
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      __________________          No. 93-1579                                   GORDON C. REID,                                Plaintiff, Appellant,                                          v.                           STATE OF NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees.                                                                                      __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                                                                      __________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      __________________               Gordon C. Reid on brief pro se.               ______________               Robert  G.  Whaland,  William  A.  Grimes  and  McDonough  &               ___________________   ___________________       ____________          O'Shaughnessy on brief for appellee.          _____________               Carolyn M.  Kirby, Assistant County Attorney,  on Motion for               _________________          Summary Affirmance for appellee.                                                                                      __________________                                     June 6, 1995                                                                                      __________________                      CYR, Circuit  Judge.   After a New  Hampshire court                      CYR, Circuit  Judge                           ______________            set aside his convictions on  two charges of felonious sexual            assault  against a  child,  pro se  plaintiff Gordon  C. Reid                                        ___ __            initiated  this  civil  rights  action  for compensatory  and            punitive damages  against,  inter alia,  Hillsborough  County                                        _____ ____            prosecutors Marguerite Wageling  and Paul McDonough, Manches-            ter police  officers Gary  Simmons, Ronald Paul,  James Ahern            and Richard Gilman, and defense attorney Richard Renfro.  The            district court dismissed all claims, and Reid appealed.                       For  the reasons  hereinafter discussed,  we affirm            the district court order dismissing the claims against prose-            cutors  Wageling and  McDonough,  as well  as the  claim that            Renfro  conspired with the prosecutors to conceal exculpatory            evidence from Reid.  We vacate the order dismissing the false            arrest and  malicious prosecution  claims against  the police            defendants and the due process claim alleging that the police            defendants  intentionally  concealed exculpatory  impeachment            evidence from the prosecutors.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________            A.   The State Court Proceedings            A.   The State Court Proceedings                 ___________________________                      Reid was  arrested, without a warrant,  on June 21,            1986,  and  charged with  three  counts  of felonious  sexual                                          2            assault upon a  six-year-old girl, Misty          ("Misty").1                                                      ______            He  was incarcerated  immediately  upon  arrest.   Manchester            Police Sergeant Gary Simmons  testified at the probable cause            hearing  ultimately held  on August  22, 1986,  and  Reid was            bound over for trial.  Between September 9, 1986 and June 24,            1987, with assistance from  stand-by counsel, Reid filed five            successful motions to compel  disclosure of exculpatory  evi-            dence.                        Reid  represented  himself  at   trial,  personally            cross-examining  the State's witnesses, including Misty, with            assistance from  stand-by counsel.  After  the jury acquitted            Reid on one  count, he moved to set  aside his convictions on            the two remaining counts.                        Sometime in  September 1988, in response  to a fur-            ther  motion  to  disclose exculpatory  evidence,  the  State            produced documents  tending to  undermine the  credibility of            Misty, her sister Wendy,  and their mother.  Among  the docu-            ments were Manchester Police Department reports, dated Decem-            ber 20, 1985  ("1985 Report")  and April 4,  1986 ("1986  Re-            port"), prepared by Sergeant Simmons, containing questionable            accounts of previous sexual  assaults allegedly made  against                                        ____________________               1The  arrest was made  pursuant to New  Hampshire Rev. Stat.          Ann.   594:10(II)(b), which provides that "[a]n arrest by a peace          officer  without a  warrant on  a charge  of a  felony  is lawful          whenever: ... The  officer has reasonable ground  to believe that          the person arrested has  committed a felony."  The  New Hampshire          courts interpret  "reasonable ground" as the  substantial equiva-          lent of "probable cause."  See State v. Vachon, 533 A.2d 384, 386                                     ___ _____    ______          (N.H. 1987).                                          3            Misty by other individuals.2   Reid also was provided  with a            New Hampshire  Department of Children &  Youth Services ("DC-            YS") file  on Misty  and her  family, which  included reports            that Misty's mother had beaten and bruised Misty and  engaged            in sexual intercourse  with her boyfriend in  front of Misty.            These allegations  originated, in part, with  Misty's sister,            Wendy.   It further revealed  that Misty's mother had charac-            terized Wendy's allegations as  lies prompted by Wendy's drug            use and desire to move  in with her boyfriend when Wendy  was            only sixteen years old.   The DCYS file also  described aber-            rant  sexual behavior by Misty  herself, at age  six, such as            performing fellatio on another child.3                      Reid was released on  bail while the superior court            conducted  a "nonevidentiary  hearing" on  the motion  to set            aside  his convictions.  The court  concluded that the police            reports  of prior  sexual  assaults  constituted  exculpatory            impeachment evidence  which gave  rise to a  reasonable prob-            ability that  the outcome  of Reid's  trial  would have  been            different had the evidence been disclosed to the trial court,            since it directly  undermined the testimony of Misty  and her                                        ____________________               2On  their face,  the  reports do  not  indicate that  Misty          falsely accused anyone.  The 1985 report indicates that Misty had          been sexually  abused by a person  or persons unknown.   The 1986          report states that Misty  denied allegations made by a  neighbor,                                    ______          who  complained  that Misty  had been  sexually  abused by  a man          referred to simply as "George."                3It  is not clear whether the DCYS file was before the state          court.                                          -4-                                          4            mother.   Under the New Hampshire Rape Shield Law, Rev. Stat.            Ann.   632-A:6, "a defendant must be afforded the opportunity            to show,  by specific incidents  of sexual conduct,  that the            prosecutrix  has the  experience  and ability  to contrive  a            statutory rape  charge against  him."   State v.  Howard, 121                                                    _____     ______            N.H. 53, 61 (1981).   On October 5, 1988, the  superior court            set the  two remaining  convictions aside  and ordered a  new            trial.   In  December 1988,  all  charges against  Reid  were            dropped.             B.   The Federal District Court Proceedings            B.   The Federal District Court Proceedings                 ______________________________________                 (i)  The Original Complaint                 (i)  The Original Complaint                      ______________________                      The  original  civil  rights complaint  in  federal            district court alleged that between the date of arrest,  June            1986, and  the date his  convictions were set  aside, October            1988, prosecutors  Wageling and  McDonough caused Reid  to be            deprived of  his liberty without probable  cause in violation            of the Fourth Amendment.  It alleged that the prosecutors, by            withholding the exculpatory  evidence, violated Reid's rights            to due process, a  fair trial, equal protection of  the laws,            and to confront  and obtain witnesses.  Reid  further alleged            that  he  was arrested  by  Manchester  Police Sergeant  Gary            Simmons  on  the basis  of  unreliable  information and  that            Simmons  continuously  withheld exculpatory  evidence between            June 1986 and October 1988.  Finally, he alleged that Richard            Renfro, Esquire,  deprived Reid of his  Sixth Amendment right                                         -5-                                          5            to the effective assistance of counsel  by failing to prepare            the case adequately for trial.                        On June 19, 1989,  a United States magistrate judge            recommended  that all but one  claim be dismissed.4   The re-            port and recommendation noted  that prosecutors Wageling  and            McDonough were  absolutely immune  from suit under  Imbler v.                                                                ______            Pachtman,  424 U.S. 409 (1976),  and that Reid  had failed to            ________            allege the requisite state action to sustain  a claim against            defense counsel  Renfro under Polk County v. Dodson, 454 U.S.                                          ___________    ______            312, 320-21 (1981).                   (ii) The First Amended Complaint                 (ii) The First Amended Complaint                      ___________________________                      Reid filed  an amended  pro se complaint,  alleging                                              ___ __            federal and state civil rights violations and adding Manches-            ter Police  defendants Gilman,  Ahern and  Paul.   It alleged            that  the police  defendants  arrested Reid  on the  basis of            unreliable information, in violation of the Fourth Amendment,            and deliberately  suppressed  exculpatory evidence  from  the            time of his arrest until after his trial, in violation of his            right to equal protection,  the effective assistance of coun-            sel, a fair trial, due process, and the right to confront and            obtain witnesses.   The first amended  complaint also alleged            that prosecutors Wageling and McDonough  had instructed their            codefendants  in the  present  civil rights  action, and  the                                        ____________________               4The magistrate judge recommended  that Reid be permitted to          submit  further  documentation  on  the  claim  against  Sergeant          Simmons.                                         -6-                                          6            witnesses at Reid's criminal trial, not to mention the police            reports on prior sexual assault complaints relating to Misty,            thereby prompting  these codefendants to  respond falsely  to            inquiries  concerning the  withheld evidence both  before and            during the  criminal trial.   See  Hilliard v.  Williams, 465                                          ___  ________     ________            F.2d 1212, 1215  (6th Cir.  1972), rev'd, 540  F.2d 220,  221                                               _____            (6th Cir. 1976)  (per curiam).   The first amended  complaint            reiterated  Reid's allegation  that the  prosecutors deliber-            ately  withheld the exculpatory  evidence before, during, and            for fourteen months after Reid's criminal trial, resulting in            his unlawful  conviction and  imprisonment.  Finally,  it al-            leged that  the defendant  officers and prosecutors  had con-            spired to deprive Reid of his constitutional rights.                        The magistrate  judge issued  a Further  Report and            Recommendation on February 6,  1990, which concluded that the            first amended complaint stated an actionable Fourth Amendment            claim for false arrest against the police defendants and that            Reid's motion to add police defendants Gilman, Ahern and Paul            should  be  allowed.   Citing Imbler,  424  U.S. at  430, the                                          ______            magistrate  judge  concluded,  nonetheless,  that  the claims            against  prosecutors Wageling  and McDonough  were barred  by            absolute prosecutorial immunity.  Finally,  the report recom-            mended that the claim against Attorney Renfro be dismissed.                       On March  22, 1991, the district  court adopted the            Further  Report  and  Recommendation, effectively  dismissing                                         -7-                                          7            prosecutors  Wageling  and  McDonough,  and  defense  counsel            Renfro, as defendants.5                 (iii)  The Third Amended Complaint6                                                                     (iii)  The Third Amended Complaint6                        ____________________________                      On June 10, 1992, following further discovery, Reid            requested leave  to file  the third amended  complaint, reas-            serting all claims against the prosecutors, adding a conspir-            acy claim  against Renfro,  and naming additional  police and            prosecutor defendants.   The third amended complaint  further            particularized  the  claims  against the  police  defendants,            asserting that their failure to disclose exculpatory evidence            constituted  actionable  malicious  prosecution and  violated            Reid's  constitutional  rights.   In  contrast  to the  first            amended complaint, which indicated  that the prosecutors knew            about the exculpatory evidence  but instructed the police and            others to conceal it,  Reid's third amended complaint, liber-            ally  construed,  see Estelle  v.  Gamble, 429  U.S.  97, 106                              ___ _______      ______            (1976), asserted  that the police defendants  knew the police                                   ___ ______ __________  ____ ___ ______            reports and  the DCYS file  existed, but concealed  them from            _______ ___  ___ ____ ____  _______  ___ _________  ____ ____            the prosecutors for almost  two years, between June  1986 and            ___ ___________ ___ ______  ___ _____            August  1988.   Thus,  the third  amended complaint  restated            Reid's previous allegations against the police defendants and                                        ____________________               5Reid  and the  police  defendants objected  to the  Further          Report  and Recommendation.    Although Reid  did  not object  to          dismissal of the claim  against Renfro, he reserved the  right to          amend it following discovery.               6A second  amended complaint, naming a  former New Hampshire          governor as a defendant, was dismissed by the district court.                                         -8-                                          8            pleaded distinct claims  for negligence, false arrest,  mali-            cious  prosecution, wrongful withholding  of exculpatory evi-            dence, and conspiracy.                      As for  the prosecutors  and  Attorney Renfro,  the            third amended complaint alleged, in the alternative, that the            prosecutors knew  of the  exculpatory evidence but  failed to            disclose the  information to Renfro, or  that the prosecutors                                                 __            disclosed the exculpatory information to  Renfro but enlisted            him in  their conspiracy to conceal  the exculpatory informa-            tion  from Reid.   We  turn to the  various claims  raised on            appeal.                                                        II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________            A.   The Claims Against the Prosecutors            A.   The Claims Against the Prosecutors                 __________________________________                      Reid contends  that  the district  court  erred  in            dismissing  his  claims  against  prosecutors   Wageling  and            McDonough.  He argues  that Imbler "absolute immunity" should                                        ______            not extend to claims  for withholding exculpatory evidence in            direct violation of  trial court orders, where it  is alleged            that the prosecutors repeatedly misled the trial court itself            throughout the  criminal proceedings.   Reid claims  that the            disclosure orders issued by the trial court displaced whatev-            er discretion the prosecutors may have had concerning disclo-            sure of exculpatory  evidence, consequently their  failure to                                         -9-                                          9            disclose was not a prosecutorial function  at all, but merely            ministerial.    Finally,  he  contends  that the  prosecutors            repeatedly lied to the trial court about the existence of the            exculpatory evidence, whereas in Imbler the prosecutor volun-                                             ______            tarily disclosed  the evidence shortly after  learning of it.                      The district court dismissed the claims against the            prosecutors  as  frivolous under  28  U.S.C.    1915(d).   We            review only for abuse of discretion, see Watson v. Caton, 984                                                 ___ ______    _____            F.2d 537, 539 (1st Cir. 1993), and find none.7                       First, Reid  alleged no facts  suggesting that  the            prosecutors had anything  to do  with the arrest.   The  com-            plaint therefore  failed to state an  actionable false arrest            claim.8                       Second, under  Imbler "it is 'now  [a] well-settled                                     ______            rule  that a prosecutor cannot be  held personally liable for            the  knowing suppression of exculpatory information.'" Robin-                                                                   ______                                        ____________________               7Although the  magistrate judge recommended that  the claims          against the prosecutors  be dismissed for  "fail[ing] to state  a          cause of  action"    language strongly suggesting a Rule 12(b)(6)          dismissal    Reid was given notice of the deficiencies and a full          opportunity to amend  the complaint.   Thus,  dismissal under  28          U.S.C.   1915(d) was proper.   See Purvis v. Ponte, 929 F.2d 822,                                         ___ ______    _____          826-27 (1st Cir. 1991).                 8As New Hampshire  recognizes the torts of  false arrest and          malicious  prosecution, see Stock  v. Byers, 424  A.2d 1122, 1123                                  ___ _____     _____          (N.H. 1980),  those claims should have been  analyzed under state          law,  rather than   1983.  Given an adequate state-law remedy for          a procedural due process violation, no   1983 claim lies.  Perez-                                                                     ______          Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st  Cir. 1994); Smith v.          ____    ______________                                   _____          Massachusetts Dep't. of Correction, 936 F.2d 1390, 1402 (1st Cir.          __________________________________          1991); Torres v. Superintendent of Police, 893 F.2d 404, 410 (1st                 ______    ________________________          Cir. 1990).                                           -10-                                          10            son v. Volkswagenwerk AG,  940 F.2d 1369, 1372-73  (10th Cir.            ___    _________________            1991) (citation omitted), cert. denied, 502 U.S. 1091 (1992);                                      _____ ______            Myers  v. Morris, 810 F.2d  1437, 1446 (8th  Cir.), cert. de-            _____     ______                                    _____ ___            nied, 484 U.S. 828 (1987).9  See Campbell v. Maine,  787 F.2d            ____                         ___ ________    _____            776, 777 (1st Cir. 1986)  (per curiam); Hilliard v. Williams,                                                    ________    ________            540  F.2d  220, 221-22  (6th Cir.  1976)  (per curiam).   The            Imbler  rule has  been  applied where  prosecutors failed  to            ______            disclose  exculpatory evidence specifically  requested by the            defense, see Jones v. Shankland, 800 F.2d 77, 78-80 (6th Cir.                     ___ _____    _________            1986), cert. denied, 481 U.S. 1048 (1987), and where prosecu-                   _____ ______            tors misled the trial court in order to conceal their failure            to disclose exculpatory evidence, see Wilkinson v. Ellis, 484                                              ___ _________    _____            F. Supp. 1072, 1082 (E.D. Pa. 1980).                       Thus, we think the trial court discovery orders did            not displace Imbler immunity.  In the first place, it  is in-                         ______            accurate  to assert, as Reid does, that there was no prosecu-            torial discretion  left to  be exercised respecting  the dis-            closure of  this evidence.   On the contrary,  the disclosure            orders were issued  in response to  motions for "any  'excul-            patory' evidence which could assist [Reid] in the preparation            and presentation of his defense," broad language indicating a            general request  for Brady material.   The orders accordingly                                 _____                                        ____________________               9As  New  Hampshire law  apparently  affords  no remedy  for          withholding exculpatory evidence, this claim is subject to   1983          analysis.   See  also Belcher  v. Paine,  612 A.2d  1318, 1322-23                      ___  ____ _______     _____          (N.H. 1992)  (applying Imbler doctrine  to malicious  prosecution                                 ______          claim under state law.)                                         -11-                                          11            left the  prosecutors with something more  than a ministerial            function to perform.  The prosecutors were required to deter-            mine what evidence in  their possession was "exculpatory" and            subject to  disclosure.10  Cf.   Buckley v. Fitzsimmons,                                            ___   _______    ___________  ____            U.S.       ,  113 S.  Ct. 2606, 2616  (1993) (when prosecutor                  _____            evaluates  evidence and  interviews witnesses  in preparation            for  trial, he functions within  the scope of absolute immun-            ity).  Imbler expressly recognized that requiring prosecutors                   ______            to defend     in section 1983 actions    decisions concerning            the  "materiality of  evidence  not revealed  to the  defense            could impose unique and intolerable burdens upon a prosecutor            responsible annually for hundreds of indictments and trials."            Imbler, 424 U.S. at 425-26.  The view expressed in the Imbler            ______                                                 ______                                        ____________________               10We recognize that N.H.  Rev. Stat. Ann.   631-A:6,  on its          face,  bans evidence of prior sexual activity by a prosecutrix in          a  rape case:    "Prior consensual  sexual  activity between  the          victim and any person other than the actor shall  not be admitted          into  evidence in any prosecution  under this chapter."  However,          the New Hampshire Supreme Court has read a constitutional limita-          tion into this statutory  ban in statutory rape  cases, so as  to          preserve  the statute  from  infirmity to  constitutional attack.          Howard, 121 N.H. at 61 (state constitution requires that the jury          ______          be informed  of prior sexual  experience of child  prosecutrix in          statutory rape case,  since jury otherwise  could infer that  the          prosecutrix must have gained her knowledge of sexual anatomy only          through the alleged sexual  assault).  Whether and when  to admit          such evidence  rests within  the discretion  of the trial  court.          State v. Cox, 575 A.2d 1320, 1322-23 (N.H. 1990) (upholding trial          _____    ___          court's exercise  of  discretion admitting  Howard-type  evidence                                                      ______          only during  cross-examination  of  prosecutrix).    Thus,  these          prosecutors  retained  some discretion,  at least,  in evaluating                                 ____          whether  the  putative  prior attacks  against  Misty constituted          Brady evidence.  We do not suggest, of  course, that the prosecu-          _____          tors were free to disregard the state court disclosure order, nor          that  there were no alternative means of avoiding a violation, as          by submitting the evidence for in camera review.                                         __ ______                                         -12-                                          12            dissent    that absolute  immunity should attach only  if the            prosecutor  has disclosed all  facts which cast  doubt on the            State's evidence    was rejected  by the Imbler Court because                                                     ______            such a  requirement  would  interfere  "with  the  legitimate                                                               __________            exercise of prosecutorial  discretion."  Id. at  432.  Imbler            ________ __ _____________  __________    ___           ______            thus implicitly acknowledged  that prosecutors retain discre-                                                                  _______            tion  to determine  what evidence  is to  be  disclosed under            ____            Brady and  that absolute immunity attaches  to their exercise            _____            of discretion.                       The further allegation  that these prosecutors  re-            peatedly misled  the trial  court in order  to conceal  their            alleged  misconduct does  not defeat  absolute immunity.   In            Burns v.  Reed, 500 U.S. 478,  489-90, 111 S.  Ct. 1934, 1941            _____     ____            (1991),  the Court sustained  absolute prosecutorial immunity            for "making  false or defamatory statements  in judicial pro-            ceedings  (at least so long as the statements were related to            the proceeding), and also  for eliciting false and defamatory            testimony from witnesses."  Imbler stated that it is "'better                                        ______            to leave  unredressed the  wrongs done by  dishonest officers            than to  subject those who try  to do their duty  to the con-                                               __ _____ ____            stant dread  of retaliation.'"  See Imbler,  424 U.S.  at 428                                            ___ ______            (quoting Gregoire  v. Biddle,  177  F.2d 579,  581 (2nd  Cir.                     ________     ______            1949), cert. denied, 339 U.S. 949 (1950)).11                    _____ ______                                        ____________________               11Reid counters with Martinez v. Winner, 771 F.2d  424 (10th                                    ________    ______          Cir. 1985) (holding  that prosecutor is not entitled  to absolute          immunity for filing false  affidavit in bar disciplinary proceed-                                         -13-                                          13                      Nor  was  absolute immunity  forfeited  because the            prosecutors  continued to  withhold the  exculpatory evidence            long after  Reid's conviction.12   Imbler specifically  noted                                               ______            that  absolute prosecutorial immunity is an essential guaran-            tee that  reviewing courts focus exclusively  on the fairness            of the underlying trial, not upon any collateral consequences            a reversal might portend for the prosecutor.  Id. at 427; cf.                                                          ___         ___            Patterson  v. Von Riesen, 999 F.2d 1235, 1238 (8th Cir. 1993)            _________     __________            ("The Supreme Court has  created no requirement that prosecu-            tors reveal  their trial mistakes to  maintain their absolute            immunity . . . .").13                                           ____________________          ing to cover  up trial  misconduct), and Briggs  v. Goodwin,  569                                                   ______     _______          F.2d  10  (D.C. Cir.  1977), cert.  denied,  437 U.S.  904 (1978)                                       _____  ______          (holding prosecutor not entitled  to absolute immunity for alleg-          edly  perjuring  himself  during grand  jury  proceedings,  since          prosecutor  was then  acting in  investigative capacity).   These          cases are inapposite, as  they involved prosecutors who  were not          acting as          advocates  for the State.   Moreover, Martinez  was reversed, see                                                ________                ___          Martinez, 778 F.2d 553, 555-56 (10th Cir. 1985), as to the  point          ________          relied on  by Reid, vacated by  the Court, Tyus  v. Martinez, 475                                                     ____     ________          U.S. 1138 (1986), and later dismissed as moot, Martinez, 800 F.2d                                                         ________          230 (10th  Cir. 1986).   Finally, Briggs  is no longer  viable in                                            ______          light  of Briscoe v. LaHue,  460 U.S. 325  (1983) (all witnesses,                    _______    _____          including those  who  give  perjured  testimony,  are  absolutely          immune from civil suit under   1983).  See Briggs v. Goodwin, 712                                                 ___ ______    _______          F.2d  1444 (D.C. Cir. 1983),  cert. denied, 464  U.S. 1040 (1984)                                        _____ ______          (prosecutor who gives perjured  testimony is entitled to absolute          immunity under Briscoe but not Imbler).                          _______         ______               12The first  amended complaint  alleged that  these prosecu-          tors,  unlike  the prosecutor  in  Imbler, did  not  disgorge the                                             ______          exculpatory  evidence  until  more than  a  year  after  Reid was          convicted.                13We also reject the contention that their conduct following          Reid's conviction is  actionable under Houston v. Partee,  758 F.                                                 _______    ______          Supp. 1228,  1230-31 (N.D.  Ill. 1991) (holding  that prosecutors                                         -14-                                          14                      Reid  further  contends  that  the  district  court            failed  to address his claim against the prosecutors in their            official capacities.   In  order to  prevail on  an "official            ________ __________            capacity" claim, Reid would have to show that the  particular            governmental entity had an unconstitutional custom or policy,            Monell v. New  York City  Dep't. of Social  Servs., 436  U.S.            ______    ________________________________________            658,  690 (1978),  which its  representatives were  executing            with  at least  the  tacit approval  of governmental  policy-            makers.  Id. at 691 ("customs and usages" of local government                     ___            may satisfy Monell requirement).  Reid insists that he plead-                        ______            ed actionable claims  against the County  Prosecutor's office            and the County of Hillsborough by alleging that the defendant            prosecutors, themselves  policymaking officials, continuously            refused to produce the exculpatory evidence the court ordered                                        ____________________          are not entitled to absolute immunity for suppressing exculpatory          evidence first acquired  after   1983 plaintiffs' murder  convic-                   _____ ________  _____          tions), aff'd, 978 F.2d 362 (7th Cir. 1992), cert. denied, 113 S.                  _____                                _____ ______          Ct.  1647  (1993).   The  Houston  plaintiffs were  convicted  of                                    _______          shooting  a  gang  member.   While  their  appeals  were pending,          another gang member, in the context of a different investigation,          informed  the  prosecutor  as to  the  identities  of  the actual          killers.Theprosecutor, nolongerrepresentingtheState inplaintiffs'          criminal appeals,  did not  disclose this information  to defense          counsel.   A  few years  after the  convictions were  affirmed on          appeal,  the real killers  confessed.  The  three prosecutors who          had  been aware of the  evidence neither disclosed  it to defense          counsel nor to the court, and plaintiffs were unjustly imprisoned          for several more years.                   Houston stressed that absolute  immunity did not attach to                 _______          the prosecutors'  conduct because  they acquired the  evidence in          their  investigative  capacity, at  a  time  when they  were  not                 _____________  ________          representing the  State in the post-conviction  proceedings.  See                                                                        ___          978 F.2d at 366-67.  Reid has not alleged that  these prosecutors          did  not represent the State  after his conviction.   Indeed, the          record suggests otherwise.                                          -15-                                          15            disclosed.          We do not reach the question whether Reid            alleged the requisite custom  or practice under Monell, since                                                            ______            he  has  not  challenged  the  magistrate-judge's  report and            recommendation  on this  basis.  See  Henley Drilling  Co. v.                                             ___  ____________________            McGee,  36 F.3d 143, 150  (1st Cir. 1994)  (citing Park Motor            _____                                              __________            Mart Inc. v.  Ford Motor  Co., 616  F.2d 603,  605 (1st  Cir.            _________     _______________            1980) ("A party may file objections within ten days or he may            not, as he chooses, but  he shall do so if he  wishes further            appellate consideration.")).  Accordingly, all claims against            the prosecutors were properly dismissed.            B.   The Claims Against the Police Officers            B.   The Claims Against the Police Officers                 ______________________________________                      After  the false  arrest  claims  were  allowed  to            proceed, the  police defendants  contended that  the district            court had dismissed, as frivolous,  the claim that the police            deprived Reid  of due  process  of law  and a  fair trial  by            concealing exculpatory evidence.  Unable to obtain clarifica-            tion  of the  district  court dismissal  order, Reid  pursued            further  discovery in  an  attempt to  establish each  police            defendant's awareness  of the exculpatory evidence and wheth-            er,  and when, the officers  had disclosed what  they knew to            one  another and  to  the prosecutors.    The district  court            ultimately permitted the  third amended complaint,  including            the false  arrest claims  and the  concealment claims,  to be            filed against the police defendants.                   (i)  The Third Amended Complaint                 (i)  The Third Amended Complaint                      ___________________________                                         -16-                                          16                      On February 14, 1992, the  magistrate judge ordered            the  police defendants to  respond to  Reid's interrogatories            and requests for production  of documents.  On June  10, Reid            filed a  motion to  compel further responses  to interrogato-            ries, followed  by motions to join  additional defendants and            for permission to file  the third amended complaint alleging,            inter  alia, that  the police  defendants conspired  with the            _____  ____            prosecutors to conceal the  exculpatory evidence.  There fol-            lowed, in July 1992, another motion to compel production.                        Prior to any disposition  of Reid's June 10 motions            to  compel responses to interrogatories and for leave to file            the third amended complaint,  the police defendants moved for            summary judgment on qualified immunity grounds based on their            contention that other evidence in their possession was suffi-            cient  to establish  probable  cause for  Reid's arrest  even            assuming  they had  withheld  the exculpatory  evidence.   In            addition, Sergeant  Simmons  submitted an  affidavit  denying            that  he had withheld police  reports relating to  Misty.  On            August 27, 1992,  Reid requested further  time to respond  to            the police  defendants' motion for summary  judgment, because            he was unable to do so  until the district court ruled on his            discovery requests.14                                         ____________________               14Although Sergeant Simmons made reference to earlier police          reports relating to Misty, he did not mention the DCYS file.  Nor          is  it  clear whether  the police  defendants  were privy  to its          contents prior to Reid's arrest or conviction.                                         -17-                                          17                      In November, 1992,  the case  was transferred  from            Rhode Island to  New Hampshire and reassigned to  a different            district judge.   On  December 14,  the newly  assigned judge            allowed Reid until January 11, 1993, to respond to the police            defendants' motion for summary judgment.  At  the same  time,            the court  directed that  Reid's motions to  compel discovery            and to  substitute the third amended  complaint be considered            "withdrawn"  from  the  docket,  without prejudice  to  their            renewal  by January 4, 1993.  Reid renewed each motion within            the deadline and again  sought additional time to  respond to            the motion for summary judgment.                      On  January 22,  1993, the  district  court allowed            Reid  seven  days to  respond in  writing  to the  motion for            summary judgment.  The court  denied Reid's motion to substi-            tute  the third  amended  complaint insofar  as it  would add            claims  against prosecutors Wageling  and McDonough for mali-            cious  prosecution, denial of  due process  of law  and false            imprisonment caused by the failure to disclose the exculpato-            ry evidence, and against  Attorney Renfro for conspiring with            the  prosecutors to  conceal  the  exculpatory evidence  from            Reid.    At the  same time,  the  court allowed  an amendment            adding  a  separate malicious  prosecution claim  against all            police  defendants and  restating the  claim that  the police            defendants had violated Reid's constitutional rights by  con-            tinuously  withholding the exculpatory evidence.  Lastly, the                                         -18-                                          18            district  court  rejected  Reid's  motion to  compel  further            discovery under Fed. R. Civ. P. 56(f), on the ground that the            discovery sought was not  substantially related to the police            defendants' qualified immunity claims.                        On  February 5,  1993, the  district  court granted            summary judgment for all police defendants.  Relying primari-            ly on  reports of  the police investigation  preceding Reid's            arrest, the  court reasoned  that the police  defendants were            entitled to qualified immunity because an objectively reason-            able police officer, based on all the evidence, including the            exculpatory  information withheld until August of 1988, none-            theless could have believed that  there was probable cause to            arrest Reid for sexually  assaulting Misty, even assuming the            police  defendants  concealed  the   exculpatory  evidence.15            The district court did  not mention the malicious prosecution            claims  relating to the alleged  failure of the police defen-            dants  to disclose  the  exculpatory evidence,  but concluded            that  "when probable  cause exists notwithstanding  the exis-            tence  of  some exculpatory  evidence,  no  violation of  the            Fourth Amendment occurs and  the shield of qualified immunity                                                       _________ ________                                        ____________________               15The district  court did not have  the exculpatory evidence          when it ruled on  either the motion  for summary judgment or  the          motion for reconsideration.  Those materials were in the district          court, however, for a  single day    February 10    after summary                                                              _____          judgment  had been entered against Reid and before the motion for                                                      ______          reconsideration was filed.  Nor did the court have the opportuni-          ty  to consider Reid's pro se memorandum in opposition to summary          judgment before granting summary  judgment against him, though it          did so prior to ruling on the motion for reconsideration.                                           -19-                                          19            remains viable."  (emphasis added).   Final judgment  was en-            tered dismissing all claims  against the police defendants on            February 8.                       On February 10,  the district court  clerk received            and  docketed  Reid's timely  opposition  to  the motion  for                                  ______            summary  judgment, together  with  his supporting  affidavit,            exhibits,  memorandum, and  statement of  contested and  unc-            ontested  facts.16   The  supporting  materials  included the            1985 and 1986 police reports, which recorded prior complaints            of  sexual assaults against Misty, as well as portions of the            DCYS reports describing relevant family history.                        The DCYS  reports described how Misty  and her sis-            ter,  Wendy, had been physically abused by their mother.  The            allegations were made by  Wendy, and by a former  roommate of                                      _____            Misty's  mother.   The  reports related  that Misty's  mother            engaged  in  sexual intercourse  in  Misty's  presence.   The            former roommate  described how she had  found Misty fellating            her four-year-old  son on  April 17,  1985.   Misty's  mother                                        ____________________               16Weekends, legal holidays,  and January 22     the date  of          the denial of the motion to  compel    should have been  excluded          from the  running of the  seven-day filing  period.  See  Fed. R.                                                               ___          Civ. P. 6(a).   Rule  6(e) further  required that  three days  be          added to the prescribed response period since the court order had          been mailed to Reid.   Fed. R. Civ. P. 6(e).   Thus, he had until          February 5,  1993, to respond.  Reid  seasonably filed opposition          to  the motion  for summary  judgment by  depositing it  with the          prison warden  on February 5.  See Houston v. Lack, 487 U.S. 266,                                         ___ _______    ____          275 (1988) (holding that filing periods  for prisoners are deter-          mined when  submitted to prison  warden) (analogous  FRAP 4  con-          text); Oliver v. Commissioner  of Massachusetts Dep't. of Correc-                 ______    ________________________________________________          tions, 30 F.3d 270, 272 (1st Cir. 1994) (same).          _____                                         -20-                                          20            denied  the allegations  and  accused Wendy  of making  false            charges in order  to force  the mother into  allowing her  to            move in with  a boyfriend,  and because Wendy  was under  the            influence of drugs.                       The DCYS reports further  indicated that Wendy  had            refused to return to  her mother's residence for a  period of            two  weeks, and  that  the Manchester  Police had  attempted,            without  success, to find Wendy and return her to her mother.            Wendy requested that she be placed in protective custody, but            that her request  was denied  "due to lack  of concrete  evi-            dence."   Later, after  joint  counseling, Wendy  voluntarily            returned home.  Finally, the DCYS reports reflect that during            1985    the year  before Reid's arrest    Misty's  mother was            under investigation for child abuse and neglect.                        Reid  contended  that  these materials  established            that both Misty and  her mother were unreliable and  that the            mother had an ulterior motive for fabricating charges against            Reid since she had  been the subject of a  DCYS investigation            for abuse and neglect  based on Wendy's allegations  that the            mother repeatedly had beaten her and Misty.17                                          ____________________               17Reid contended further that  the police defendants had not          established their  entitlement to  summary judgment on  his claim          that they  withheld the exculpatory evidence.  The Reid affidavit          attested  that Sergeant  Simmons had  never disclosed     at  the          probable  cause  hearing     his  prior reports  of  contact with          Misty,  nor "any other information  which would lead  a person to          [believe]  that the allegation made by the complainant wasn't the          first such allegation made by her."                                          -21-                                          21                      Although  Reid's  timely opposition  and supporting            materials  were received  and  docketed on  February 10,  the            police reports and the DCYS reports were returned to Reid the            same day  by the clerk, pursuant to  Local Rule 14 which pro-            vides  that the  clerk is  not required  to retain  discovery            materials.  On February 22, Reid moved for reconsideration of            the summary judgment order entered February 8.18  Reconsider-            ation was summarily denied on May 10, 1993, though the excul-            patory evidence was not before the court.  The district court            noted, however, that it  had considered Reid's pro  se objec-                                                           ___  __            tion and memorandum  in opposition to the motion  for summary            judgment, which described some  of the exculpatory  evidence.            Reid appealed.                      We  review  the  summary judgment  order  de  novo,                                                                __  ____            Lallemand v. University of Rhode Island, 9 F.3d 214, 215 (1st            _________    __________________________            Cir. 1993),  the Rule  56(f) order  for abuse of  discretion,            Mattoon v. City of Pittsfield, 980 F.2d 1, 7 (1st Cir. 1992),            _______    __________________            and the  order denying  reconsideration for abuse  of discre-            tion,  Desenne  v. Jamestown Boatyard,  Inc., 968 F.2d  1388,                   _______     _________________________            1392 (1st Cir. 1992).                        The  district  court  prematurely  granted  summary            judgment on the claims that Reid was arrested without  proba-                                        ____________________               18The motion for reconsideration, accompanied by  a support-          ing  affidavit and memorandum, was served  on February 16, within          ten  days of the entry of the district court judgment on February          8, as required by Fed. R. Civ. P. 59(e).                                         -22-                                          22            ble cause and that the police failed to disclose the exculpa-            tory  impeachment  evidence to  the  prosecutors.   As  noted            above, see note 8  supra, a procedural due process  claim may                   ___         _____            not be  redressed under section 1983 where  an adequate state            remedy exists.  Perez-Ruiz v.  Crespo-Guillen, 25 F.3d 40, 42                            __________     ______________            (1st Cir. 1994); Smith  v. Massachusetts Dept. of Correction,                             _____     _________________________________            936 F.2d 1390, 1402 (1st Cir. 1991); Torres v. Superintendent                                                 ______    ______________            of Police,  893 F.2d  404, 410  (1st Cir.  1990).  Since  New            _________            Hampshire  recognizes the common-law  torts of  false arrest,            Hickox v. Morin, 272 A.2d 321, 323 (N.H. 1970), and malicious            ______    _____            prosecution, Stock v. Byers, 424 A.2d 1122, 1123 (N.H. 1980),                         _____    _____            the  claim  that Reid  was  arrested  without probable  cause            should  have  been addressed  under  New  Hampshire law,  not            section  1983.   Richardson v.  Chevrefils, 552  A.2d 89,  92                             __________     __________            (N.H. 1988); Opinion of the Justices, 493 A.2d  1189-90 (N.H.                         _______________________            1985);  Merrill v. Manchester, 332  A.2d 378, 383 (N.H. 1974)                    _______    __________            (abrogating doctrine  of municipal immunity);  see also  N.H.                                                           ___ ____            Rev. Stat. Ann.   491:24.  On the other hand, the  allegation            that the  police withheld  the exculpatory evidence  from the            prosecutors  does not  state  an actionable  claim under  New            Hampshire common law and thus  must be analyzed under federal            law in accordance with section 1983 jurisprudence.  See Walk-                                                                ___ _____            er  v. City of  New York, 974  F.2d 293, 300  (2d Cir. 1992),            __     _________________            cert. denied, 113 S.  Ct. 1387 (1993), and cert.  denied, 113            ____  ______                               _____  ______            S.  Ct. 1412 (1993); Henderson v. Fisher, 631 F.2d 1115, 1119                                 _________    ______                                         -23-                                          23            (3d Cir. 1980) (per  curiam); Taylor v. Hansen, 731  F. Supp.                                          ______    ______            72, 78 (N.D.N.Y. 1990); Carter v. Harrison, 612 F. Supp. 749,                                    ______    ________            758 (E.D.N.Y. 1985).                       Federal  Rule of  Civil Procedure 56(f)  provides a            safety valve for claimants genuinely  in need of further time            to marshal "facts, essential  to justify [their] opposition .            .  . to a summary judgment motion."   Mattoon, 980 F.2d at 7;                                                  _______            see Morrissey v. Boston Five Cents Savings Bank, No. 94-2220,            ___ _________    ______________________________            slip op. at 17-20  (1st Cir. 1995) (further discovery  sought            under  Rule 56(f) must be  such as could  establish a triable            issue).  The Rule 56(f) motion must "(1) articulate a plausi-            ble basis  for the  belief that discoverable  materials exist            which  would raise  a trialworthy  issue and  (2) demonstrate            good cause for failure  to have conducted discovery earlier."            Id.  We  have held that  where the movant  satisfies the  re-            __            quirements  of Rule  56(f), "a  strong presumption  arises in            favor  of relief."   Resolution Trust  Corp. v.  North Bridge                                 _______________________     ____________            Assoc., 22 F.3d 1198, 1203 (1st Cir. 1994).              ______                      Reid made a  timely motion to  defer ruling on  the            summary  judgment motion,  supported by  an affidavit  suffi-            ciently  describing the  requested discovery.   Prior  to the            Rule 56(f) motion, moreover, the magistrate judge had ordered            the police defendants to respond to interrogatories previous-            ly  filed by Reid.  The police defendants have never complied            with  the order  to respond  to these  interrogatories.   The                                         -24-                                          24            unanswered interrogatories directly concern the critical DCYS            reports  on Misty, Wendy and their mother, and when the vari-            ous police defendants became aware of these reports.                       The  requested  discovery was  essential  to Reid's            claims against  the police  defendants.  When  the individual            police  defendants learned  of  the  exculpatory evidence  is            relevant to (1) whether  the individual defendants reasonably            could have believed there was  probable cause to arrest  Reid            (false  arrest  claim) and  (2)  whether  they initiated  the            criminal prosecution knowing that probable cause was  lacking            (malicious prosecution claim).  When the exculpatory evidence            was transmitted to the prosecutors is relevant to determining            (3) whether  the individual defendants attempted  to withhold            Brady  material from  the prosecutors  (section 1983  claim).            _____            The unanswered interrogatories  were pertinent  to all  these            matters.    As the  discovery sought  is  such that  it could            arguably generate  a trialworthy  issue of material  fact, we            must determine  whether Reid  complied with the  other stric-            tures of Rule 56(f).                      Given the  direct police involvement in  the bitter            dispute  between Wendy  and her  mother, and  the two  police            reports relating prior  sexual abuse of  Misty, it cannot  be            considered  implausible  in the  least  that  the police  had            access to the exculpatory information prior to Reid's arrest.            ______            The  requested  information was  within  the  control of  the                                         -25-                                          25            police defendants, a factor which weighs  heavily in favor of            relief under Rule  56(f).   North Bridge Assoc.,  22 F.3d  at                                        ___________________            1208 (reversing  denial of Rule 56(f)  motion).  Furthermore,            Reid  not only sought discovery  in a timely  manner, but ob-            tained  a  court order  requiring  the  police defendants  to            respond to his interrogatories.   See Mattoon, 980 F.2d  at 7                                              ___ _______            (failure of movant to pursue discovery with diligence permits            denial  of Rule 56(f) motion).  Finally, the Reid motion, af-            fidavit and  interrogatories plainly identified  the informa-            tion  requested.   See  Murphy  v.  Timberlane Regional  Sch.                               ___  ______      _________________________            Dist., 22  F.3d 1186,  1197 (1st Cir.)  (upholding denial  of            _____            Rule 56(f) motion where movant failed to identify information            sought and to submit supporting affidavit), cert. denied, 115                                                        _____ ______            S.  Ct. 489 (1994); Nestor  Colon Medina &  Sucesors, Inc. v.                                ______________________________________            Custodio, 964 F.2d 32,  39 (1st Cir. 1992) (finding  abuse of            ________            discretion  in denying  portion  of Rule  56(f) motion  which            clearly  related facts  which  would generate  a  trialworthy            issue).                        In these circumstances Reid was entitled to receive            responses to  the  unanswered interrogatories  as  previously            ordered by the court,  and the additional discovery requested            in the Rule 56(f) motion.  See generally Farmer v. Brennan,                                         ___ _________ ______    _______  _             U.S.    , 114 S. Ct. 1970, 1985 (1994) (remanding Rule 56(f)                  ___            ruling for  reconsideration in light of  Court's holding that            the central issue governing  plaintiff's claim was when state                                         -26-                                          26            officials actually acquired certain information).  On remand,            therefore,  Reid  should  be  allowed  to conduct  reasonable            further discovery relating to  the state-law and section 1983            claims against the police defendants.             C.   The Conspiracy Claim Against Defense Counsel            C.   The Conspiracy Claim Against Defense Counsel                 ____________________________________________                      Lastly, Reid challenges the denial of his motion to            amend the third  amended complaint by  adding the claim  that            Attorney Renfro conspired with the prosecutors to conceal the            exculpatory  evidence.   We review  for abuse  of discretion.            Correa-Martinez v.  Arrillaga-Belendez, 903 F.2d  49, 59 (1st            _______________     __________________            Cir. 1990).   "Where an  amendment would be  futile or  would            serve no  legitimate purpose,  the district court  should not            needlessly prolong matters."  Id.                                            ___                      The  allegation  that  Renfro  saw  the exculpatory            evidence,  yet did not bring  it to Reid's  attention, is too            conclusory to state a  viable conspiracy claim.  See  Hunt v.                                                             ___  ____            Bennett,  17 F.3d  1263,  1268 (10th  Cir.) (allegation  that            _______            attorney  provided incompetent  defense held  insufficient to            generate triable issue on  conspiracy charge), cert.  denied,                                                           _____  ______            115 S. Ct. 107 (1994).  The conclusory allegation that Renfro            had  access  to the  prosecution's  file  is insufficient  to            generate a  trialworthy issue  as  to whether  he had  actual            knowledge  of the  exculpatory  evidence, since  there is  no            allegation that  the prosecution materials  made available to            Renfro included  the exculpatory  material.  See  Slotnick v.                                                         ___  ________                                         -27-                                          27            Garfinkle, 632 F.2d 163, 165-66 (1st Cir. 1980) (per curiam).            _________            Accordingly, we conclude that the refusal to allow yet anoth-            er amendment to  the complaint  at the present  time did  not            constitute an abuse  of discretion under  the Correa-Martinez                                                          _______________            standard.19                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  foregoing reasons,  we affirm the  summary            judgment  dismissing the claims  against prosecutors Wageling            and  McDonough and  the  conspiracy  claim against  defendant            Renfro.    We vacate  the judgment  entered  in favor  of the            police defendants,  Simmons, Gilman,  Ahern and Paul,  on the            false arrest, malicious prosecution, and due process  claims,            and  remand  all claims  against  the  police defendants  for            further proceedings,  including  reasonable discovery.    The                                                                      ___            police defendants shall bear  two-thirds of appellant's costs            ______ __________ _____ ____  __________ __ ___________ _____            on  appeal; all other costs are to  be borne by the party who            __  ______  ___ _____ _____ ___ __  __ _____ __ ___ _____ ___            incurred them.            ________ ____                      So ordered.                      So ordered.                      __ _______                                        ____________________               19We note, nonetheless, that should further discovery result          in new evidence relating to the nature and timing of the prosecu-          tors'  and  defense  counsel's  acquisition  of  the  exculpatory          evidence, we  are confident that  a responsive proposal  to amend          the claim against Renfro  would be accorded due  consideration in          light of  the appropriate equitable  criteria.  See  Quaker State                                                          ___  ____________          Oil  Refining v. Garrity Oil  Co., 884 F.2d  1510, 1517 (1st Cir.          _____________    ________________          1989).                                         -28-                                          28
