942 F.2d 67 (1st Cir. 1991), 90-1909, Prokey v. Watkins

Docket Nº:90-1909 to 90-1913.
Citation:942 F.2d 67
Party Name:Gloria PROKEY, Plaintiff, Appellee, v. George WATKINS, et al., Defendants, Appellees. Scott Cataldi & Roderick Beaulieu, Defendants, Appellants. Gloria PROKEY, Plaintiff, Appellee, v. George WATKINS and James Sweeney, Defendants, Appellants. Gloria PROKEY, Plaintiff, Appellee, v. George WATKINS, et al., Defendants, Appellees. Mark Clark, Defendant,
Case Date:August 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 67

942 F.2d 67 (1st Cir. 1991)

Gloria PROKEY, Plaintiff, Appellee,

v.

George WATKINS, et al., Defendants, Appellees.

Scott Cataldi & Roderick Beaulieu, Defendants, Appellants.

Gloria PROKEY, Plaintiff, Appellee,

v.

George WATKINS and James Sweeney, Defendants, Appellants.

Gloria PROKEY, Plaintiff, Appellee,

v.

George WATKINS, et al., Defendants, Appellees.

Mark Clark, Defendant, Appellant.

Gloria PROKEY, Plaintiff, Appellee,

v.

George WATKINS, et al., Defendants, Appellees.

Robert Schwartz, Defendant, Appellant.

Gloria PROKEY, Plaintiff, Appellee,

v.

George WATKINS, et al., Defendants, Appellees.

Thomas S. Roache, Sr., Defendant, Appellant.

Nos. 90-1909 to 90-1913.

United States Court of Appeals, First Circuit

August 19, 1991

Heard Feb. 4, 1991.

Page 68

William J. Kayatta, Jr., with whom Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Michael A. Nelson, Jeffrey D. Clements, Jensen Baird Gardner & Henry, Philip M. Coffin, III, Barbara A. Carlin, Richard Mulhern, Black, Lambert, Coffin & Rudman, William L. Vickerson and Levenson, Vickerson & Beneman, Portland, Me., were on briefs for defendants, appellants.

William C. Knowles, with whom Gene Libby, Carl E. Kandutsch and Verrill & Dana, Augusta, Me., were on brief for plaintiff, appellee.

Before CYR and CAMPBELL, Circuit Judges, and ALDRICH, Senior Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

In this interlocutory appeal defendants George Watkins, James Sweeney, Thomas S. Roche, Sr., Robert Schwartz, Mark Clark, Scott Cataldi and Roderick Beaulieu, all police officers, allege that the district court erred in denying them summary judgment on the issue of qualified immunity. Plaintiff Gloria Prokey, a former police officer in Sanford, Maine, brought this civil damages action under 42 U.S.C. §§ 1983 and 1985(3) alleging inter alia that members of the Sanford and South Portland Police Departments, as well as the Town of Sanford and the City of South Portland, "in conspiracy, violated plaintiff's rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution and under Art. 1, Section 5 of the Maine Constitution to be free from arrest unsupported by probable cause."

Page 69

I.

In October 1986, 1 the chiefs of the Sanford and the South Portland Police Departments agreed to exchange officers for the purpose of conducting an undercover drug investigation in each of the municipalities. Gloria Prokey, a police officer in Sanford, volunteered for the assignment and commenced her undercover activities in South Portland on October 15, 1986. She was sworn in as a South Portland police officer and used the name Gloria Martin during her undercover activities. The undercover operation in South Portland was originally intended to continue to the middle of December 1986.

As of early November 1986, Prokey had not been successful in making any drug purchases in her undercover capacity. Sometime before November 14, Prokey had a discussion with Chief Sweeney of the Sanford Police Department in which he mentioned the fact that Prokey had been unsuccessful in purchasing any drugs and indicated the possibility that some change might be made in her assignment. On the evening of November 14, 1986, Prokey reported to her South Portland backup officers 2 that she had purchased cocaine from one Mark Heald. Prokey delivered the allegedly purchased material to them, which was later tested and found to contain cocaine. She made no other purchases of drugs in her undercover capacity, and on December 1, 1986, was removed from the assignment in South Portland. Shortly thereafter, another Sanford Police officer (defendant Scott Cataldi) was assigned to the South Portland undercover assignment.

Early in the course of her undercover activities, Prokey had reported that one Steven Bumpus was a possible source for the purchase of drugs. At a later date during the undercover operation she developed an intimate sexual relationship with Mr. Bumpus. This relationship continued after the date on which Prokey was removed from the undercover operation and returned to normal patrol duties in Sanford.

Early in January 1987, Lieutenant Thomas Roche of the South Portland Police Department received information from his niece that she had heard Steven Bumpus refer to an individual as being the "narc Gloria warned me about." The statement allegedly made by Mr. Bumpus was made at a time shortly after he got out of Officer Cataldi's automobile after Officer Cataldi had given him a ride home. Lieutenant Roche's niece stated that Mr. Bumpus came over to the automobile in which she was seated and pointed to someone in an automobile behind her automobile. He then allegedly made the statement concerning the person being the "narc Gloria warned me about." Lieutenant Roche became concerned and on January 4, 1987 he notified Officer Cataldi that his "cover may have been blown."

On January 7, 1987, a meeting was held at the South Portland police station which was attended by Assistant District Attorney Neale Duffett, Lieutenant Dale Austin of the South Portland Police and by Officers Schwartz, Roche, Sweeney, Watkins, Beaulieu and Cataldi. The purpose of the meeting was to bring together information concerning possible internal and criminal charges that could be brought against the plaintiff and to formulate a game plan with respect to the situation involving the plaintiff.

The South Portland Police Department undertook a criminal investigation and the Sanford Police Department initiated an internal investigation of the plaintiff's activities while she was working in the South Portland undercover operation. As part of the internal investigation, Lori Ducharme, Prokey's partner, was asked to prepare a report of her observations on the evening

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of Prokey's alleged drug buy. Although tending to substantiate Prokey's account, this report was not widely circulated prior to Prokey's arrest.

On January 19, 1987, Assistant District Attorney Duffett was working with various police officials in the preparation of warrants and complaints arising out of the undercover drug investigations which had been conducted in South Portland. The meeting of January 19, 1987 at the South Portland police station was attended by Assistant District Attorney Duffett, Sanford Police Officer Steve Caron and defendants Cataldi, Beaulieu, Roche and Clark. Prokey's report concerning the alleged purchase of cocaine from Mark Heald was reviewed by Mr. Duffett. He concluded that he would not charge Mr. Heald because he was concerned that he would not be able to use Prokey as a witness because of information concerning her relationship with Mr. Bumpus, which had been supplied to him by the police officers. Mr. Duffett had such doubts about the truthfulness of the report filed by Prokey that discussions ensued concerning the filing of charges against her for filing a false report. A statement was obtained from Mark Heald in which he denied selling cocaine to Prokey. At the request of Mr. Duffett, Mr. Heald took a polygraph examination. Defendant Mark Clark administered the polygraph examination and reported that Mr. Heald was substantially truthful in his denial of a sale of cocaine to Prokey. It is alleged that subsequently Mr. Clark admitted that his report on the polygraph result was false.

On January 20, 1987, District Attorney Paul Aranson authorized the filing of a complaint charging plaintiff with filing a false public report in violation of Title 17-A M.R.S.A. § 509. The criminal complaint alleged that plaintiff "did knowingly give or cause to be given false information to a law enforcement officer, namely, that one Mark Heald, sold cocaine to Gloria Prokey on November 14, 1986 in the City of South Portland, said information being given to Brian Beckwith, a police officer with the City of South Portland, with the intent to induce the said Brian Beckwith to believe that the said Mark Heald committed the crime of Unlawful Trafficking in a Schedule B Drug in violation of Title 17A [17-A] M.R.S.A. § 1103, knowing the information to be false." A warrant for Prokey's arrest was issued. The filing of the charges against her was authorized by District Attorney Aranson as a result of the information presented to him by Detective Roche of the South Portland Police Department. Aranson was not informed that Assistant District Attorney Duffett had been involved in the case since the beginning of January.

On the same day the warrant was issued, Prokey appeared at the Sanford police station with her attorney for the purpose of an interview with respect to the Sanford internal investigation. They were informed of the issuance of the warrant and they then went to the South Portland police station where the plaintiff was booked and released on personal recognizance.

Prokey had been suspended with pay by the Sanford police chief on January 8, 1987. On January 28, 1987, the officers in charge of the Sanford internal investigation conducted a taped interview with Prokey. She was suspended without pay by Chief Sweeney on February 4, 1987. At that time, she was given a copy of a complaint, containing 22 charges, which had been filed against her by the officers who conducted the internal investigation.

Hearings were subsequently held by the Sanford police chief and at their conclusion he dismissed all but one of the charges. Prokey was suspended without pay for 60 days. The execution of all but 45 days of the suspension was suspended and she was placed on probation for one year. Prokey appealed to the town manager, who held a hearing and affirmed the action of Chief Sweeney. Plaintiff then appealed to the Board of Selectmen. Following a hearing, the Board reversed the action of the Chief Sweeney and the town manager, ordered Prokey reinstated with back pay and directed that all...

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