Ojo v. Lorenzo

• Decision Date: 03 April 2013
• Docket Number: No. 2012–510.,2012–510.
• Parties: Osahenrumwen OJO v. Joseph C. LORENZO and another.
• Court: New Hampshire Supreme Court

164 N.H. 717

64 A.3d 974

Osahenrumwen OJO

v.Joseph C. LORENZO and another.

No. 2012–510.

Supreme Court of New Hampshire.

Submitted: Feb. 13, 2013.

Opinion Issued: April 3, 2013.

Osahenrumwen Ojo, self-represented party, on the memorandum of law.

McDonough, O'Shaughnessy, Whaland & Meagher, PLLC, of Manchester (Robert J. Meagher on the brief), for the defendants.

LYNN, J.

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, 162 N.H. 777, 778, 37 A.3d 414 (2011). On May 9, 2010, at approximately 1:00 a.m., Lorenzo stopped the plaintiff while he was walking on Hall Street in Manchester. Lorenzo pulled the plaintiff by the arm, placed him against his unmarked police cruiser, patted him down, and asked him where he was coming from and where he was going. The plaintiff replied that he had left his brother's apartment a couple of hours earlier. He explained that he and his brother had had "an altercation" earlier in the day and that he wanted to avoid "unnecessary problems." After additional officers arrived on the scene, Lorenzo arrested the plaintiff. When the plaintiff asked why he was under arrest, an unidentified officer informed him that a kidnapping victim had identified him from a photographic line-up and that he matched the victim's description of the assailant.

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, 135 N.H. 413, 419, 605 A.2d 1062 (1992). On May 24, the district court held a preliminary examination (also known as a probable cause hearing) and subsequently ordered the plaintiff bound over to the superior court on both charges. See RSA 596–A:4, :7 (2001); RSA 592–A:4 (2001).¹ A Hillsborough County grand jury later returned indictments against the plaintiff for kidnapping and falsifying physical evidence, and the State filed an information charging him with simple assault. In October 2011, after the plaintiff spent approximately seventeen months in pretrial custody at the Hillsborough County House of Corrections, the State nol prossed all of the charges because the complaining witness allegedly moved to Germany.

In April 2012, the plaintiff, unrepresented by counsel, filed a civil lawsuit against the defendants² alleging, among other things, that officers of the Manchester Police Department: (1) ignored their duties to fully, reasonably, and prudently conduct their investigation before placing him under arrest; and (2) employed unnecessarily suggestive, unreliable, and untrustworthy identification procedures. The writ alleged that the plaintiff did not match the description of the alleged kidnapper. According to the writ, the alleged victim had described the assailant as a black male, in his early twenties, five feet ten or eleven inches tall, with short dark hair and a beard. The plaintiff, a black male, was, however, thirty-three years old with a bald head and a clean-shaven face. He also had visible scars on both cheeks that the victim had not mentioned. The plaintiff claimed that he suffered unnecessary imprisonment, unlawful punishment, and substantial loss of property.

Construing the plaintiff's 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., 156 N.H. 202, 932 A.2d 831 (2007). Finally, the defendants argued they were not the proper party-defendants with respect to plaintiff's malicious prosecution claim.

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 plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. Morrissey, 162 N.H. at 780, 37 A.3d 414. We assume the well-pleaded allegations of fact in the writ to be true, and construe all reasonable inferences from them in the plaintiff's favor. Bel Air Assocs. v. N.H. Dep't of Health & Human Servs., 154 N.H. 228, 231, 910 A.2d 1232 (2006). We need not, however, assume the truth of statements in the pleadings that are merely conclusions of law. Morrissey, 162 N.H. at 780, 37 A.3d 414. "We then engage in a threshold inquiry that tests the facts in the [writ] against the applicable law." Bel Air Assocs., 154 N.H. at 231, 910 A.2d 1232 (quotation omitted). In conducting this inquiry, we may also consider "documents attached to the plaintiff's pleadings, ... documents the authenticity of which are not disputed by the parties[,] official public records[,] or documents sufficiently referred to in the [writ]." Beane v. Dana S. Beane & Co., 160 N.H. 708, 711, 7 A.3d 1284 (2010) (citation, quotation, and ellipses omitted).

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, 127 N.H. 550, 554, 503 A.2d 819 (1986). We consider whether the indictments returned against the plaintiff entitle the defendants to immunity under RSA 507:8–d or to official immunity.

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, II(b) (Supp.2012); State v. Vachon, 130 N.H. 37, 40, 533 A.2d 384 (1987). "Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." Hartgers v. Town of Plaistow, 141 N.H. 253, 255, 681 A.2d 82 (1996) (quotation omitted). For purposes of this appeal, we assume that a police officer with probable cause to make a warrantless arrest under RSA 594:10, II(b) and the officer's employer may be entitled to immunity from suit under RSA 507:8–d.

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, 156 N.H. at 219, 932 A.2d 831. "[T]he purpose of immunity is to operate as a bar to a lawsuit, rather than as a mere defense against liability, and is effectively lost if a case is erroneously permitted to go to trial." Id. at 221, 932 A.2d 831 (quotation omitted). The doctrine is a necessary compromise between competing policies. Id. at 216–18, 932 A.2d 831. It recognizes that although "immunity can be fundamentally unfair to our citizens who are injured by erroneous police decisions," 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." Id. at 218, 932 A.2d 831. When available to an individual police officer, official immunity "generally may be vicariously extended to the government entity employing the individual, but it is not an automatic grant." Id. at 221, 932 A.2d 831 (quotation omitted).

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, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932), it is equally true that post-arrest indictments do not operate retroactively to establish the existence of probable cause at the moment of arrest. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 308 n. 13 (6th Cir.2005) ("after-the-fact grand jury involvement cannot serve to validate a prior arrest"); Garmon v. Lumpkin County, Ga., 878 F.2d 1406, 1409 (11th Cir.1989) ("A subsequent indictment does not retroactively provide probable cause for an arrest...