Basu v. Brogan ( 2002 )

[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1278
SIDDHARTHA BASU,
Plaintiff, Appellant,
v.
LAWRENCE BROGAN, individually and in his official capacity as a
Cambridge firefighter, and RICHARD DAHL, individually and in his
official capacity as a Cambridge firefighter,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
Lynch, Circuit Judge.
Robert J. Doyle and Steinberg, Doyle on brief for appellant.
Joan M. Griffin, Erica Abate Recht and Testa, Hurwitz &
Thibeault, LLP on brief for appellees in their individual
capacities.
Nancy B. Schlacter on brief for appellees in their official
capacities.
September 4, 2002
Per Curiam. Plaintiff Siddhartha Basu brought suit for
conspiracy, false arrest, false imprisonment, abuse of process and
malicious prosecution against Cambridge firefighters Laurence
Brogan and Richard Dahl. These claims arose from a 1997 incident
in which the firefighters told police that Basu had deliberately
struck Brogan with his car, leading to Basu's arrest. The district
court entered summary judgment for defendants. We affirm.
Our review of the grant of summary judgment is de novo
and we take all factual inferences in the light most favorable to
the non-moving party. McCarthy v. Northwest Airlines, Inc., 56
F.3d 313, 315 (1st Cir. 1995).
On November 15, 1997, Brogan and Dahl responded to a fire
at a building in Cambridge, Massachusetts. Basu, a tenant, drove
his car out of the building's garage. A fire truck blocked the
garage exit, so Basu stopped his car on the sidewalk and asked
Brogan to move the truck. Brogan, seeing that Basu's car would
obstruct the progress of an approaching blind pedestrian and a
woman who was assisting this pedestrian, asked that Basu first back
his car away from the sidewalk. Brogan says he had to make
several, increasingly forceful requests. Eventually, Basu backed
his car up a short distance.
Once the pedestrians walked past, Basu drove his car
forward. Brogan says he felt the car strike him from behind,
knocking him onto or over the hood and then to the ground. Dahl
and Thomas MacNeil, also a firefighter, say that Basu's vehicle
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knocked Brogan to the ground and continued to pull forward until
Brogan reached into the car, grasped Basu, and ordered him to stop.
Basu testified that his car did not make contact with Brogan, who
he says was standing safely to the left.
Someone on the scene called the police. Two police
officers promptly arrived; the firefighters told an officer that
Basu intentionally had struck Brogan with his car from behind. The
officers arrested Basu.
Basu was charged with assault and battery by means of a
dangerous weapon and cited for driving to endanger. Nine months
later, prosecutors filed a nolle prosequi dismissing the assault
and battery charge. The government said it withdrew the citation
because of a technical defect.
Two years later, plaintiff brought this action under 42
U.S.C. § 1983 (2000), with pendent state law claims.
1. Federal Civil Rights Conspiracy and State Conspiracy
A principal element of a 42 U.S.C. § 1983 conspiracy is
an agreement between the parties to inflict a wrong or injury upon
another in violation of that person's civil rights. Earle v.
Benoit, 850 F.2d 836, 844 (1st Cir. 1988). The pendent state law
conspiracy claim requires that plaintiff show that the defendants
established "'a common plan to commit a tortious act.'" Kurker v.
Hill, 44 Mass. App. Ct. 184, 689 N.E.2d 833, 837 (1998) (quoting
Stock v. Fife, 13 Mass. App. Ct. 75, 430 N.E.2d 845, 849 (1982)).
There is no evidence that in the heat of the moment Brogan and Dahl
arrived at an agreement or "common plan" to offer false statements
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that would lead to Basu's arrest. The police officers arrived very
shortly after the car incident and immediately interviewed the
firefighters. Indeed, Basu himself agreed that the police should
be called.
2. False Arrest and False Imprisonment (Federal and State)
Brogan and Dahl are firefighters, not police officers,
and they neither arrested nor imprisoned Basu. Any liability must
rest then on the theory that they induced the officers to make an
arrest, that the officers acted not of their own volition but
because of the defendants' request. Rarely successful, but see
Wagenmann v. Adams, 829 F.2d 196, 209-10 (1st Cir. 1987), the
theory usually fails, see, e.g., Tomaiolo v. Mallinoff, 281 F.3d 1,
10 (1st Cir. 2002). That is because citizens, including public
employees, have a perfect right to complain to and seek the
protection of the police about possible crimes. Massachusetts law
on this point may be less favorable to plaintiffs; it is certainly
not more favorable. See Mezullo v. Maletz, 331 Mass. 233, 118
N.E.2d 356, 359 (1954) ("One who procures the arrest or confinement
of another on lawful process is not liable to an action of false
imprisonment, although he caused the process to issue by means of
false statements."); Zinkfein v. W.T. Grant Co., 236 Mass. 228, 128
N.E. 24, 26 (1920) ("In an action for false imprisonment, where a
wrongful arrest has been made on information given by a defendant,
there is no liability on the part of the informant for the arrest
unless the officer acted under the direction of the defendant or as
his agent."). Here, unlike Wagenmann, the arrest was supported by
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probable cause, there was no evidence of overweening influence on
the officers, and there was no evidence of conspiracy. That dooms
the claim.
Nonetheless, Basu focuses on the truth of the statements
made to police. Basu's evidence would not permit a reasonable jury
to find that Brogan and Dahl lied about the alleged assault or that
they wanted to induce Basu's confinement. The police did arrest
Basu because Brogan and Dahl and other firefighters told the police
officers at the scene that plaintiff had struck Brogan
deliberately. That is far from enough. See, e.g., Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249 (1st Cir. 1996) (upholding
summary judgment dismissing false arrest claim against private
party where police arrested plaintiff on basis of statements
offered by defendant). Basu relies primarily on the videotape of
the incident and the "changes" in Brogan's testimony after he saw
the videotape to argue it is clear that he did not hit Brogan, so
the claim that he did must be false. Neither the videotape nor
Brogan's testimony create an issue of material fact. The videotape
is inconclusive, because of the time gaps between frames.
Brogan's testimony is not inconsistent. In the report
Brogan prepared on the day of the incident, he describes himself as
being sent "up upon the hood of the car," but in the deposition
given after Brogan had viewed the videotape, he says that he was
sent "over the hood." However, Brogan used both phrases in his
initial report. Plaintiff also has not contested defendants'
evidence that just hours after the incident the fire department
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gave Brogan medical leave -- which lasted three months, while he
received regular physical therapy and other medical attention. The
statements of Brogan, Dahl, and MacNeil are internally consistent
and corroborate each other. Plaintiff has not created an issue of
material fact that the statements given by the firefighters were
false.
3. Abuse of Process (State Law)
The elements of a Massachusetts abuse of process claim
are "(1) that process is used (2) for an ulterior or illegitimate
purpose, (3) resulting in damage to the plaintiff." Refuse &
Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 41
(1st Cir. 1991); see Jones v. Brockton Pub. Mkts., Inc., 369 Mass.
387, 340 N.E.2d 484, 485 (1975). As the discussion above
demonstrates, there was no evidence from which a reasonable jury
could conclude that there was an abuse of process.
4. Malicious Prosecution (State Law)
To make out his pendent malicious prosecution claim under
state law, "a plaintiff must establish that the criminal action was
brought maliciously, without probable cause, and has been
terminated in favor of the plaintiff." Wynne v. Rosen, 391 Mass.
797, 464 N.E.2d 1348, 1350 (1984). There is no evidence of malice
and the officers had probable cause.
Affirmed. Costs are awarded to defendants.
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