Campbell v. Hooksett School District CV-07-275-JL 1/31/08 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth Juanita Campbell
v. Civil No. 07-cv-275-JL Opinion No.: 2008 DNH 027
Hooksett School District, et al.1
REPORT AND RECOMMENDATION
Before the Court is a complaint (document no. 1), and
addenda thereto (document nos. 5, 7-9, 11-23),2 filed by
2In addition to the Hooksett School District ("HSD"), Elizabeth Campbell names the following defendants to this action: Hooksett Police Department ("HPD"), Town of Hooksett official David Jodoin, Hooksett Memorial School ("HMS") Principal Carol Soucy, New Hampshire Department of Education ("DOE"), DOE Investigator Joanne Esau, HMS Assistant Principal Stephen Harrises, HPD Prosecutor Kimberly Chabot, HPD Officer Lynda Warhall, HSD Special Education Director Marjorie Polak, DOE Hearings Officer Peter Foley, DOE Special Assistant to the Commissioner Sarah Browning, DOE Commissioner Lionel Tracy, Department of Health and Human Services ("DHHS"), D H H S D i v i s i o n of Children, Youth, and Families ("DCYF"), DCYF Licensing and Credentialing official Judith Fillion, Jeanne Kincaid, attorney for the HSD, DHHS' Bureau of Elderly and Adult Services officials Michael Fitts and Laura Ripley, Pheasantwood nursing home employees Janet Dedo, Mary McGuire, Debbie Maguire and Roberta White, New Hampshire Board of Nursing official Norman Patenaude, DOE investigator Michael Kelleher, DOE official Mary Heath, DHHS Commissioner Nicholas Toumpas, Attorney Peter Wright, Sun Healthcare, and Drummond, Woodsum & MacMahon.
2I will consider the complaint and all the addenda jointly, and referred to hereinafter as the complaint. In addition, all Elizabeth Campbell, seeking relief for alleged violations of her
state and federal rights by the defendants.
Also before the Court is Campbell's Motion for Summary
Judgment and Permanent Injunction (document no. 4), which has
been construed as a motion for a temporary restraining order and
referred to me for consideration. This matter is before me for
preliminary review to determine, among other things, whether or
not the complaint states any claim upon which relief might be
granted. See United States District Court District of New
Hampshire Local Rule ("LR") 4.3(d)(1)(B).
I. Standard of Review
Under this Court's local rules, when a plaintiff commences
an action pro se and in forma pauperis, the magistrate judge is
directed to conduct a preliminary review. LR 4.3(d)(1). In
conducting the preliminary review, the Court construes pro se
pleadings liberally, however inartfully pleaded. See Erickson v.
Pardus, ___ U.S. ___, 127 S. C t . 2197, 2200 (2007) (following
Estelle v. Gamble. 429 U.S. 97, 106 (1976) and Haines v. Kerner.
404 U.S. 519, 520-21 (1972) to construe pro se pleadings
of the documents attached to Campbell's narrative pleadings will be considered to be part of the pleadings. See Fed. R. Civ. P. 10(c) (requiring that written instruments attached to a pleading be construed as part of the pleading "for all purposes").
2 liberally in favor of the pro se party). "The policy behind
affording pro se plaintiffs liberal interpretation is that if
they present sufficient facts, the court may intuit the correct
cause of action, even if it was imperfectly pled." See Castro v.
United States. 540 U.S. 375, 381 (2003) (noting that courts may
construe pro se pleadings so as to avoid inappropriately
stringent rules and unnecessary dismissals of claims); Ahmed v .
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). All of the
factual assertions made by a pro se plaintiff and inferences
reasonably drawn therefrom must be accepted as true. See id.
This review ensures that pro se pleadings are given fair and
meaningful consideration.
The purpose of this preliminary review is to discern the
true nature of the claims presented. If the claims set forth are
frivolous, a court may dismiss the complaint. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989) (frivolous claims include
"claims of infringement of a legal interest which clearly does
not exist" and "claims describing fantastic or delusional
scenarios"); see also Purvis v. Ponte 929 F.2d 822, 826 (1st Cir.
1991) (permitting sua sponte dismissal where complaint is
facially frivolous and plaintiff is given notice and an
3 opportunity to amend his complaint prior to dismissal); 28 U.S.C.
§ 1915(d). A judge reviewing a complaint filed by an individual
proceeding in forma pauperis has "not only the authority to
dismiss a claim based on an indisputably meritless legal theory,
but also the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless." Neitzke. 490 U.S. at 327.
With this standard in mind, I find the facts as follows.
II. Background3
Elizabeth Campbell lives in Hooksett, New Hampshire, with
her minor son, J.P.E.H. Although, at the time of filing.
3In a separate action filed in this Court, Campbell v. Hooksett Sch. Dist., Civ. No. 07-276-SM, plaintiff asserts claims relating to the provision of her son's special education. On December 18, 2007, I issued an Order directing service of some of the claims therein and a Report and Recommendation discussing all of the claims raised and recommending that certain claims be dismissed and plaintiff's motion for a preliminary injunction be denied. My Report and Recommendation was approved on January 14, 2008. Plaintiff has filed motions in both cases to consolidate these matters. While some of the facts and allegations overlap in the two cases, I will presume that the claims that were addressed in my December 18, 200 7 Report and Recommendation are not repeated in this action. Accordingly, to the extent that a generous construction of Campbell's complaint might allow me to find that this case raises some claims identical to those in Campbell's other case, I will not so construe the claims set forth. Any allegations relating to claims that were addressed in my December 18, 2007 Report and Recommendation will not be addressed here. The factual findings made in my December 18, 2007 Report and Recommendation are explicitly incorporated here.
4 J.P.E.H. was enrolled in private school, the allegations
contained in the complaint stem from J.P.E.H.'s attendance at the
Hooksett Memorial School ("HMS"). During the several years
J.P.E.H. attended HMS, Campbell was embroiled in disagreement
with HSD and HMS employees as to how to assess and address
J.P.E.H.'s educational needs. The matters were not resolved
amicably, and while the chronology of events is not entirely
clear from the filings, it appears that, ultimately, J.P.E.H. was
deemed not to be in need of special education services. Campbell
appealed this finding to the New Hampshire Department of
Education ("DOE"), but, ultimately, the DOE hearing officer,
Peter Foley, upheld the decision. Campbell subsequently enrolled
her child in private school. She now asserts a number of claims
based on or stemming from her dispute with the HSD about
J.P.E.H.'s special education needs that were not addressed in my
December 18, 2007 Report and Recommendation. Below are the facts
relevant to the specific claim alleged.
A. Improper Ban from School Grounds - October 19, 2006
While Campbell's administrative complaint regarding
J.P.E.H.'s special education needs was pending before the DOE, a
state investigator in the matter, Joanne Esau, asked Campbell why
5 she hadn't requested that the school include a specific item in
her son's individualized education plan. Campbell responded that
she had been asking for exactly that for three years, and in fact
the failure of the school district to include the item in the
plan was the basis of the complaint Esau was investigating.
Campbell asked, rhetorically, "What do you want me to do? Do you
want me to go to the school and put a gun to their heads and make
them do it?" Campbell alleges that Esau reported this incident
to HMS Principal Carol Soucy, who notified the School Resource
Officer, a Hooksett police officer stationed in the public
schools, Lynda Warhall. Soucy also expressed to Warhall her
concern about "Campbell's behavior for quite some time,"
including frequent and disruptive phone calls, visits, and emails
that were often aggressive or hostile, and included criticisms of
individual school employees, the school's provision of special
education to her son, public schools in general, and liberal
politics. School employees generally felt unsafe around
Campbell, because they found her to be unreasonable and
unpredictable. Campbell admits that on a number of occasions,
she sent emails to the school that were critical of the school's
provision of educational services to her child, public schools in
6 general, and liberal politics. Campbell claims that her
communication was offensive to the defendants to this action
because she is a Republican, and because she is African-American.
She also believes defendants disfavor those attributes,
particularly, in combination.
On October 19, 2006, the day Warhall received the complaint
from Soucy, Warhall met Campbell outside of the school when she
came to pick up J.P.E.H. and told her that she could not enter
the building, or call, fax, or email anyone at the school, until
she attended a meeting with Warhall and Soucy regarding
appropriate methods of communication between Campbell and school
officials. Warhall offered to meet that day, the next day, or
during the following week. Campbell claims that during this
conversation, Warhall got physically close to her, yelled at her,
and spit in her face. Warhall allowed Campbell to go get her son
from the school, but Campbell states that she was scared and
embarrassed by the incident and tried to leave. Campbell claims
that Warhall intimidated her by blocking her path when she was
trying to get back into her car. According to Warhall's written
report of the incident, it was Campbell who became angry,
defensive, and paranoid during the interaction, accusing Warhall
7 of only being at the school to monitor Campbell's behavior
because Campbell is African-American, and calling Warhall a liar
when she tried to explain her role at the school. Warhall
reported that she ultimately walked away from Campbell in order
to end the conversation.
Campbell and Warhall agree that Warhall predicated
Campbell's ability to enter the building on Campbell's
willingness to meet with her and Soucy, that Campbell refused to
meet at that time, and that she refused to set up a meeting at a
later date. At the time this action was filed, Campbell had
still not been given permission to return to the HMS building, as
she had still refused to meet with Warhall and Soucy, despite
additional invitations to meet extended by both Warhall and
Soucy.
B. Police Harassment - April 6, 2007 and November 26, 2007
Campbell asserts that on April 6, 2007, Warhall called her
house shortly before noon. Campbell let the call go to her
answering machine, and Warhall left a message stating that she
wanted to meet with Campbell and Soucy. Campbell erased the
message and did not call to schedule a meeting. Forty minutes
later, according to Campbell, Warhall showed up at her door with another police officer. When Campbell refused to answer the
door, the officers accused her, in voices loud enough to be heard
by the neighbors, of abusing and neglecting her son, and
threatened to notify DCYF or to take action against her in court.
Campbell did not open the door, and no further action was taken
against her by the police.
On November 26, 2007, the police came to Campbell's house
again to check on J.P.E.H.'s well-being because they had received
a report that J.P.E.H. missed school for several days. Campbell
states that J.P.E.H. had not missed any school. Campbell claims
the police appearance at her house was intended solely to harass
her.
C. Conspiracy to Deprive Campbell of Employment
Campbell claims that the attorney representing the HSD,
Jeanne Kincaid, is spearheading a conspiracy to deprive her of
employment, so that she will be unable to earn money, which will
cause her to lose her house and require her to remove her son
from private school and return him to the Hooksett schools.
Campbell further contends the reason for this conspiracy is to
enable Kincaid and other HSD officials to again have the ability
to abuse both her and her son. In support of her assertion of
9 conspiracy, Campbell claims that Kincaid once worked for the
State of New Hampshire, and that she is using contacts within the
State to communicate with Campbell's employers and potential
employers, including Janet Dedo, who is in charge of Campbell's
employment at the Pheasantwood Nursing Home ("Pheasantwood").
Campbell asserts that as a result of Kincaid's machinations
(which Campbell also characterizes as "a gang rape"), Dedo
falsely accused Campbell of abusing an elderly patient in her
care at Pheasantwood in March of 2007, and that she was
terminated from that job as a result.
Pheasantwood filed a complaint against Campbell with the New
Hampshire Board of Nursing. The complaint asserted that Campbell
had refused to let a resident out of bed to use the bathroom, and
had placed her hands on the resident to keep her in bed. The
complaint alleges that Campbell was so defensive that she was
unable to have a rational conversation about the incident.
Campbell disputes all of those assertions.
The complaint against Campbell was determined to be
"founded" by the New Hampshire Bureau of Elderly and Adult
Services. Campbell was given the opportunity to appeal the
finding by filing a response before January 30, 2008. Campbell
10 asserts that despite the "founded" determination, her name has
never been placed on a list that she claims exists to identify
all of those nurses who have been found to have abused patients.
Instead, Campbell claims, she has been repeatedly cleared to work
by employers since the complaint was filed. Campbell believes
that this discrepancy is due to the fact that the creators and
supporters of the false allegation and finding of abuse against
her, in conspiracy with one another, have tried to make it
difficult for her to be hired, but that the conspirators lack
either the authority or the courage to actually complete the task
and have her name placed falsely on the list of nurses found
guilty of patient abuse.
As further evidence of the conspiracy to prevent her from
being employable, Campbell has filed several printouts of her
email inbox, which show the senders and subject lines of "spam"
emails that she has received. Campbell claims these emails were
sent to her by Foley, Kincaid, and Peter Wright, her bankruptcy
attorney, and an alleged acquaintance of Foley and Kincaid,
working in conjunction with one another to harass her. Campbell
believes these individuals have generated the "spam" because they
know she is in need of money, in need of work and in need of
11 health insurance. Campbell also states that she has received
pornographic spam from Foley.
D. Retaliation for Exercise of First Amendment Rights
Since 2003, when J.P.E.H. was first enrolled in the Hooksett
schools, Campbell has expressed her beliefs about education, race
relations, and society repeatedly in emails to various Hooksett
school officials. Campbell states that her views are unpopular
with those individuals because she is politically conservative
and that the school officials, as liberals, disagree with her
positions. Campbell claims that all of the bad treatment she has
received from the defendants over the last several years,
including the allegations that have given rise to the actions
pending before this Court, is the result of the defendants'
efforts to retaliate against her for the expression of her views,
and to silence her. Further, Campbell states, the actions of
defendants were designed to retaliate against her for her
challenges to the special education services in the Hooksett
schools. Campbell claims that her right to free speech, to
petition the government for a redress of grievances, and to not
be discriminated against on the basis of her race or political
affiliation, have been violated by this retaliatory activity.
12 III. Discussion
A. Section 1983
Section 1983 creates a cause of action against those who,
acting under color of state law, violate federal constitutional
or statutory law. See 42 U.S.C. § 19834; City of Okla. City v.
Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon. 294
F.3d 1, 6 (1st Cir. 2002). In order for a defendant to be held
liable under § 1983, his or her conduct must have caused the
alleged constitutional or statutory deprivation. See Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v. Flores.
103 F.3d 1056, 1061-62 (1st Cir. 1997). Here, Campbell claims
that defendants are acting under color of state law, and that
they violated her federal constitutional rights. Campbell's
claims arise, therefore, under § 1983 and are analyzed, seriatum,
below.
442 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .
13 1. Improper Ban from School Property Claim
"Every citizen lawfully present in a public place has a
right to engage in peaceable and orderly expression that is not
incompatible with the primary activity of the place in question.
. . [The] crucial question is whether the manner of expression is
basically incompatible with the normal activity of a particular
place at a particular time." United States v. Grace. 461 U.S.
171, 184-85 (1983) (Marshall, J., concurring in part and
dissenting in part). A school is a public place; one in which
persons entitled to be there may, under the protection of the
First Amendment, express themselves as long as the time, place,
or type of expression does not materially disrupt the rights of
other people who also have a right to be at the school. Tinker
v. Des Moines Indep. Cmtv. Sch. Dist.. 393 U.S. 503, 513 (1969);
o f . Morse v. Frederick. ___ U.S. , 127 S.Ct. 2618, 2627 (2007)
(criticizing Tinker and narrowing its holding in the context of
vulgar but nondisruptive student speech that might be permissibly
limited in school setting).
Based on all of the allegations before the Court, I cannot
find that Campbell was denied access to HMS. On the very day
that her contact with the school was limited by Warhall to
14 letters and notes, Campbell was offered the opportunity to meet
to address the communication issues that had caused Warhall to
limit contact in the first place. From the time the "ban" was in
place, therefore, Campbell herself held the key to regaining
access to school property and officials. Further, Warhall's
actions were in response to a perceived threat of gun violence,
and to the frequency and hostility with which Campbell was
communicating with school officials. While Campbell may not
agree that her actions should have been perceived as threatening
or disruptive, it is clear that they were reasonably understood
to be so by the school officials, and by Warhall. Warhall did
not attempt to silence Campbell's expression, but simply sought a
means by which to facilitate the expression that would not cause
consternation or fear on the part of school officials.
Accordingly, I find that Campbell has failed to state a claim for
denial of access to a public place, and I recommend that the
claim be dismissed.
2. The Police Harassment Claim
In claiming that her rights were violated by the police
harassing her in April 2007 and November 2007, as well as during
her encounter with Warhall in October 2006, it appears that
15 Campbell is attempting to assert a substantive due process claim
under the Fourteenth Amendment. A claim of a violation of
substantive due process rights can be brought on the basis of a
deprivation of a specifically identified property or liberty
interest, or by an allegation that the state's conduct "shocks
the conscience." Cruz-Erazo v. Rivera-Montanez. 212 F.3d 617,
622 (1st Cir. 2000) (citing Brown v. Hot. Sexy & Safer Prods.. 68
F.3d 525, 531 (1st Cir. 1995) (internal citations omitted).
Because Campbell has not identified a particular constitutionally
protected interest of which she was deprived by the police
actions alleged here, her substantive due process claim relies on
her proffering sufficient minimum facts to allow me to find that
the police conduct alleged is conscience-shocking. See Cruz-
Erazo . 212 F.3d at 622 (in the absence of plaintiff specifically
articulating an abridged property interest. Court is not
obligated to articulate the claim on her behalf, but may focus
its inquiry on whether the behavior alleged "shocks the
conscience.").
Most of the cases in this Circuit that find state action
egregious enough to be considered "conscience-shocking" involve
highly physically intrusive acts. See Hot. Sexy & Safer Prods..
16 68 F.3d at 531 (citing cases). There remains, however, "the
possibility that verbal or other less physical harassment . . .
might rise to a conscience-shocking level." Cruz-Erazo. 212 F.3d
at 522; see Hot. Sexy & Safer Prods.. 68 F.3d at 531. Even
allowing for the possibility that verbal threats, or intimidation
without harm, might shock the conscience in an extreme case,
given the precedent in this Circuit, I cannot find, even if I
credit Campbell's version of events as true, that she has alleged
sufficient facts to show that this case is so offensive and
egregious as to shock the conscience of a reasonable person. See
e.g.. Cruz-Erazo. 212 F.3d at 622-23 (finding that months of
harassment by police officers which included threats of physical
violence, insults, the filing of unjustified charges, and pushing
plaintiff's pregnant daughter who suffered a miscarriage two days
later, did not rise to the level of shocking the conscience);
Pittslev v. Warish. 927 F.2d 3, 7 (1st Cir. 1991) (concluding
police conduct "despicable and wrongful" but not unconstitutional
where police officers repeatedly threatened to kill plaintiff and
once threatened plaintiff's children with never seeing their
father again); Phelps v. Bracv. Civ. Action No. 06-40090-GAC,
2007 WL 2872458, *3 (D. Mass. Sept. 27, 2007) (Allegations that a
17 corrections officer threatened, yelled at, swore at, physically
intimidated, and appeared to intend imminent harm to a civilly
committed person insufficient to allege a constitutional
violation). While if, in fact, Warhall got physically close to
Campbell, yelled at her, spit in her face, and momentarily
blocked access to her car, that behavior could be considered
unprofessional, it is not severe enough to amount to a
constitutional violation. The same is true of the allegation
that officers knocked on Campbell's door for 22 minutes and said,
in a loud voice, that they would be contacting DCYF about her
son, or that they were checking on J.P.E.H.'s well-being.
Accordingly, as Campbell has failed to allege claims that might
arguably reach the standard of "conscience-shocking" to merit
judicial relief, I recommend that this claim be dismissed.
3. The Conspiracy to Deprive Plaintiff of Employment Claim
Campbell alleges that defendants, in their capacity as state
actors, engaged in a conspiracy to deprive her of employment or
the potential to be employed, by attempting to deprive her of her
nursing license. A conspiracy to commit a civil rights violation
is actionable under 42 U.S.C. § 1985(3), which states in relevant
part:
18 If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators .
To state a claim under § 1985(3), the plaintiff must allege that
the conspiratorial conduct complained of was motivated by some
"racial, or perhaps otherwise class-based, invidiously
discriminatory animus.'’" Aulson v. Blanchard. 83 F.3d 1, 3 (1st
Cir. 1996) (quoting Griffin v. Breckenridge. 403 U.S. 88, 91
(1971)). "[T]he plaintiff must plead conspiracy in some detail
and provide some factual basis supporting the existence of a
conspiracy." Slaqel v. Shell Oil Refinery. 811 F. Supp. 378, 381
(C.D. 111. 1993). "Mere conjecture that there has been a
conspiracy is not enough to state a claim." Tarkowski v. Robert
Bartlett Realty Co.. 644 F.2d 1204, 1208 (7th Cir. 1980).
19 Campbell broadly alleges that the defendants have conspired
against her, driven by race-based animus, to deprive her of her
employment, her means of income, her nursing license, her home,
and the ability to care for her son. Campbell has failed,
however, to offer any specific facts that actually support the
conclusion that any of the defendants engaged in a conspiracy to
so violate her rights. Campbell's claims are speculative and
conclusory, unsubstantiated with any specific or concrete facts
that could perhaps be indulgently construed in her favor.
Campbell's assertions that the spam email proves a conspiracy
exists simply defies common sense. See Neitzke. 490 U.S. at 327
(court has "power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual contentions
are clearly baseless.").
4. The First Amendment/Retaliation Claim
Campbell's last claim is that the mistreatment she received
was the defendants' response to her expression of her political
views and a reaction to administrative complaints she filed
against the HSD. Campbell alleges that the defendants' actions,
therefore, violate the First Amendment's guarantees of free
20 expression and the right to petition the government for a redress
of grievances.
In order to recover under § 1983 for a violation of First
Amendment rights, a plaintiff must allege that the defendant
intended to inhibit speech protected by the First Amendment,
Tatro v. Kervin. 41 F.3d 9, 18 (1st Cir. 1994), and that her
"speech was in fact chilled or intimidated." Sullivan v.
Garrick, 888 F.2d 1, 4 (1st Cir. 1989). Campbell alleges that
her First Amendment rights were abridged by the denial of
unrestricted access to the school, the reactionary refusal of
school officials to provide her son with special education, and
the actions of Warhall and other state and municipal employees
that were designed to punish her for her criticism of the
defendants.
I cannot find here that Campbell's allegations give rise to
a cause of action against the defendants for a willful
suppression of Campbell's constitutionally protected speech. As
explained above, Campbell was never asked to stop expressing
herself, and was not denied access to the school, as she
suggests. Campbell has not alleged sufficient facts to
21 demonstrate that the defendants actually intended to deny her the
ability to express herself.
Campbell points to one occasion where the HSD attorney
attempted to negotiate a settlement with Campbell's lawyer in the
special education matter that, if accepted by Campbell, would
have included Campbell's withdrawal of one of her administrative
complaints. Campbell did not accept those terms, however, and
was not hindered in proceeding to a full due process hearing and
attempting to win at the hearing what she could not obtain by
agreement with the HSD.
Campbell also demonstrated that, when she filed a complaint
with the DOE regarding alleged mistreatment of her son, the DOE
investigator did not interview her prior to the resolution of the
complaint. There is no indication, however, that she was denied
the ability to file the complaint, or that the complaint was not
considered.
I have addressed Campbell's assertions about denial of
access to J.P.E.H.'s school and found that she was not, in fact,
denied access as a result of the content of her speech, but
simply was required to express herself in a peaceable and
reasonable manner consistent with the normal functioning of the
22 school itself. Likewise, Campbell was not inhibited from
fighting an accusation of patient abuse.
Campbell's assertion that all of the acts taken against her
were motivated by the defendants' dislike of the content of
Campbell's speech have simply not been demonstrated by specific
and credible factual allegations. Accordingly, I recommend that
this claim also be dismissed.
B. Campbell's Motion for a Temporary Restraining Order
Campbell has filed a motion seeking emergency injunctive
relief, asking the Court to, among other things, prevent
defendants from interfering with her employment. A motion for a
preliminary injunctive redress cannot be granted unless the
movant demonstrates that she is likely to succeed on the merits
of the underlying claims in the action. See Weaver v. Henderson.
984 F.2d 11, 12 (1st Cir. 1993) (citing cases for the proposition
that the "sine qua non" of the . . . inquiry is likelihood of
success on the merits of the underlying claims and labelling this
factor "critical."). Because I find that Campbell has failed to
state any claim in this action upon which relief might be
granted, and that the action should, therefore, be dismissed, I
necessarily find that she is not able to demonstrate that she is
23 likely to succeed on the merits of the claims. Accordingly, I
recommend that the motion for a temporary restraining order be
denied as moot upon the approval of this Report and
Recommendation.
Conclusion
For the foregoing reasons, I recommend that the complaint in
this matter be dismissed (document nos. 1, 5, 7-9 & 11-23) and
the motion for a temporary restraining order be denied (document
no. 4). Any objections to this report and recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court's order. See Unauthorized Practice of
Law Comm, v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete, 792 F .2d 4, 6 (1st Cir. 1986) .
Date : January 31, 2008
cc : Elizabeth Juanita Campbell, pro se