Dodge v . City of Concord, et a l . CV-00-107-M 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raven Dodge
v. Civil N o . 00-107-M Opinion N o . 2000 DNH 243 City of Concord, New Hampshire, et a l .
REPORT AND RECOMMENDATION
Before the Court is pro se and in forma pauperis plaintiff
Raven Dodge, who has filed suit against the City of Concord, New
Hampshire, and Concord Police Officers Roger Baker, Eric Phelps,
and Kevin Partington. Dodge seeks redress under 42 U.S.C. § 1983
for alleged violations of his constitutional rights stemming from
the actions of the named police officers during and after his
arrest on March 1 6 , 1996. The complaint is before me for
preliminary review. See 28 U.S.C. § 1915A (authorizing review of
prisoner’s complaints to determine whether they are frivolous,
malicious, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is immune
from such relief); Local Rules of the United States District
Court for the District of New Hampshire (“LR”) 4.3(d)(2). For
the reasons stated below, I recommend dismissal of this action. Background
On March 1 6 , 1996, at approximately 3:00 a.m., Raven Dodge
was stopped and arrested in Eagle Square in Concord, New
Hampshire by the named defendants, Concord Police Officers, for
loitering in violation of New Hampshire Revised Statutes
Annotated (“RSA”) 644:6. Dodge was searched both at the scene
and again at the police station and items in his possession were
seized. Prior to his arrest, which he alleges was made in the
absence of probable cause, Dodge states he was not given any
opportunity to dispel the officers’ suspicions regarding his
presence at Eagle Square at 3:00 a.m1.
Dodge contends that the actions of the officers in seizing
and searching his person and property on pretextual grounds and
without probable cause, falsely imprisoning him and maliciously
prosecuting him, amounted to deprivations of his right under the
Fourth Amendment to be protected from unreasonable searches and
1 In the present suit, Dodge does not allege any further significant details of the events of March 1 6 , 1996. However, an action previously filed in this Court by Dodge describes details of this incident which are not relevant here. See Dodge v . City of Concord, et a l . , 99-217-B.
2 seizures of his person and property, as well as his Fourteenth
Amendment right not to be deprived of liberty or property without
due process of law.
Discussion
1. Standard of Review
In reviewing a pro se complaint, this Court is obliged to
construe the pleading liberally. See Ayala Serrano v . Lebron
Gonzales, 909 F.2d 8 , 15 (1st Cir. 1990) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings
liberally in favor of that party). At this preliminary stage of
review, all factual assertions made by the plaintiff and
inferences reasonably drawn therefrom must be accepted as true.
See Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996)(stating the
“failure to state a claim” standard of review and explaining that
all “well-pleaded factual averments,” not bald assertions, must
be accepted as true). This review ensures that pro se pleadings
are given fair and meaningful consideration. See Eveland v .
Director of C.I.A., 843 F.2d 4 6 , 49 (1st Cir. 1988). Dismissal
of pro s e , in forma pauperis complaints is appropriate if they
3 are frivolous or malicious, fail to state a claim on which relief
may be granted, or seek monetary relief against a defendant who
is immune from such relief. See Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2)(B)(i), (ii) & (iii)(effective
April 2 6 , 1996).
2 . Res Judicata
a. Procedural History
On December 1 5 , 1999, this Court issued a Report and
Recommendation recommending dismissal on the merits in the case
of Raven Dodge v . City of Concord, et a l . , 99-217-B2. In that
action, Dodge brought suit against the City of Concord, as well
as Officers Baker, Phelps, and Partington, alleging his rights
were violated by his arrest on March 1 6 , 1996. This court, after
thoroughly reviewing Dodge’s complaint, determined that Dodge had
failed to state a claim upon which relief could be granted and
recommended dismissal of the complaint in its entirety pursuant
to 28 U.S.C. § 1915A(b)(1) and LR 4.3(d)(2)(A)(i). Dodge
2 The December 1 5 , 1999 Report and Recommendation is attached.
4 objected to the Report and Recommendation. After considering
Dodge’s objection, Chief Judge Barbadoro approved the Report and
Recommendation and dismissed the action on January 5 , 2000 3 .
The instant complaint was filed on March 1 0 , 2000. This
complaint names the same defendants and alleges similar
constitutional violations arising out of the same cause of action
as the previous case. Because under the doctrine of res judicata
a matter that has been finally resolved on its merits by a court
of competent jurisdiction cannot be relitigated, I must determine
whether or not this action is barred by res judicata before
undertaking any review of this matter on the merits.
b. Application of the Doctrine of Res Judicata
The doctrine of res judicata -- meaning, literally, ‘the
thing has been decided’ -- precludes the relitigation of claims
that were raised or could have been raised in a prior case if
three elements are satisfied: “(1) a final judgement on the
merits in an earlier suit, (2) sufficient identicality between
the causes of action asserted in the earlier and later suits, and
3 The January 5 , 2000 Order is attached.
5 (3) sufficient identicality between the parties in the two
suits.” Gonzalez v . Banco Central Corp., 27 F.3d 7 5 1 , 755 (1st
Cir. 1994); Porn v . National Grange Mutual Insurance Company, 93
F.3d 3 1 , 34 (1st Cir. 1996). In the instant case, there is no
question that the parties to the two suits are identical.
Therefore, I turn my consideration to the other two elements.
A judgment includes “any order from which an appeal lies.”
Fed.R.Civ.P. 54(a). After the issuance of the January 5 , 2000
Order in this case, Dodge was entitled to appeal to the First
Circuit Court of Appeals. The January 5 , 2000 Order, therefore,
constituted a judgment dismissing the action in its entirety. As
it was based on the Magistrate Judge’s Report and Recommendation
on the merits of the complaint, I find the January 5 , 2000 Order
was a final judgment on the merits in the previous action.
As to the third element, a cause of action is defined as “a
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Dodge v . City of Concord, et a l . CV-00-107-M 10/31/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raven Dodge
v. Civil N o . 00-107-M Opinion N o . 2000 DNH 243 City of Concord, New Hampshire, et a l .
REPORT AND RECOMMENDATION
Before the Court is pro se and in forma pauperis plaintiff
Raven Dodge, who has filed suit against the City of Concord, New
Hampshire, and Concord Police Officers Roger Baker, Eric Phelps,
and Kevin Partington. Dodge seeks redress under 42 U.S.C. § 1983
for alleged violations of his constitutional rights stemming from
the actions of the named police officers during and after his
arrest on March 1 6 , 1996. The complaint is before me for
preliminary review. See 28 U.S.C. § 1915A (authorizing review of
prisoner’s complaints to determine whether they are frivolous,
malicious, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is immune
from such relief); Local Rules of the United States District
Court for the District of New Hampshire (“LR”) 4.3(d)(2). For
the reasons stated below, I recommend dismissal of this action. Background
On March 1 6 , 1996, at approximately 3:00 a.m., Raven Dodge
was stopped and arrested in Eagle Square in Concord, New
Hampshire by the named defendants, Concord Police Officers, for
loitering in violation of New Hampshire Revised Statutes
Annotated (“RSA”) 644:6. Dodge was searched both at the scene
and again at the police station and items in his possession were
seized. Prior to his arrest, which he alleges was made in the
absence of probable cause, Dodge states he was not given any
opportunity to dispel the officers’ suspicions regarding his
presence at Eagle Square at 3:00 a.m1.
Dodge contends that the actions of the officers in seizing
and searching his person and property on pretextual grounds and
without probable cause, falsely imprisoning him and maliciously
prosecuting him, amounted to deprivations of his right under the
Fourth Amendment to be protected from unreasonable searches and
1 In the present suit, Dodge does not allege any further significant details of the events of March 1 6 , 1996. However, an action previously filed in this Court by Dodge describes details of this incident which are not relevant here. See Dodge v . City of Concord, et a l . , 99-217-B.
2 seizures of his person and property, as well as his Fourteenth
Amendment right not to be deprived of liberty or property without
due process of law.
Discussion
1. Standard of Review
In reviewing a pro se complaint, this Court is obliged to
construe the pleading liberally. See Ayala Serrano v . Lebron
Gonzales, 909 F.2d 8 , 15 (1st Cir. 1990) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings
liberally in favor of that party). At this preliminary stage of
review, all factual assertions made by the plaintiff and
inferences reasonably drawn therefrom must be accepted as true.
See Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996)(stating the
“failure to state a claim” standard of review and explaining that
all “well-pleaded factual averments,” not bald assertions, must
be accepted as true). This review ensures that pro se pleadings
are given fair and meaningful consideration. See Eveland v .
Director of C.I.A., 843 F.2d 4 6 , 49 (1st Cir. 1988). Dismissal
of pro s e , in forma pauperis complaints is appropriate if they
3 are frivolous or malicious, fail to state a claim on which relief
may be granted, or seek monetary relief against a defendant who
is immune from such relief. See Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2)(B)(i), (ii) & (iii)(effective
April 2 6 , 1996).
2 . Res Judicata
a. Procedural History
On December 1 5 , 1999, this Court issued a Report and
Recommendation recommending dismissal on the merits in the case
of Raven Dodge v . City of Concord, et a l . , 99-217-B2. In that
action, Dodge brought suit against the City of Concord, as well
as Officers Baker, Phelps, and Partington, alleging his rights
were violated by his arrest on March 1 6 , 1996. This court, after
thoroughly reviewing Dodge’s complaint, determined that Dodge had
failed to state a claim upon which relief could be granted and
recommended dismissal of the complaint in its entirety pursuant
to 28 U.S.C. § 1915A(b)(1) and LR 4.3(d)(2)(A)(i). Dodge
2 The December 1 5 , 1999 Report and Recommendation is attached.
4 objected to the Report and Recommendation. After considering
Dodge’s objection, Chief Judge Barbadoro approved the Report and
Recommendation and dismissed the action on January 5 , 2000 3 .
The instant complaint was filed on March 1 0 , 2000. This
complaint names the same defendants and alleges similar
constitutional violations arising out of the same cause of action
as the previous case. Because under the doctrine of res judicata
a matter that has been finally resolved on its merits by a court
of competent jurisdiction cannot be relitigated, I must determine
whether or not this action is barred by res judicata before
undertaking any review of this matter on the merits.
b. Application of the Doctrine of Res Judicata
The doctrine of res judicata -- meaning, literally, ‘the
thing has been decided’ -- precludes the relitigation of claims
that were raised or could have been raised in a prior case if
three elements are satisfied: “(1) a final judgement on the
merits in an earlier suit, (2) sufficient identicality between
the causes of action asserted in the earlier and later suits, and
3 The January 5 , 2000 Order is attached.
5 (3) sufficient identicality between the parties in the two
suits.” Gonzalez v . Banco Central Corp., 27 F.3d 7 5 1 , 755 (1st
Cir. 1994); Porn v . National Grange Mutual Insurance Company, 93
F.3d 3 1 , 34 (1st Cir. 1996). In the instant case, there is no
question that the parties to the two suits are identical.
Therefore, I turn my consideration to the other two elements.
A judgment includes “any order from which an appeal lies.”
Fed.R.Civ.P. 54(a). After the issuance of the January 5 , 2000
Order in this case, Dodge was entitled to appeal to the First
Circuit Court of Appeals. The January 5 , 2000 Order, therefore,
constituted a judgment dismissing the action in its entirety. As
it was based on the Magistrate Judge’s Report and Recommendation
on the merits of the complaint, I find the January 5 , 2000 Order
was a final judgment on the merits in the previous action.
As to the third element, a cause of action is defined as “a
set of facts which can be characterized as a single transaction
or series of related transactions.” Apparel Art Int’l, Inc. v .
Amertex Enters., Ltd., 48 F.3d 576, 583 (1st Cir. 1995). Simply
put, this examination amounts to whether or not the causes of
6 action alleged arise out of a common set of operative facts.
Massachusetts School of Law at Andover, Inc. v . American Bar
Ass’n, 142 F.3d 2 6 , 38 (1st Cir. 1998). Here, the factual
underpinnings of the two suits are exactly the same. Therefore,
they arise out of identical causes of action. Dodge’s assertion
of additional legal theories in the instant action does not
change this analysis, as “a single transaction may give rise to a
multiplicity of claims . . . and the mere fact that different
legal theories are presented in each case does not mean that the
same transaction is not behind each.” Porn, 93 F.3d at 34
(quoting Manego v . Orleans Bd. of Trade, 773 F.2d 1 , 5 (1st Cir.
1985), cert. denied, 475 U.S. 1084 (1986)). Further, there is no
reason why the additional claims presented in this complaint
(malicious prosecution and false imprisonment) could not have
been raised in the earlier action. Res judicata precludes claims
that “were or could have been raised” in the earlier action. Bay
State HMO Management, Inc. v . Tingley Systems, Inc., 181 F.3d
174, 177 (1st Cir. 1999)(emphasis added).
Because all three of the elements of res judicata are
7 satisfied, I find that the doctrine applies here and precludes
relitigation of this claim. Because Dodge has failed to state a
claim upon which relief can be granted, I recommend dismissal of
the action in its entirety.
3. Statute of Limitations
Congress did not provide a statute of limitations for § 1983
actions, so federal courts must borrow the personal injury
limitations period and tolling provisions of the forum state.
See Wilson v . Garcia, 471 U.S. 2 6 1 , 276-80 (1985); Benitez-Pons
v . Puerto Rico, 136 F.3d 5 4 , 59 (1st Cir. 1998)(“The tolling of
the state of limitations is . . . governed by state law.”). In
New Hampshire, all personal actions, other than slander and
libel, are governed by RSA 508:4 I , which provides a three-year
limitations period. See RSA 508:4 I (Supp. 1997).
Dodge filed this complaint on March 1 0 , 2000. The actions
of which he complains occurred on March 1 6 , 1996 and clearly fall
outside the three year limitations period. As Dodge provides no
argument to support the tolling of the applicable limitations
period, I find that the claims are time-barred and would
8 recommend dismissal of this action on this basis even if it were
not barred on grounds of res judicata.
Conclusion
For the above-mentioned reasons, I recommend dismissal of
this action in its entirety as Dodge has failed to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1);
LR 4.3(d)(2)(A)(i). If approved, the dismissal will count as a
strike against the plaintiff under 28 U.S.C. § 1915(g).
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 Committee v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992);
United States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).
James R. Muirhead United States Magistrate Judge
Date: October 3 1 , 2000
cc: Raven Dodge, pro se