Farrelly v. Concord, City of et al

Filing 28

ORDER denying 18 Motion to Dismiss. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

John Farrelly
v.

Civil No. 10-cv-583-LM

City of Concord, N.H.; Eric
J. Pilcher; and Walter Carroll

O R D E R
John Farrelly has sued the City of Concord and two of its
police officers, asserting three federal constitutional claims,
by means of 42 U.S.C. § 1983, and three claims under state law.
All six claims arise out of Farrelly’s 2009 arrest and aborted
prosecution on four counts of criminal harassment.
court is defendants’ motion to dismiss.

Before the

Farrelly objects.

For

the reasons that follow, defendants’ motion to dismiss is
denied.

Background
The following background is drawn from Farrelly’s
complaint.

Farrelly was arrested by officers of the Concord

Police Department for violating a statute that had been declared
unconstitutional by the New Hampshire Supreme Court three years
before his arrest.

Due to the way in which he was handcuffed,

Farrelly suffered a torn bicep and a new tear to a previously
torn rotator cuff.

Those injuries required surgical repair.

Notwithstanding the unconstitutionality of the statute under
which Farrelly had been charged, his prosecution continued until
the day before trial, at which time the charges against him were
nol prossed.
This suit followed.

In it, Farrelly presses federal

constitutional claims based on the First, Fourth, and Fourteenth
amendments (Counts I-III), along with state-law claims for
malicious prosecution (Count IV), false imprisonment (Count V),
and violation of the New Hampshire Constitution (Count VI).

He

seeks several forms of relief including compensatory damages
for, among other things, the physical injuries he claims to have
suffered.

Discussion
Without invoking Rule 12(b)(6) of the Federal Rules of
Civil Procedure, or any other source of authority, defendants
move to dismiss.

They argue that Farrelly is barred from

pursuing the claims he asserts because: (1) the Concord District
Court granted his petition to annul his arrest record, pursuant
to N.H. Rev. Stat. Ann. (“RSA”) § 651:5 which means that, “as a
matter of law, no arrest occurred,” Defs.’ Mot. to Dismiss (doc.
no. 18); and (2) the Rooker-Feldman doctrine precludes Farrelly
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from effectively appealing the Concord District Court’s orders
of August 4, 2009 (granting his petition to annul), and April
26, 2011 (returning, without action, his motion to vacate the
annulment of his arrest records).
Plaintiff concedes that his arrest record was annulled by
order of the Concord District Court.

He does not concede,

however, that his arrest was annulled, as defendants seem to
suggest.

See Defs.’ Mot. to Dismiss ¶ 7.

Annulment of an

arrest record is an administrative matter well within the power
of the legislature to provide for.

Annulment of an arrest would

seem to require metaphysics beyond the ken of any legislative
body.
RSA 651:5, II, provides that a person such as Farrelly,
“whose case was . . . not prosecuted, may petition for annulment
of [his] arrest record.”

When a person’s arrest record has been

annulled, he “shall be treated in all respects as if he had
never been arrested.”

RSA 651:5, X(a).

However, while the

statute permits the annulment of the records of “arrest,
conviction, and sentence,” RSA 651:5, I, it does not affect any
right:
(a) Of the person whose record has been annulled
to appeal from the conviction or sentence or to rely
on it in bar of any subsequent proceedings for the
same offense; or
(b) Of law enforcement officers . . . to
communicate information regarding the annulled record
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of arrest . . . in defense of any civil suit arising
out of the facts of the arrest . . .
RSA 651:5, XI.
The statute quoted above requires others to treat Farrelly
in all respects as if he had never been arrested, but it does
not require Farrelly to treat himself as if he had never been
arrested.

As the statute expressly allows a person to appeal a

conviction even though the record of that conviction has been
annulled, it cannot reasonably be read to bar Farrelly from
bringing a suit based on an arrest even though the record of
that arrest has been annulled.
Moreover, as Farrelly points out, RSA 651:5, XI(b),
contemplates civil suits arising out of the facts of arrests
from which the records have been annulled.

For their part,

defendants correctly note that RSA 651:5, XI(b), does not
affirmatively grant a cause of action to persons whose arrest
records have been annulled.

But, at the same time, nothing in

the statute expressly bars claims such as the ones Farrelly
brings here.

Defendants further argue that the purpose of the

provision in question is merely to allow defendants such as
themselves to file motions to dismiss claims that have been
wrongfully brought by plaintiffs such as Farrelly.

Notably,

however, defendants attached three exhibits to their motion to
dismiss, none of which was a record of Farrelly’s arrest.

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For the guidance of the parties as this case progresses,
the court further notes that because Farrelly has placed his
arrest squarely at issue, it would be absurd to construe RSA
651:5, X(a), as requiring defendants’ trial witnesses to treat
Farrelly as if he had never been arrested and, thus, barring
them from referring to his arrest record.

RSA 651 XI(b)

expressly allows law enforcement officers to communicate
information about annulled arrest records in defense of civil
suits, such as this one, arising out of the facts of an arrest.
If a law enforcement officer involved in this case lawfully
communicates information about Farrelly’s arrest record in
defense of Farrelly’s claims then, necessarily, the lawful
recipient of that information may testify about it at trial, so
long as any such testimony is otherwise permitted by the rules
of evidence.
Finally, the court turns, briefly, to defendants’ RookerFeldman argument.

“The Rooker-Feldman doctrine precludes ‘the

losing party in state court [from filing] suit in federal court
after the state proceedings [have] ended, complaining of an
injury caused by the state-court judgment and seeking review and
rejection of that judgment.’”

Coggeshall v. Mass. Bd. of Reg.

of Psychologists, 604 F.3d 658, 663 (1st Cir. 2010) (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp, 544 U.S. 280, 291
(2005)).

Defendants appear to contend that because this court
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must give preclusive effect to the judgments of the Concord
District Court, and Farrelly is barred from seeking what amounts
to an appeal of those judgments in this court, his claims in
this case are subject to dismissal.

Defendants’ argument is

unavailing for the simple reason that, as explained above, the
Concord District Court’s annulment of the records of Farrelly’s
arrest creates no obstacle to the claims he brings in this suit.
That means he has no need to undo any decision by that court as
a prerequisite to proceeding in this court.

Accordingly, there

is no Rooker-Feldman issue.

Conclusion
For the reasons given above, defendants’ motion to dismiss,
document no. 18, is denied.
SO ORDERED.

_________________________________
Landya B. McCafferty
United States Magistrate Judge
Date: September 12, 2011
cc:

Charles P. Bauer, Esq.
H. Jonathan Meyer, Esq.

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