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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2235 <br> <br>                        JOSEPH A. MEEHAN, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                    TOWN OF PLYMOUTH, ET AL., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Douglas P. Woodlock, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>Wellford, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>     James R. McMahon III on brief, for appellant. <br>     David C. Jenkins, with whom Dwyer & Jenkins was on brief, for <br>appellees. <br> <br> <br>                       ____________________ <br> <br>                        February 3, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  Plaintiff-appellant Joseph A. <br>Meehan was arrested by Plymouth police officers William E. Curtis, <br>John W. Rogers, Jr., and Robert J. Pomeroy during a drug raid in a <br>local bar.  Meehan was convicted in Massachusetts state court of <br>trafficking in cocaine.  On appeal, however, his conviction was <br>overturned because the appeals court found that the evidence of <br>Meehan's involvement in the particular joint venture to traffic in <br>cocaine was insufficient as a matter of law.  See Commonwealth v. <br>Meehan, 597 N.E.2d 1384 (Mass. App. Ct. 1992).  Meehan then filed <br>the present suit in the U.S. District Court for the District of <br>Massachusetts against the Town of Plymouth (the "Town") and the <br>three police officers, alleging, inter alia, federal and state <br>malicious prosecution causes of action.   <br>          All of Meehan's causes of action except the state and <br>federal malicious prosecution claims were dismissed on statute of <br>limitations grounds.  Then, in a Memorandum and Order dated August <br>20, 1997, the district court: (1) granted the Town's motion to <br>dismiss Meehan's remaining claims against it; and (2) granted the <br>individual officer-defendants' motion for summary judgment on the <br>remaining claims against them.  See August 20, 1997 Memorandum and <br>Order, at 12, 20.  Meehan appeals, and we affirm. <br>                           BACKGROUND <br>          In reviewing the entry of summary judgment under Fed. R. <br>Civ. P. 56(c), we view the facts in the light most favorable to the <br>non-moving party -- Meehan in this case.  See Iglesias v. Mutual <br>Life Ins. Co. of New York, 156 F.3d 237, 239 (1st Cir. 1998). <br>     Joseph A. Meehan was arrested on the night of July 29, <br>1988, at Driscoll's Cafe in Plymouth, Massachusetts.  Earlier that <br>day, a state judge issued a warrant for the search of Driscoll's  <br>Cafe on the basis of defendant Curtis' affidavit.  In his <br>affidavit, Curtis stated that the Plymouth police department <br>believed that Meehan and Priscilla Turk, a bartender at Driscoll's <br>Cafe, were selling cocaine at the establishment.  This belief was <br>based upon tips from confidential informants and direct <br>surveillance of Meehan over a period of approximately two years. <br>     Prior to the execution of the search warrant, undercover <br>police officer Richard Noone entered the bar and observed Meehan <br>and Turk engage in three short conversations.  Noone did not, <br>however, witness any drug transactions.  Noone then left the bar <br>and called the police station to report what he had seen.  Minutes <br>afterwards, defendants Curtis, Pomeroy, and Rogers conducted the <br>raid on Driscoll's Cafe.  After entering the bar, the officers <br>arrested Meehan and Turk and conducted a pat-down search on them.  <br>During that search, the officers found a package of cocaine in one <br>of Turk's pockets, but they did not find any drugs in Meehan's <br>possession.  The officers found approximately three hundred dollars <br>on Meehan's person.  The officers also claim to have found a "cuff <br>list" in Meehan's possession, although Meehan disputes that the <br>"cuff list" was found on him.  Meehan claims that the "cuff list" <br>did not belong to him and was planted nearby him by Pomeroy.  <br>Meehan also claims that Curtis' testimony regarding the "cuff list" <br>was inconsistent, noting that Curtis testified to the grand jury <br>that it was found in Meehan's pocket, but testified at Meehan's <br>criminal trial that he found it in a puddle of beer on the bar, <br>underneath Meehan's hand.  <br>     Meehan was taken to the police station, where he was <br>strip-searched.  The officers found a wad of approximately four <br>thousand dollars inside the waistband of his pants.  Three days <br>later, Pomeroy completed and executed an Application for Criminal <br>Complaint, charging Meehan in Plymouth District Court with <br>trafficking in cocaine, possession of cocaine, and possession of <br>cocaine with intent to distribute.  Pomeroy later filed a Criminal <br>Complaint in Superior Court against Meehan charging the three <br>counts described above.  After Meehan was indicted by a Plymouth <br>County grand jury of a single count of trafficking in a controlled <br>substance, the Plymouth District Court action was dismissed. <br>     After trial in the Superior Court, a jury found Meehan <br>guilty on the trafficking charge, and he was sentenced to five <br>years in state prison.  In September 1992, however, the Appeals <br>Court of Massachusetts reversed his conviction with instructions to <br>the trial court to enter a verdict of not guilty.  See Meehan, 597 <br>N.E.2d at 1387.  The court found that although there was sufficient <br>evidence to support a finding that Meehan was involved in drug <br>transactions in general, the evidence was not sufficient to permit <br>a jury to find beyond a reasonable doubt that Meehan was involved <br>in a joint venture with Turk to sell the particular cocaine that <br>was found on her person on July 29, 1988.  See id.  <br>     After his conviction was reversed, Meehan filed suit in <br>the U.S. District Court for the District of Massachusetts against <br>the individual officers who carried out his arrest, as well as <br>against the Town of Plymouth.  The complaint raised a variety of <br>state and federal claims, including malicious prosecution in <br>violation of both Massachusetts law, Mass. Gen. Laws ch. 258, <br>10(b), and the Civil Rights Act of 1870, 42 U.S.C.  1983.  All of <br>Meehan's claims were dismissed on statute of limitations grounds, <br>except Meehan's federal and state malicious prosecution causes of <br>action.   <br>     The Town moved to dismiss Meehan's malicious prosecution <br>claims against it, and the individual officer-defendants moved for <br>summary judgment on the malicious prosecution claims against them.  <br>The district court granted both motions in its August 20, 1997 <br>Memorandum and Order. The court dismissed the claims against the <br>Town of Plymouth because it found that Meehan asserted no theory <br>that sufficiently stated a claim for malicious prosecution against <br>the Town.  See August 20, 1997 Memorandum and Order, at 12.  The <br>court entered summary judgment in favor of the individual officer- <br>defendants following its determination that Meehan could not <br>establish one of the essential elements of the claim for malicious <br>prosecution -- the absence of probable cause -- because Meehan's <br>jury conviction conclusively demonstrated that the officers had <br>probable cause for Meehan's arrest.  See id. at 20.  Meehan <br>appeals, and we affirm. <br>                           DISCUSSION <br>     We affirm the entry of summary judgment substantially for <br>the reasons expressed by the district court in its Memorandum and <br>Order.  We pause to add only the following. <br>I.  Malicious Prosecution <br>     Meehan raised malicious prosecution claims under <br>Massachusetts and federal law.  In order to succeed on his <br>malicious prosecution claim under 42 U.S.C.  1983, Meehan must <br>prove: (1) state action; and (2) a deprivation of constitutional <br>rights.  See Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d <br>249, 253-54 (1st Cir. 1996). <br>     A.   Constitutional Basis For Meehan's Federal Malicious <br>          Prosecution Action <br>     We note as an initial matter that Meehan's  1983 <br>malicious prosecution claim is not properly based on either a <br>procedural or substantive due process violation.  A  1983 claim <br>for malicious prosecution as a deprivation of procedural due <br>process is barred where, as here, the state's tort law recognizes <br>a malicious prosecution cause of action.  See Roche, 81 F.3d at <br>256; Prez-Ruiz v. Crespo-Guilln, 25 F.3d 40, 42-43 (1st Cir. <br>1994).  Further, "[t]here is no substantive due process right under <br>the Fourteenth Amendment to be free from malicious prosecution."  <br>Roche, 81 F.3d at 256 (citing Albright v. Oliver, 510 U.S. 266, 271 <br>(1994) (plurality opinion)); see also Prez-Ruiz, 25 F.3d at 42 <br>("Albright would appear virtually to foreclose reliance on <br>substantive due process as the basis for a viable malicious <br>prosecution claim under section 1983 . . . ."). <br>     However, there is a possibility that Meehan's  1983 <br>malicious prosecution claim may be actionable under the Fourth <br>Amendment.  See, e.g., Albright, 510 U.S. at 271 (plurality <br>opinion) ("We hold that it is the Fourth Amendment, and not <br>substantive due process, under which petitioner Albright's claim <br>[under  1983 that he was prosecuted without probable cause] must <br>be judged."); Roche, 81 F.3d at 256 n.5 ("[T]he Supreme Court left <br>open the possibility that a malicious prosecution claim might lie <br>under  1983 on the basis of the Fourth Amendment . . . ."); <br>Calero-Coln v. Betancourt-Lebrn, 68 F.3d 1, 3-4 (1st Cir. 1995). <br>In fact, the district court proceeded under the assumption that <br>Meehan's  1983 malicious prosecution claim pleaded a deprivation <br>of Fourth Amendment rights.  See August 20, 1997 Memorandum and <br>Order, at 15.  As Meehan has provided no further argument on this <br>question, this Court will treat his  1983 claim similarly. <br>     B.   "Absence of Probable Cause" Element <br>     In order to state a cause of action for malicious <br>prosecution, a plaintiff must allege that "criminal proceedings <br>were initiated against him without probable cause and for an <br>improper purpose and were terminated in his favor."  Landrigan v. <br>City of Warwick, 628 F.2d 736, 745 n.6 (1st Cir. 1980) (citation <br>omitted).  Thus, a  1983 malicious prosecution action based upon <br>a deprivation of Fourth Amendment rights requires a showing of the <br>absence of probable cause to initiate proceedings, see Montgomeryv. De Simone, 159 F.3d 120, 124 (3d Cir. 1998), as does the <br>parallel state tort claim of malicious prosecution, see, e.g., <br>Lincoln v. Shea, 277 N.E.2d 699, 702 (Mass. 1972).  <br>          1.   The Appropriate Probable Cause Inquiry <br>     Before we proceed any further, we feel compelled to <br>delineate exactly what Meehan's  1983 malicious prosecution claims <br>consist of, in order to more easily undertake the proper probable <br>cause inquiry.  The district court stated that an element of <br>Meehan's malicious prosecution cause of action was that there was <br>no probable cause to initiate the criminal charge against Meehan, <br>but what the court purported to find was that it had been <br>conclusively determined that defendants had probable cause to <br>arrest Meehan.  August 20, 1997 Memorandum and Order, at 16, 18.  <br>For the following reasons, we believe that the proper inquiry in <br>this case is whether the defendants had probable cause to initiate <br>the criminal charge against Meehan, not whether they had probable <br>cause to arrest him. <br>     From Meehan's arguments throughout this litigation, it is <br>clear that he attempts to raise dual malicious prosecution claims <br>based upon two events: (1) his arrest; and (2) his prosecution.  As <br>early as his opposition to the motion to dismiss the first amended <br>complaint, Meehan argued that his malicious prosecution causes of <br>action were based upon the malicious "arrest and prosecution" by <br>defendants. Plaintiff's Opposition to Defendants' Motion to <br>Dismiss, at 10.  In his second amended complaint, Meehan continued <br>with these dual bases for his malicious prosecution claims, <br>repeatedly arguing that defendants "arrested and charged" Meehan <br>without probable cause and that "[t]he arrest and prosecution" <br>violated his constitutional rights.  Second Amended Complaint, <br> 88-91.  In his brief on appeal, Meehan argues that:  <br>     [a]n arrest is the initial stage of a criminal <br>     prosecution, and the Application for Criminal <br>     Complaint and the Complaint itself is the <br>     issuance of criminal process and the <br>     institution of criminal proceedings. Pomeroy <br>     drafted and executed the Application for the <br>     Criminal Complaint, thereby instituting this <br>     criminal process knowing he had no probable <br>     cause.   <br> <br>Appellant's Br. at 34.  Meehan continues: <br>     Rogers clearly instituted or instigated this <br>     criminal process with the arrest without <br>     probable cause.  Rogers knew that Meehan had <br>     no cocaine on him at both times when Meehan <br>     was searched.  Accordingly, there was <br>     absolutely no probable cause to arrest and <br>     charge Meehan with any crime. <br> <br>Appellant's Br. at 37. <br>     However, Meehan may not bring a malicious prosecution <br>claim based upon his arrest because his arrest does not constitute <br>the "initiation of proceedings" against Meehan.  We have previously <br>noted that the lines between malicious prosecution and false arrest <br>have become blurred, to the extent that a malicious prosecution <br>claim may be predicated on an arrest made pursuant to a warrant <br>that was issued without probable cause.  See Calero-Coln, 68 F.3d <br>at 3-4.  In the present case, however, Meehan's arrest was not made <br>pursuant to an arrest warrant.  Meehan cites no authority for the <br>proposition that a malicious prosecution cause of action may be <br>based upon a warrantless arrest.  As we noted in Calero-Coln:  <br>     [t]he critical inquiry that distinguishes <br>     malicious prosecution from false arrest in the <br>     present context is whether the arrests were <br>     made pursuant to a warrant.  As a general <br>     rule, an unlawful arrest pursuant to a warrant <br>     will be more closely analogous to the common <br>     law tort of malicious prosecution.  An arrest <br>     warrant constitutes legal process, and it is <br>     the tort of malicious prosecution that permits <br>     damages for confinement pursuant to legal <br>     process.  On the other hand, wrongful <br>     warrantless arrests typically resemble the <br>     tort of false arrest. <br>Id. at 4 (citations omitted)(emphasis added).  Meehan cannot base <br>a malicious prosecution claim on his warrantless arrest, because it <br>did not constitute legal process.  Consequently, we examine only <br>Meehan's malicious prosecution claims based upon the institution of <br>criminal charges against him.  Because the "absence of probable <br>cause" element is concerned with whether the defendants had <br>probable cause to take the challenged action, and because the <br>challenged action here is prosecution, not arrest, the proper <br>inquiry is whether there was probable cause to institute criminal <br>charges against Meehan. <br>          2.   Meehan's State Law Malicious Prosecution Claim <br>     In the present case, the district court found that <br>probable cause existed, thereby defeating Meehan's state and <br>federal malicious prosecution causes of action.  The district court <br>found, under the rule in Broussard v. Great Atlantic & Pacific Tea <br>Co., 86 N.E.2d 439, 440 (Mass. 1949), that it had been conclusively <br>determined that probable cause existed to arrest Meehan.  In <br>Broussard, the Supreme Judicial Court of Massachusetts held that: <br>     the law of this Commonwealth has been that <br>     conviction of the accused by a tribunal to <br>     which the complaint was made, although <br>     reversed on appeal, conclusively establishes <br>     the existence of probable cause, unless the <br>     conviction was obtained solely by false <br>     testimony of the defendant charged with <br>     malicious prosecution or is impeached on the <br>     ground of fraud, conspiracy or subornation in <br>     its procurement. <br>Id. at 440 (citations and internal quotation marks omitted).   <br>     We agree with the district court's application of the <br>Broussard rule with regard to Meehan's state law malicious <br>prosecution cause of action.  Meehan was clearly convicted of <br>trafficking in cocaine, even though his conviction was reversed. <br>Thus, unless the "false testimony" exception applies, Broussardoperates to bar Meehan's state law malicious prosecution claim.   <br>     Meehan has not succeeded in creating a genuine issue of <br>fact as to whether his conviction was obtained solely by the false <br>testimony of the defendants.  First, Meehan has not provided <br>sufficient admissible evidence that defendants' testimony was in <br>fact false.  Meehan's claims that the defendants perjured <br>themselves tend to be conclusory.  Meehan's brief on appeal is <br>replete with assertions that Curtis' affidavit and testimony were <br>perjured because, for example, even though Meehan had never sold <br>drugs of any kind, Curtis stated that various reliable informants <br>had seen him selling cocaine at Driscoll's Cafe.  Accepting for the <br>sake of argument Meehan's claim that he has never sold drugs, this <br>fact still does not establish that Curtis perjured himself, but <br>only that the informants that Curtis relied on were not as reliable <br>as he thought them to be.  Similarly, in response to Curtis' <br>testimony that there were numerous drug-related arrests of <br>Driscoll's Cafe patrons before Meehan's arrest, Meehan argues in <br>his brief that he knows this statement to be untrue.  However, he <br>makes no effort to offer evidence that contradicts Curtis' <br>testimony and therefore fails to demonstrate that Curtis' testimony <br>in this regard was false. <br>     Second, even if Meehan could demonstrate that every piece <br>of testimony he attacks was in fact perjured, he still could not <br>demonstrate that his conviction was based solely on that testimony.  <br>As demonstrated more fully in the next section, there was <br>substantial undisputed evidence that implicated Meehan in the crime <br>of which he was convicted.  That undisputed evidence includes <br>Meehan's association with Turk, his possession of large amounts of <br>currency, and the discovery of a "cuff list" either on Meehan's <br>person or relatively near him in the bar.  Accordingly, no <br>reasonable fact-finder could conclude that Meehan's conviction was <br>based solely on the false testimony of the defendants.  Therefore, <br>the exception to the Broussard rule does not apply, and the <br>district court was correct in granting summary judgment against <br>Meehan's state law malicious prosecution claim. <br>          3.   Meehan's  1983 Malicious Prosecution Claim <br>     We do not believe, however, that the district court was <br>correct in entering summary judgment against Meehan's  1983 <br>malicious prosecution cause of action on the basis of Broussard.  <br>The district court applied Broussard in the federal context without <br>explanation, but Broussard's applicability to  1983 malicious <br>prosecution claims has heretofore been left unresolved in this <br>circuit.  See Earle v. Benoit, 850 F.2d 836, 850 n.14 (1st Cir. <br>1988) (expressing doubt, but leaving open the question of whether <br>the Broussard rule would be dispositive as to the constitutionally <br>mandated probable cause standard).  Because the undisputed facts of <br>this case demonstrate that the defendants had probable cause to <br>initiate the criminal charge against Meehan, we find it unnecessary <br>to reach that issue and leave it for another day. <br>     We find that no genuine issue exists regarding the <br>question of whether defendants had probable cause to prosecute <br>Meehan.  Even if we disregard the testimony of the officers that <br>Meehan disputes as perjured, including testimony that the "cuff <br>list" belonged to Meehan, there was still probable cause to <br>prosecute Meehan.  It is undisputed that Meehan had frequented <br>Driscoll's Cafe over a long period of time.  It is undisputed that <br>substantial amounts of illegal narcotics activity had been taking <br>place at Driscoll's Cafe.  It is undisputed that Meehan was seen <br>associating with Turk, who was undeniably in possession of cocaine, <br>on the night of his arrest.  It becomes even more likely that <br>Meehan was involved in that trafficking activity when one considers <br>the undisputed fact that Meehan carried thousands of dollars in a <br>concealed location at the time of his arrest.  Even the appellate <br>court that reversed Meehan's conviction noted that one could infer <br>from this concealed currency that Meehan was engaged in activities <br>associated with drug dealing.  See Meehan, 597 N.E.2d at 1386.  <br>Even though this evidence was held to be insufficient to establish <br>beyond a reasonable doubt that Meehan was conspiring with Turk to <br>traffic the cocaine that was found in her possession, it is at <br>least enough to establish probable cause to believe that he had <br>done so.  Cf. Roche, 81 F.3d at 255 ("[T]he quantity and quality of <br>proof necessary to ground a showing of probable cause is not the <br>same as the quantity and quality of proof necessary to convict.").  <br>Because there was probable cause to believe that Meehan was <br>involved in drug trafficking at the time he was charged with that <br>crime, the district court properly granted summary judgment against <br>both his state and federal malicious prosecution claims. <br>II.  Claims Against the Town of Plymouth <br>     Meehan claims that the Town was liable for its officers' <br>actions under 42 U.S.C.  1983 because it had failed to properly <br>train and supervise them.  As the Supreme Court has stated, <br>however, "inadequacy of police training may serve as the basis for <br> 1983 liability only where the failure to train amounts to <br>deliberate indifference to the rights of persons with whom the <br>police come into contact."  City of Canton v. Harris, 489 U.S. 378, <br>388 (1989).  Because the complaint fails to allege that the failure <br>to train was deliberate, or that it was directly and causally <br>linked to the alleged violation of Meehan's civil rights, the claim <br>was properly dismissed. <br>                           CONCLUSION <br>     For the foregoing reasons, we AFFIRM the district court's <br>dismissal of Meehan's complaint against Plymouth and the district <br>court's grant of summary judgment in favor of the individual <br>defendants.</pre>

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