Blaisdell v. Rochester, NH, et al. CV-97-082-M 10/19/99 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 Twombly, Defendants
O R D E R
George Blaisdell seeks $21 Million in damages, plus interest
and attorney's fees, for losses and personal injury he claims to
have sustained when the City of Rochester demolished the
structure in which he had been living (after it had been severely
damaged by fire and declared a danger to the public safety). In
his 11 count complaint, Blaisdell alleges that defendants
violated many of his constitutionally protected rights, engaged
in an unlawful conspiracy in violation of the Racketeer
Influenced Corrupt Organizations Act, 18 U.S.C. § 1962 ("RICO"),
and committed numerous common law torts.
By prior orders, the court granted defendants' motion for
summary judgment as to plaintiff's section 1983 claim for inverse
condemnation of his personal property (Count 1). See Order dated
January 1, 1999. The court also dismissed plaintiff's state law
claims for malicious prosecution (Count 7), an implied cause of
action under the New Hampshire Constitution (Count 10), and abuse of process (Count 11). See Order dated August 28, 1998.
Finally, as to all of plaintiff's remaining claims, the court
held that the pertinent statute of limitations limited his claims
to events that occurred on or after April 5, 1993. Id.
Defendants have moved for summary judgment as to all of
plaintiff's remaining federal claims. Plaintiff objects. At a
pretrial conference conducted on September 28, 1999, the court
orally informed the parties of its intention to grant defendants'
pending motions for summary judgment and to decline to exercise
supplemental jurisdiction over plaintiff's state law claims.
Nevertheless, it represented to plaintiff that it would issue a
brief written order, outlining the legal basis for its ruling.
Background
The facts giving rise to the parties' dispute are discussed
in the court's previous orders and need not be recounted again.
They are also addressed in detail in defendants' memorandum of
law (document no. 77) and their supplemental memorandum (document
no. 87). It is sufficient to say that at a 1983 tax sale, the
City purchased the property located at 125 Charles Street,
Rochester, New Hampshire. Although plaintiff disputes the
validity of the City's title to that property, the issue appears
to have been fully and finally litigated in the state system. In
1993, after years of legal wrangling between the parties, the
Strafford County Superior Court ruled that the City acguired
2 valid title to the subject property and granted the City a writ
of possession. The City of Rochester v. Blaisdell, No. 86-C-094
(Strafford County Superior Court). See Exhibits DD and EE to
defendants' memorandum (submitted with document no. 77).
Plaintiff does not claim, nor does the record suggest, that he
appealed those orders to the New Hampshire Supreme Court.
Notwithstanding the fact that the City purchased the subject
property at a tax sale in 1983 and acguired title to it by tax
deed in 1985, plaintiff continued living there until fire
destroyed the property in February, 1993. That fire caused
substantial damage not only to the structures located on the
property, but to many of plaintiff's personal belongings as well.
The combination of the fire and the damage subseguently caused by
exposure of the damaged structures to the elements rendered the
property unsafe, uninhabitable, and a danger to the public. Many
neighbors abutting the property began complaining about the
dangers posed by the damaged structures, and reported that the
property contained exposed rotting food and medical waste. Among
other things, local authorities were concerned that the damaged
structures and potentially hazardous exposed materials on the
site posed a substantial threat to children, who passed by the
property on their way to a neighboring school.
The property was cordoned-off and members of the public
(including plaintiff) were not permitted to enter, for fear that
3 they might be seriously injured. Plaintiff resisted the City's
efforts to keep him off the property and, despite several
warnings that he could not enter the property without first
signing a waiver (holding various defendants harmless should he
sustain any injuries), plaintiff refused to sign the waiver and
repeatedly entered the property. On at least two occasions, he
was arrested for trespassing.
In March of 1993, the Rochester Fire Chief, acting pursuant
to the BOCA National Fire Prevention Code and N.H. Rev. Stat.
Ann. 154:20, ordered the City, as record owner of the property,
to demolish the structures located at 125 Charles Street.
Plaintiff then filed with the Strafford County Superior Court a
"Petition for Temporary Ex Parte Restraining Order and Injunctive
Relief," seeking to prevent the planned demolition. See Exhibit
P (attached to document no. 77). After conducting an evidentiary
hearing on the matter, the court held that the buildings located
at 125 Charles Street were structurally unsound and posed a
threat to public health and safety. Accordingly, it denied
plaintiff's petition for a restraining order and injunctive
relief. See Exhibits R and S. The City then proceeded with the
demolition.1
1 Plaintiff appealed the Superior Court's order to the New Hampshire Supreme Court, which temporarily enjoined the City from completing the planned demolition. The City subseguently agreed to allow plaintiff access to the property for one week. Accordingly, the Supreme Court dismissed plaintiff's appeal as moot.
4 Discussion
The remaining counts in plaintiff's complaint raise the
following federal claims:
Count 2: A claim pursuant to 42 U.S.C. § 1983 for inverse condemnation of real property.
Count 3: A civil RICO conspiracy claim.
Count 4: A claim pursuant to 42 U.S.C. § 1983 against the individual defendants for violations of various constitutionally protected rights.
Count 5: A claim pursuant to 42 U.S.C. § 1983 against the City for violations of various constitutionally protected rights.
I. Count 2 - Unconstitutional Taking of Real Property.
In his papers, plaintiff appears to concede that his § 1983
claim relating to the alleged unconstitutional taking of the real
property located at 125 Charles Street fails for the same reasons
his related claim for the allegedly wrongful taking of his
personalty failed. See Plaintiff's combined objection (document
no. 85) at 3. See generally Order dated January 4, 1999.
Defendants are also entitled to judgment as a matter of law with
regard to that claim because the record before the court
demonstrates that a state court determined that the City, and not
plaintiff, actually held legal title to the subject property.
Accordingly, plaintiff had no cognizable claim under § 1983
relating to the destruction of the city's buildings and fixtures
located on that property. See Amezguita v. Hernandez-Colon, 518
F.2d 8 (1st Cir. 1975) (holding that group of sguatters who
occupied government-owned land had no viable section 1983 claims
5 against the government when the structures in which they were
living were demolished by state actors).
II. Count 3 - RICO Conspiracy.
In order to prevail on his civil RICO conspiracy claim,
plaintiff must allege and prove that defendants conspired to
commit a "pattern of racketeering activity." 18 U.S.C. § 1962(a)
and (d). A "racketeering activity" includes any act or threat
involving murder, kidnaping, arson, robbery, bribery, extortion,
gambling, or drug dealing. 18 U.S.C. § 1961(1).
Here, plaintiff alleges that defendants engaged in a pattern
of racketeering activity by attempting to divest him of his
interest in the real and personal property located at 125 Charles
Street through extortion. The term "extortion" means "the
obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, fear, or
under color of official right." 18 U.S.C. § 1951(b) (2) (emphasis
supplied). Plaintiff says that defendants committed (or
conspired to commit) "extortion" by:
fostering a general climate of intense intimidation wherein Mr. Blaisdell was arrested or threatened to be arrested (and thereby having his liberty deprived) when setting foot upon his own property to reclaim his own personalty, and, furthermore, that he would continue to be so arrested unless he signed the above described "Agreement", which signing would have caused Blaisdell to give up certain above described property rights, including the right to bring this very action.
6 Amended complaint, at para. 76.2
Plaintiff's civil RICO conspiracy claim fails for several
reasons. First, plaintiff has failed to specifically identify
two or more predicate crimes in which each of the individual
defendants is alleged to have engaged. See, e.g., Miranda v.
Ponce Federal Bank, 948 F.2d 41, 45 (1st Cir. 1991) ("[I]t is
settled beyond peradventure that civil liability under 18 U.S.C.
§ 1962(c) reguires a named defendant to have participated in the
commission of two or more predicate crimes within the compendium
described in 18 U.S.C. § 1961(1)."). While plaintiff's amended
complaint generally alleges that the individual defendants
participated in one or more criminal schemes designed to divest
him of real and personal property, it fails to specify which
particular defendant(s) engaged in which specific conduct. See
amended complaint at paras. 74-76. Plaintiff's objection does
little to cure or address those deficiencies. Instead, it
focuses almost exclusively upon plaintiff's assertion that
defendants sought to make him relinguish certain real and
intangible rights by "unlawfully" insisting that he sign a waiver
2 Parenthetically, the court notes that plaintiff seems to ascribe an overly broad interpretation to the waiver that the City proposed he sign. Contrary to plaintiff's suggestion, it does not appear that the proposed waiver would have prevented him from pursuing this civil action. It would have merely precluded him from seeking damages from the City if he had sustained any injuries while salvaging personalty located at the Charles Street property (to which the City held title). See Proposed Agreement Regarding Removal of Personal Property at 3-4 (Exhibit L to defendants' memorandum).
7 of liability. As noted above, however, plaintiff's
interpretation of that waiver is overly broad and unsupported by
the document's plain and unambiguous language. At a minimum,
plaintiff has failed to demonstrate that defendants' insistence
that he execute some sort of waiver or release before he entered
the condemned property was either unreasonable or unlawful; he
has certainly failed to support his claim that it amounted to
actual or attempted "extortion."
In light of the foregoing, here, as in Ponce Federal Bank,
"the conspiracy alleged is perfunctory. It fails to provide any
specifics as to the details of the alleged conspiracy or the
predicate acts committed in the pursuit thereof. Like RICO
claims generally, a RICO conspiracy claim that is alleged in
wholly conclusory terms will not withstand a motion to dismiss."
Id., at 48. See also Ahmed v. Rosenblatt, 118 F.3d 886, 888-89
(1st Cir. 1997) (discussing the essential elements of a viable
civil RICO claim and the specific pleading reguirements
applicable to such a claim), cert. denied, 118 S.Ct. 1165 (1998);
Camelio v. American Federation, 137 F.3d 666, 670-71 (1st Cir.
1998) (discussing the statutory definition of "extortion" and
concluding that, because the plaintiff claimed his injuries
resulted exclusively from defendants' unilateral actions,
plaintiff's civil RICO claim must fail because defendants did not
extort property (i.e., take it from him with his consent through
the use or threat to use force). Finally, the record fails to support plaintiff's conclusory
allegation that any conspiracy among the defendants existed.
III. Count 4 - Section 1983 Claims Against Individual Defendants.
Initially, the court notes that plaintiff has failed to
specifically identify the conduct in which each individual
defendant is alleged to have engaged that gives rise to his
section 1983 claims. But even if those claims were adeguately
pled, nearly all of them would be barred by the applicable
statute of limitations (e.g., claims stemming from the February
25, 1993 demolition of the property; the February 25 seizure of
Blaisdell's pickup truck; the February 27 order "barring
Blaisdell from further entering the property;" Blaisdell's arrest
on March 22 and his subseguent arrest on March 26; the March 28
"complete demolition of the said Charles Street dwelling house
and garage;" etc.). See Amended complaint, at paras. 27-32. See
also Order dated August 28, 1998 (holding that the statute of
limitations bars plaintiff from recovering from any events that
occurred prior to April 5, 1993).
Nevertheless, in his memorandum opposing summary judgment
(document no. 85), plaintiff asserts that two section 1983 claims
against the individual defendants remain viable: (1) unreasonable
search and seizure stemming from his arrests when he went onto
the property after the fire; (2) denial of procedural due process
prior to the demolition of the structures located at the property. See Plaintiff's memorandum at 17-18. As noted above,
plaintiff's claims relating to his arrests are barred.
Moreover, even if those claims are not time-barred, they
fail on the merits.3 The record demonstrates that each time he
was arrested, Blaisdell was trespassing on City property, in
violation of a police line and a lawful and valid order issued by
the Fire Chief restricting access to the property (because of the
public safety hazard it posed). The arrests were, therefore,
supported by probable cause. See generally N.H. Rev. Stat. Ann.
635:2 (defining the elements of criminal trespass).
Defendants are also entitled to judgment as a matter of law
as to the plaintiff's claims regarding alleged denials of
procedural due process. First, the record suggests that
plaintiff is barred by the doctrine of res judicata from
relitigating that claim, which the state superior court rejected
on the merits. See Exhibit BB, CC, and DD (attached to document
no. 77). Moreover, the record reveals that plaintiff was given
notice of the City's intent to demolish the structures located on
the property and an opportunity to be heard on that issue. See
Exhibits 0, P, R, and S. Strafford County Superior Court Judge
3 Although his complaint alleges that he was arrested on March 22 and 26, 1993 (i.e., outside of the pertinent limitations period), see amended complaint at paras. 30-31, the record suggests that he may have been arrested on March 26, April 3, and April 9, 1993. If that were the case, the arrest on April 9 would fall within the limitations period.
10 Robert Dickson held an evidentiary hearing on plaintiff's
petition for restraining order and injunctive relief. Following
that hearing, the state court denied plaintiff's petition and
granted all of the City's reguests for findings of fact and
rulings of law. See Exhibit S. Thus, plaintiff's claim that he
was denied due process is without merit.
Finally, even assuming that plaintiff could show that
defendants' alleged conduct violated his constitutionally
protected rights (which he has not), defendants would still be
entitled to the protections afforded by gualified immunity.4
Plaintiff has failed to demonstrate that the individually named
defendants knew or should have known that the conduct in which
they are alleged to have engaged (to the extent plaintiff's
allegations are supported by the record or reasonable inferences
that might be drawn from the record) would likely violate
plaintiff's clearly established constitutional rights. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("government
officials performing discretionary functions, generally are
4 The Supreme Court has directed that when a gualified immunity defense is asserted in a constitutional tort case, courts should first determine whether the plaintiff's constitutional rights were, in fact, violated. Typically, the court should turn to the issue of gualified immunity only if it first concludes that a constitutional right was violated. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991). So, having concluded that defendants did not violate plaintiff's constitutional rights, the court might reasonably forego any discussion of defendants' entitlement to gualified immunity. Nevertheless, a brief discussion of gualified immunity seems appropriate.
11 shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."); Anderson v. Creighton, 483 U.S. 635, 639 (1987)
("[WJhether an official protected by gualified immunity may be
held personally liable for an allegedly unlawful official action
generally turns on the 'objective legal reasonableness' of the
action, . . . assessed in light of the legal rules that were
'clearly established' at the time it was taken."); Brady v. Dill,
187 F.3d 104, 116 (1st Cir. 1999) ("the law must have defined the
right in a guite specific manner, and . . . the announcement of
the rule establishing the right must have been unambiguous and
widespread, such that the unlawfulness of particular conduct will
be apparent ex ante to reasonable public officials.") (citations
omitted); Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 228
(1st Cir. 1992) ("To be 'clearly established,' the 'contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.'")
(guoting Anderson, 483 U.S. at 640)).
In short, nothing in the record suggests that defendants
knew or reasonbly should have known that they were likely
violating plaintiff's clearly established constitutional rights
when they: (1) arrested plaintiff for crossing a police line,
defying a valid order of the Fire Chief, and trespassing on City
property; and/or (2) demolished the condemned Charles Street
12 structures (after the state court had denied plaintiff's petition
for a restraining order).
IV. Count V - Section 1983 Claims Against the City.
In count 5 of his amended complaint, plaintiff alleges that
the "City of Rochester had an official and/or de facto
unconstitutional custom, practice, and/or policy of depriving
Blaisdell of his above stated constitutional rights." Amended
complaint, para. 97. The record fails to support that claim.
Plaintiff's argument in response to defendants' motion for
summary judgment as to count 5 is, in its entirety, as follows:
The individual Defendants were policy makers of the City of Rochester. As seen in the material facts, the individual Defendants, namely, the City Solicitor, a Town Counselor, the City Manager, and the City Police Chief, all participated in the Blaisdell affair, from the time of the fire until the final demolition was finished, and they controlled the City's behavior relative to Blaisdell. They all knew or at least should have known that Blaisdell was being prevented by threat of arrest from going upon 125 Charles to retrieve his personal property. These City Policy makers also had the ability to prevent the rank theft of Blaisdell's personalty on the property which was occurring, which theft constitutes an unreasonable seizure of Blaisdell's property.
Plaintiff's memorandum at 17-18. More is necessary to establish
that a municipal custom or policy was the moving force behind the
alleged deprivation of a constitutional right. See generally
Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397
(1997); Monell v. Department of Social Services, 436 U.S. 658
13 (1978); McCabe v. Life-Line Ambulance Service, Inc., 77 F.3d 540
(1st Cir. 1996). Absent some evidence on that point, defendants
are entitled to judgment as a matter of law.
Conclusion
For the foregoing reasons, and for the reasons set forth in
the legal memoranda submitted by defendants (attached to
documents no. 76, 77, and 87), defendants' motions for summary
judgment as to all of plaintiff's remaining federal claims
(documents no. 76 and 77) are granted. Having disposed of all of
plaintiff's federal claims, the court declines to exercise
supplemental jurisdiction over his state law claims, which are
dismissed without prejudice to pursuing them in state court. The
Clerk of the Court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 19, 1999
cc: Matthew Cobb, Esg. Donald E. Gardner, Esg. James Corpening