The plaintiff, Osahenrumwen Ojo, appeals an order of the Superior Court {Brown, J.) granting a motion to dismiss filed by the defendants, Officer Joseph C. Lorenzo and the Manchester Police Department (MPD). We affirm in part, reverse in part, and remand.
The following facts are taken from the allegations in the plaintiff’s writ of summons, which we accept as true for purposes of this appeal, or are established as a matter of law. See Morrissey v. Town of Lyme,
The State charged the plaintiff by criminal complaint with kidnapping, see RSA 633:1 (2007), falsifying physical evidence, see RSA 641:6 (2007), and simple assault, see RSA 631:2-a (2007). On May 10, the plaintiff was arraigned in the Manchester District Court on the charges of kidnapping and falsifying physical evidence. See RSA 594:20-a, I (Supp. 2012); State v. Hughes,
In April 2012, the plaintiff, unrepresented by counsel, filed a civil lawsuit against the defendants
Construing the plaintiffs writ to assert claims for false imprisonment and malicious prosecution, the defendants moved to dismiss for failure to state a claim. The defendants argued that a lack of probable cause is an element of both false imprisonment and malicious prosecution and that the plaintiff could not prevail on either claim because the district court and grand jury found probable cause in the earlier criminal prosecution. Alternatively, the defendants argued that they were entitled to immunity under RSA 507:8-d (2010) and official immunity under Everitt v. General Electric Co.,
The superior court granted the defendants’ motion. The court’s order states, in its entirety: “Motion to Dismiss granted. Probable cause was found by the Hillsborough County Grand Jury and the Defendant Officer and Police Department are, under those circumstances, immune from suit.” This appeal followed.
In reviewing a motion to dismiss, our task is to determine whether the allegations in the plaintiffs pleadings are reasonably susceptible of a construction that would permit recovery. Morrissey,
We first address the trial court’s ruling that the defendants are immune from suit because the grand jury found probable cause in the prior criminal prosecution of the plaintiff. “An indictment represents the conclusion of a grand jury that probable cause exists to believe that a defendant has committed a particular crime.” Moody v. Cunningham,
RSA 507:8-d provides: “No person shall incur any civil liability to another person by taking any action against such person which would constitute justification pursuant to RSA [chapter] 627.” Under RSA 627:2, I (2007), “[a]ny conduct, other than the use of physical force under circumstances specifically dealt with in other sections of this chapter, is justifiable when it is authorized by law.” By statute, a police officer may make a warrantless arrest if the officer has probable cause to believe that the arrestee has committed a felony. RSA 594:10,11(b) (Supp. 2012); State v. Vachon,
The doctrine of official immunity provides that “municipal police officers are immune from personal liability for decisions, acts or omissions that are: (1) made within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner.” Everitt,
We conclude that the indictments returned against the plaintiff do not entitle the defendants to immunity under RSA 507:8-d or official immunity. Although it is black-letter law that “the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer,” Ex Parte United States,
Furthermore, to the extent the trial court gave the indictments preclusive effect on the issue of whether Lorenzo had probable cause to arrest the plaintiff, we note that “estoppel as between criminal and later civil actions” is warranted only when the plaintiff had “a fair opportunity to litigate the issue” in the prior criminal prosecution. See Hopps v. Utica Mut. Ins. Co.,
On appeal, the defendants advance several alternative arguments seeking affirmance of the trial court’s order. They argue that: (1) they are entitled to immunity under RSA 507:8-d and official immunity because facts alleged by the plaintiff establish that Lorenzo had probable cause to arrest the plaintiff; (2) they are entitled to official immunity because the district court found probable cause; (3) the plaintiff’s claims for false imprisonment and malicious prosecution must be dismissed because both claims require a lack of probable cause and the plaintiff cannot prove a lack of probable cause; and (4) the malicious prosecution claim fails as a matter of law because the plaintiff has not alleged that Lorenzo acted with malice. We address each argument in turn. See Sherryland v. Snuffer,
Limiting our review to the well-pleaded allegations of fact in the plaintiff’s writ, and construing all reasonable inferences from them in his favor, see Guglielmo v. WorldCom,
Nor are we persuaded that the defendants are entitled to official immunity because the district court found probable cause in ordering the plaintiff bound over to the superior court on the charges of kidnapping and falsifying physical evidence. The defendants argue — without citing any authority — that the probable cause determination of the district court establishes that Lorenzo did not arrest the plaintiff “in a wanton or reckless manner.” Everitt,
For collateral estoppel to apply, three basic conditions must be satisfied: (1) the issue subject to estoppel must be identical in each action; (2) the first action must have resolved the issue finally on the merits; and (3) the party to be estopped must have appeared as a party in the first action, or have been in privity with someone who did so. These conditions must be understood, in turn, as particular elements of the more general requirement, that a party against whom estoppel is pleaded must have had a full and fair prior opportunity to litigate the issue or fact in question.
Stewart v. Bader,
Here, two of the three basic conditions to apply collateral estoppel cannot be satisfied. First, the issue of probable cause to bind over a criminal defendant for trial and the issue of probable cause to arrest are not identical. To bind over a criminal defendant for trial, a court must “determine whether probable cause exists to believe that an offense has been committed ...” State v. St. Arnault,
[Although both determinations are referred to as ‘probable cause’ determinations, the question of whether there is probable cause to bind over the charged party is different from the question of whether the arresting officers had probable cause to make the arrest. Resolution of the first issue does not resolve the second.
Kumar,
Second, even if the issues of probable cause to arrest and probable cause to bind over a defendant for trial were identical, the district court cannot be said to have resolved the issue finally on the merits. The probable cause determination of the district court is merely a preliminary step in the criminal prosecution. As we explained in St. Arnault, the district court “merely passes the responsibility to the grand jury to decide whether the defendant should stand trial.” St. Arnault,
We turn next to the defendants’ contention that the plaintiff’s claims for false imprisonment and malicious prosecution must be dismissed because a lack of probable cause is an element of both claims and the plaintiff cannot prove a lack of probable cause. The defendants argue that the plaintiff cannot prove a lack of probable cause because: (1) “[g]iven the findings by the district court and the grand jury, probable cause was present in this case”; and (2) “based on the facts alleged in the plaintiff’s writ of summons, probable cause is established.”
As an initial matter, we note that the defendants are mistaken that a lack of probable cause is an element of false imprisonment. To prevail on a claim for false imprisonment, a plaintiff must demonstrate that: (1) the defendant acted with the intent of confining him within boundaries fixed by the defendant; (2) the defendant’s act directly or indirectly resulted in the plaintiff’s confinement; (3) the plaintiff was conscious of or harmed by the confinement; and (4) the defendant acted without legal authority. See MacKenzie v. Linehan,
We agree with the defendants, however, that the plaintiffs claim for malicious prosecution must be dismissed. To prevail on a claim for malicious prosecution, a plaintiff must demonstrate that: (1) 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 his favor. See Stock v. Byers,
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. See Annotation, Malicious Prosecution: Effect of Grand Jury Indictment on Issue of Probable Cause, 28 A.L.R.3D 748 (1969) (Supp. 2012); Gonzalez Rued v. United States I.N.S.,
Finally, we note that the plaintiff asserts in his memorandum of law that he has a cognizable claim for false arrest or false imprisonment under 42 U.S.C. § 1983. The defendants contend that the plaintiffs writ fails to allege any such claims. Because we reverse the dismissal of the plaintiffs claim for false imprisonment, we leave for the trial court to determine in the first instance whether the plaintiffs writ asserts a cognizable claim for false arrest or false imprisonment under 42 U.S.C. § 1983.
In conclusion, we repeat that the “public simply cannot afford for those individuals charged with securing and preserving community safety to have their judgment shaded out of fear of subsequent lawsuits or to have their energies otherwise deflected by litigation, at times a lengthy and cumbersome process.” Everitt,
Affirmed in part; reversed in part; and remanded.
Notes
The plaintiffs writ alleges, and the defendants do not dispute, that the plaintiffs appearance in the district court on May 10 was for a probable cause hearing. The record, however, reveals that a preliminary examination (ie., “probable cause hearing”) was scheduled for May 24, and the plaintiff received notice that the district court found probable cause on May 24. Accordingly, we conclude that the plaintiffs appearance in the district court on May 10 was his arraignment and the probable cause hearing was held on May 24.
The plaintiffs writ also named as a defendant “Robert Walsh, hillsborough county attorney for the state.” The caption of the plaintiff’s writ, however, named as defendants only Officer Lorenzo and the MPD, and there is no evidence that Attorney Walsh was served as a defendant. On appeal, neither party refers to Attorney Walsh. Accordingly, we conclude that Attorney Walsh is not a party to this appeal.
For example, an investigation conducted between the arrest and indictment may support a finding of probable cause at the time the indictment is returned that did not exist at the time the arrest was made. The record before us contains no information as to what, if any, post-arrest, pre-indictment investigation occurred in this case.