Baldi v. Amadon, et al.

2003 DNH 099

• Court: District Court, D. New Hampshire
• Decided: June 9, 2003
• Docket: CV-02-313-M
• Status: Published

Opinion

Baldi v . Amadon, et a l . CV-02-313-M 06/09/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A . Baldi, Plaintiff

v. Civil N o . 02-313-M Opinion N o . 2003 DNH 099 Roger W . Amadon, Henry Farrin, Frank Cassidy, Eric Bourn, James McKenzie, Paul Pearson, Jon Harwood, Stacy Manning, Donald Stout, Barbara Sweet, Wayne Vetter, New Hampshire Fish & Game Department, Nicholas Cort, Michael Walls, Philip T . McLaughlin, John Hickey, Peter Bosiak, Laurance Yeaton, and the Town of Epsom, Defendants

O R D E R

Plaintiff has filed a 214-paragraph, twenty-seven-count

complaint, naming twenty defendants, and asserting fourteen

causes of action under 28 U.S.C. § 1983 and thirteen causes of

action under state law.1 By order dated October 3 0 , 2002, the

court granted Wayne Vetter’s Motion to Dismiss, and by order

1 In effect, plaintiff has asserted 212 separate legal claims, several of which are themselves based on multiple constitutional provisions and legal theories, which further complicates a complaint that can hardly be considered a “short and plain statement” of plaintiff’s claims. F E D . R . C I V . P . 8(a)(2). dated March 1 2 , 2003, the court granted plaintiff’s motion to

dismiss defendant Robert Berry. Before the court are: ( 1 ) a

motion to dismiss filed by Jon Harwood and Stacy Manning2

(document n o . 3 0 ) ; ( 2 ) the State Defendants’ Motion for Judgment

on the Pleadings (document n o . 4 2 ) , filed on behalf of the New

Hampshire Fish and Game Department, James MacKenzie, Barbara

Sweet, Nicholas Cort, Michael Walls, and Philip T . McLaughlin

(“the State defendants”); and ( 3 ) the State’s Motion to Dismiss

on behalf of State Substituted for Donald Stout (document n o .

5 5 ) , in which the State on behalf of Stout also joins in the

State Defendants’ Motion for Judgment on the Pleadings.

Plaintiff objects to all three motions. For the reasons given

below, both motions to dismiss are granted in full; the State

defendants’ motion for judgment on the pleadings is granted in

part; and several counts of plaintiff’s complaint are dismissed

sua sponte, for failure to state a claim.

2 M r . Harwood is called “Jon” in the caption of plaintiff’s complaint, “John” in the heading of his own motion to dismiss, and “Jon” in the body of that motion. Similarly, M s . Manning is called “Stacy” in the caption of the complaint, “Stacy” in the heading of her motion to dismiss, and “Stacey” in the body of that motion. Given the lack of guidance offered by defendants as to their actual names, the court uses the spellings given in the caption of plaintiff’s complaint.

2 Factual Background

The following facts are drawn from plaintiff’s complaint and

construed in the light most favorable to him. See Cooperman v .

Individual Inc., 171 F.3d 4 3 , 46 (1st Cir. 1999) (citation

omitted) (setting out the standard of review for Rule 12(b)(6)

motions); Donovan v . City of Haverhill, 311 F.3d 7 4 , 76 (1st Cir.

2002) (citation omitted) (setting out the standard of review for

Rule 12(c) motions). Left out of the following survey of the

facts are those matters discussed in ¶¶ 32-40, which have already

been the subject of a suit in this court, Civ. N o . 01-396-JD,

which was resolved by two orders found at 2002 DNH 095 and 2002

DNH 194.

On July 8 , 1999, at approximately 11:00 p.m., plaintiff shot

two deer in a field he owns on the south side of Center Hill Road

in Epsom. He did so under a valid agreement with the New

Hampshire Fish and Game Department (“Fish & Game”), a copy of

which had been sent to the Epsom Police Department (“EPD”).

Shortly after plaintiff shot the deer, and while he was

standing near the edge of his field, a white four-wheel-drive

3 pick-up truck entered the field and drove toward him at between

thirty and forty miles per hour. As plaintiff moved out of the

path the truck appeared to be following, it changed its course,

and headed directly for him. When the truck was a short distance

away, it slid to a stop, striking plaintiff on the palms of his

hands, which he had raised in front of him. After the truck slid

to a stop, defendant Paul Pearson emerged, engaged in a short

conversation with plaintiff, got back into the truck, and drove

off. (Plaintiff did not know Pearson at the time, and did not

learn his identity until some time later.) As Pearson was

driving off, he stopped briefly before leaving the field.

After his confrontation with Pearson, plaintiff loaded one

of the deer he had shot into the back of his truck and drove

home. Along the way, plaintiff noticed defendant Jon Harwood

standing in the driveway of his (Harwood’s) residence,

videotaping him. When he got home, plaintiff removed the deer

from his truck. From his home, plaintiff saw the lights of a

vehicle in the field where he had shot the deer. He drove down

to see who was in the field.

4 Plaintiff took a rifle with him. He placed a dummy round in

the chamber, intending to play a trick on the person he assumed

to be in the field. As he approached, plaintiff discovered an

Epsom police cruiser in the field, and another one parked on the

road, near the entrance to the field. After he parked his truck,

plaintiff was approached by Lieutenant Farrin and Officer Cassidy

of the EPD.

Before L t . Farrin and Officer Cassidy went to plaintiff’s

field, Cassidy met with Pearson, who called plaintiff a bastard.

The officers had also met with Harwood, and explained to him that

plaintiff was authorized to shoot deer under a depredation

permit. Harwood, in turn, told the officers that he and Stacy

Manning had made a videotape, complete with audio, of the events

that had just taken place in plaintiff’s field. Harwood and

Manning shot some of the videotape from within plaintiff’s field,

and had entered the field on prior occasions to videotape him,

despite having been told to stay off plaintiff’s property. As a

part of their conversation with Harwood, L t . Farrin and Officer

Cassidy conspired with Harwood to have him continue covertly

5 videotaping plaintiff.3 Also on July 8 , L t . Farrin and Officer

Cassidy set up audio intercepting equipment in plaintiff’s field.

When L t . Farrin and Officer Cassidy approached plaintiff, he

asked them to do something about the man who had tried to run him

over. The officers, already aware that Pearson had been the

driver of the white pick-up truck, asked plaintiff whether it was

legal for him to be shooting deer. Plaintiff then told the

officers about the law that permitted him to do s o . The

officers, however, had already checked with Fish & Game and knew

that plaintiff had a valid depredation permit that allowed him to

shoot deer.

When Officer Cassidy saw the rifle in plaintiff’s truck, he

asked plaintiff if the rifle was loaded. Plaintiff said it was

not. Officer Cassidy then asked whether plaintiff minded if he

looked at the rifle. Plaintiff said he did mind. Officer

Cassidy nevertheless picked up the rifle and discovered the dummy

3 The existence of a conspiracy i s , of course, is a legal conclusion. But in this recitation, the court accepts plaintiff’s complaint, which asserts that “[o]n the night of July 8 , 1999 defendants Farrin and Cassidy conspired with defendant Harwood for him to continue covertly video taping M r . Baldi . . . .” (Compl. ¶ 102.)

6 round in the chamber. After some discussion about whether the

dummy round was in fact a live round, Officer Cassidy returned

both the dummy round and the rifle to plaintiff, who then drove

home.

The next morning, plaintiff went to the Epsom police station

to talk with Chief Amadon, as had been suggested the night before

by L t . Farrin. At that meeting, on July 9, Chief Amadon

expressed his displeasure about plaintiff’s having hung a deer

carcass from a tree in front of his house on July 6. Plaintiff

had shot a deer on the night of July 5 , and Officer Bourn of the

EPD saw the carcass in plaintiff’s truck shortly after it was

shot. The next morning, at about 8:00 a.m., plaintiff hung the

carcass from a tree in his yard, and then went to Fish & Game to

report that he had shot a deer, so that it could be tagged by

someone from Fish & Game.

Plaintiff explained to Chief Amadon that he had hung the

deer where he did because that was the coolest spot on his

property convenient for tagging and removal by Fish & Game. Fish

& Game never removed the deer. Instead, it was removed and

7 buried by the Town of Epsom on July 8 , after hanging in the tree

for approximately forty-eight hours.

Later in July 1999, plaintiff had a confrontation with

Officer Cassidy, in which Cassidy became upset over plaintiff’s

continued shooting of deer. Plaintiff, in turn, asked the

officer whether any progress had been made in finding the person

in the white pick-up truck who had tried to run him over on July

8. Officer Cassidy reported that the E P D did not know who had

driven into plaintiff’s field and directed plaintiff to give the

E P D more information about the incident by making a statement at

the police station. On August 1 0 , plaintiff gave a statement to

the E P D , which included the license number of the pick-up truck.

On July 2 8 , 1999, Chief Amadon executed an affidavit to

obtain a warrant to arrest plaintiff for violating N . H . R E V . STAT.

A N N . (“RSA”) § 147:13, which pertains to offensive matter,

including the bodies of dead animals. In his affidavit, Chief

Amadon, who knew that the deer had been hung on July 6, falsely

stated that: (1) the E P D had started to receive phone calls about

the deer on July 4 ; and (2) between July 4 and July 7 , the E P D

8 had received and recorded four calls about the deer and the Bow

dispatch service had received and recorded five additional calls

about the deer. The falsity of Amadon’s statement arises from

the fact that the deer in question was not hung in the tree until

July 6, making it impossible for callers to have complained about

it on July 4 or 5 .

On the same day that he executed his affidavit and obtained

an arrest warrant, July 2 8 , Chief Amadon arrested plaintiff for

violating RSA 147:13 and for hunting from a motor vehicle, in

violation of RSA 207:7. On August 2 2 , 1999, Officer Bourn

arrested plaintiff for making a false report to law enforcement,

based upon the statement plaintiff gave on August 10 about the

incident on July 8 . The EPD arrested plaintiff for making a

false report, despite having in their possession the videotape

made by Harwood, which supported plaintiff’s version of the

events of July 8 and which contradicted police statements and

trial testimony offered by Pearson and Harwood. At some point

after the incident on July 8 , the Epsom selectmen became aware of

it and allegedly conspired with the EPD in falsely arresting and

maliciously prosecuting plaintiff, in order to protect Pearson,

9 Harwood, Manning, and defendant James McKenzie, a state police

officer employed by Fish & Game as a conservation officer.4

According to plaintiff, he was arrested (on which occasion,

he does not s a y ) : (1) because he would not give up his

constitutional and statutory rights to protect his property by

shooting deer that damaged his crops; and (2) to protect Pearson,

because an arrest of Pearson would implicate McKenzie for

instigating Pearson’s actions on July 8 .

Before arresting plaintiff on August 2 2 , Officer Bourn made

untruthful and defamatory statements5 about plaintiff to

defendant Donald Stout, a bail commissioner, who, at Bourn’s

request, included those statements in a note he transmitted to

4 Again, plaintiff does not set out facts that meet the legal definition of conspiracy, but simply asserts that “[t]he selectmen for the Town of Epsom . . . conspired with the Epsom police department in the false arrest and malicious prosecution of M r . Baldi in order to protect defendants Pearson, Harwood, Manning and McKenzie.” (Compl. ¶ 126.) 5 Plaintiff’s complaint does not identify the allegedly defamatory statement in the note.

10 defendant Barbara Sweet, clerk of the Concord District Court, who

included the note in plaintiff’s criminal file.6

At plaintiff’s trial on the offensive matter charge, Chief

Amadon testified, on direct examination, that the deer had been

hung in the tree on July 4 and that calls had begun to come in on

that date. On cross-examination, Chief Amadon conceded that

there had been no observations of the deer in the tree and no

phone calls prior to July 6. Also at plaintiff’s trial, McKenzie

testified that he had been directed to go to plaintiff’s

residence in response to plaintiff’s report that he had shot the

deer, that he had actually gone to plaintiff’s residence, along

with Officer Cassidy, and that he had seen the deer in the tree.

Neither McKenzie nor Cassidy tagged the deer, removed the deer,

informed plaintiff of their visit, or left notice that the deer

was offensive matter subject to RSA 147:13.7 Plaintiff claims

6 While the complaint makes no mention of i t , plaintiff filed a state court action against Stout, alleging defamation, libel-actual malice, and invasion of privacy, based upon the note Stout sent to Sweet. In that action, the Superior Court granted Stout’s motion to dismiss for failure to state a claim, based upon Stout’s judicial immunity. Baldi v . Stout, Merrimack Cty. Super. Ct., N o . 00-C-0345, Feb. 8 , 2001. 7 In addition to failing to tag the deer on July 6, McKenzie, along with unnamed others, had, on various unspecified

11 that, until it was tagged, Fish & Game regulations prohibited him

from disposing of the deer himself.

Plaintiff was found guilty on the offensive matter charge,

and was fined. However, he was found not guilty of hunting from

a motor vehicle, and the charge of making a false report to law

enforcement was dropped after the prosecutor acknowledged to the

trial court, at the end of the State’s case, that some of his

witnesses had testified untruthfully.

Some time after the July 8 incident, plaintiff reported it

to defendants Nicholas Cort and Michael Walls, Assistant

Attorneys General for the State of New Hampshire. Cort and

Walls, in turn, allegedly conspired with defendant Philip

McLaughlin, then the Attorney General of New Hampshire, to

conceal Pearson’s criminal acts of July 8.8 Moreover, plaintiff

accuses Cort, Walls, and McLaughlin of directing the New

occasions, entered plaintiff’s property, without permission, and had covertly observed him, with the use of night-vision equipment. 8 Yet again, plaintiff does not set out facts that meet the legal definition of conspiracy, but simply asserts that “[d]efendants Cort and Walls . . . conspired with defendant McLaughlin to conceal Pearson’s criminal acts.” (Compl. ¶ 112.)

12 Hampshire State Police to uncover some illegal act he had

committed, so he could be prosecuted. Officer Ralston of the New

Hampshire State Police was unable to identify any crime committed

by plaintiff. Plaintiff further accuses Cort and Walls of

deliberately lying, in various fora, about the laws of New

Hampshire, the records they possessed, and plaintiff’s legal

rights, as part of a broad conspiracy to defame him, damage his

professional reputation, impede his progress in law school,

prevent him from receiving depredation permits and crop-damage

payments, and to lay the groundwork for denying him admission to

the New Hampshire bar.9

Plaintiff further asserts that Fish & Game has granted

depredation permits and made crop-damage payments to unnamed

others who are similarly situated, and has granted depredation

permits to unnamed others who do not even have crops, while

denying him such permits and payments.10

9 As with his defamation claims against Stout and Sweet, plaintiff does not identify any specific false statement by Cort or Walls. 10 While the complaint makes no mention of i t , plaintiff has already litigated his right to crop-damage payments and depredation permits in a variety of fora, including the New Hampshire Superior Court (Merrimack Cty. Super. C t . docket nos.

13 Finally, plaintiff asserts that: (1) Fish & Game, the

executive branch, and unnamed members of the New Hampshire House

of Representatives and Senate are involved in various unnamed

illegal activities being conducted in concert with the Blue

Mountain Forest Association (“Blue Mountain”); (2) Attorney

General McLaughlin knew of and was involved in those activities;

and (3) Attorney General McLaughlin and Fish & Game attempted to

discredit him because he uncovered evidence of unspecified

racketeering activities involving Blue Mountain, Fish & Game, and

unnamed politically powerful individuals.

Based upon the foregoing combination of asserted facts and

conclusory allegations, plaintiff filed this suit.

Discussion

I. Harwood and Manning’s Motion to Dismiss

Jon Harwood is named as a defendant in five federal and six

state claims. Specifically, plaintiff claims that Harwood is

95-E-275, 96-E-0057, 97-E-022, 98-E-063, and 00-E-0057), the New Hampshire Board of Claims (docket nos. 95-021 and 96-016), and the New Hampshire Ad Hoc Wildlife Damage Hearing Board (docket n o . 97-001).

14 liable to him, under § 1983, for malicious prosecution of the

charge that plaintiff made a false report to law enforcement

(Count I ) , conspiracy to maliciously prosecute him for false

reporting (Count I I ) , denial of his Fifth and Fourteenth

Amendment property rights (Count V I ) , conspiracy to deny him his

Fifth and Fourteenth Amendment property rights (Count V I I ) ,

violation of his Fourth Amendment right to be secure in his

person and house against unreasonable searches (Count VIII), and

conspiracy to violate his Fourth Amendment rights ( I X ) . Under

state law, plaintiff asserts that Harwood is liable for

violations of RSA 570-A:2 for intercepting and disclosing oral

communications (Counts XV and X V I ) , conspiracy to violate RSA

570-A:2 (Count XVII), invasion of privacy (Count X X ) , conspiracy

to invade his privacy (Count X X I ) , and abuse of process and

authority (Count XXVII). Plaintiff asserts claims against

Manning in Counts I I , V I , V I I , VIII, I X , XV, X V I , XX and XXVII.

Harwood and Manning move to dismiss the § 1983 claims on

grounds that plaintiff has not pled adequate facts to establish

that they were acting under color of state law and has not

adequately pled a deprivation of a federally protected right. In

15 turn, they ask the court to decline supplemental jurisdiction

over plaintiff’s state claims, due to the lack of a federal

claim.

Plaintiff counters that by conspiring to give false

statements to the police and by agreeing to videotape him,

Harwood and Manning meet the “close-nexus” test for state action

with respect to Counts I and I I , but in the interest of judicial

economy, he declines to address the rest of his federal claims

individually.

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v .

Rhodes, 416 U . S . 2 3 2 , 236 (1974). When considering a motion to

dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as

true all well-pleaded allegations and give plaintiffs the benefit

of all reasonable inferences.” Cooperman, 171 F.3d at 46 (citing

Gross v . Summa Four, Inc., 93 F.3d 9 8 7 , 991 (1st Cir. 1996)).

16 However, while a court “deciding a motion to dismiss under Rule

12(b)(6) . . . must take all well-pleaded facts as true . . . it

need not credit a complaint’s ‘bald assertions’ or legal

conclusions.” Shaw v . Digital Equip. Corp., 82 F.3d 1194, 1216

(1st Cir. 1996) (quoting Wash. Legal Found. v . Mass. Bar Found.,

993 F.2d 9 6 2 , 971 (1st Cir. 1993)). Finally, “[d]ismissal under

Fed.R.Civ.P. 12(b)(6) is only appropriate if the complaint, so

viewed, presents no set of facts justifying recovery.”

Cooperman, 171 F.3d at 46 (citing Dartmouth Review v . Dartmouth

Coll., 889 F.2d 1 3 , 16 (1st Cir. 1989)).

As a preliminary matter, Harwood and Manning are entitled to

dismissal of Counts I I , V I I , and I X , the three conspiracy claims,

for the reasons discussed in the court’s order on defendant

Vetter’s motion to dismiss. The court granted Vetter’s motion to

dismiss for the reasons given in that motion, i.e., that

plaintiff failed to allege facts sufficient to support claims of

conspiracy under Counts I I , IV, V I I , I X , X I , and XIII. Those

claims are no better supported, and are no less conclusory, as to

Harwood and Manning than they were regarding Vetter.

17 Accordingly, the motion to dismiss is granted as to Counts I I ,

VII, and IX.

The remaining federal counts are dismissed for failure to

allege facts which, if proven, would establish that Harwood and

Manning acted under color of state law.

In order to prevail on a § 1983 claim, a plaintiff must

prove that one or more individual defendants, acting under color

of state law, deprived him or her of a right, privilege, or

immunity secured by the Constitution or laws of the United

States. See, e.g., Blessing v . Freestone, 520 U.S. 329, 340

(1997). Action by a non-governmental entity may qualify as being

taken under color of state law

i f , with respect to the activity at issue, the private entity is engaged in a traditionally exclusive public function; is “entwined” with the government; is subject to governmental coercion or encouragement; or is willingly engaged in joint action with the government.

Logiodice v . Trs. of M e . Cent. Inst., 296 F.3d 2 2 , 26 (1st Cir.

2002) (citing Brentwood Acad. v . Tenn. Secondary Sch. Ath. Ass’n,

531 U.S. 2 8 8 , 295-96 (2001)).

18 For government encouragement to transform private action

into state action, “[m]ere approval of or acquiescence in the

initiatives of a private party is not sufficient.” Blum v .

Yaretsky, 457 U.S. 9 9 1 , 1004-05 (1982) (citing Flagg Bros., Inc.

v . Brooks, 436 U.S. 149, 164-65 (1978); Jackson v . Metro. Edison

Co., 419 U.S. 345, 357 (1974)). “Rather, the plaintiff must show

that the State ‘has exercised coercive power or has provided such

significant encouragement, either overt or covert,’ that the

challenged conduct fairly can be attributed to the State.”

Perkins v . Londonderry Basketball Club, 196 F.3d 1 3 , 19 (1st Cir.

1999) (quoting Blum, 457 U.S. at 1004). As for joint action, the

“test requires an evaluation of whether ‘the government has so

far insinuated itself into a position of interdependence with

[the private entity] that it must be recognized as a joint

participant in the challenged activity.’” Perkins, 196 F.3d at

21 (quoting Burton v . Wilmington Parking Auth., 365 U.S. 715, 725

(1961)). Indicia of interdependence and joint activity include

“the extent to which the private entity is (or is not)

independent in the conduct of its day-to-day affairs,” Perkins,

196 F.3d at 21 (citations omitted), “the circumstances

surrounding a private entity’s use of public facilities,” id.

19 (citations omitted), and, where relevant, “whether (and if s o , to

what extent) the [state] knowingly shared in the profits spawned

by [the private entity’s] discriminatory conduct,” id. (citations

omitted).

Under that legal standard, plaintiff has not alleged facts

sufficient to establish that defendants Harwood and Manning were

acting under color of state law to maliciously prosecute

plaintiff, to deny him his property rights, or to violate his

right to be free from unreasonable searches. The full extent of

the alleged link between Harwood and Manning and state officials

is as follows: (1) on July 8 , Harwood told L t . Farrin and Officer

Cassidy that he had been videotaping plaintiff (Compl. ¶ 6 4 ) ; (2)

the officers asked Harwood to continue videotaping plaintiff

(Compl. ¶ 63) and/or conspired with Harwood to have him continue

his taping (Compl. ¶ 1 0 2 ) ; and (3) Harwood and Manning told

Vetter that they had been videotaping plaintiff, and Vetter did

nothing to stop them. In essence, all plaintiff alleges is that

on July 8 , the EPD officers asked Harwood to keep on doing what

he was already doing, and Vetter never told him to stop. Thus,

nothing alleged in plaintiff’s complaint rises above the level of

20 mere acquiescence. See Blum, 457 U.S. at 1004-05. Moreover,

plaintiff’s unsupported incantation of the term “conspiracy” is

insufficient to support an allegation that Harwood and Manning

were acting under color of state law. See Slotnick v . Staviskey,

560 F.2d 3 1 , 33 (1st Cir. 1977) (citations omitted) (“complaints

[brought under § 1983] cannot survive a motion to dismiss if they

contain conclusory allegations of conspiracy but do not support

their claims with references to material facts”).

Because plaintiff has not alleged facts sufficient to

establish that Harwood and Manning were acting under color of

state law, all of plaintiff’s federal claims against them are

dismissed. And because those claims are dismissed, the court

declines to exercise supplemental jurisdiction over plaintiff’s

state-law claims against Harwood and Manning, as this litigation

is still in its early stages. See Camelio v . Am. Fed’n, 137 F.3d

666, 672 (1st Cir. 1998). Accordingly, Harwood and Manning’s

motion to dismiss is granted in full.

21 II. State’s Motion to Dismiss on Behalf of State Substituted for Donald Stout

Donald Stout is named as a defendant in five federal

claims.11 Specifically, plaintiff claims that Stout is liable to

him, under § 1983, for malicious prosecution of the charge that

plaintiff made a false report to law enforcement (Count I ) ,

conspiracy to maliciously prosecute him for false reporting

(Count I I ) , malicious prosecution of the charge that plaintiff

hunted from a motor vehicle (Count I I I ) , conspiracy to

maliciously prosecute him for hunting from a motor vehicle (Count

I V ) , and violation of his right to be confronted with the

witnesses against him (Count X I V ) . The State, on behalf of

Stout, moves to dismiss the § 1983 claims on a variety of grounds

including lack of subject matter jurisdiction, Eleventh Amendment

sovereign immunity, and the Rooker-Feldman abstention doctrine.

The State, on behalf of Stout, also claims entitlement to

judgment on the pleadings based on judicial and quasi-judicial

immunity, statutory immunity, qualified immunity, the statute of

11 While Stout is also listed as a defendant in Count XXVII, a state claim for abuse of process and authority, plaintiff states, in the memorandum of law supporting his objection to the motion to dismiss, that Stout is a defendant only under five federal claims. The court takes plaintiff at his word, and dismisses Count XXVII as to defendant Stout.

22 limitations, claim preclusion, issue preclusion, and failure to

state a claim on which relief can be granted. Plaintiff objects

on a variety of grounds.

In the complaint, plaintiff alleges that Stout wrote and

sent to the Concord District Court a defamatory note about him,

based upon second-hand information from Officer Bourn. The harm,

according to plaintiff, is that Stout’s note was placed in his

criminal file and tainted the proceedings against him. According

to plaintiff, by writing and sending the letter, Stout: (1)

participated in maliciously prosecuting him on two charges; (2)

conspired to maliciously prosecute him on those same two charges;

and (3) denied plaintiff his Sixth Amendment right to

confrontation.

In an order dated February 8 , 2001, New Hampshire Superior

Court Judge Kathleen McGuire ruled that Stout was protected by

absolute judicial immunity with respect to the note at issue

here. See footnote 6, supra. Plaintiff is bound by that ruling

in this action as well. See Patterson v . Patterson, 306 F.3d

1156, 1158 (1st Cir. 2002) (citations and internal quotation

23 marks omitted) (explaining that “federal statutory law requires

federal courts to give preclusive effect to state-court judgments

whenever the courts of the State from which the judgments emerged

would do s o ” ) .

Moreover, even if Stout’s actions were not protected by

absolute judicial immunity, all of plaintiff’s federal causes of

action, as to Stout, would be dismissed for failure to state a

claim. Counts II and IV, which allege conspiracy, are dismissed

as to Stout for the same reason they have been dismissed as to

Vetter, Harwood, and Manning.

Counts I and I I I , which are based upon plaintiff’s claims of

malicious prosecution, allege no facts to support a claim, and do

not allege, even in a conclusory manner, that Stout’s note played

any role in the institution of criminal proceedings, which is

essential to a claim of malicious prosecution under New Hampshire

law. See State v . Rollins, 129 N.H. 6 8 4 , 687 (1987) (“This

jurisdiction recognizes the tort of malicious prosecution, which

may be the subject of an action for damages when a plaintiff has

been ‘subjected to a criminal prosecution instituted by the

24 defendant without probable cause and with malice, [terminating in

the plaintiff’s] favor.’” (emphasis added)) (quoting Robinson v .

Fimbel Door Co., 113 N.H. 3 4 8 , 350 (1973)). That Stout’s note

influenced the trial judge in plaintiff’s criminal case – which

must be assumed for the purposes of Stout’s motion to dismiss –

does not prove that the note, or any other action on Stout’s

part, led to the institution of the criminal proceedings against

plaintiff, which is necessary to establish Stout’s liability for

malicious prosecution. Id. Furthermore, plaintiff’s complaint

does not specify the contents of Stout’s note, other than to call

it defamatory – a conclusion of law the court need not credit.

See Shaw, 82 F.3d at 1216 (citation omitted). Finally, even if

plaintiff had stated a viable claim for malicious prosecution,

“[t]he law is settled that a garden-variety claim of malicious

prosecution garbed in the regalia of § 1983 must fail [because]

[t]here is no substantive due process right under the Fourteenth

Amendment to be free from malicious prosecution . . . .” Roche

v . John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir.

1996) (citing Albright v . Oliver, 510 U.S. 266, 268-86 (1994)

(plurality o p . ) ; Calero-Colon v . Betancourt-Lebron, 68 F.3d 1 , 3

25 n.7 (1st Cir. 1995)). Accordingly, plaintiff has failed to state

a claim against Stout in either Count I or Count III.

As to Count XIV, in which plaintiff claims that Stout

violated his Sixth Amendment right of confrontation, several

fundamental problems exist. Under the Sixth Amendment, a

criminal defendant is guaranteed the right “to be confronted with

the witnesses against him.” Here, there is simply no allegation

that the note from Stout was ever introduced into evidence, or

was used against plaintiff, in any criminal trial. Thus,

plaintiff has not alleged that Stout was ever a witness against

him, which defeats his Sixth Amendment claim. As well, it is

entirely unclear how a potential witness, who has no control over

the conduct of a criminal case, could ever be liable for a Sixth

Amendment violation. Finally, because the purpose of the Sixth

Amendment is to guarantee that criminal defendants receive fair

trials, a confrontation clause claim is properly raised in an

appeal from a criminal conviction, or in a petition for habeas

corpus relief, not, as here, in a freestanding § 1983 action.

Thus, plaintiff has failed to state an actionable confrontation

clause claim against Stout in Count XIV.

26 In summary, the federal claims against Stout are dismissed

and, as with Harwood and Manning, the court declines to exercise

supplemental jurisdiction over the state claims against Stout.

See Camelio, 137 F.3d at 672. Accordingly, the motion to dismiss

filed by the State on behalf of Donald Stout is granted.

III. State Defendants’ Motion for Judgment on the Pleadings

Six State defendants now remain: Fish & Game, James

McKenzie, Barbara Sweet, Nicholas Cort, Michael Walls, and Philip

T . McLaughlin. For the same reasons that justify dismissal of

the conspiracy claims against Vetter, Harwood, Manning, and

Stout, all of the federal conspiracy claims against the remaining

State defendants are dismissed. For the same reasons that

justify dismissal of Counts I , I I I , and XIV as to Stout, those

same claims are dismissed as to Sweet, and, as with Stout, the

court declines to exercise supplemental jurisdiction over the

state claims against Sweet.

Furthermore, all federal claims against Fish & Game must be

dismissed because “§ 1983 actions do not lie against a State.”

Arizonans for Official English v . Arizona, 520 U.S. 4 3 , 69 (1997)

27 (citing Will v . Mich. Dep’t of State Police, 491 U.S. 5 8 , 71

(1989)). Not only is the State itself legally unavailable as a §

1983 defendant (because it is not a “person”), so too are its

agencies. See Brown v . Newberger, 291 F.3d 8 9 , 92 (1st Cir.

2002) (citing Will, 491 U.S. at 7 1 ) . States may not be sued

under § 1983 not because of sovereign immunity, but because “§

1983 creates no remedy against a State.” Arizonans, 520 U.S. at

69. Because the suit against Fish & Game is a suit against the

State, all federal claims against Fish & Game are dismissed. The

court declines to exercise supplemental jurisdiction over the

state claims brought against Fish & Game.

Given these rulings, plaintiff’s federal case against the

State defendants now consists of five counts against McKenzie

(Counts I , V I , V I I , X , and X I I ) , and three counts against Cort,

Walls, and McLaughlin (Counts V I , VIII, and X ) . The State moves

for judgment on the pleadings as to each of those remaining

claims, on a variety of grounds. Plaintiff objects, also on a

variety of grounds.

28 When deciding whether to grant a motion for judgment on the

pleadings, under F E D . R . C I V . P . 12(c), the court “accept[s] as

true the well-pleaded factual allegations of the complaint,

draw[s] all reasonable inferences therefrom in the plaintiff’s

favor, and determine[s] whether the complaint, so read, sets

forth facts sufficient to justify recovery on any cognizable

theory.” Donovan, 311 F.3d at 76 (quoting T A G / I C I B Servs., Inc.

v . Pan Am. Grain Co., 215 F.3d 1 7 2 , 175 (1st Cir. 2000)).

A. James McKenzie

Plaintiff claims that McKenzie is liable to him, under §

1983, for maliciously prosecuting the charge that he (plaintiff)

made a false report to law enforcement (Count I ) , denying him his

Fifth and Fourteenth Amendment property rights (Count V I ) ,

violating his Fourth Amendment right to be secure in his person

and house against unreasonable searches (Count V I I I ) , denying him

his Fourteenth Amendment right to equal protection (Count X ) , and

assault and battery, in violation of his Fourth Amendment rights

(Count X I I ) . McKenzie is also a defendant in the state claims

asserted in Counts X V I I I , X I X , X X I , X X I I , X X V and X X V I I .

29 1. Count I

As noted above, ordinary malicious prosecution does not give

rise to a claim under § 1983. See Roche, 81 F.3d at 256. But

even if it did, plaintiff has alleged no facts which, if proven,

would establish that any act by McKenzie led to the institution

of the false reporting charge. See Rollins, 129 N.H. at 687.

Accordingly, McKenzie is entitled to judgment on the pleadings as

to Count I .

2. Count VI

In Count V I , plaintiff claims that McKenzie denied him his

Fifth and Fourteenth Amendment rights t o : (1) exclude others from

his property; (2) use his property for all lawful purposes; (3)

possess property; and (4) be paid just compensation. More

specifically, plaintiff claims that his constitutional right to

exclude others is violated by RSA 206:26, which pertains to the

powers of conservation officers, and that his constitutional

rights were violated by McKenzie’s covert entry onto his

property, with night-vision equipment and video cameras, for the

purpose of spying on him in an attempt to help Fish & Game take

his crops without paying just compensation.

30 Plaintiff’s only factual allegations concerning McKenzie are

that h e : (1) covertly entered onto plaintiff’s property and spied

on him using night-vision equipment and a video camera; and (2)

failed to tag or remove the deer hanging from the tree in

plaintiff’s yard on July 6. Only the former act is at issue

here, but that act does not give rise to a Fifth Amendment

violation. The Fifth Amendment pertains to the right to a grand

jury indictment in criminal proceedings, double jeopardy, self-

incrimination, due process, and just compensation for private

property taken for public use. Among the various rights listed

in the heading to Count VI in plaintiff’s complaint, the only one

on which he might base a claim is his right to just compensation.

With regard to just compensation, the only constitutional

right implicated by Count V I , plaintiff has alleged no facts to

support a claim that McKenzie played any role in determining the

amount of his compensation for crop damage, nor are sufficient

facts pled to establish any causal connection between McKenzie’s

entry onto plaintiff’s property and the determination of crop-

damage payments. See Soto v . Flores, 103 F.3d 1056, 1062 (1st

Cir. 1997) (citing Maldonado Santiago v . Velazquez Garcia, 821

31 F.2d 8 2 2 , 831 (1st Cir. 1987) (“Section 1983 imposes a causation

requirement similar to that of ordinary tort law.”)).

Accordingly, McKenzie is entitled to judgment on the pleadings as

to Count V I . Furthermore, the same reasoning that justifies

judgment on the pleadings in favor of McKenzie also justifies sua

sponte dismissal of Count VI as to all other defendants named in

that count.

3. Count VIII

In Count VIII, plaintiff claims that McKenzie violated his

Fourth Amendment right to be secure in his person and house

against unreasonable searches by using night-vision and video

equipment to spy on him, under cover of darkness, throughout his

property, including his residence and its curtilage. If McKenzie

entered plaintiff’s curtilage and searched areas of the curtilage

or residence in which plaintiff had a reasonable expectation of

privacy, then plaintiff suffered a violation of his Fourth

Amendment rights. See United States v . Dunning, 312 F.3d 5 2 8 ,

531 (1st Cir. 2002) (explaining that the Fourth Amendment

protects those area in which a person has a legitimate and

reasonable expectation of privacy) (citing Rawlings v . Kentucky,

32 448 U.S. 9 8 , 104-05 (1980); Rakas v . Illinois, 439 U.S. 1 2 8 , 143

(1978)).

However, the Fourth Amendment does not protect plaintiff’s

open fields from either distant observation or actual entry.

Oliver v . United States, 466 U.S. 1 7 0 , 181 (1984) (explaining

that one does not have a reasonable expectation of privacy in

open fields); United States v . Cruz Pagan, 537 F.2d 5 5 4 , 558 (1st

Cir. 1976) (citing Ouimette v . Howard, 468 F.2d 1363, 1365 (1st

Cir. 1972) (explaining that mere trespass is insufficient to

establish a Fourth Amendment violation). Nor does the Fourth

Amendment protect any part of plaintiff’s property, including his

residence and curtilage, that may be viewed from a public way,

because he has no reasonable expectation of privacy in those

areas. See Bilida v . McCleod, 211 F.3d 166, 171-72 (1st Cir.

2000) (citing Minnesota v . Dickerson, 508 U.S. 366, 375 (1993)

(explaining that the Fourth Amendment does not protect that which

is in plain view from a lawful vantage point)). Accordingly,

while plaintiff has stated a claim under Count VIII, that claim

is limited to an assertion that McKenzie entered his curtilage or

33 residence, or observed those areas from a vantage point that was

not open to the public.

4. Count X

In Count X , plaintiff claims that McKenzie denied him equal

protection of the law, as required by the Fourteenth Amendment,

by: (1) denying him crop-damage payments and depredation permits

while granting such payments and permits to others who were

similarly situated or who were less worthy of such payments and

permits; and (2) concealing and destroying records and lying

before boards and courts in order to hide deliberate

discrimination against plaintiff. Assuming, without deciding,

that the denial of crop-damage payments and depredation permits

can constitute an equal protection violation, plaintiff has

alleged no facts that implicate McKenzie in any way in the

failure to make or issue such payments or permits. Plaintiff’s

general claims about destruction of records, and perjury, are far

too conclusory to support a cause of action. See Shaw, 82 F.3d

at 1216. Accordingly, McKenzie is entitled to judgment on the

pleadings as to Count X .

34 5. Count XII

In Count X I I , plaintiff claims that McKenzie violated his

Fourth Amendment right to be secure in his person, by causing

Pearson’s assault and battery on him on July 8 . According to

plaintiff, McKenzie initiated Pearson’s assault and battery by

implying to Pearson that plaintiff was engaged in illegal

activities and by failing to “implement consequences for

Pearson’s previous deleterious and illegal behavior.” Plaintiff

has failed to state a constitutional claim on which relief can be

granted.

As a preliminary matter, plaintiff has not alleged facts

sufficient to establish that defendant Pearson was acting under

color of state law. That failure alone is fatal to Count XII.

See Blum, 457 U.S. at 1004-05; Perkins, 196 F.3d at 1 9 , 2 1 .

Even if plaintiff had sufficiently alleged that Pearson was

acting under color of state law, he has failed to state a Fourth

Amendment claim because he does not assert that he was seized, by

Pearson or by anyone else, and has alleged no facts from which a

seizure could be inferred. The Fourth Amendment speaks to “the

35 right of the people to be secure in their persons . . . against

unreasonable searches and seizures.” However, “the Fourth

Amendment is not implicated unless, viewed objectively, [a law

enforcement] officer’s conduct communicated an intention to use

official authority to restrain the individual’s freedom of

movement.” United States v . Hornbecker, 316 F.3d 4 0 , 45 (1st

Cir. 2003) (citing United States v . Cardoza, 129 F.3d 6, 14-16

(1st Cir. 1997)); see also Evans v . Avery, 100 F.3d 1033, 1036

(1st Cir. 1996) (citing Brower v . County of Inyo, 489 U.S. 593,

596-97 (1989); Landol-Rivera v . Cruz Cosme, 906 F.2d 7 9 1 , 796

(1st Cir. 1990)). Because plaintiff has alleged no facts to

support a claim that McKenzie, through Pearson, indicated an

intention to restrain his freedom of movement, he has alleged no

seizure, and because he has alleged no seizure, he has stated no

claim under the Fourth Amendment.

Moreover, even if Pearson had been acting under color of

state law, and even under the applicable constitutional

provision, plaintiff has failed to state a claim. “[O]utside the

context of a seizure, appellate courts have noted that a person

injured as a result of police misconduct may prosecute a

36 substantive due process claim under section 1983.” Evans, 100

F.3d at 1036 (citations omitted). For police misconduct to rise

to the level of a constitutional violation under the substantive

due process clause, it must “shock the conscience.” See id. at

1037-38. Here, the conduct plaintiff asserts to be

unconstitutional is not shocking to the conscience. At worst,

the described conduct was merely negligent.

Because plaintiff has not adequately alleged action under

color of state law, a Fourth Amendment violation, or a

substantive due process violation, McKenzie is entitled to

judgment on the pleadings as to Count XII. The same reasoning

that justifies judgment on the pleadings in favor of McKenzie

also justifies sua sponte dismissal of Count XII as to all other

defendants named in that count.

B. Nicholas Cort, Michael Walls, & McLaughlin

Plaintiff claims that Cort, Walls, and McLaughlin are liable

to him, under § 1983, for denying him his Fifth and Fourteenth

Amendment property rights (Count V I ) , violating his Fourth

Amendment right to be secure in his person and house against

37 unreasonable searches (Count VIII), and denying him his

Fourteenth Amendment right to equal protection (Count X ) . Those

same defendants are also named in the state claims asserted in

Counts XVII, XIX, XXII, and XXVII.

Plaintiff’s factual allegations concerning Cort, Walls, and

McLaughlin are that: (1) all three conspired to conceal Pearson’s

criminal acts; (2) all three directed the State Police to

investigate him; (3) Cort and Walls perjured themselves in

various fora, as part of a conspiracy to harm him; (4) McLaughlin

knew of and was involved in various criminal activities involving

Blue Mountain; and (5) McLaughlin has attempted to discredit him

because he has uncovered evidence of a criminal conspiracy

involving various politically powerful individuals. As a

preliminary matter, the court notes that virtually none of the

allegations against Cort, Walls, and McLaughlin can withstand

even the limited scrutiny of a Rule 12(c) analysis; the claims

against those three defendants are especially conclusory and

lacking in factual underpinning. See Shaw, 82 F.3d at 1216.

38 1. Count VI

In Count V I , plaintiff makes the same claim against Cort,

Walls, and McLaughlin that he makes against McKenzie, namely that

they denied him various Fifth Amendment rights. Because the

essential facts that support Count VI concern McKenzie’s entry

onto plaintiff’s property, an activity in which neither Cort,

Walls, nor McLaughlin are alleged to have taken part, and because

there are no other facts alleged that would support a claim that

any act by Cort, Walls, or McLaughlin caused plaintiff to be

deprived of any Fifth Amendment rights, including his right to

just compensation, those three defendants are entitled to

judgment on the pleadings as to Count V I .

2. Count VIII

In Count VIII, plaintiff claims that Cort, Walls, and

McLaughlin violated his Fourth Amendment right to be free from

unreasonable searches of his person and house. Because plaintiff

has alleged no facts which, if proved, would subject Cort, Walls,

and McLaughlin to liability for violating his Fourth Amendment

rights – plaintiff does not allege that any of the three ever

entered his property or otherwise subjected him to unlawful

39 surveillance – those three defendants are entitled to judgment on

the pleadings as to Count VIII.

3. Count X

In Count X , plaintiff claims that Cort, Walls, and

McLaughlin violated his right to equal protection by denying him

crop-damage payments and depredation permits and by attempting to

conceal and destroy evidence of the discrimination against him.

As with McKenzie, plaintiff has alleged no facts that implicate

Cort, Walls, or McLaughlin in any way in the issuance of crop-

damage payments or depredation permits. And plaintiff’s claims

about the destruction of records and perjury are far too

conclusory to support a cause of action. See Shaw, 82 F.3d at

1216. Accordingly, Cort, Walls, and McLaughlin are entitled to

judgment on the pleadings as to Count X .

4. Counts XVII, XIX, XXII, and XXVII

Because Cort, Walls, and McLaughlin are entitled to judgment

on the pleadings on all federal claims against them, the court

declines to exercise supplemental jurisdiction over the state

40 claims asserted against them in Counts XVII, XIX, XXII, and

XXVII. See Camelio, 137 F.3d at 672.

IV. Claims Dismissed Sua Sponte

In the interest of judicial economy – a concern that is

necessarily triggered by the filing of a complaint as unwieldy as

this one – the court has examined the entire complaint and has

determined that the following counts should be dismissed sua

sponte for failure to state a claim on which relief can be

A. Count V

In Count V , plaintiff asserts that Chief Amadon violated

several of his constitutional rights by submitting a false

affidavit in order to secure a warrant for his arrest on the

offensive matter charge. First, as plaintiff concedes that there

was a dead deer hanging from a tree in front of his house from

July 6 to July 8 , as a matter of law there was probable cause on

July 28 to arrest plaintiff for a violation of the offensive

matter statute, whether telephone complaints were or were not

made by citizens on July 4 and 5 . More importantly, when

41 examined closely, this count amounts to little more than an

appeal of the verdict entered against plaintiff in his trial on

the offensive matter charge, and this court can entertain no such

appeal. See Younger v . Harris, 401 U.S. 3 7 , 43-49 (1971).

B. Count XIX

In Count XIX, plaintiff asserts that Bourn, Cassidy, Farrin,

Amadon, McKenzie, Vetter, Walls, Cort, McLaughlin, Fish & Game,

John Hickey, and four current and former Epson Selectmen (John

Hickey, Peter Bosiak, Laurance Yeaton, and Robert Berry) are

liable to him, in negligence, for inferring to Pearson that

plaintiff was engaged in illegal activities, and by failing to

inform Pearson that it was lawful for plaintiff to shoot deer.

According to plaintiff, the negligence of the defendants named in

Count XIX placed him in harm’s way by exposing him to Pearson’s

alleged battery. While Count XIX purports to be a claim in

negligence, plaintiff does not frame it in terms of the elements

of that tort and, as a consequence, does not identify with any

specificity the duty that the fifteen named defendants allegedly

breached. To the extent that Count XIX is based upon a duty not

to convey false inferences, plaintiff has alleged no specific

42 facts to support a claim that such a duty was breached, and to

the extent that Count XIX is based upon an affirmative duty to

inform Pearson of the lawfulness of plaintiff’s activities, New

Hampshire law imposes no such duty. Accordingly, Count XIX is

dismissed for failure to state a claim on which relief can be

C. Count XXII

In Count XXII, plaintiff asserts that Bourn, Cassidy,

Farrin, Amadon, McKenzie, Vetter, Walls, Cort, McLaughlin, and

Fish & Game are liable to him, in negligence, for failure to

uphold and enforce the privacy laws. As with Count XIX, Count

XXII is pled far too amorphously to support a cause of action.

Moreover, New Hampshire law imposes no tort duty, running to

plaintiff, on any of the named defendants to “enforce the privacy

laws.” Accordingly, Count XXII is dismissed for failure to state

a claim on which relief can be granted.

D. Count XXIII

In Count XXIII, plaintiff asserts that Amadon is liable to

him in negligence for failing to check the various police records

43 documenting that no citizen had called to complain about the deer

carcass in plaintiff’s yard until July 6, and that Amadon’s

negligence led to the issuance of an arrest warrant for

plaintiff. According to the facts alleged by plaintiff, the

arrest warrant in question was issued on July 2 8 , well after the

incident that gave rise to the offensive matter charge. Even if

there were no phone complaints until July 6, the fact remains

that a deer carcass was hanging from a tree in plaintiff’s yard

for approximately forty-eight hours, from July 6 to July 8 , and

that fact was certainly known at the time the warrant was issued.

On that basis, the lack of phone complaints before July 6 is

entirely immaterial to the existence of probable cause and

validity of the arrest warrant. With or without complaints on

July 4 and 5 , there was a deer carcass hanging in a tree on

plaintiff’s property for two days; that was more than sufficient

to establish probable cause to believe that plaintiff had

violated the offensive matter statute. Because the deer in the

tree, on its own, established probable cause for an arrest

warrant, plaintiff cannot, as a matter of law, prove that

Amadon’s alleged negligence caused any injury to him.

44 Accordingly, Count X X I I is dismissed for failure to state a claim

on which relief can be granted.

E. Count X X I V

In Count X X I V , plaintiff asserts that Bourn and Sweet are

liable to him for defamation, based upon Bourn’s slandering him

to Stout, and Sweet’s libeling him by placing Stout’s letter in

plaintiff’s criminal file. As noted above, plaintiff has

characterized the content of Stout’s note as defamatory, but has

nowhere pled the actual content of that note. Thus, he has

failed adequately to establish the elements of defamation, which,

under New Hampshire law, consists of a defendant’s “fail[ure] to

exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party.” Independent Mech. Contractors, Inc.

v . Gordon T . Burke & Sons, Inc., 138 N . H . 1 1 0 , 118 (1993) (citing

RESTATEMENT (SECOND) OF TORTS § 558 (1977); R . MCNAMARA, 8 NEW HAMPSHIRE

PRACTICE, PERSONAL INJURY, TORT AND INSURANCE PRACTICE § 2 (1988)).

Accordingly, Count X X I V is dismissed for failure to state a claim

45 F. Count X X V I

In Count X X V I , plaintiff asserts that Pearson is liable to

him for defamation, for referring to him as a bastard, which

caused Officer Cassidy to think that plaintiff was currently, or

had been in the past, engaged in unlawful activities. Under New

Hampshire law, a defamatory statement is a false statement of

fact, see id., “that tends to lower the plaintiff in the esteem

of any substantial and respectable group of people,” Nash v .

Keene Publ’g Corp. 127 N . H . 2 1 4 , 219 (1985) (citing Duchesnaye v .

Munro Enters., Inc., 125 N . H . 2 4 4 , 252 (1984)). Determining

whether a statement is capable of defamatory meaning is a

question of law for the court. Duchesnaye, 125 N . H . at 252-53

(citing Thomson v . Cash, 119 N . H . 3 7 1 , 373 (1979); RESTATEMENT

(SECOND) OF TORTS § 614 (1977); W . PROSSER, TORTS § 1 1 1 , at 747-48

(4th ed. 1971)).

While statements of fact may be defamatory, statements of

opinion, as a general rule, are not. See Nash, 127 N . H . at 219

(citations omitted). Here, plaintiff has alleged nothing more

than a statement of opinion. Furthermore, while plaintiff claims

that Pearson’s statement suggested to Cassidy that plaintiff was

46 engaged in some unlawful illegal activity, a statement of opinion

is only actionable when “it may reasonably be understood to imply

the existence of defamatory fact as the basis for the opinion.”

Nash, 127 N.H. at 219 (quoting Duchesnaye, 125 N.H. at 2 4 9 ) .

Simply calling plaintiff a bastard cannot reasonably be

understood as implying that he was engaged in illegal activities;

there are any number of reasons why one person might call another

a bastard, most having more to do with character than action.

Accordingly, plaintiff has failed, as a matter of law, to state a

defamation claim on which relief can be granted, and, on that

basis, Count XXVI is dismissed.

G. Count XXVII

In Count XXVII, plaintiff asserts that Amadon, Farrin,

Cassidy, Bourn, McKenzie, Vetter, Cort, Walls, McLaughlin, Stout,

Sweet, Pearson, Harwood, Manning, the Town of Epsom, and Fish &

Game are liable to him for abuse of process and authority because

they “all abused the legal process and their duty to operate

within the law, uphold the law, and to equally and fairly enforce

the law when they committed the acts stated [in Counts I-XXVI].”

Count XXVII is simply too ill-defined and conclusory to state a

47 claim on which relief can be granted. Accordingly, Count XXVII

is dismissed.

Conclusion

For the reasons given above, Harwood and Manning’s motion to

dismiss (document n o . 30) is granted in full, the motion to

dismiss filed on behalf of Stout (document n o . 55) is granted in

full, and the State defendant’s motion for judgment on the

pleadings (document n o . 42) is granted in full as to all State

defendants other than McKenzie. McKenzie, as well, is entitled

to judgment on the pleadings except on Counts VIII, XVII, X X I ,

and XV.

Based upon the foregoing, plaintiff’s case now consists of

the following claims:

Count I (against Amadon, Farrin, Cassidy, Bourn, and

Pearson);

Count III (against Amadon, Farrin, Cassidy, and Bourn);

Count VIII (against Amadon, Farrin, Cassidy, Bourn, and

Counts XV & XVI (against Farrin and Cassidy);

48 Count XVII (against McKenzie, Farrin, Cassidy, Bourn,

Hickey, Bosiak, and Yeaton);

Count XVIII (against Pearson);

Count XXI (against McKenzie, Farrin, and Cassidy); and

Count XV (against McKenzie).

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 9, 2003

cc: John A . Baldi Donald E . Gardner, Esq. Nancy J. Smith, Esq. Paul A . Maggiotto, Esq. James J. Bianco, Jr., Esq. Brian T . Tucker, Esq.