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. 

                             -4-
                                          4


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

                             -5-
                                          5


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.

                             -6-
                                          6


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

                             -7-
                                          7


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.

                             -8-
                                          8


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

                             -9-
                                          9


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).  

                             -10-
                                          10


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.)

                             -11-
                                          11


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.
                                                  

                             -12-
                                          12


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-

                             -13-
                                          13


          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

                             -14-
                                          14


          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. 

                             -15-
                                          15


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
                                                 

                             -16-
                                          16


          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.

                             -17-
                                          17


          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

                             -18-
                                          18


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.  

                             -19-
                                          19


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).
               

                             -20-
                                          20


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." 

                             -21-
                                          21


          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).

                             -22-
                                          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
                                                    

                             -23-
                                          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

                             -24-
                                          24


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

                             -25-
                                          25


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

                             -26-
                                          26


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.
                                                                      

                             -27-
                                          27


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).

                             -28-
                                          28