S t . Louis v. Eldredge

S t . Louis v . Eldredge CV-95-178-B 01/26/96

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Vincent S t . Louis

v. Civil N o . 95-178-B

Carleton Eldredge, et a l .

O R D E R

Vincent S t . Louis alleges that the Portsmouth police chief,

a Portsmouth city councilor, the City of Portsmouth and its

attorneys, and Rockingham County and its attorneys participated

in a conspiracy to deprive S t . Louis of his constitutional

rights. Defendants challenge S t . Louis's claims in motions for

summary judgment. The individual defendants invoke the doctrines

of absolute and qualified immunity and the city and county

defendants contend that S t . Louis's evidence will not support

municipal liability claims.

I. BACKGROUND

S t . Louis owns and operates the Spaulding Book and Video

Store in Portsmouth, New Hampshire. Spaulding distributes

pornographic books and videos and also maintains booths where the

videos can be viewed on site.

Spaulding encountered significant opposition from the time

it opened for business in April 1993. One of its abutters,

Janice Wood, unsuccessfully challenged Spaulding's occupancy

permit and the city council considered but ultimately declined to

adopt a comprehensive anti-pornography ordinance that would have

put Spaulding out of business. During debate on this ordinance,

Councilor William Wagner allegedly stated that the city should

"do whatever it takes to shut [Spaulding] down."

In response to this public pressure, defendant Carlton

Eldredge, who was then Rockingham County Attorney, formed a task

force of law enforcement officials in May 1993 to investigate

Spaulding and other sexually explicit businesses in Portsmouth.

Task force members made undercover visits to Spaulding and

several other stores and collected evidence indicating that

sexual acts were being performed on the premises. As a result,

Eldredge filed an equity petition in Rockingham County Superior

Court in July 1993, seeking to have Spaulding and other similar

businesses closed as public nuisances.

In September 1993, Janice Wood and a group of other citizens

formed the "Citizens Community Standards Committee of Rockingham

County." The committee declared that its first project would be

2

"to insist upon enforcement of the laws prohibiting the sale of

obscene magazines, videos, and other materials." On September

2 7 , 1993, Portsmouth Police Chief William Burke sent the

Rockingham County Sheriff and other chiefs of police in

Rockingham County an invitation to attend the committee's October

2 6 , 1993, meeting. Both Burke and Eldredge later attended the

meeting.1

On October 4 , 1993, the Portsmouth city council passed an

ordinance entitled "Adult-Oriented Establishments." This

ordinance requires that every "adult-oriented establishment" be

well lighted and that the interiors of video viewing booths be

"clearly visible" from the common areas of the establishment.

The ordinance also prohibits doors and other obstructions that

would block visibility into video viewing areas. City Attorney

Robert Sullivan assisted the council in drafting the ordinance.

On January 6, 1994, Portsmouth Police Detective Albert Kane,

working under Eldredge's direction, purchased a sexually explicit

videotape from Spaulding entitled "Colossal Combo." Eldredge

then caused a criminal obscenity complaint to be filed against

1

The record contains no evidence concerning what occurred

at this meeting.

3

S t . Louis. Assistant County Attorney Robert E . Ducharme led the

prosecution team, and Eldredge appointed Bruce Green, a private

lawyer affiliated with an anti-pornography organization, to act

as an assistant prosecutor in the case. In January 1995,

Eldredge informed a newspaper reporter that the prosecution was

"the first step in a deliberate calculated plan to drive porn

stores out of business . . . ." Nevertheless, in February 1995,

S t . Louis was found not guilty.

On August 3 1 , 1994, Assistant City Attorney, Sharon Cuddy,

wrote a letter to Spaulding's attorney demanding that Spaulding

comply with its parking plan. Cuddy conceded in a subsequent

letter that the city could not base an enforcement action on

Spaulding's failure to comply with the plan. However, she

intimated that Spaulding might become the subject of an

enforcement action or litigation commenced by Wood if it allowed

its patrons to back out onto a city street or otherwise interfere

with a right of way.

S t . Louis filed this action on April 5 , 1995. He bases his

federal claims on his Fourteenth Amendment right to due process

4

and his First Amendment right to free speech.2 He alleges that:

( 1 ) former County Attorney Carleton Eldredge, current County

Attorney William Hart, Assistant County Attorney Robert Ducharme,

and Police Chief Burke are liable for investigating S t . Louis,

commencing the civil nuisance suit against him, and prosecuting

him on the obscenity charges; ( 2 ) Councilman Wagner and City

Attorney Sullivan are liable for their roles in drafting and

enacting the Adult-Oriented Establishments Ordinance; and (3)

Assistant County Attorney Cuddy is liable for attempting to

enforce the parking plan. He also alleges that all of the

individual defendants are liable as conspirators. Finally, he

contends that the city and county defendants are liable for the

actions of their employees.

The individual defendants base their summary judgment

motions on the doctrines of absolute and qualified immunity.

Specifically, the prosecutors contend that they are entitled to

absolute prosecutorial immunity, Councilman Wagner and City

Attorney Sullivan contend that they are protected by absolute

legislative immunity, and all of the individual defendants claim

2

The First Amendment potentially applies here because it

has been incorporated into the Fourteenth Amendment. See Vote

Choice, Inc. v . Distefano, 4 F.3d 2 6 , 31 (1st Cir. 1993).

5

qualified immunity. The municipal defendants argue that S t .

Louis has not produced enough evidence to establish that he has a

triable municipal liability claim against either defendant.

III. STANDARD OF REVIEW

Summary judgment is appropriate if the facts taken in the

light most favorable to the nonmoving party show that no genuine

issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Guzman-Rivera v . Rivera-Cruz, 29 F.3d 3 , 4 (1st Cir. 1994). On

issues that the nonmoving party must prove at trial, the moving

party initially need allege only that the nonmoving party lacks

sufficient evidence to support its case. Celotex Corp. v .

Catrett, 477 U.S. 3 1 7 , 325 (1986). The nonmoving party cannot

rely on the pleadings alone to oppose summary judgment, but must

come forward with properly supported facts to demonstrate a

genuine factual dispute for trial. Id. at 323-24. A "material

fact" is one "that might affect the outcome of the suit under the

governing law," and a genuine factual issue exists if "the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party." Anderson v . Liberty Lobby, Inc., 477

U.S. 2 4 2 , 248 (1986). When the facts are undisputed, the moving

6

party must establish that it is entitled to judgment as a matter

of law. Desmond v . Varrasso (In re Varrasso), 37 F.3d 7 6 0 , 764

(1st Cir. 1994). I apply these standards in ruling on

defendants' motions.

IV. DISCUSSION

A. Individual Defendants

1. Prosecutorial Immunity

Absolute prosecutorial immunity shields a prosecutor from

suit for actions taken in his or her "`"role as advocate for the

State."'" Guzman-Rivera v . Rivera-Cruz, 55 F.3d 2 6 , 29 (1st Cir.

1995) (quoting Burns v . Reed, 500 U.S. 4 7 8 , 491 (1991), in turn

quoting Imbler v . Pachtman, 424 U.S. 409, 430-31 n.33 (1976)).

However, a prosecutor is not entitled to absolute immunity for

actions taken in an administrative or investigative capacity.

Guzman-Rivera, 55 F.3d at 2 9 . Thus, a defendant's right to

absolute immunity will depend upon "`the nature of the function

performed, not the identity of the actor who performed it.'"

Buckley v . Fitzsimmons, 113 S . C t . 2606, 2613 (1993) (quoting

Forester v . White, 484 U.S. 219, 229 (1988)). At one end of the

functional spectrum, actions that are "intimately associated with

7

the judicial phase of the criminal process," such as initiating a

prosecution and presenting the state's case, are clearly

protected. Imbler, 424 U.S. at 430-31. At the other end,

actions that are commonly carried out by police officers or other

personnel and are removed from the judicial process, such as

investigating for evidence to support a probable cause

determination, are entitled only to qualified immunity. Buckley,

113 S . C t . at 2616.

Absolute immunity plainly shields the prosecutors in the

present case from suit for any claim based upon their decision to

charge and prosecute S t . Louis for obscenity violations. It also

protects Eldredge from liability based upon his selection of the

prosecutors who would handle the case in court. There is simply

no basis for S t . Louis's claims that the doctrine does not apply

to a prosecutor's charging decision. See, e.g., Harrington v .

Almy, 977 F.2d 3 7 , 40 (1st Cir. 1993) ("the interest that

prosecutorial immunity is designed to protect--independence in

the charging decision--is implicated whether the decision is to

initiate a prosecution or decline to do s o " ) . Nor does First

Circuit precedent support S t . Louis's claim that the defendants

forfeited their right to prosecutorial immunity if they were

driven to prosecute him by an improper motive. Wang v . New

8

Hampshire Bd. of Registration in Medicine, 55 F.3d 6 9 8 , 702 (1st

Cir. 1995). Therefore, defendants are entitled to absolutely

immunity with respect to such claims.

Eldredge is also entitled to absolute immunity with respect

to any claims based upon his decision to bring a civil nuisance

suit against S t . Louis. Actions undertaken by a government

lawyer in a civil action that are functionally equivalent to

actions undertaken by a prosecutor in a criminal prosecution are

also entitled to absolute immunity. Mendenhall v . Goldsmith, 59

F.3d 685, 689-91 (7th C i r . ) , cert. denied, 116 S.Ct. 5 6 8 , (1995);

Speer v . Town of West Hartford, 954 F.2d 6 3 , 66 (2nd C i r . ) , cert.

denied, 113 S . C t . 66 (1992); Schrob v . Catterson, 948 F.2d 1402,

1411 (3d Cir. 1991). The county attorney's effort to close

Spaulding through a civil nuisance action is functionally

equivalent to his later decision to prosecute. Therefore, he is

entitled to absolute immunity for any liability stemming from

that decision.3

3

The prosecutors are not entitled to absolute immunity to

the extent that they have been sued based on their involvement in

either the investigation leading up to the obscenity prosecution,

or a broader conspiracy involving the other defendants. See

Guzman-Rivera, 55 F.3d at 2 9 . Therefore, I evaluate the

sufficiency of these claims below under the qualified immunity

standard.

9

2. Legislative Immunity

City councilors and their surrogates are entitled to

absolute legislative immunity from § 1983 claims based on

legislative acts. See National Ass'n of Social Workers v .

Harwood, 69 F.3d 6 2 2 , 629 (1st Cir. 1995); Acevedo-Cordero v .

Cordero-Santiago, 958 F.2d 2 0 , 23 (1st Cir. 1992). As with

prosecutorial immunity, a functional approach is used to

determine a defendant's right to legislative immunity. Harwood,

69 F.3d at 629. Thus, a legislator or his surrogate will be

entitled to legislative immunity for acts that are "`an integral

part of the deliberative and communicative processes by which

Members participate in . . . proceedings with respect to the

consideration and passage or rejection of proposed legislation or

with respect to other matters [committed to their

jurisdiction].'" Harwood, 69 F.3d at 632 (quoting Gravel v .

United States, 408 U.S. 606, 625 (1972).

Using this standard, Councilor Wagner is plainly entitled to

absolute legislative immunity from claims based upon statements

he made at a public hearing on a proposed ordinance. City

Attorney Sullivan is likewise entitled to immunity from suit

based upon acts Sullivan allegedly undertook in assisting the

council with the proposed ordinance. See, e.g., Ellis v . Coffee

10

County Bd. of Registrars, 981 F.2d 1185, 1992-94 (11th Cir. 1993)

(county attorney protected by absolute legislative immunity for

his role in assisting the county commissioners with their

legislative responsibilities); Aitchinson v . Raffiani, 708 F.2d

9 6 , 99 (3d Cir. 1983) (borough attorney absolutely immune from

liability for drafting legislation).

3. Qualified Immunity

Public officials performing discretionary functions are

entitled to qualified immunity from suit for violations of

federal law "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v . Fitzgerald, 457

U.S. 8 0 0 , 818 (1982). A "necessary concomitant to the

determination of whether the constitutional right asserted by a

plaintiff is 'clearly established' at the time the defendant

acted is the determination of whether the plaintiff has asserted

a violation of a constitutional right at all." Siegert v .

Gilley, 500 U.S. 226, 232 (1991). Therefore, if a plaintiff

fails to state a federal claim or if he cannot produce enough

evidence to support his claims to survive a motion for summary

judgment, the defendant is necessarily entitled to qualified

immunity. S t . Hilaire v . City of Laconia, 885 F. Supp. 349, 354

11

(D.N.H.), aff'd, 71 F.3d 20 (1st Cir. 1995). Accordingly, I

examine the sufficiency of the evidence supporting S t . Louis's

federal claims against each individual defendant.

a. Due Process Claims

S t . Louis has relinquished his Fourteenth Amendment equal

protection claim, but alleges that defendants violated his rights

under the Fourteenth Amendment's due process clause. To the

extent that S t . Louis claims that defendants violated his right

to substantive due process, such claims are cognizable, if at

all, as First Amendment violations rather than as substantive due

process claims. See Albright v . Oliver, 114 S . C t . 8 0 7 , 813

(1994); Graham v . Connor, 490 U.S. 386, 395 (1989). Further, to

the extent that S t . Louis intends to assert procedural due

process claims based on the defendants' wrongful commencement and

prosecution of civil and criminal proceedings, those claims also

fail because state law provides adequate post-deprivation

remedies. See Reid v . New Hampshire, 56 F.3d 3 3 2 , 341 (1st Cir.

1995). Since S t . Louis has offered no other grounds to support

his due process claims, all of the defendants are entitled to

qualified immunity with respect to such claims.

b. First Amendment Claims

S t . Louis's claims that defendants conspired to violate his

12

First Amendment rights are at the heart of his complaint. In

order to prove these claims, S t . Louis must establish first that

defendants intended to inhibit speech protected by the First

Amendment, Tatro v . Kervin, 41 F.3d 9, 18 (1st Cir. 1994), and

second that defendants' conduct had a chilling effect on the

protected speech that was more than merely "speculative,

indirect, or too remote," Sullivan v . Carrick, 888 F.2d 1 , 4

(1st Cir. 1989). Otherwise lawful actions may violate the First

Amendment if they are undertaken with the intent to inhibit

protected speech. Smart v . Board of Trustees of University of

Illinois, 34 F.3d 4 3 2 , 434-35 (7th Cir. 1994); but see Mozzochi

v . Borden, 959 F.2d 1174, 1186 (2d Cir. 1992) ("an individual

does not have a right under the First Amendment to be free from a

prosecution supported by probable cause that is in reality an

unsuccessful attempt to deter or silence criticism of the

government").

Each defendant may be held liable as a result of his or her

own actions or as a result of the actions of a co-conspirator.

However, in order to prove his conspiracy claims, S t . Louis must

demonstrate that a conspiracy existed among the defendants and

that at least one of the conspirators, acting in furtherance of

the conspiracy, violated S t . Louis's First Amendment rights.

13

Earle v . Benoit, 850 F.2d 836, 843 (1st Cir. 1988). Applying

these standards, I consider the sufficiency of the evidence

supporting S t . Louis's claim against each of the individual

defendants.

1. Chief Burke

S t . Louis alleges that Chief Burke is liable because h e : (1)

helped organize persons who advocate the prohibition of

pornographic materials; (2) participated in targeting S t . Louis

for investigation; (3) caused a Portsmouth police officer to

purchase a sexually explicit video from S t . Louis's store; and

(4) caused S t . Louis to be charged with criminal obscenity. He

also alleges that Burke is liable as a co-conspirator with the

other defendants. In a responsive affidavit, Chief Burke admits

that he met on more than one occasion with a citizens' group that

had been organized to encourage the enforcement of the obscenity

laws. He also acknowledges that he followed the county

attorney's instruction to have a police officer purchase

materials from Portsmouth's three adult bookstores. Finally, he

admits that he followed an assistant county attorney's

instruction to use certain language in the complaints charging

S t . Louis with criminal obscenity violations. However, Burke

denies that he acted with an improper motive or was involved in a

14

conspiracy, and S t . Louis has failed to produce any evidence that

would permit a rational factfinder to conclude otherwise.

Accordingly, Burke is entitled to summary judgment with respect

to these claims.

2. City Attorney Sullivan

S t . Louis alleges that City Attorney Sullivan is liable

because h e : (1) drafted the Adult-Oriented Establishments

Ordinance for the city council; (2) assisted the city council

with respect to other legislative actions that affected S t .

Louis; and (3) caused S t . Louis to be charged with criminal

obscenity violations. I have already determined that Sullivan is

entitled to absolute immunity from claims based on his role in

assisting the council with its legislative responsibilities. St.

Louis has produced no evidence to contradict Sullivan's

assertions that he was uninvolved in the decision to charge S t .

Louis and that he never participated in a conspiracy to deprive

S t . Louis of his First Amendment rights. Therefore, S t . Louis's

claims against Sullivan necessarily fail.

3. Assistant City Attorney Cuddy

S t . Louis alleges that Assistant Attorney Cuddy is liable

because she: (1) wrote two letters to S t . Louis's attorney

suggesting that Spaulding was not complying with its parking

15

plan; and (2) caused S t . Louis to be charged with criminal

obscenity violations. Cuddy admits writing the letters, but

contends that she was merely responding to an abutter's

complaint. She also denies having any involvement in the

decision to prosecute S t . Louis. S t . Louis has offered no

evidence to counter these assertions or to otherwise establish

that Cuddy participated in a conspiracy to deprive S t . Louis of

his constitutional rights. Therefore, these claims necessarily

fail.

4. City Councilor Wagner

S t . Louis alleges that Councilor Wagner is liable because he

stated at a city council meeting that: (1) S t . Louis had lied to

the zoning board of adjustment; and (2) the city should shut down

S t . Louis's business regardless of the law. I have already

determined that Wagner is entitled to absolute immunity for these

acts. Since S t . Louis has failed to support his claim that

Wagner was part of a conspiracy to deprive S t . Louis of his

constitutional rights, S t . Louis's claims against Wagner also

fail.

5. Assistant County Attorney Ducharme

S t . Louis alleges that Assistant County Attorney Ducharme:

(1) participated in the investigation of S t . Louis; (2) caused a

16

Portsmouth police officer to purchase a pornographic videotape

from Spaulding; (3) caused S t . Louis to be charged with criminal

obscenity; and (4) caused S t . Louis to be prosecuted on the

criminal obscenity charges. I have already determined that

Ducharme is entitled to absolute immunity with respect to any

involvement he may have had in the decision to prosecute S t .

Louis. Since Ducharme denies the rest of S t . Louis's claims,

including his conspiracy claim, and S t . Louis has produced no

evidence to support them, these claims necessarily fail.

6. County Attorney Eldredge

S t . Louis alleges that former County Attorney Eldredge: (1)

caused S t . Louis to be investigated; (2) commenced a civil

nuisance action against him; (3) helped organize persons who

advocated the prohibition of pornographic materials; (4) caused a

Portsmouth police officer to purchase a pornographic video from

Spaulding; (5) caused plaintiff to be charged with criminal

obscenity violations; and (6) appointed a private attorney who

was affiliated with an organization that promotes a ban on

pornographic materials to prosecute S t . Louis.

I have already determined that Eldredge is entitled to

absolute immunity for his decisions t o : (1) file the civil

nuisance action; (2) hire Attorney Green as a special assistant

17

county attorney; and (3) prosecute S t . Louis. Therefore, he is

not subject to suit for violations of federal law based on these

actions. Although S t . Louis alleges that Eldredge organized a

citizen's group that sought to prohibit the distribution of

pornographic materials, the only evidence he has produced

suggests that the group's goal was limited to the enforcement of

the state's obscenity laws. Since the First Amendment does not

apply to obscene speech, Sable Communications of Cal. v . F.C.C.,

492 U.S. 115, 123 (1989), S t . Louis cannot prove that Eldredge

acted improperly merely by demonstrating that he assisted a

citizen's group with its constitutionally permissible goal of

eliminating obscene speech. S t . Louis has also failed to produce

any evidence to support his claim that Eldredge conducted the

investigation for any reason other than to investigate possible

violations of the state's obscenity laws. Therefore, these

claims also fail.

7. County Attorney Hart

S t . Louis alleges that County Attorney Hart is liable

because h e : (1) caused S t . Louis to be prosecuted on criminal

obscenity charges; and (2) appointed Janice Wood to an advisory

committee. I have already determined that Hart is entitled to

absolute immunity with respect to the decision to prosecute S t .

18

Louis. Since S t . Louis has failed to indicate how Hart's

appointment of Wood is relevant to this case, Hart is entitled to

summary judgment on this claim.4

B. Municipal Defendants

The City of Portsmouth and Rockingham County may be held

liable under § 1983 even though all of the individual defendants

are protected from suit by either absolute or qualified immunity.

See Leatherman v . Tarrant County Narcotics Intelligence and

Coordination Unit, 113 S . C t . 1160, 1162 (1993) ("municipalities

do not enjoy immunity from suit -- either absolute or qualified -

- under § 1983"). Accordingly, I consider whether S t . Louis has

offered sufficient evidence to support his municipal liability

claims.

In order to succeed with a municipal liability claim, a §

1983 plaintiff must demonstrate that: (1) a municipal policymaker

intentionally adopted a policy, implemented a training protocol,

or allowed a custom to develop; (2) the challenged policy,

training protocol, or custom caused a violation of the

plaintiff's federally protected rights; and (3) the policymaker

acted with at least deliberate indifference to the strong

Hart's request for attorney's fees is denied.

19

likelihood that a violation of federally protected rights would

result from the implementation of the policy, training protocol,

or custom. Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989); Manarite

v . Springfield, 957 F.2d 953, 958 (1st C i r . ) , cert. denied, 506

U.S. 837 (1992). A city's legislative body may set policy for

the city. Pembaur v . Cincinnati, 475 U.S. 469, 480 (1986).

Moreover, even a single action by a municipal official may

qualify as a policy if the decision was "made by the official

charged with the final responsibility for making it under local

law." Harrington, 977 F.2d at 4 5 ; S t . Louis v . Praprotnik, 485

U.S. 1 1 2 , 1 2 4 , 143 (1988); Pembaur, 475 U.S. at 483.

S t . Louis argues that the city council's discussion and

adoption of the Adult-Oriented Establishment Ordinance

established a city policy to interfere with his protected rights.

I reject this argument because S t . Louis concedes that the

ordinance is constitutional,5 and the passage and enforcement of

5

S t . Louis's concession appears to be sound. A New

Hampshire court has already determined that the ordinance is

constitutional. See James N . Rossetti d/b/a The Fifth Wheel v .

City of Portsmouth, N o . 94-C-165, slip o p . (N.H. Superior Court,

Sept. 1 5 , 1995). Moreover, courts in other jurisdictions that

have considered nearly identical ordinances have found them to be

constitutional as well. See Mitchell v . Commission on Adult

Entertainment Establishments, 10 F.3d 123, 139-44 (3d Cir. 1993)

(citing cases from other jurisdictions).

20

a valid ordinance does not violate S t . Louis's rights, regardless

of the motivations of the councilors who adopted the ordinance.

See Renton v . Playtime Theatres, Inc., 475 U.S. 4 1 , 47-48 (1986);

see also United States v . O'Brien, 391 U.S. 3 6 7 , 382-86 (1968).

Therefore, S t . Louis's municipal policy claim against the city

necessarily fails.6

S t . Louis asserts that state law qualifies the county

attorney as a county policymaker.7 See N.H. Rev. Stat. Ann. §§

6

To the extent that S t . Louis attempts to base his claim

against the city on unexplained "cease and desist orders" or a

delay in issuing his gaming license, he has failed to provide

sufficient factual support to withstand defendants' summary

judgment motions.

7

County attorneys act under the Attorney General's

supervision when they enforce the state's criminal laws. N.H.

Rev. Stat. Ann. § 7:34; see also Wyman v . Danais, 101 N.H. 487

(1958). Other courts have concluded in similar circumstances

that a county is not liable for a county attorney's prosecutorial

decisions because the county attorney acts in that capacity as an

agent of the state. See Baez v . Hennessy, 853 F.2d 7 3 , 77 (2d

Cir. 1988), cert. denied sub nom., Baez v . County of Onondaga,

488 U.S. 1014 (1989); Owens v . Fulton County, 877 F.2d 9 4 7 , 950

(11th Cir. 1989); but see Walker v . City of New York, 974 F.2d

293, 301 (2d Cir. 1992) (district attorney acts as a county

policymaker in some circumstances), cert. denied, 113 S.Ct. 1387,

1412 (1993). Further, it might be argued that a county attorney

is not a county policymaker even if he is not acting as an agent

of the state because he or she is under the direction of the

County Commissioners when acting in any capacity other than a

prosecutorial capacity. N.H. Rev. Stat. Ann. § 7:34. Since the

county does not challenge S t . Louis's assertion that the county

attorney was acting as a municipal policymaker in this case, I

21

7:6, 34 (1988). Therefore, he contends that the county is liable

for Eldredge's alleged policy decision to suppress his First

Amendment rights through a baseless obscenity prosecution.

S t . Louis's prosecution was based on the fact that his store

distributed the Colossal Combo videotape. S t . Louis has offered

affidavits from two expert witnesses who assert that no

reasonable person in Eldredge's position could have concluded

that the Colossal Combo videotape was obscene. This evidence is

sufficient to permit a rational jury to conclude that Eldredge

decided to proceed with the prosecution even though he knew that

the videotape was not obscene. In that case, the jury would

rationally conclude that the prosecution was motivated by a

desire to suppress protected and non-obscene speech. Actions

pursuant to a county policy to suppress protected speech can be

the basis for a § 1983 claim against the county. Therefore,

Rockingham County's motion for summary judgment on this claim is

denied.

decline to delve more deeply into the complicated questions S t .

Louis's assertion raises.

22

IV. CONCLUSION

For the foregoing reasons, the defendants' motions for

summary judgment (document nos. 15 and 18) are granted as to all

of S t . Louis's federal claims except his First Amendment claim

against Rockingham county.

SO ORDERED.

Paul Barbadoro

United States District Judge

January 2 6 , 1996

cc: Brian Stern, Esq.

Donald Gardner, Esq.

William Scott, Esq.

23