United States District Court, D. New Hampshire
Richard Coleman, pro se Matthew Vernon Burrows, Esq. R.
Matthew Cairns, Esq.
MCCAFFERTY, UNITED STATES DISTRICT JUDGE
the court is defendant Officer Thomas Dronsfield's motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. As a result of preliminary review conducted
pursuant to 28 U.S.C. § 1915(e) and LR 4.3(d)(2), only
two claims remain against Dronsfield: a Fourth Amendment
malicious-prosecution claim brought under 42 U.S.C. §
1983, and a state tort law claim for malicious prosecution.
See doc. no. 19 at 8-10. Dronsfield moves to dismiss
both claims on res judicata grounds. In response, plaintiff
Richard Coleman filed a motion to strike the motion to
dismiss, which the court construes as an objection to
Dronsfield's motion. For the following reasons, the court
denies Dronsfield's motion to dismiss.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (internal quotation marks
omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
addition, “[a]n affirmative defense such as res
judicata may be raised in a motion to dismiss . . . when the
facts establishing the defense are clear on the face of the
plaintiff's pleadings.” Medina-Padilla v. U.S.
Aviation Underwriters, Inc., 815 F.3d 83, 85 (1st Cir.
2016). “Where a motion to dismiss is premised on res
judicata, [the court] may take into account, in addition to
the well-pleaded facts in the complaint, the record in the
original action.” Id.
court incorporates by reference the facts set forth in the
April 18, 2017 Report & Recommendation, which summarizes
the allegations in Coleman's complaint. See doc. no.
19 at 2-4; see also doc. no. 25 (approving
R & R). In his motion to dismiss, Dronsfield directs the
court's attention to Coleman's 2012 lawsuit against
him, which relates to the same incident underlying
Coleman's claims in this case. In that case, as here,
Coleman alleged that Dronsfield had Coleman arrested for
indecent exposure, knowing that the charge was false. See
Coleman v. Town of Lee, No. 12-cv-109-PB, 2012 WL
4725502, at *2 (D.N.H. Sept. 10, 2012), R. & R. adopted
by 2012 WL 4713897 (Oct. 3, 2012).
preliminary review in the prior case, this court construed
Coleman's claim against Dronsfield to be “that
Dronsfield lacked probable cause to effect Coleman's
arrest [and] knowingly obtained his arrest using false
statements, ” in violation of the Fourth Amendment.
Id. The court recommended dismissal of the claim,
concluding that the complaint failed to state sufficient
facts to show that Dronsfield lacked probable cause or
“knew that Coleman was innocent when he had him
arrested.” Id. The Report & Recommendation
was approved, and the prior suit was dismissed.
argues that res judicata bars Coleman from pursuing the
present claims against him, because those claims are premised
on the same operative facts as Coleman's prior suit. The
judicata “does not apply where a claim could not have
been raised in the first litigation.” Torromeo v.
Town of Fremont, NH, 438 F.3d 113, 116 (1st Cir. 2006)
(citing In re Iannochino, 242 F.3d 36, 43 n.4 (1st
Cir. 2001)). Consequently, the doctrine “does not bar a
party from bringing a claim that arose subsequent to a prior
judgment involving the same parties.” Am. Home
Assurance Co. v. Chevron, USA, Inc., 400 F.3d 265, 272
(5th Cir. 2005) (collecting cases); cf. Restatement (Second)
of Judgments § 20(2) (1982) (“A valid and final
personal judgment for the defendant, which rests on the
prematurity of the action . . . does not bar another action
by the plaintiff instituted after the claim has
Coleman could not have brought his malicious-prosecution
claims until January 2015, when his indecent exposure charge
was dismissed. This is because one element of a claim for
malicious prosecution-whether the claim is framed as a
violation of the U.S. Constitution or of state tort law-is
that the criminal proceeding terminate in the plaintiff's
favor. See Hernandez-Cuevas v. Taylor,723 F.3d 91,
101 (1st Cir. 2013) (constitutional claim); Ojo v.
Lorenzo,164 N.H. 717, 727 (2013) (state law claim).
Thus, it was not until the charge was dismissed, years after
the first suit was resolved, that Coleman could maintain
viable causes of action for malicious prosecution. Because
Coleman could not have brought his malicious prosecution
claims in the prior litigation, res judicata does not operate
to bar the present action. See Torromeo, 438 F.3d at
116; Lambert v. Williams,168 F.3d 482, 1998 ...