       [NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                       For the First Circuit


No. 02-1278

                         SIDDHARTHA BASU,
                       Plaintiff, Appellant,

                                 v.

 LAWRENCE BROGAN, individually and in his official capacity as a
Cambridge firefighter, and RICHARD DAHL, individually and in his
          official capacity as a Cambridge firefighter,
                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                              Before

                        Boudin, Chief Judge,
                   Bownes, Senior Circuit Judge,

                       Lynch, Circuit Judge.



     Robert J. Doyle and Steinberg, Doyle on brief for appellant.
     Joan M. Griffin, Erica Abate Recht and Testa, Hurwitz &
Thibeault, LLP on brief for appellees in their individual
capacities.
     Nancy B. Schlacter on brief for appellees in their official
capacities.
September 4, 2002
            Per Curiam.   Plaintiff Siddhartha Basu brought suit for

conspiracy, false arrest, false imprisonment, abuse of process and

malicious   prosecution   against    Cambridge    firefighters   Laurence

Brogan and Richard Dahl.     These claims arose from a 1997 incident

in which the firefighters told police that Basu had deliberately

struck Brogan with his car, leading to Basu's arrest. The district

court entered summary judgment for defendants.        We affirm.

            Our review of the grant of summary judgment is de novo

and we take all factual inferences in the light most favorable to

the non-moving party.     McCarthy v. Northwest Airlines, Inc., 56

F.3d 313, 315 (1st Cir. 1995).
            On November 15, 1997, Brogan and Dahl responded to a fire

at a building in Cambridge, Massachusetts.        Basu, a tenant, drove
his car out of the building's garage.        A fire truck blocked the
garage exit, so Basu stopped his car on the sidewalk and asked

Brogan to move the truck.      Brogan, seeing that Basu's car would
obstruct the progress of an approaching blind pedestrian and a
woman who was assisting this pedestrian, asked that Basu first back
his car away from the sidewalk.           Brogan says he had to make

several, increasingly forceful requests.         Eventually, Basu backed
his car up a short distance.

            Once the pedestrians walked past, Basu drove his car
forward.    Brogan says he felt the car strike him from behind,
knocking him onto or over the hood and then to the ground.           Dahl

and Thomas MacNeil, also a firefighter, say that Basu's vehicle


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knocked Brogan to the ground and continued to pull forward until

Brogan reached into the car, grasped Basu, and ordered him to stop.

Basu testified that his car did not make contact with Brogan, who

he says was standing safely to the left.

          Someone on the scene called the police.         Two police

officers promptly arrived; the firefighters told an officer that

Basu intentionally had struck Brogan with his car from behind. The

officers arrested Basu.

          Basu was charged with assault and battery by means of a

dangerous weapon and cited for driving to endanger.    Nine months
later, prosecutors filed a nolle prosequi dismissing the assault

and battery charge.   The government said it withdrew the citation
because of a technical defect.
          Two years later, plaintiff brought this action under 42

U.S.C. § 1983 (2000), with pendent state law claims.

1.        Federal Civil Rights Conspiracy and State Conspiracy

          A principal element of a 42 U.S.C. § 1983 conspiracy is
an agreement between the parties to inflict a wrong or injury upon
another in violation of that person's civil rights.        Earle v.

Benoit, 850 F.2d 836, 844 (1st Cir. 1988).   The pendent state law

conspiracy claim requires that plaintiff show that the defendants

established "'a common plan to commit a tortious act.'"    Kurker v.

Hill, 44 Mass. App. Ct. 184, 689 N.E.2d 833, 837 (1998) (quoting

Stock v. Fife, 13 Mass. App. Ct. 75, 430 N.E.2d 845, 849 (1982)).

There is no evidence that in the heat of the moment Brogan and Dahl

arrived at an agreement or "common plan" to offer false statements

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that would lead to Basu's arrest. The police officers arrived very

shortly after the car incident and immediately interviewed the

firefighters.   Indeed, Basu himself agreed that the police should
be called.

2.        False Arrest and False Imprisonment (Federal and State)

          Brogan and Dahl are firefighters, not police officers,

and they neither arrested nor imprisoned Basu.    Any liability must

rest then on the theory that they induced the officers to make an

arrest, that the officers acted not of their own volition but

because of the defendants' request.    Rarely successful, but see

Wagenmann v. Adams, 829 F.2d 196, 209-10 (1st Cir. 1987), the

theory usually fails, see, e.g., Tomaiolo v. Mallinoff, 281 F.3d 1,
10 (1st Cir. 2002).    That is because citizens, including public
employees, have a perfect right to complain to and seek the

protection of the police about possible crimes.   Massachusetts law
on this point may be less favorable to plaintiffs; it is certainly
not more favorable.    See Mezullo v. Maletz, 331 Mass. 233, 118

N.E.2d 356, 359 (1954) ("One who procures the arrest or confinement
of another on lawful process is not liable to an action of false
imprisonment, although he caused the process to issue by means of

false statements."); Zinkfein v. W.T. Grant Co., 236 Mass. 228, 128

N.E. 24, 26 (1920) ("In an action for false imprisonment, where a
wrongful arrest has been made on information given by a defendant,

there is no liability on the part of the informant for the arrest
unless the officer acted under the direction of the defendant or as

his agent.").   Here, unlike Wagenmann, the arrest was supported by

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probable cause, there was no evidence of overweening influence on

the officers, and there was no evidence of conspiracy.         That dooms

the claim.
           Nonetheless, Basu focuses on the truth of the statements

made to police. Basu's evidence would not permit a reasonable jury

to find that Brogan and Dahl lied about the alleged assault or that
they wanted to induce Basu's confinement.           The police did arrest

Basu because Brogan and Dahl and other firefighters told the police

officers     at   the    scene   that   plaintiff    had   struck   Brogan

deliberately.     That is far from enough.     See, e.g., Roche v. John

Hancock Mut. Life Ins. Co., 81 F.3d 249 (1st Cir. 1996) (upholding

summary judgment dismissing false arrest claim against private

party where police arrested plaintiff on basis of statements
offered by defendant).       Basu relies primarily on the videotape of

the incident and the "changes" in Brogan's testimony after he saw

the videotape to argue it is clear that he did not hit Brogan, so
the claim that he did must be false.         Neither the videotape nor

Brogan's testimony create an issue of material fact. The videotape

is inconclusive, because of the time gaps between frames.

             Brogan's testimony is not inconsistent.        In the report

Brogan prepared on the day of the incident, he describes himself as

being sent "up upon the hood of the car," but in the deposition

given after Brogan had viewed the videotape, he says that he was

sent "over the hood."        However, Brogan used both phrases in his

initial report.         Plaintiff also has not contested defendants'

evidence that just hours after the incident the fire department

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gave Brogan medical leave -- which lasted three months, while he

received regular physical therapy and other medical attention. The

statements of Brogan, Dahl, and MacNeil are internally consistent
and corroborate each other.         Plaintiff has not created an issue of

material fact that the statements given by the firefighters were

false.

3.           Abuse of Process (State Law)

             The elements of a Massachusetts abuse of process claim

are "(1) that process is used (2) for an ulterior or illegitimate

purpose, (3) resulting in damage to the plaintiff."                   Refuse &

Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 41

(1st Cir. 1991); see Jones v. Brockton Pub. Mkts., Inc., 369 Mass.
387,   340    N.E.2d   484,   485   (1975).       As   the   discussion     above
demonstrates, there was no evidence from which a reasonable jury

could conclude that there was an abuse of process.

4.           Malicious Prosecution (State Law)

             To make out his pendent malicious prosecution claim under
state law, "a plaintiff must establish that the criminal action was
brought      maliciously,     without    probable      cause,   and   has   been
terminated in favor of the plaintiff."            Wynne v. Rosen, 391 Mass.

797, 464 N.E.2d 1348, 1350 (1984).            There is no evidence of malice

and the officers had probable cause.

             Affirmed. Costs are awarded to defendants.




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