Bobbett v. City of Portsmouth

2018 DNH 069

Oneta Bobbett v. City of Portsmouth, et al.

Civil No. 17-cv-265-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

March 29, 2018

ORDER

Oneta Bobbett brings suit against the City of Portsmouth and two members of its police department, Kristyn Bernier and Michael Leclair, alleging federal and state law claims arising from a criminal investigation and prosecution against her. The defendants move for judgment on the pleadings on three of the state law claims, Counts II, IV, and V. Bobbett objects.

Standard of Review

"The standard of review of a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is the same as that for a motion to dismiss under Rule 12(b)(6)." Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014) (internal quotation marks omitted). Under that standard, the court will dismiss a claim "only if, taking all the complaint's well-pled allegations as true and viewing the other facts in the light most favorable to the plaintiff, the complaint does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Portugues-Santana v. Rekomdiv Int'l Inc., 725 F.3d 17, 25 (1st Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "While [the plausibility] standard does not impose a 'probability requirement,' it does require 'more than a sheer possibility that a defendant has acted unlawfully.'" Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Engaging in this plausibility inquiry is context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 556 U.S. at 679).

Background¹

In late 2013, Bobbett purchased a ring from Jathar Jewelers with her credit card. Following that purchase, Bobbett noticedtwo charges on her credit card statement for $1,850, the price of the ring. Although one of the purchases was the one that Bobbett had authorized from Jathar Jewelers, Bobbett had not authorized the other charge, which was from a merchant named the Face Café.

Bobbett disputed the Face Café charge with her credit card company, who advised her to report the charge to the police. Following that advice, Bobbett reported the Face Café charge as fraudulent to Officer Todd Goodwin of the Portsmouth Police Department.

At the time Bobbett made her complaint to Goodwin, she was in a contentious divorce proceeding with her husband, Jonathan Bobbett ("Jonathan"). Jonathan was a prominent local businessman, who had personal ties to the Portsmouth Police Department. Jonathan had socialized with members of the police department, taken members on trips to Hong Kong, Russia, and Las Vegas, and made charitable donations to the department.

Following Bobbett's report, Detective Kristyn Bernier of the Portsmouth Police Department began investigating Bobbett based on the theory that Bobbett had falsely reported the Face Café transaction as fraudulent. In connection with that investigation, Bernier executed an affidavit in support of an application for a search warrant to seize and search Bobbett'scell phone. On January 15, 2014, Bernier received the warrant, which authorized police to search Bobbett's phone "for subscriber and electronic communication documentation specific to this case." The warrant also provided police the authority to access, view, and reproduce data from all items referred to in the search warrant "as necessary for the investigation and prosecution of this matter from October 20, 2013 through January 15, 2014."

The day after Bernier obtained the warrant, she met with Bobbett at the police station. Bobbett believed that the purpose of the meeting was for Bernier to provide an update about the investigation concerning the Face Café transaction. During the meeting, however, Bernier executed the search warrant and confiscated Bobbett's phone.

In April of 2014, Bernier sought, and received, an arrest warrant for Bobbett based on the crimes of providing a false report to law enforcement, making unsworn falsifications, and tampering with witnesses and informants. In September of 2014, a Rockingham grand jury returned an indictment against Bobbett on the witness tampering count. In addition, the Rockingham County Attorney filed informations charging Bobbett with providing a false report to law enforcement and making unsworn falsifications.

The criminal charges against Bobbett were ultimately nol-prossed on August 27, 2015. The records of the charges were annulled on March 7, 2016.

On October 6, 2014, a guardian ad litem report in the Bobbetts' divorce proceeding stated that Jonathan had expressed concerns that Bobbett was moving to Atlanta. Bobbett had never discussed anything with Jonathan about moving to Atlanta. The phone seized by Bernier, however, contained text messages between Bobbett and a man she used to date, in which that man urged her to move to Atlanta to be with him. Those text messages were from the summer of 2013, which was outside of the time limitation established in the search warrant.

Bobbett alleges that the police gave Jonathan this information, which they obtained through an illegal search of her phone. Bobbett further alleges that Bernier and the Portsmouth Police Department never actually suspected her of criminal wrongdoing, but rather started the criminal investigation as a means of obtaining information to aid Jonathan in the divorce.

Bobbett brings a claim against Bernier and Leclair under 42 U.S.C. § 1983 for violation of her constitutional rights (Count I). In addition, Bobbett brings a claim for malicious prosecution against Bernier and Portsmouth (Count II), andclaims for abuse of process (Count III), intrusion upon seclusion (Count IV), and public disclosure of private facts (Count V), against Bernier, Leclair, and Portsmouth.

Discussion

Bernier and Portsmouth move for judgment on the pleadings on Bobbett's claims for malicious prosecution against them. Bernier, Leclair, and Portsmouth move for judgment on the pleadings on the claims against them for intrusion upon seclusion and public disclosure of private facts. Bobbett objects.²

I. Malicious Prosecution (Count II)

To state a claim for malicious prosecution, Bobbett must allege that "(1) [s]he was subjected to a criminal prosecution or civil proceeding instituted by the defendant; (2) without probable cause; (3) with malice; and (4) the prior action terminated in [her] favor." Ojo v. Lorenzo, 164 N.H. 717, 727 (2013); see also Farrelly v. City of Concord, 168 N.H. 430, 445 (2015). In support of her malicious prosecution claim, Bobbett alleges that Bernier (1) did not have an honest suspicion thatshe engaged in criminal conduct and (2) maliciously initiated the criminal proceedings against her. Portsmouth and Bernier move for judgment on the pleadings on the malicious prosecution claims, arguing that Bobbett's claims fail because the grand jury returned an indictment against her. Portsmouth and Bernier also contend that Bobbett has failed to allege that the prosecution was malicious.

A. Probable Cause

The defendants contend that they are entitled to judgment on the pleadings on the malicious prosecution claim because a grand jury in Rockingham County returned an indictment against Bobbett on the charge of tampering with witnesses and informants. Because Bobbett has not alleged that Bernier engaged in impropriety in obtaining that indictment, the defendants argue that Bobbett has not plausibly pled that the prosecutions occurred without probable cause.

In response, Bobbett argues that the grand jury only indicted her on the tampering charge and not the charges for making a false report to law enforcement and making unsworn falsifications. Bobbett further contends that because the grand jury did not return indictments for those two charges, her malicious prosecution claim can proceed.

"Probable cause in the malicious prosecution context has long been defined as 'such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.'" Stock v. Byers, 120 N.H. 844, 846 (1980) (quoting MacRae v. Brant, 108 N.H. 177, 180 (1967)). "It depends not upon the accused's guilt or innocence of the crime charged but upon the prosecutor's honest and reasonable belief in such guilt at the time the prosecution is commenced." Id.

"Courts are nearly uniform in holding that the return of an indictment defeats a claim for malicious prosecution unless the plaintiff alleges that the defendant engaged in impropriety when procuring the indictment." Ojo, 164 N.H. at 727. An indictment "'definitively establishes probable cause' unless, at the pleading stage, the plaintiff asserts that 'the defendants wrongfully obtained the indictment by knowingly presenting false testimony to the grand jury.'" Id. (quoting Gonzalez Rucci v. United States I.N.S., 405 F.3d 45, 49 (1st Cir. 2005)).

1. Tampering Charge

The grand jury indicted Bobbett for the offense of tampering with witnesses or informants. Bobbett does not allege that Bernier or Portsmouth engaged in impropriety in obtaining the indictment. Therefore, the indictment definitivelyestablishes probable cause for the tampering charge, and Bobbett may not proceed on her malicious prosecution claim based on that offense. Accordingly, to the extent Bobbett's malicious prosecution claim is based on the prosecution of the tampering charge, that claim is dismissed.

2. False Statement Charges

Bobbett contends that her malicious prosecution claims may proceed because the grand jury did not return an indictment on the false statement charges. Generally, in the malicious prosecution context, "probable cause as to one charge will not bar a malicious prosecution claim based on a second, distinct charge as to which probable cause was lacking." See Mendonca v. City of...