Landrigan v. City of Warwick, 80-1053

• Decision Date: 27 August 1980
• Docket Number: No. 80-1053,80-1053
• Citation: 628 F.2d 736
• Parties: Bruce B. LANDRIGAN, Plaintiff, Appellant, v. CITY OF WARWICK et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 736

628 F.2d 736

Bruce B. LANDRIGAN, Plaintiff, Appellant, v. CITY OF WARWICK et al., Defendants, Appellees.

No. 80-1053.

United States Court of Appeals,

First Circuit.

Argued June 4, 1980.

Decided Aug. 27, 1980.

William Y. Chaika, Cranston, R.I., for plaintiff, appellant.

Edward J. Regan, Providence, R.I., with whom Tillinghast, Collins & Graham, Providence, R.I., was on brief, for Town of East Greenwich.

William J. Toohey, Warwick, R.I., for City of Warwick.

Joseph W. Monahan, III, Boston, Mass., with whom Frank E. Reardon, Boston, Mass., was on brief, for Thomas R. Joyce.

Amato A. DeLuca, Warwick, R.I., with whom Sandra A. Blanding and Revens & DeLuca Ltd., Warwick, R.I., were on brief, for William J. McElroy.

William Poore, Pawtucket, R.I., for Melvin C. Angilly.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff's civil rights complaint ¹ against the City of Warwick, the Town of East Greenwich, police officer McElroy of the Warwick Department, and officers Angilly and Joyce of the East Greenwich Department alleged, inter alia, a conspiracy among the defendants to cover up and legitimize Officer McElroy's alleged use of excessive force against plaintiff. A pendent state tort count was included. All of the defendants moved to dismiss on various grounds. The court reserved decision on these motions until after plaintiff had presented his case and then, concluding plaintiff had failed to state a prima facie case, granted the defendants' motions for directed verdicts and motions to dismiss. Plaintiff now appeals.

Before addressing plaintiff's and defendants' many contentions, we summarize both the allegations in the complaint and the evidence presented in support thereof, stating the latter in the light most favorable to plaintiff.

I.

The complaint alleged that on the morning of February 4, 1974 while plaintiff was stalled on Route 1 in East Greenwich, Rhode Island, defendant Officer McElroy, with specific intent to injure plaintiff and in an excessive use of force, threw plaintiff to the ground, breaking his leg. When other officers, congregated nearby, realized the serious nature of the injury sustained, they allegedly agreed to "cover-up" and "legitimize" McElroy's conduct. The conspiracy was said to have included the following acts:

1) defendants' filing of deliberately false reports concerning the events of February 4, 1974;

2) defendants' causing to have issued against plaintiff a baseless summons for "driving too fast for conditions";

3) defendants' causing to have issued a complaint and warrant against plaintiff's brother for assault;

4) defendants' commission of perjury during two civil tort actions plaintiff brought against McElroy in state court.

The complaint also contained claims against the City of Warwick and Town of East Greenwich, predicated on their failure to investigate the officers' misconduct. Plaintiff alleged that the municipalities "intentionally continue to ignore the said conduct" and, as a result "have ratified and made their own, all of the actions of the defendants."

A separate state law count asserted, without elaboration, that "under the laws of the State of Rhode Island the defendants are liable in tort to the plaintiff," and demanded damages.

From the evidence plaintiff presented, the following could have been found. In the early morning hours of February 4, 1974, plaintiff, his two brothers, and nephew were driving along Route 1 in East Greenwich, Rhode Island. While snow was piled along the sides, the road itself was clear. Plaintiff had been having difficulty with his new car, and as he drove over the crest of a hill, the car backfired and stalled. The car rolled down the hill, continuing to backfire as it passed Officers Angilly and Joyce, who were on the side of the road, and came to a halt further down Route 1. Within seconds three police officers defendants McElroy, Angilly, and Joyce converged on plaintiff. Plaintiff exited his car to hand his license to Angilly, who had requested it, and tried to explain to McElroy, who had accused him of speeding, the problem with his car. In compliance with the officers' directions, plaintiff returned to his car. Officer Angilly then took plaintiff's license to his cruiser, which was parked behind plaintiff's car, and Sgt. Joyce returned to his vehicle, parked in front of plaintiff's. Plaintiff realized he had not given Angilly his registration and, after retrieving it from his glove compartment, walked back to do so. As plaintiff was returning to his car, McElroy came from behind yelling at plaintiff to get in his car before he threw him in, shoved plaintiff up against the car, and then threw him to the ground, breaking plaintiff's leg. Plaintiff's brother attempted to come to his aid but was restrained by the police and placed in one of the cruisers. Plaintiff threatened to sue them all and asked for McElroy's badge number. McElroy refused to give it, and Sgt. Joyce then said "I'm going one step ahead of you, kid . . . I'm going to place you under arrest." He then read plaintiff his Miranda rights but refused at that time to state what the charges were. As plaintiff sat in the road yelling, the officers stood around laughing, apparently disbelieving plaintiff's protestations that his leg was broken, before eventually calling an ambulance. When the ambulance arrived, Sgt. Joyce asked the attendant if plaintiff's leg were indeed broken and then, turning to the other officers, said they had better get their stories straight. Later that morning, the three officers went to the East Greenwich police department where reports of the incident were completed and filed. The reports, introduced into evidence, described the events differently than did plaintiff. Sgt. Joyce approved and signed the report written by Officer Angilly and authorized the issuance of a driving too fast for conditions charge against plaintiff. This criminal charge is still pending in a state court.

Prior to filing the instant complaint, plaintiff brought an action in a Rhode Island state court against Officer McElroy for assault and battery. The first trial apparently ended in a mistrial, but the second concluded with a $42,000 verdict for plaintiff. We were informed at oral argument that this judgment has not been satisfied and is, according to McElroy's counsel, probably uncollectible.

II.

Defendants argue the instant action is barred by res judicata and even if not so barred, plaintiff failed to establish, allege, and/or prove any facts that would entitle him to relief. Therefore, defendants maintain, the action was properly dismissed.

Res judicata precludes parties to a lawsuit, and their privies, from relitigating between them issues that were or might have been raised in the former suit. Griffin v. Burns, 570 F.2d 1065, 1070-71 (1st Cir. 1978). Of the present defendants, only McElroy was a party to the state tort action, and thus he is the only one who could conceivably prevail on the ground of res judicata.

Insofar as plaintiff seeks further recovery from McElroy relating to the latter's alleged use of excessive force, plaintiff's action is barred. While plaintiff may have foregone recovery of attorney fees by predicating his action in the state court on assault and battery rather than on section 1983, see 42 U.S.C. § 1988 authorizing courts to award attorney's fees to a prevailing party in a section 1983 action, plaintiff may not now assert a theory of recovery which he could have raised in the state action. Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974). ²

Plaintiff's conspiracy claim against McElroy is not barred by res judicata, however, because it is a separate cause of action. While res judicata is applicable in a section 1983 context, Griffin v. Burns, 570 F.2d at 1070; Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974), one condition to its application is that the cause of action in the two proceedings be the same. Griffin v. Burns, 570 F.2d at 1071. The excessive use of force and the subsequent cover up are separate and distinct wrongs resting on different factual bases. Even if plaintiff would have been able to try both actions against McElroy at once without having to join the other defendants, cf. Hackett v. Hyson, 72 R.I. 132, 48 A.2d 353 (1946); Prosser, The Law of Torts §§ 46, 47 (4th ed. 1971) (plaintiff may recover a judgment against one joint tortfeasor and then bring a subsequent action against the other), he was not required to do so. See generally, 1B Moore's Federal Practice P 410(1) (2d ed. 1948). ³

III.

We turn then to the merits of plaintiff's complaint.

A.

"(T)he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).

Plaintiff has not indicated very clearly what rights he was deprived of; rather, he has focused on numerous acts of the defendants and has assumed without much explanation that these acts implicate rights secured by the Constitution and laws. From plaintiff's complaint and evidence, the following allegedly violative acts appear:

1) McElroy's use of excessive force against plaintiff;

2) The defendants' conspiracy to cover up and legitimize McElroy's use of excessive force;

3) The false arrest of plaintiff without probable cause;

4) The filing of deliberately false police reports;

5) The issuance of a baseless summons against plaintiff for driving too fast for conditions;

6) Defendants' commission of perjury during the state tort trials;

7) The false arrest and charging of plaintiff's brother.

While the last five acts are, under the evidence, component parts of the conspiracy, we treat them separately as explained infra. The question is...