Blaisdell v. Rochester, et al. CV-97-082-M 08/28/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
George Blaisdell, Plaintiff
v. Civil No. 97-82-M
City of Rochester, New Hampshire; Gary Stenhouse; Danford J. Wenslev; Donald L. Vittum, and James Twomblev, Defendants
O R D E R
Plaintiff, George Blaisdell, has sued the City of Rochester;
City Manager Gary Stenhouse; counsel for the city, Danford J.
Wensley; Police Chief Donald L. Vittum; and City Councilman James
Twombley, asserting a conspiracy to violate the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C.A. § 1962
("RICO"), violations of his federal constitutional rights
actionable under 42 U.S.C.A. § 1983, and state law causes of
action. Defendants move to dismiss plaintiff's claims as time
barred and, with respect to some claims, for failure to state an
actionable claim. Plaintiff moves for summary judgment in his
favor on his claims in counts I and X. For the reasons that
follow, defendants' motion is granted in part and denied in part,
plaintiff's motion is denied.
Standard of Review
Because defendants have filed their answer to plaintiff's
complaint, and conseguently, pleadings have closed under Federal Rule of Civil Procedure 7 (a) , the court will treat defendants'
motion as a motion for judgment on the pleadings. See Fed. R.
Civ. P. 12(c); see also Prever v. Dartmouth College, 968 F. Supp.
20, 23 (D.N.H. 1997). The standard for evaluating a Rule 12(c)
motion is essentially the same as the standard applicable to a
Rule 12(b)(6) motion. Lanigan v. Village of East Hazel Crest,
111. , 110 F .3d 467, 470 n.2 (7th Cir. 1997).
In both cases, the court's inguiry is a limited one,
focusing not on "whether a plaintiff will ultimately prevail but
whether [he or she] is entitled to offer evidence to support the
claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In making
its inguiry, the court must accept all of the factual averments
contained in the complaint as true, and draw every reasonable
inference in favor of the plaintiffs. See Santiago de Castro v.
Morales Medina, 943 F. 2d 129, 130 (1st Cir. 1991) . "Great
specificity is not reguired to survive a Rule 12 motion. [I]t is
enough for a plaintiff to sketch an actionable claim by means of
a generalized statement of facts." Garita Hotel Ltd. Partnership
v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992) (guotation
omitted). Accordingly, judgment on the pleadings isnot
appropriate unless it appears "beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957) .
Background
2 George Blaisdell lived at 125 Charles Street in Rochester,
New Hampshire, from 1970 until February of 1993. On February 23,
1993, the house at 125 Charles Street burned causing damage to
the roof and other parts of the house. The property also
included a garage where Blaisdell stored some of his personal
property. Evidence of an accelerating agent was present,
suggesting arson.
Before the fire, the city of Rochester disputed Blaisdell's
title to the property based on the city's own tax title to the
property obtained in 1985. After the fire, city officials gave
Blaisdell contradictory instructions about the structural safety
of the house. The city would not permit him access to the
property unless he first signed an agreement in which he would
acknowledge safety hazards existing on the property and release
the city and all of its employees and officials from liability
for any harm to him or damage to his property that might happen
while he was recovering his property from 125 Charles Street. On
February 25, 1993, the city used an excavator to demolish part of
the house, including some of the property inside, and towed
Blaisdell's pickup truck away.1 On February 26, the city
"seized" the property, and the chief of police ordered
Blaisdell's arrest if he attempted to enter the property without
signing the city's proposed agreement. Blaisdell filed a
1 Defendants contend that Blaisdell is bound by allegations in his abandoned pro se action, which defendants interpret as alleging that the house and his personal property were "rendered worthless" on February 25 and is barred from claiming the limited damage alleged here.
3 petition for an injunction in state court to prevent further
demolition of the property.
Blaisdell was arrested on March 22 and again on the 26th,
while attempting to salvage his property at 125 Charles Street,
and was jailed each time, charged with criminal trespass.
Blaisdell was again told that he would be allowed to enter the
property if he signed the city's proposed agreement. Blaisdell
did not sign the proposed agreement but instead signed a waiver
of liability form in the event he was injured at the Charles
Street property.
At the end of March, the city ordered the Charles Street
property demolished. Negotiations on April 2 between Blaisdell
and the city failed to resolve the dispute between them about the
property and Blaisdell's access. Blaisdell's three motor
vehicles were towed from the property, impounded at a local
garage, and were never returned. The vehicles were later
vandalized while being stored by the city.
The city began the final demolition of the property at 9:00
on the morning of April 5, 1993. At 1:30, on the same day, the
New Hampshire Supreme Court issued a cease and desist order to
the city to stop the demolition. Despite actual notice of the
court's cease and desist order, the city delayed its compliance
until the garage was entirely destroyed and the house was further
destroyed. By April 15, when the court ordered the city to allow
Blaisdell access to the property, all that was left was a pile of
rubble.
4 On April 4, 1996, Blaisdell and his companion, who also
lived at the Charles Street property, filed suit in this court
against the city, city officials, and individual defendants
alleging claims under 42 U.S.C.A. § 1983, 18 U.S.C.A. § 1 9 6 2 (a -
d) ("RICO"), and state law claims arising from the circumstances
surrounding the fire and demolition of the Charles Street
property. The suit was begun pro se but counsel entered an
appearance on their behalf on April 12, 1996. Plaintiffs
voluntarily dismissed the suit on August 5, 1996, before
defendants were served with the complaint. Blaisdell,
represented by counsel, then filed the present action on February
21, 1997, and filed an amended complaint on May 9, 1997.
Discussion
Defendants move to dismiss all claims as barred by the
applicable statutes of limitations. Alternatively, defendants
contend that some of Blaisdell's claims are not actionable as
alleged and should be dismissed.
A. Civil Rights Claims
Blaisdell's civil rights claims, counts I, II, IV, and V,
are governed by the forum state's statute of limitations for
personal injury actions. Wilson v. Garcia, 471 U.S. 261, 275
(1985). The applicable New Hampshire statutes provide
limitations periods of three years for personal injury actions.
N.H. Rev. Stat. Ann. § 507-B:7 (city) and § 504:8 (individuals).
5 Accordingly, only claims that accrued within three years of the
date Blaisdell filed his complaint would be timely.
Blaisdell invokes New Hampshire's "savings statute" — that
allows a new action to be brought within one year of judgment
entered "in an action brought within the time limited therefor"
as long as the new action is not barred by judgment. N.H. Rev.
Stat. Ann. § 508:10. Blaisdell's first action was timely filed
on April 4, 1996; his voluntary nonsuit was entered on August 5,
1996; and his new action was filed on February 21, 1997 (within
one year). Thus, claims brought in the first action that accrued
after April 4, 1993, and asserted again in the present suit, are
timely.2
Federal law controls the accrual of § 1983 claims. Guzman-
Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir. 1994). A § 1983
claim accrues "when the plaintiff knows or has reason to know of
the injury which is the basis of the action." Calero-Colon v.
2 Defendants contend that Blaisdell did not plead civil rights claims in his pro se complaint sufficiently to preserve the claims through the savings statute. See Milford Quarry v. Railroad, 84 N.H. 407, 412 (1930) (new action timely only for the same claim raised in the first action). As Blaisdell referenced federal civil rights violations and cited 42 U.S.C.A. § 1983 in his first complaint, his § 1983 claims were sufficient for purposes of the savings statute, particularly when liberally construed in light of his pro se status when the complaint was filed. Defendants mention that they were never served with the complaint in the first action, but do not present any developed argument that lack of service compromises the effect of New Hampshire's savings statute. Defendants were apparently served with copies of plaintiffs' notice of voluntary nonsuit in the first action. As it is likely that timely service is not reguired for application of the savings statute, see, e.g., Hovt v. Nick, 113 N.H. 478, 480 (1973), the issue will not be addressed further.
6 Betancourt-Lebron, 68 F.3d 1 , 3 (1st Cir. 1995) (quotation
omitted). To determine when a plaintiff has reason to know of
his injury, for purposes of accrual, the court examines the
particular constitutional right implicated by the most analogous
common law cause of action. Id.
1. Inverse Condemnation - Counts I and II
Blaisdell alleges that the city took his personal property
and his house without just compensation in violation of his Fifth
and Fourteenth Amendment rights.3 Blaisdell does not dispute
that he was aware of the city's alleged actions against the
Charles Street property from the time of the fire, when the house
was damaged during the fire marshal's investigation, and at other
pertinent times when the city either damaged his property or kept
him from entering the property to recover items during February
and March of 1993. Thus, all of his claims based on events that
occurred prior to April 5, 1993, are time barred.
Defendants further argue that Blaisdell is barred from
seeking compensation from the city for any damage to his property
that may have occurred after February 25, 1993, based on
defendants' interpretation of Blaisdell's pro se complaint.
3 A plaintiff ordinarily must pursue a remedy through state law procedures for inverse condemnation before seeking redress under § 1983 in federal court. See Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-96 (1985) . Plaintiff alleges that the city did not follow the process provided by N.H. Rev. Stat. Ann. § 155-B. As defendants have not addressed this issue, the court will not sua sponte resolve the viability of Blaisdell's inverse condemnation claims with respect to the state procedures requirement.
7 Defendants contend that Blaisdell alleged his property was
worthless after February 25 and also that the state fire marshal,
not the city, was responsible for the damage.
Allegations by a party in an abandoned pleading may be
introduced as evidence of that party's admission of the fact
alleged. See Sunkvonq Internet'1 v. Anderson Land and Livestock
C o ., 828 F.2d 1245, 1249 (8th Cir. 1987) . The evidence of an
admission is subject to the party's explanation and rebuttal
evidence, however, Johnson v. Goldstein, 864 F. Supp. 490, 493
(E.D. Pa. 1994), and must be inconsistent with the party's
present pleadings to be admissible, LWT, Inc. v. Childers, 19
F .3d 539, 542 (10th Cir. 1994).
The disputed paragraph from Blaisdell's pro se complaint
says :
6. On February 25, 1993, the City and State Fire Marshalls brought in a huge excavator to purportedly "help the investigation of the fire." In fact, the excavator was used to intentionally destroy the clear evidence of arson and the same also was used to destroy and render worthless the actual structure itself, and the personal property therein, at 125 Charles Street.
Further on in the complaint, Blaisdell alleged that the city and
other defendants decided on March 28 "to finish the destruction
of the property, including all its valuable contents" and on
April 5 "commenced the complete Demolition of the property,
including all of its contents in it."
Reading the complaint favorably to Blaisdell, as is reguired
when considering a motion to dismiss, and particularly in light
of his further allegations in the complaint, the disputed passage does not necessarily mean, in this context, that all of
Blaisdell's property was rendered worthless on February 25. In
addition, the paragraph clearly says the city and the state fire
marshal brought in the excavator and does not suggest that the
state alone was responsible for the destruction, as defendants
contend. The paragraph may be plausibly understood to refer to
future actions by the city as well as actions on February 25.
Blaisdell's § 1983 inverse condemnation claims are time
barred to the extent they are based on events prior to April 5,
1993. The disputed allegations in the pro se complaint do not
themselves operate to preclude Blaisdell from claiming injury and
loss occurring on April 5, 1993, and after.
2. Section 1983 Claims Against Individual Defendants — Count IV
Defendants contend that Blaisdell's claims against the
individual defendants alleging constitutional violations based on
his arrest and a conspiracy to deprive him of property without
due process of law are time barred. Defendants also object that
these claims are not pled with sufficient specificity to state a
claim.
As explained above, claims based on events that occurred
prior to April 5, 1993, are time barred. With respect to
allegations of constitutional violations stemming from his arrest
and imprisonment in March, his claim seems most analogous to a
state common law claim of false arrest (an arrest that was
patently unlawful when it occurred) , rather than malicious prosecution, and thus accrued at the time of the arrests in March
rather than later when the arrests were determined to have been
invalid. See Calero-Calon, 68 F.3d at 3-4; Guzman-Rivera, 29
F.3d at 5. Thus, Blaisdell's claims based on his arrests in
March are also time barred.
Blaisdell's claims in count IV are minimally sufficient to
meet the notice pleading requirements of Federal Rule of Civil
Procedure 8 (a) and to escape dismissal for failure to state
actionable claims.
3. Section 1983 Claims Against the City - Count V
Blaisdell alleges that he suffered the constitutional wrongs
in count IV, perpetrated by individual defendants, due to the
city's custom, practice, or policy of permitting those
individuals to violate his rights. Again, as above, all claims
based on events that occurred before April 5, 1993, are time
barred and dismissed. Blaisdell's allegations of custom,
practice, or policy are, however, sufficient to state a claim of
municipal liability. See Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993).
B. State Law Claims
Defendants challenge Blaisdell's state law claims, alleged
in counts VI through XI, on grounds that the claims are untimely
or insufficiently pled to state actionable claims. Blaisdell had
three years from the date of the "act or omission complained of"
10 to bring his state law claims. N.H. Rev. Stat. Ann. § 508:4,1.
As described above. New Hampshire's savings statute permits
Blaisdell to file a new action, for claims that were timely
brought in the first action, within a year of the voluntary
dismissal of his first suit. N.H. Rev. Stat. Ann. 508:10;
Milford Quarry, 84 N.H. at 412. Blaisdell filed his second
action within the year allowed. Accordingly, any timely state
law claims brought in the first action, filed on April 4, 1996,
are also timely in this suit.4
Blaisdell appears to concede that his claims of malicious
prosecution and abuse of process, not having been made in his
first suit, are now time barred. In addition, his reference in
4 The parties have not addressed the guestion of when the first action commenced for purposes of the limitations period applicable to state law claims. Under federal law, an action commences upon filing. Fed. R. Civ. P. 3. A federal court sitting in diversity jurisdiction applies state law to determine when an action is commenced for purposes of the state statute of limitations. Walker v. Armco Steel Corp., 446 U.S. 740, 752-53 (1980). The Eighth Circuit, apparently the only jurisdiction to have considered the issue, holds that a court with federal guestion jurisdiction exercising supplemental jurisdiction over state law claims also looks to state law to determine the commencement date for those claims. See Appletree Square I, Ltd. v. W.R. Grace & Co., 29 F.3d 1283, 1286 (8th Cir. 1994); accord Anderson v. Unisys Corp., 47 F.3d 302, 309 (8th Cir. 1995). Under New Hampshire law, an action at law commences, for statute of limitations purposes, when a writ of summons is prepared and signed with a present intention to serve it on defendants. Maguire v. Merrimack M u t . Fire Ins. Co . , 125 N.H. 269, 272 (1984); Hodadon v. Beatrice D. Weeks Memorial Hospital, 122 N.H. 424, 426 (1982). Absent other evidence, the date of the writ creates a rebuttable presumption as to the date the action commenced. Desaulnier v. Manchester School District, 140 N.H. 336, 338 (1995). Given the parties' lack of attention to the issue, the court will accept the presumption that the date of Blaisdell's complaint, April 4, 1996, also the date of filing, was the date of commencement of that action for purposes of Blaisdell's state law claims.
11 his first complaint to "deprivation of civil rights" in a list of
state and federal causes of action, is not sufficient to preserve
the claim he now brings for an implied right of action pursuant
to Part I, Article 12, of the New Hampshire Constitution.
Accordingly, state law claims pled as counts VII, X, and XI are
dismissed.
The remaining state law claims, conversion, intentional
infliction of emotional distress, and civil conspiracy, like
Blaisdell's federal civil rights claims, are limited to events
that occurred within three years of the date of the first action,
that is after April 4, 1993. To the extent these claims are
based on events occurring before April 4, 1993, they are
C. RICO Claims Count III
Civil RICO claims are governed by a four-year limitations
period. Agency Holding corp. v. Malley-Duff & Assoc., Inc., 483
U.S. 143, 156 (1987). A civil RICO claim accrues "when a
plaintiff discovered, or should have discovered, his injury"
unless the time is extended by a recognized tolling doctrine.
Rodriguez v. Banco Central, 917 F.2d 664, 665-66 (1st Cir. 1990);
see also Klehr v. A.O. Smith Corp., 117 S. C t . 1984, 1989 (1997) .
New Hampshire's savings statute is inapplicable to plaintiff's
RICO cause of action, which does not involve New Hampshire's
statute of limitations.
12 Plaintiff's complaint was filed on February 21, 1997,
commencing the present action on that day.6 See
Fed. R. Civ. P. 3. The first event alleged in the complaint was
the house fire at 125 Charles Street on February 21, 1993,
although it is not clear that plaintiff's civil RICO claim
includes allegations about the occurrence of the fire. The other
alleged actions by defendants occurred after that time. Thus,
all actions alleged after February 21, 1993, are within the four
year limitations period allowed for civil RICO actions. The RICO
claim is timely.
Defendants also argue that civil RICO actions, such as
plaintiff's claim here, should not lie if state common law
remedies exist for the same injuries. Defendants' suggestion of
a judicial amendment to the RICO statute is contrary to the
current trend. See, generally, Sedima, S.P.R.L. v. Imrex Co . ,
473 U.S. 479, 498-500 (1985); Roma Construction Co. v. aRusso, 9 6
F.3d 566, 571 (1st Cir. 1996); Rose v. Bartle, 871 F.2d 331, 356
(3d Cir. 1989). Defendants' motion to dismiss the RICO claim is
denied.
D. Plaintiff's Motion for Partial Summary Judgment
Blaisdell moves for summary judgment in his favor on his
claims in Counts I and X of his complaint. Although defendants
have not yet filed their objection, and time has not expired for
6 The court does not understand defendants' argument that plaintiff had until February 24, 1997, to commence this action within the limitation period and failed to do so.
13 them to do so, the present order sufficiently changes the nature
of Blaisdell's claims and his motion for summary judgment to
reguire early disposition.
Count X, alleging an implied cause of action based on the
New Hampshire Constitution, is dismissed in this order.
Accordingly, plaintiff's motion for summary judgment in his favor
on count X is denied.
Summary judgment is appropriate when properly submitted
materials on file show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). As the party moving
for summary judgment and the party bearing the burden of proof at
trial, to prevail on a motion for summary judgment, Blaisdell
must be able to demonstrate uncontested material facts in support
of his claim sufficient to convince the court that no reasonable
jury could find against him. See Fed. R. Civ. P. 56(c); Lopez v.
Corporacion Azu Carera de Puerto Rico, 938 F.2d 1510, 1516-17
(1st Cir. 1991) .
Count I, alleging that the city violated Blaisdell's federal
constitutional rights by taking his property without just
compensation, has been limited by this order to events occurring
on or after April 5, 1993. Defendants dispute whether any
property remained to be taken by April 5, 1993, based in part on
admissions contained in Blaisdell's first complaint. In
addition, it is not clear on the present record that Blaisdell
has satisfied the state procedures reguirement necessary to
14 maintain a federal "taking" claim. See Williamson County
Regional Planning Commission, 473 U.S. at 196-200. Accordingly,
as plaintiff has not demonstrated undisputed material facts
entitling him to judgment as a matter of law, summary judgment is
not appropriate on the present record, and is denied.
____________________________ Conclusion
For the foregoing reasons, defendants' motion to dismiss
(document no. 19) is granted in part and denied in part.
Plaintiff's motion for summary judgment (document no. 40) is
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 28, 1998
cc: Matthew Cobb, Esg. Donald E. Gardner, Esg.