Reid v. Simmons

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1366 GORDON C. REID, Plaintiff, Appellant, v. GARY SIMMONS, ET AL.,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, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge. Gordon C. Reid on brief pro se. Robert G. Whaland and McDonough & O'Shaughnessy, P.A. on brief for appellees. April 15, 1999 Per Curiam. This case returns to us following our remand in Reid v. New Hampshire, 56 F.3d 332 (1st Cir. 1995) (Reid I). Plaintiff Gordon C. Reid, appearing pro se, appeals from an order that granted the defendants' motion for summary judgment on a compendium of claims under both federal and state law. Having thoroughly reviewed the record and the parties' briefs, we affirm the district court's well-considered opinion in all respects but one. We first discuss all of Reid's claims, save for his Brady-based claim that the defendant Simmons failed to disclose two exculpatory police reports to state prosecutors. On this group of claims, brevis disposition was appropriate. We need not linger, for the district court's opinion touches the relevant bases. We therefore affirm for substantially the reasons set forth by Judge McAuliffe, adding only a brief comment. The proof of probable cause is not diluted past the point of no recall either by the evidence of Misty's past sexual abuse and emotional problems, or by the fact that her mother had been investigated for child abuse. In turn, the sufficiency of the probable cause evidence defeats Reid's false arrest, malicious prosecution, and negligence claims. Moreover, since Reid failed to adduce any evidence of a conspiracy, summary judgment with respect to that claim also was proper. Hence, we affirm the entry of summary judgment in all these respects. We are left with the Brady-based claim, which has force only as to defendant Simmons. On that claim, we vacate the summary judgment and reinstate the claim for further proceedings in the district court, aimed at ascertaining whether Simmons failed to disclose to the prosecutors who tried the underlying criminal case against Reid the two exculpatory reports, dated December 20, 1985 and April 4, 1986, respectively, that he (Simmons) had authored in the course of police investigation. We reach this result because the district court resolved this claim by finding it "undisputed" that Simmons "openly discussed" these reports at Reid's probable cause hearing. The record refutes this finding. Indeed, the fact of such disclosure, as well as its nature and extent (if any), were hotly disputed. This dispute is amply evidenced by the affidavit that Reid filed in opposition to the defendants' motion for summary judgment (original paper #251, Affidavit (2) of Gordon Reid, 10-12) and by paragraph 10 of an earlier affidavit that Reid filed in response to the defendants' initial motion for summary judgment (incorporated by reference in Reid's opposition to the later dispositive motion), see Reid I, 56 F.3d at 340 n.17 (describing earlier affidavit). Thus, summary judgment was insupportable on the district court's stated rationale. To be sure, Simmons made several other arguments in search of summary judgment on this claim. We have canvassed these arguments, see Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996) (explaining that the court of appeals may affirm the entry of summary judgment on any alternative ground made manifest in the record), and find no readily ascertainable basis for affirming the district court's order on an independent ground. Simmons' most touted alternate argument is that the trial judge's order vacating Reid's conviction collaterally estopped Reid from disputing the fact that Simmons disclosed the reports to the prosecutors during Reid's probable cause hearing. This asseveration is unpersuasive. The trial judge's order, examined (as it must be) in light of the pleadings that led to it, see Caouette v. Town of New Ipswich, 484 A.2d 1106, 1113 (N.H. 1984), plainly reveals that several prerequisites for application of collateral estoppel are lacking (e.g., there is no identity of issues, and, in all events, the critical issue whether Simmons' previous testimony sufficed to disclose the exculpatory reports to the prosecutors does not appear to have been fully and fairly litigated in the earlier hearing on Reid's motion to vacate his conviction). Perhaps most importantly, a prosecutor has a duty to disclose material exculpatory evidence known to police acting in concert with the prosecutor whether or not the prosecutor, himself, succeeds in learning of the evidence. See Kyles v. Whitley, 514 U.S. 419, 43738 (1995); United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1997); Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997), cert. denied, 118 S. Ct. 1827 (1998); Smith v. Secretary of Dep't of Correction, 50 F.3d 801, 824 (10th Cir. 1995). Consequently, a finding that Simmons disclosed the exculpatory reports to the prosecutors was not a necessary prerequisite to the judgment vacating Reid's conviction. Therefore, an essential element for the application of collateral estoppel is missing. We need go no further. Simmons' other arguments are even less convincing, and none requires comment at this stage of the case. Accordingly, we vacate the judgment for defendant Simmons on Reid's claim that he failed to disclose the exculpatory police reports to the prosecutors, in derogation of Reid's right to due process, and remand for further proceedings in the district court. We affirm the judgment for Simmons in all other respects, and we affirm the judgment for all other defendants in all respects. All parties will bear their own costs. So Ordered.