Hendricks v. DRED

2002 DNH 060

• Court: District Court, D. New Hampshire
• Decided: March 12, 2002
• Docket: CV-01-307-M
• Status: Published

Opinion

Hendricks v. DRED CV-01-307-M 03/12/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary W. Hendricks and Kathleen L. Hendricks

v. Civil No. 01-307-M Opinion No. 2002 DNH 060

George M. Bald, Commissioner, et a l .

REPORT AND RECOMMENDATION

In this civil rights action, pro se plaintiffs Gary and

Kathleen Hendricks seek relief against various state and local

government officials1 to redress alleged violations of their

constitutional rights. Before this court is the plaintiffs'

motion for a preliminary injunction order directing the

defendants to use their authority to prohibit the use of

motorized vehicles on an abandoned railroad bed abutting the

1The defendants include George M. Bald, Commissioner for the State of New Hampshire Department of Resources and Economic Development, Paul Gray, Chief of the New Hampshire Division of Parks and Recreation ("NHDPR") , Richard McLeod, Director of NHDPR, Robert Spoerl, Program Specialist at the New Hampshire Bureau of Trails, Ronald Alie, Colonel at the New Hampshire Department of Fish & Game ("Fish & Game"), Todd Szewczyk, Conservation Officer at Fish & Game, John J. Singelais, Selectman for the Town of Greenville, New Hampshire ("Greenville"), Russell R. Cook, Selectman for Greenville, Michael Lamarre, Selectman for Greenville, David L. Benedict, Chief of Police for Greenville, and Larry Duval, a police officer for Greenville. plaintiffs' property. The plaintiffs' motion has been referred

to me for a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B). For the reasons stated below, I recommend that the

motion be denied.

Background

Plaintiffs own a home in Greenville, New Hampshire, which

they had intended to operate as a bed-and-breakfast. Abutting

the plaintiffs' property is an abandoned railroad bed. At some

point after the plaintiffs purchased their home, members of the

public began operating motorized recreational vehicles along the

railroad bed. The presence of these vehicles behind the

plaintiffs' home has increased over the years. As a result, the

plaintiffs have been subjected to significant noise on a daily

basis and at all hours of the day and night. The noise from the

vehicles has disrupted the plaintiffs' efforts to raise

productive honeybees and turkeys on their property. In addition,

the vehicles create an extensive amount of dust that settles on

the plaintiffs' home. The plaintiffs further contend that as a

result of this use of the railroad bed, the area is littered with

trash and drug paraphernalia.

Due to the disturbances caused by motorized recreational

2 vehicles along the railroad bed, the plaintiffs have not been

able to fulfill their desire to use their home as a bed-and-

breakfast and have been deprived of the peace and enjoyment that

they expected to obtain when they purchased their property.

Moreover, the plaintiffs have submitted evidence showing that in

the opinion of people qualified to assess the impact of noise on

property values, the plaintiffs have experienced a diminution in

the value of their property.

The plaintiffs have made exhaustive efforts to remedy their

situation. Initially, the railroad bed was owned by a railroad

company. The plaintiffs convinced the company to post signs on

the property and requested the local police to prevent

trespassers from entering the property. These efforts proved

fruitless. Subsequently, the plaintiffs attempted to purchase

the railroad bed from the railroad company.2 The State of New

Hampshire, however, exercised its right of first refusal, and

purchased the property instead. In addition, the plaintiffs have

complained to the defendants and/or their agencies repeatedly and

have contacted state legislators regarding the issue. None of

2The plaintiffs had hoped to purchase the railroad bed from the railroad company in order to prevent motorized vehicles from using the property and to maintain the land for other types of recreational use.

3 these actions has reduced or eliminated the presence of motorized

recreational vehicles behind plaintiffs' property.

According to the plaintiffs, the defendants have failed to

enforce state laws and local ordinances prohibiting the use of

motorized recreational vehicles along the railroad bed. The

defendants maintain that they have no such obligation. Moreover,

while the State concedes that the railroad bed has not been

designated as land for use by motorized recreational vehicles, it

argues that no state statutory authority specifically prohibits

such use.

___________________________ Discussion

Plaintiffs are seeking a preliminary injunction order

directing the defendants to enforce state and local laws

restricting the use of motorized recreational vehicles along the

railroad bed abutting the plaintiffs' property. Even assuming

the existence and applicability of such state and local laws, the

defendants correctly assert that the plaintiffs have failed to

demonstrate a likelihood of success on the merits of their civil

rights claims, and are therefore not entitled to preliminary

injunctive relief.

4 1. Preliminary Injunction Standard

In order to determine whether a preliminary injunction is

appropriate, this court must apply the four part test adopted by

the First Circuit. The test requires the court to evaluate (1)

the likelihood that the plaintiffs will succeed on the merits,

(2) the potential for irreparable injury if the injunction is not

granted, (3) whether the harm to the plaintiffs outweighs the

harm defendants would suffer from the imposition of an

injunction, and (4) the effect of the issuance of an injunction

on the public interest. See Narraqansett Indian Tribe v.

Guilbert, 934 F.2d 4, 5 (1st Cir. 1991) . The critical factor is

the plaintiffs' ability to demonstrate a likelihood of success on

the merits. See Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.

1993). If the movant fails to show that it will probably succeed

on its claims, the court will deny the motion. Id.

2. Likelihood of Success on the Merits

Plaintiffs assert that by failing to enforce state and local

laws restricting the use of motorized recreational vehicles

behind plaintiffs' property, the defendants have deprived them of

their constitutional rights to due process and equal protection.3

3Plaintiffs brought their claims pursuant to 42 U.S.C. § 1983. "As is well established, § 1983 creates no independent

5 I will address these claims in turn.

A. Due Process Claims

"The Due Process Clause of the Fourteenth Amendment provides

that '[n]o State shall . . . deprive any person of life, liberty

or property without due process of l a w ' DeShanev v. Winnebago

County Dep't of Soc. Servs., 489 U.S. 189, 194 (1989) . Because

the plaintiffs have not alleged a deprivation of any procedural

safeguards, their claim invokes the substantive rather than the

procedural component of the Due Process Clause. See i d . at 195.

In order to establish a violation of their right to substantive

due process, the plaintiffs may demonstrate either "that a

specific liberty or property interest protected by the federal

due process clause has been violated, or that the state's conduct

'shocks the conscience'." Coyne v. City of Somerville, 972 F.2d

440, 443 (1st Cir. 1992) (citations omitted) . See also Brown v.

Hot, Sexy & Safer Prods., 68 F.3d 525, 531 (1st Cir. 1995). The

substantive rights, but rather provides a cause of action for governmental violations of rights protected by federal law." Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 621 (1st Cir. 2000). In order to state a claim under § 1983, "a plaintiff must allege (l)the violation of a right protected by the Constitution or laws of the United States and (2) that the perpetrator of the violation was acting under color of law." I d . In this case, the plaintiffs assert that the defendants, acting under color of state law, violated the plaintiffs' constitutional rights to due process and equal protection.

6 plaintiffs have not demonstrated that they will be able to

succeed on either theory.

As the United States Supreme Court has explained,

nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty or property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act . . . It forbids the State itself to deprive individuals of life, liberty, or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.

DeShaney, 489 U.S. at 195-96. Consistent with these principles,

both Supreme Court and First Circuit cases generally recognize no

affirmative right to governmental aid, even where such assistance

may be necessary to secure property interests that the government

itself may not infringe. See i d . at 196; see also Martinez v.

Colon, 54 F.3d 980, 984 (1st Cir. 1995) ("the Due Process Clause

ordinarily does not require the state to protect an individual's

life, limb, or property against the marauding of third parties

not acting to the state's behoof."); Malachowski v. City of

Keene, 787 F.2d 704, 708 (1st Cir. 1986) (misuse or disregard of

state law by state officials does not constitute a deprivation of

property without due process of law). The plaintiffs have

7 asserted no basis for recognizing an exception to this general

rule under the factual scenario presented in this case.

In a case that is factually similar to the matter before

this court, the Second Circuit refused to recognize a due process

right to the enforcement of applicable laws. In Gagliardi v.

Village of Pawling, plaintiff landowners asserted several claims

under section 1983, including due process claims, against various

municipal officials for failing to enforce applicable zoning laws

against the plaintiffs' neighbors. 18 F.3d 188, 192 (2d Cir.

1994). In particular, the plaintiffs accused the defendants of

violating their constitutional rights by failing to prevent a

neighboring business from causing excessive noise, storing

hazardous material on its property and inadequately draining its

land. Id. In affirming the district court's dismissal of the

plaintiffs' due process claims, the Second Circuit found that no

due process violation had occurred because the plaintiffs had no

right to demand that the municipal defendants enforce the zoning

laws. See i d .

I conclude that the Due Process Clause imposes no obligation

upon the defendants to enforce laws or ordinances prohibiting or

otherwise restricting the use of motorized recreational vehicles on property abutting plaintiffs' home. Accordingly, the

plaintiffs have little if any prospect of succeeding on the

merits of their claim that the defendants' failure to enforce

such laws and ordinances has violated a liberty or property

interest protected by the federal Due Process Clause.

Nor are the plaintiffs likely to show that the defendants'

actions "shock the conscience." In order to show a violation of

due process under this theory, the plaintiffs must demonstrate

that the state action in question is "egregiously unacceptable,

outrageous, or conscience-shocking." Cruz-Erazo v. Rivera-

Montanez , 212 F.3d 617, 622 (1st Cir. 2000) (internal quotations

omitted). While not foreclosing the possibility that severe

verbal harassment could constitute "conscience shocking"

behavior, to date the First Circuit has found governmental

conduct to shock the conscience only in instances where "the

state actors engaged in 'extreme or intrusive physical conduct'."

Brown, 68 F.3d at 531 (quoting Souza v. Pina, 53 F.3d 423, 427

(1st Cir. 1995)). See also Cruz-Erazo, 212 F.3d at 622. Nothing

about the defendants' alleged conduct in this case is

sufficiently severe or outrageous to offend due process.

Accordingly, the plaintiffs have not shown that they are likely

9 to prevail on their due process claims.

B. Equal Protection Claims

"The Equal Protection Clause of the Fourteenth Amendment

commands that no State shall 'deny to any person within its

jurisdiction the equal protection of the laws,' which is

essentially a direction that all persons similarly situated

should be treated alike." City of Cleburne, Texas v. Cleburne

Living C t r ., 473 U.S. 432, 439 (1985) (quoting Plvler v. Doe, 457

U.S. 202, 216 (1982)). See also United States v. Craveiro, 907

F.2d 260, 265 (1st Cir. 1990)("Equal protection guarantees that

similar individuals will be dealt with in a similar manner by the

government."). In order to prevail on their equal protection

claim, therefore, the plaintiffs must show that the defendants

have treated them differently than they have treated other,

similarly situated property owners. See Rubinovitz v. Roqato, 60

F.3d 906, 910 (1st Cir. 1995). In addition, the plaintiffs must

demonstrate that the discrimination was intentional. See Havden

v. Gravson, 134 F.3d 449, 453 (1st Cir. 1998) (to succeed on their

equal protection claim, the plaintiffs must establish

discriminatory intent); Brandt v. Davis, 191 F.3d 887, 893 (8th

Cir. 1999)(state officers' unlawful administration of a state

10 statute resulting in unequal application to those who are

entitled to be treated alike violates equal protection only if

the discrimination is intentional or purposeful).

The plaintiffs have offered no evidence indicating that the

defendants would have enforced applicable laws against the use of

motorized recreational vehicles on state property at the request

of another property owner who was similarly situated to the

plaintiffs. Nor have they shown that the defendants purposefully

discriminated against them. Accordingly, the plaintiffs are

unlikely to succeed on the merits of their equal protection

claim. See Gagliardi, 18 F.3d at 193 (finding equal protection

claim insufficient as a matter of law where plaintiffs failed to

allege that municipal defendants would have enforced zoning laws

against neighboring property at the request of another similarly

situated resident) .

Conclusion

Because the plaintiffs have failed to demonstrate that they

are likely to succeed on the merits of their claims against the

defendants, I recommend that their motion for a preliminary

injunction (document no. 2) be denied.

Any objections to this Report and Recommendation must be

11 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) .

James R. Muirhead United States Magistrate Judge

Date: March 12, 2002

cc: Gary W. Hendricks, pro se Kathleen L. Hendricks, pro se _____ Amy B. Mills, Esq. Donald L. Smith, Esq. Patrick E. Donovan, Esq.