Paul J. Carey, et al., Plaintiffs, Appellants, v. City of Fall River, et al., Defendants, Appellees, 870 F.2d 40 (1st Cir. 1989)

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US Court of Appeals for the First Circuit - 870 F.2d 40 (1st Cir. 1989) Heard Jan. 9, 1989. Decided March 20, 1989

Max Volterra (argued), with whom Volterra, Goldberg & Mangiaratti, Attleboro, Mass., was on brief, for plaintiffs, appellants.

Daniel J. O'Connell, III, Boston, Mass., for defendant, appellee Lionel J. Desrochers.

John J. Harrington, Fall River, Mass., for defendant, appellee Raymond E. Conroy.

Before CAMPBELL, Chief Judge, and ALDRICH and COFFIN, Circuit Judges.


After careful review of the record, briefs, and arguments, we affirm for substantially the reasons set forth in the district court's opinion. Carey v. City of Fall River, --- F. Supp. ---- (D. Mass. 1988). We note in particular our agreement with the district court that "It cannot be said that when defendants in this case sought out the criminal complaint against Paul Carey they 'clearly' did not have probable cause." --- F. Supp. at ---- n. 1. Because there was no clear lack of probable cause, defendants cannot be held liable for violating plaintiff's substantive due process rights on a malicious prosecution theory. Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985).


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