Mills v. Merrimack New Hampshire Police Department ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2016
MICHAEL M. MILLS,
Plaintiff, Appellant,
v.
MERRIMACK NEW HAMPSHIRE POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Michael M. Mills on brief pro se.
William G. Scott and Boynton, Waldron, Doleac, Woodman &
Scott, P.A. on brief for appellees Merrimack Police Department,
Joseph Devine, Paul A. Poirier and Denise Roy.
Scott Ewing and Desmarais, Ewing & Johnson, PLLC on brief for
appellee Nashua Police Department and defendant Keely Grise, a/k/a
Keely Bergeron.
April 1, 2005
Per Curiam. Pro se plaintiff-appellant Michael M. Mills
appeals from the grant of summary judgment for defendants and the
denial of his motion for reconsideration. We review the summary
judgment order de novo, and the order denying reconsideration for
abuse of discretion. Reid v. State of NH, 56 F.3d 332, 341 (1st
Cir. 1995). We affirm, essentially for the reasons stated in the
district court's May 11 and June 25, 2004 orders. We add only the
following comments.
Although Mills argues that the district court relied on
contested facts, the court only accepted as true those facts
properly supported by defendants that were not contested by Mills
in his opposition to the motion for summary judgment. See N.H.
Dist. Ct. Rule 7.2(b)(2) ("All properly supported material facts
set forth in the moving party's factual statement shall be deemed
admitted unless properly opposed by the adverse party."). For
instance, the court accepted as true defendants' statement that the
police investigation was based in part on their receipt of an
anonymous letter. Although Mills disputed the identity and
credibility of the letter's author, he did not contest that police
had received this letter. Thus, the court did not err in accepting
that fact as true.
Mills also argues that the court erred in concluding that
an undercover police officer's use of a body wire was permissible.
As the court noted, however, New Hampshire allows a police officer
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to wear a body wire for officer safety when investigating a
specific set of crimes. See N.H. Rev. Stat. Ann. § 570-A:2, II(c).
The list of offenses includes "organized crime," which is defined
to include the "unlawful activities of the members of a highly
organized, disciplined association engaged in supplying illegal
goods and services, including but not limited to . . .
prostitution." Id. §§ 570-A:1, XI; 570-A:7. The court's findings
that police had sufficient information to suspect Mills of running
a prostitution ring, and that the undercover officer was entitled
by § 570-A:2, II(c) to wear a body wire for her safety while
investigating him, were well warranted. See State v. Ayres, 118
N.H. 90, 92 (1978) (holding that § 570-A:2, II(c) allows
interception and transmission of conversation to protect undercover
police officer's safety). Mills' reliance on a different section
of the statute, § 570-A:2, II(d), which requires authorization from
the state attorney general's office to tape a conversation
concerning certain enumerated offenses, is misplaced. The police
did not tape his conversation with the undercover officer. Cf.
State v. Kilgus, 128 N.H. 577, 590 (1986) (holding that
interception under § 570-A:2, II(d) may be recorded and used as
evidence at trial).
Mills further argues that the court erred in finding that
his theft claim was barred based on res judicata. Mills contends
that defendants failed to return items seized during the search of
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his home. This claim was adjudicated in the prior criminal case.
Mills does not dispute that the parties are the same, that the
property at issue is the same, or that a final judgment on the
merits had been entered in the criminal case regarding this
property. Rather, Mills argues that the cause of action is not the
same because this is a civil case. Because Mills is seeking "a
second bite at the very same apple," it is irrelevant that the
property dispute was resolved in a different forum. See United
States v. Cunan, 156 F.3d 110, 116, 120 (1st Cir. 1998) (holding
that res judicata bars criminal forfeiture action following
dismissal with prejudice of prior civil forfeiture action involving
same property). Thus, the court properly held that this claim was
barred by res judicata.
Mills also argues that the court erred in finding that
the search and seizure of certain personal property was within the
scope of the search warrant. Specifically, Mills complains that
police improperly seized "extremely personal" records, including
personal family files and health records. The inventory return
simply listed the removal of "misc. paperwork" and "(2) metal
filing cabinets w/ misc. paperwork." The district court did not
specifically address this claim. We conclude it has no merit. The
warrant authorized police to search the house for various papers,
including certain bills, receipts and bank statements. Mills does
not dispute that some of the files seized by police fell within the
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warrant. Nor does he assert that police acted in bad faith by
seizing additional records. He is essentially arguing that police
should have parsed out the "extremely personal" and irrelevant
records intermingled with those files. Even assuming, however,
that police seized some irrelevant records, the doctrine of good
faith immunity applies to shield the police officers from liability
for damages for the seizure of those records. See Crooker v.
Mulligan, 788 F.2d 809, 812 (1st Cir. 1986) (holding, under
circumstances of case, that doctrine of good faith immunity
protected officers from liability where they seized non-warrant
items intermingled with warrant items); see also United States v.
Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982) (holding that, if
commingling of seizable and non-seizable items prevents on-site
inspection, and no other practical alternative exists, entire
property may be seized, at least temporarily). Thus, defendants
were entitled to summary judgment on this claim. See Four Corners
Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d 306, 314 (1st Cir.
1995) (noting that appellate court is free to affirm district court
judgment on any ground supported by the record).
Mills also asserts that the court erred in addressing
four of his claims in summary fashion. Because Mills offers no
argument in support of his position, we may treat the issue as
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(noting that issues raised in perfunctory manner are deemed
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waived). We conclude in any event that the court succinctly and
aptly disposed of each claim.
We have considered Mills' other arguments and deem them
without merit. Accordingly, the district court's grant of summary
judgment for defendants is affirmed.
Because Mills does not make any separate argument as to
why his motion for reconsideration was improperly denied, the
court's order denying reconsideration also is affirmed. The denial
was proper in any event. Relief under Fed. R. Civ. P. 59(e) is for
manifest errors of law or newly discovered evidence. Landrau-
Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 612 (1st Cir.
2000). Mills pointed to neither.
Affirmed. See Loc. R. 27(c).
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