, it cannot be

considered implausible in the least that the police had

access to the exculpatory information prior to Reid's arrest.

The requested information was within the control of the

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police defendants, a factor which weighs heavily in favor of

relief under Rule 56(f). North Bridge Assoc., 22 F.3d at

1208 (reversing denial of Rule 56(f) motion). Furthermore,

Reid not only sought discovery in a timely manner, but ob-

tained a court order requiring the police defendants to

respond to his interrogatories. See Mattoon, 980 F.2d at 7

(failure of movant to pursue discovery with diligence permits

denial of Rule 56(f) motion). Finally, the Reid motion, af-

fidavit and interrogatories plainly identified the informa-

tion requested. See Murphy v. Timberlane Regional Sch.

Dist., 22 F.3d 1186, 1197 (1st Cir.) (upholding denial of

Rule 56(f) motion where movant failed to identify information

sought and to submit supporting affidavit), cert. denied, 115

S. Ct. 489 (1994); Nestor Colon Medina & Sucesors, Inc. v.

Custodio, 964 F.2d 32, 39 (1st Cir. 1992) (finding abuse of

discretion in denying portion of Rule 56(f) motion which

clearly related facts which would generate a trialworthy

issue).

In these circumstances Reid was entitled to receive

responses to the unanswered interrogatories as previously

ordered by the court, and the additional discovery requested

in the Rule 56(f) motion. See generally Farmer v. Brennan,

U.S. , 114 S. Ct. 1970, 1985 (1994) (remanding Rule 56(f)

ruling for reconsideration in light of Court's holding that

the central issue governing plaintiff's claim was when state

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officials actually acquired certain information). On remand,

therefore, Reid should be allowed to conduct reasonable

further discovery relating to the state-law and section 1983

claims against the police defendants.

C. The Conspiracy Claim Against Defense Counsel
C. The Conspiracy Claim Against Defense Counsel

Lastly, Reid challenges the denial of his motion to

amend the third amended complaint by adding the claim that

Attorney Renfro conspired with the prosecutors to conceal the

exculpatory evidence. We review for abuse of discretion.

Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st

Cir. 1990). "Where an amendment would be futile or would

serve no legitimate purpose, the district court should not

needlessly prolong matters." Id.

The allegation that Renfro saw the exculpatory

evidence, yet did not bring it to Reid's attention, is too

conclusory to state a viable conspiracy claim. See Hunt v.

Bennett, 17 F.3d 1263, 1268 (10th Cir.) (allegation that

attorney provided incompetent defense held insufficient to

generate triable issue on conspiracy charge), cert. denied,

115 S. Ct. 107 (1994). The conclusory allegation that Renfro

had access to the prosecution's file is insufficient to

generate a trialworthy issue as to whether he had actual

knowledge of the exculpatory evidence, since there is no

allegation that the prosecution materials made available to

Renfro included the exculpatory material. See Slotnick v.

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Garfinkle, 632 F.2d 163, 165-66 (1st Cir. 1980) (per curiam).

Accordingly, we conclude that the refusal to allow yet anoth-

er amendment to the complaint at the present time did not

constitute an abuse of discretion under the Correa-Martinez

standard.19

III
III

CONCLUSION
CONCLUSION

For the foregoing reasons, we affirm the summary

judgment dismissing the claims against prosecutors Wageling

and McDonough and the conspiracy claim against defendant

Renfro. We vacate the judgment entered in favor of the

police defendants, Simmons, Gilman, Ahern and Paul, on the

false arrest, malicious prosecution, and due process claims,

and remand all claims against the police defendants for

further proceedings, including reasonable discovery. The

police defendants shall bear two-thirds of appellant's costs

on appeal; all other costs are to be borne by the party who

incurred them.

So ordered.
So ordered.

19We note, nonetheless, that should further discovery result
in new evidence relating to the nature and timing of the prosecu-
tors' and defense counsel's acquisition of the exculpatory
evidence, we are confident that a responsive proposal to amend
the claim against Renfro would be accorded due consideration in
light of the appropriate equitable criteria. See Quaker State

Oil Refining v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir.

1989).

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