Baldi v. Bourn, et al.

2002 DNH 095

• Court: District Court, D. New Hampshire
• Decided: May 16, 2002
• Docket: CV-01-396-JD
• Status: Published

Opinion

Baldi v. Bourn, et al. CV-01-396-JD 05/16/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Baldi

v. Civil No. 01-39 6-JD Opinion No. 2002 DNH 095 Eric Bourn, James McKenzie, and Paul Pearson

O R D E R

The plaintiff, John Baldi, proceeding pro se, brings a civil

rights action pursuant to 42 U.S.C.A. § 1983 against Eric Bourn,

a police officer in Epsom, New Hampshire; James McKenzie, a

conservation officer with the New Hampshire Fish and Game

Department, and Paul Pearson, a resident of Epsom. Baldi alleges

that the defendants violated his Fourth and Fourteenth Amendment

rights and committed many state law violations when Bourn and

Pearson entered Baldi's field after Baldi shot two deer.

McKenzie moves to dismiss the claims against him, and Bourn moves

for judgment on the pleadings on counts XV through XXI. Baldi

objects to both motions.

Background

John Baldi lives on a farm on Center Hill Road in Epsom, New

Hampshire, where he grows alfalfa and Christmas trees. He

alleges that he complained to the New Hampshire Fish and Game Department about damage to his crops caused by deer, to no avail.

He states that in 1995 he discovered that he had a right to shoot

deer on his property and obtained an order from Merrimack County

Superior Court requiring the Fish and Game Department to enter an

agreement with him that would allow him to shoot deer on his

property for four years.

During the evening of November 8 or 9, 1998, at

approximately 10 p.m., Baldi shot two deer in his field located

on the south side of the road. Shortly thereafter. Officer Bourn

drove an Epsom police cruiser across the field to where Baldi was

standing with the deer. Bourn got out of the cruiser and talked

with Baldi.

While they were talking, a large white boom truck drove

across the field toward them. Pearson, who was unknown to Baldi,

got out of the truck and charged toward Baldi in a menacing way.

Officer Bourn stepped in front of Pearson, told him everything

was all right, and told him to leave. Pearson and Bourn left.

Baldi alleges that Bourn and Pearson then met with McKenzie

at the cemetery on Center Hill Road. He also alleges that the

three had met before Bourn and Pearson entered his field. He

states that McKenzie, Bourn, and Pearson knew that it was Baldi

shooting in the field.

2 I. McKenzie's Motion to Dismiss

McKenzie moves to dismiss all of the federal claims brought

against him on the grounds that Baldi has failed to allege that

he was acting under color of state law and has failed to allege

any constitutional violations. If the federal claims are

dismissed, McKenzie asks that the court decline supplemental

jurisdiction as to Baldi's state law claims. Baldi objects,

primarily relying on the argument and cases cited in his

complaint.

When considering a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12( b ) (6), the court takes all well-pled

facts in the complaint as true and draws all reasonable

inferences in the plaintiff's favor. Tompkins v. United

Healthcare of New England. Inc.. 203 F.3d 90, 93 (1st Cir. 2000) .

The court "must carefully balance the rule of simplified civil

pleadings against our need for more than conclusory allegations."

Aybar v. Crispin-Reves, 118 F.3d 10, 13 (1st Cir. 1996)

(quotation omitted). A claim will be dismissed "only if it

clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory." Langadinos v.

Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000) . A complaint

filed by a pro se litigant is held to less stringent standards

than one drafted by a lawyer. See Haines v. Kerner, 404 U.S.

3 519, 520 (1972) .

In order to bring a § 1983 claim, a plaintiff must allege a

constitutional violation caused by state action. See Luqar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982); Roche v. John

Hancock M u t . Life Ins. Co. , 81 F.3d 249, 253 (1st Cir. 1996) .

Section 1983 does not provide relief for actions by private

parties who are not acting under color of state law. See

Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st

Cir. 2000). When a § 1983 claim is alleged against a state

officer based on the officer's conduct in the course of his

official duties, even when that conduct is a misuse or abuse of

his authority, the state action requirement is satisfied. See

Hafer v. Melo, 502 U.S. 21, 28 (1991). "In distinguishing

private action from state action, the general inquiry is whether

'a state actor's conduct occurs in the course of performing an

actual or apparent duty of his office, or . . . is such that the

actor could not have behaved in that way but for the authority of

his office.'" Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125

(1st Cir. 1999) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st

Cir. 1995) ) .

McKenzie contends that Baldi has not alleged facts that show

that he was acting in his official capacity when the events Baldi

alleges occurred. Baldi alleges that McKenzie is "a State Police

4 officer, in the State of New Hampshire, employed by the New

Hampshire Fish and Game Department, and performs his official

duties from New Hampshire Fish and Game Office . . .

Complaint I S . He refers to McKenzie as a state police officer

throughout the complaint. Although Baldi's allegations do not

explain what official duties McKenzie was undertaking by meeting

with Bourn and Pearson in the Center Hill Cemetery, an inference

may be drawn that the alleged meeting involved McKenzie's

official duties as a Fish and Game Officer since it pertained to

Baldi's activity of shooting deer. Given the lenient view taken

of pro se pleadings, Baldi's allegations of official conduct are

sufficient to avoid dismissal for lack of state action.1

A. Count II Egual Protection - Conspiracy

Baldi alleges in Count II that McKenzie conspired with Bourn

and Pearson to acquiesce in Bourn's failure to prosecute Pearson

for his criminal actions against Baldi. He contends that Bourn's

failure to prosecute Pearson violated his Fourteenth Amendment

right to equal protection. McKenzie moves to dismiss the

conspiracy claim against him on the ground that Baldi has failed

to allege an equal protection violation.

1Although Baldi is apparently a law student, he is, nevertheless, a pro se litigant.

5 The equal protection clause of the Fourteenth Amendment

requires states to provide "equal protection of the laws" to all

persons within a state's jurisdiction. U.S. Const, amend XIV.

To state a claim for a violation of equal protection, a plaintiff

must "allege facts indicating that, compared with others

similarly situated, [he] was selectively treated based on

impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person." Barrington

Cove Ltd. P'ship v. R.I. Housing & Mortgage Fin. Co., 246 F.3d 1,

7 (1st Cir. 2001) (internal quotation omitted). Since there is

no constitutional right to police protection, a plaintiff

alleging a violation of equal protection based on an officer's

failure to prosecute criminal conduct must allege facts to show

the officer's discriminatory intent. See Havden v. Gravson. 134

F.3d 449, 452-53 (1st Cir. 1998); see also United States v.

Armstrong, 517 U.S. 456, 465 (1996).

Baldi alleges no facts to indicate that Bourn was motivated

by discriminatory intent in his decision not to prosecute Pearson

for his allegedly criminal conduct when he entered Baldi's field.

Absent discriminatory intent, Baldi does not state a claim that

Bourn violated his right to equal protection. Since a civil

rights conspiracy claim requires proof of a constitutional

6 deprivation, McKenzie is entitled to summary judgment on Baldi's

claim that McKenzie conspired with Bourn and Pearson to violate

his right to equal protection. See Brennan v. Hendriqan, 888

F.2d 189, 195 (1st Cir. 1989); Rubin v. Smith, 919 F. Supp. 534,

539 (D.N.H. 1996) .

B. Counts III and IV - Fourth Amendment

In Count III, Baldi alleges that McKenzie violated his

Fourth Amendment right to be secure in his person and property by

allowing and sending Pearson onto Baldi's property "in an attempt

to feint seizure, harm, threaten, and frighten him in violation

of his rights." Complaint 5 35. Baldi alleges in Count IV that

the defendants conspired to violate his right to be secure in his

person and property. McKenzie moves to dismiss both claims in

part on the ground that Baldi has not alleged a Fourth Amendment

violation.

"The Fourth Amendment provides that '[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated . . . .'" Nieves v. McSweeney, 241 F.3d 46, 54 (1st

Cir. 2001) (quoting U.S. Const, amend. IV). "'[A] person has

been "seized" within the meaning of the Fourth Amendment only if,

in view of all of the circumstances surrounding the incident, a

7 reasonable person would have believed that he was not free to

leave.'" Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir. 1998)

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) ) .

Intrusions into personal privacy implicate the Fourth Amendment

only when the challenged conduct infringes on a person's actual

expectation of privacy that society also recognizes as

reasonable. Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 178

(1st Cir. 1997); United States v. Lewis, 40 F.3d 1325, 1333 (1st

Cir. 1994) .

Privacy rights have been recognized in the home and places

adjacent to the home, known as the curtilage, but not in less

private areas such as the walkway leading to the house. See

Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Open

fields, even those protected with fencing and "no trespassing"

signs, are not subject to an expectation of privacy protected by

the Fourth Amendment. Oliver v. United States, 466 U.S. 170, 176

(1984); see also United States v. Lewis, 240 F.3d 866, 871 (10th

Cir. 2001); Maughon v. Bibb County, 160 F.3d 658, 661 (11th Cir.

1998). A voluntary discussion with police, when the individual

is free to leave, is neither a search nor a seizure. See United

States v. Scott, 270 F.3d 30, 40 (1st Cir. 2001) .

Baldi alleges that Bourn, wearing his uniform, drove a

police cruiser to the area of Baldi's field where he was standing, got out of the cruiser, and talked with him. He

alleges that Pearson drove his truck into the field, got out of

his truck, and charged at Baldi in a menacing manner. Bourn

prevented Pearson from reaching Baldi, and then both Bourn and

Pearson left.

Those allegations do not even suggest that Baldi was not

free to leave at any time during the alleged events or that he

had a reasonable expectation of privacy in that area of his

field.2 Therefore, Baldi has failed to state a Fourth Amendment

violation. As noted above, in the absence of a constitutional

violation, he also fails to state a conspiracy claim. Counts III

and IV against McKenzie are dismissed.

C. Counts V and VI - Fourteenth Amendment

Baldi alleges that the defendants' conduct deprived him of

his Fourteenth Amendment right "to possess, protect and use

property in a legal manor [sic], free of government or police

interference . . . ." Complaint I 41. He also alleges that

2Although a show of force is not required to effect a seizure, a display of authority does not amount to a seizure "unless it results in the intentional ''acquisition of physical control' over the subject and causes a ''termination of [his] freedom of movement.'" Britton v. Maloney, 196 F.3d 24, 30 (1st Cir. 1999) (quoting Brower v. County of Inyo, 489 U.S. 593, 596- 97 (1989) ) .

9 McKenzie conspired with Bourn and Pearson to deprive him of that

right. McKenzie moves to dismiss in part on the ground that

Baldi does not allege a due process violation cognizable under

the Fourteenth Amendment.

Pertinent to Baldi's claim, the Fourteenth Amendment

prohibits the states from "depriv[ing] any person of life,

liberty, or property, without due process of law." U.S. Const,

amend. XIV. As part of a procedural due process claim under the

Fourteenth Amendment, a plaintiff must allege facts to show that

the defendants deprived him of a property interest protected by

state law. See PFZ Props., Inc. v. Rodriquez, 928 F.2d 28, 30

(1st Cir. 1991). To state a substantive due process claim, a

plaintiff must allege either that he was deprived of a protected

property interest or entitlement or that the defendants' "conduct

was so egregious as to shock the conscience." Barrington Cove

Ltd., 246 F.3d at 5.

Baldi's allegations do not suggest that he was deprived of

any property interest or protected entitlement. The defendants

did not take anything or prevent Baldi from using his property.3

3By the time Bourn and Pearson arrived, Baldi had already shot the deer. He does not allege that they took the deer, prevented him from shooting other deer, or in any way deprived him of any property or alleged property interests. The court does not address the issue urged by Baldi as to whether his shooting activities were legal. See N.H. Rev. St. Ann. § 207:3.

10 The defendants' conduct does not shock the conscience. Although

Baldi argues that the defendants trespassed onto his property, "a

trespass to property, negligent or intentional, is a common law

tort; it does not infringe the federal constitution." Wise v.

Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981) .

Lacking allegations that he was deprived of a protected

property interest or subjected to conduct that shocks the

conscience, Baldi does not state a Fourteenth Amendment due

process claim. Therefore, his claim of a violation of his

Fourteenth Amendment right in Count V and his conspiracy claim in

Count VI are dismissed as to McKenzie.

D. State Law Claims

In the event the federal claims against McKenzie were

dismissed, he asks the court to decline supplemental jurisdiction

as to the state law claims against him. Since McKenzie is the

only defendant, of three, who moved to dismiss the federal

claims, the federal claims remain as to the other two defendants.

Therefore, the court has original subject matter jurisdiction

over the civil rights action under 28 U.S.C.A. § 1331 and

supplemental jurisdiction over the state law claims as to all

11 three defendants under 28 U.S.C.A. § 1367(a).4 Should the

federal claims against Eric Bourn and Paul Pearson ultimately be

dismissed also, the court will decline supplemental jurisdiction

on all state claims.

II. Eric Bourn's Motion for Judgment on the Pleadings

Bourn moves for judgment on the pleadings in his favor on

six of the state law claims Baldi alleges against him. Counts XV

through XXI. Those claims allege causes of action based on

alleged violations of New Hampshire criminal statutes and

conspiracy to violate those statutes. Bourn contends that no

private right of action exists as to the cited statutes.

Baldi claims a private right of action pursuant to New

Hampshire Revised Statutes Annotated ("RSA") §§ 634:2, 629:2,

629:3, 631:3, 631:4, and 635:2. Under New Hampshire law, no

private right of action arises under a statute "[ajbsent the

legislature's express or implied intent to create a private right

of action." Snierson v. Scruton, 145 N.H. 73, 79 (2000). Baldi

cites RSA 625:5 in support of his claims.

RSA 625:5 provides that the criminal code does not affect

4 McKenzie does not ask the court to decline supplemental jurisdiction based on other grounds. See, e.g.. 28 U.S.C.A. § 1 3 6 7 (c).

12 any right or liability "authorized by law to be recovered or

enforced in a civil action, regardless of whether the conduct

involved in such civil action constitutes an offense defined in

this code." Far from suggesting the legislature's intent to

create private rights of action under the criminal code, by

exempting existing civil causes of action from any effect due to

the criminal code, RSA 625:5 implies that the criminal code does

not provide civil causes of action. Baldi provides no other

support for his theory that private rights of action exist under

the cited provisions of the criminal code. See Snierson, 145

N.H. at 79.

Since New Hampshire law does not appear to recognize private

rights of action pursuant to the cited provisions of the criminal

code. Bourn is entitled to judgment on the pleadings on Counts XV

through XXI. See also 28 U.S.C.A. § 1 3 6 7 (c) (1) .

Conclusion

For the foregoing reasons, defendant James McKenzie's motion

to dismiss (document no. 7) is granted as to the federal claims

brought against him but is denied as to the state claims.

13 Defendant Eric Bourn's motion to dismiss Counts XV through XXI is

granted.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

May 16, 2 0 02

cc: John A. Baldi, pro se R. Matthew Cairns, Esquire Paul A. Maggiotto, Esquire Amy B. Mills, Esquire