Gorsuch v. Maloney et al

Filing 42

///ORDER granting 21 Bowman's Motion to Dismiss as to Count II; denying 22 Nash's Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Michael Gorsuch
v.

Civil No. 10-cv-495-JD
Opinion No. 2011 DNH 089

James Maloney, et al.
O R D E R
In his first complaint, Michael Gorsuch brought federal and
state claims, naming the City of Nashua, several Nashua police
officers, and New Hampshire State Troopers Carleen Bowman and
Mark Nash as defendants.

Gorsuch then filed an amended complaint

to add a federal conspiracy claim against Nashua, Nashua police
officers and Troopers Bowman and Nash.

Bowman and Nash move to

dismiss the malicious prosecution claim in Count II of the
Amended Complaint.1

Gorsuch concedes that his claims against

Bowman and Nash in their official capacities should be dismissed,
reiterates his claims against them in their individual
capacities, and objects to dismissing his malicious prosecution
claim.

1

Although Bowman refers to the federal claim against her in
her motion to dismiss, she does not make any developed argument
as to why it should be dismissed. Therefore, the motion is
construed to address only the state law claim in Count II.

There appears to be confusion about which claims are brought
against Bowman and Nash.

In Count II, the malicious prosecution

claim arising from the “administrative driver’s license
proceeding,” Gorsuch names as defendants the City of Nashua, the
State of New Hampshire, Nashua police officers Maloney and
Fisher, and Trooper Bowman.2

Nash is not named as a defendant in

Count II, and, therefore, that claim is not brought against Nash.
Although Nash is named as a defendant in Count X, neither
Nash nor Bowman has provided an appropriately supported motion to
dismiss Count X.3

Therefore, the motion to dismiss filed by Nash

is denied because it fails to address the claim brought against
him.

The court considers Bowman’s motion only as it pertains to

Count II.

Standard of Review
When a defendant moves to dismiss the plaintiff’s claim or
claims under Federal Rule of Civil Procedure 12(b)(6), the court

2

Although the State of New Hampshire is listed as a
defendant in Count II, the State is not included in the caption
of the Amended Complaint nor does it appear that the state was
served as a defendant in the case.
3

In their replies, Bowman and Nash attempt to broaden the
scope of their motions to include Count X. Because a reply
cannot serve that purpose, the new arguments are not considered
here.
2

“accept[s] as true all well-pleaded facts in the complaint and
draw[s] all reasonable inferences in favor of the plaintiff.”
Decotiis v. Whittemore, 635 F.3d 22, 27 (1st Cir. 2011) (internal
quotation marks omitted).

To state a claim, the plaintiff must

allege "a plausible entitlement to relief," meaning "a claim to
relief that is plausible on its face."

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 559 (2007).

The Rule 12(b)(6)

standard requires more than labels, conclusions, or a mere
recitation of the elements of a cause action.
129 S. Ct. 1937, 1949 (2009).

Ashcroft v. Iqbal,

Plausibility does not require

allegations amounting to a probability but needs more than a mere
possibility.

Id.

Background
The following summary of the pertinent facts is taken from
Gorsuch’s Amended Complaint.
Michael Gorsuch and his friend, Daniel Rodriguez, celebrated
the Red Sox World Series win on October 28, 2007, at the Sky
Lounge in Nashua, New Hampshire.

Gorsuch and Rodriguez then left

in a car that Rodriguez had taken home from the Toyota Scion
dealership, where he worked.
the passenger seat.

Rodriguez drove, and Gorsuch was in

Neither wore seatbelts.

3

During the drive

home on Thornton Street in Nashua, Rodriguez lost control of the
car, which spun several times and hit a large tree.
Rodriguez was killed in the accident.

Gorsuch was protected

by the passenger side airbag and was not seriously injured.
Nashua Fire and Rescue and Nashua Police Department officers
responded to the scene of the accident.

The collision

reconstruction team was headed by Lieutenant John C. Fisher and
included Sergeant James Maloney and Officer Jeff Maher.

They

determined that the accident appeared to be a negligent homicide.
Gorsuch was charged with negligent homicide.
The Nashua police officers determined that Gorsuch was
driving the car when the accident occurred.

Gorsuch’s attorney

obtained a technical accident reconstruction which determined
that Gorsuch was a passenger and that Rodriguez was driving the
car.

After reviewing both accident reconstruction analyses at

the request of the County Attorney, former New Hampshire State
Trooper Gordon Johnson agreed with Gorsuch’s reconstruction
report that Rodriguez was the driver.

The County Attorney then

ordered that the case be “nolle prossed” just before trial.
Maloney, Fisher, and the Nashua Police Department then asked
New Hampshire State Troopers Carleen Bowman and Mark Nash to
prosecute Gorsuch in an administrative proceeding to take away
Gorsuch’s right to drive in New Hampshire.
4

Bowman prosecuted

Gorsuch in administrative hearings on May 20, 2009, and June 30,
2009, presenting evidence provided to her by the Nashua police.
Nash prosecuted the case and presented evidence, also from the
Nashua police, at a hearing on December 4, 2009.

The hearings

examiner determined that the state had not shown that Gorsuch was
driving the car.

Discussion
Gorsuch brings a state law claim of malicious prosecution
against Trooper Bowman in Count II.

Bowman moves to dismiss the

claim on the grounds of sovereign immunity and absolute
prosecutorial immunity.

Gorsuch objects to the motion, except

that he concedes that his claim against Bowman in her official
capacity is barred by sovereign immunity under the Eleventh
Amendment.

A.

Sovereign Immunity
Gorsuch alleges Count II against Bowman in her individual

and official capacities.

Under the Eleventh Amendment, “a state

may not be sued directly absent its own consent . . . .”
Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 477 (1st
Cir. 2009).

Suits against state employees in their official

capacities are barred by the state’s sovereign immunity unless
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the plaintiff seeks only prospective injunctive or declaratory
relief.

Id. at 478.

Gorsuch does not dispute that the Eleventh Amendment bars
his claim against Bowman in her official capacity and concedes
that the claim cannot proceed.

He contends, however, that his

claim against Bowman in her individual capacity does not
implicate sovereign immunity.

Bowman’s motion does not address

sovereign immunity in the context of the individual capacity
claim.

Count II is thus dismissed against Bowman in her official

capacity based on sovereign immunity.

B.

Prosecutorial Immunity
“Absolute immunity protects the prosecutor’s ‘“role as

advocate for the State,”’ and not his or her role as an
‘“administrator or investigative officer.”’”

Guzman-Rivera v.

Rivera-Cruz, 55 F.3d 26, 29 (1st Cir. 1995) (quoting Burns v.
Reed, 500 U.S. 478, 491 (1991), in turn quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)).

“The decision whether or

not to charge is at the core of the prosecutorial functions the
courts have sought to insulate from second guessing through civil
litigation.”

Harrington v. Almy, 977 F.2d 37, 40 (1st Cir.

1992); see also Belcher v. Paine, 136 N.H. 137, 144-45 (1992).
“State officials performing prosecutorial functions--including
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their decisions to initiate administrative proceedings aimed at
legal sanctions--are entitled to absolute immunity as well.”
Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 701 (1st
Cir. 1995).
In Count II, Gorsuch alleges that Bowman, along with the
City of Nashua, the State of New Hampshire, James Maloney, and
John Fisher, subjected Gorsuch to civil proceedings at the New
Hampshire Department of Safety without probable cause and for an
improper purpose.

Bowman moves to dismiss the claim against her

in Count II on the ground of prosecutorial immunity.

Gorsuch

objects, citing his federal conspiracy claim in Count X.

In

particular, Gorsuch cites paragraphs 99 through 105 of his
Amended Complaint, which are part of Count X.
As is explained above, Bowman moves to dismiss Count II
based on prosecutorial immunity, not Count X.

Gorsuch does not

allege a conspiracy in Count II, although Count II does purport
to incorporate all allegations contained in preceding and
subsequent paragraphs of the Amended Complaint.

Even if

paragraphs 99 through 105 were considered as part of Count II,
however, Gorsuch fails to explain why the allegations would
preclude prosecutorial immunity.
In Count II and in paragraphs 99 through 105 Gorsuch alleges
that Bowman “initiated or procured the initiation of a civil
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proceeding, or prosecuted the civil proceeding.”
¶ 56 & ¶ 102.

Am. Compl. at

Gorsuch further alleges that Bowman knew or should

have known that probable cause was lacking and that she initiated
the proceeding “primarily be [sic] reason of ill will or
hostility, or primarily to obtain a personal advantage.”
¶ 60.

Id. at

Although Gorsuch argues that Bowman was acting as an

investigator, not a prosecutor, and that she engaged in “nonprosecutorial acts,” he does not provide any such allegations in
his Amended Complaint.

(Document 26, Ex. 1, p. 10).

Instead, Gorsuch alleges that Bowman is liable for malicious
prosecution based on procuring and initiating the proceeding
against him at the Department of Safety.

A decision to initiate

an administrative proceeding with the purpose of imposing legal
sanctions is entitled to absolute prosecutorial immunity.
55 F.3d at 701.

Wang,

The prosecutor’s alleged malicious intent in

initiating proceedings does not preclude absolute prosecutorial
immunity.

See Belcher, 136 N.H. at 147-48.

Therefore, Bowman is

entitled to prosecutorial immunity against liability for
malicious prosecution, and the claim against her in Count II must
be dismissed.

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Conclusion
For the foregoing reasons, Nash’s motion to dismiss
(document no. 22) is denied.

Bowman’s motion to dismiss

(document no. 21) is granted as to Count II, which is dismissed
as to Bowman.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 1, 2011
cc:

Brian J.S. Cullen, Esquire
Richard J. Lehmann, Esquire
Kevin H. O’Neill, Esquire

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