Joseph Fiumara v. McCarthy et al.

• Court: District Court, D. New Hampshire
• Decided: May 10, 1999
• Docket: CV-97-552-PB
• Status: Published

Opinion

Joseph Fiumara v . McCarthy et a l . CV-97-552-PB 05/10/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Fiumara

v. Civil N o . 97-552-B

Michael McCarthy, et a l .

MEMORANDUM AND ORDER

Pro se plaintiff, Joseph Fiumara alleges in this action that

Hampton police officers Robert Towler and Alan Roach, and

Fiumara’s ex-wife, Mary Marshall, violated Fiumara’s Fourteenth

Amendment right to equal protection of the laws.1 Towler and

Roach seek summary judgment, arguing both that Fiumara cannot

prove his claims and that they are entitled to qualified

immunity. Marshall argues that she is entitled to summary judgment because Fiumara has produced insufficient evidence in

support of his claims to warrant a trial. For the reasons

explained below, I grant both motions.

1 Fiumara’s claims against his ex-wife’s attorney and his claims against all of the defendants based on 42 U.S.C. § 1985 were dismissed in a prior order. See Document n o . 1 4 . I. BACKGROUND2

Fiumara was involved in divorce proceedings when the events

in question took place. On October 3 0 , 1994, he was arrested

for violating a restraining order forbidding him from contacting

Marshall. While Fiumara was in custody, Marshall’s lawyer

contacted Towler and told him that a client of Attorney McCarthy’s, Mary Fiumara, was going to the “marital residence” to retrieve the items awarded her in the October 2 1 , 1994 order and requested a civil standby to prevent any disturbance of the peace should Plaintiff (Joseph Fiumara) return home while Mrs. Fiumara was there.

Objection to Defendants Towler and Roach’s Motion for Summary

Judgment (Doc. n o . 47) at 3 . In response, Towler instructed

Roach to go with Marshall to Fiumara’s residence. Roach remained

outside the residence while Marshall entered through a window and

removed certain items.3 Roach did not see how Marshall entered the residence.

Fiumara alleges that although neither Towler nor Roach were

aware of it at the time, Marshall was subject to a restraining

2 I describe the background facts properly documented in the record in the light most favorable to Fiumara. 3 Fiumara suggested in his complaint that the police may have given Fiumara’s key to Marshall to enable her to get into the residence. Fiumara, however, recently withdrew this allegation.

-2- order that prohibited her from entering the residence. When

Fiumara was released from custody, he discovered that Marshall

broken into his home and reported her “burglary” to the police.

The police declined to investigate Fiumara’s complaint, however,

allegedly because it was a “domestic dispute.”

II. ANALYSIS

Fiumara argues that Towler and Roach wrongly allowed

Marshall to enter his residence and then improperly refused to

investigate his burglary report because he belongs to a “class of

people who are involved in domestic proceedings over marriage.”

Id. at 9. Accordingly, he contends that both defendants violated

his right to equal protection of the laws. Fiumara also argues

that Marshall violated his equal protection rights by conspiring

with Towler and Roach. I address each claim in turn. A. Towler and Roach

To the extent that Fiumara challenges the defendants’

failure to investigate his burglary report, his claim fails

because he lacks standing to sue. As the Supreme Court has

observed in this regard, “in American jurisprudence at least, a

private citizen lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.” Linda R.S. v . Richard

-3- D., 410 U.S. 6 1 4 , 619 (1973).

Fiumara’s claim that the defendants are liable because they

stood by while Marshall burglarized his home also fails. Fiumara

has not produced sufficient evidence to permit findings that

defendants purposely discriminated against him. Any equal

protection claim requires proof of purposeful discrimination.

See Judge v . City of Lowell, 160 F.3d 6 7 , 76 (1st Cir. 1998).

Moreover, a plaintiff cannot support an equal protection claim

merely by juxtaposing the fact that he is a member of an

identifiable group with an instance of alleged discrimination.

Id. at 7 6 . Here, Fiumara claims that he is a member of a class

of individuals who have been involved in domestic disputes. He

then argues that defendants allowed Marshall to burglarize his

home because of his membership in the alleged class. He has

offered no evidence, however, to support his assertion.

Accordingly, the defendants are entitled to summary judgment with

respect to his claims against them.

Even if Fiumara had sufficiently supported his claim that

defendants purposefully discriminated against him, he has failed

to demonstrate that defendants lacked a rational basis for their

actions. Because Fiumara has not argued that he is a member of a

suspect class or that he has been denied a fundamental right, the

-4- defendants’ actions cannot be successfully challenged under the

equal protection clause unless defendants acted without a

rational basis to support their actions. See Inmates of Suffolk

County Jail v . Rouse, 129 F.3d 649, 659 (1st Cir. 1997). Here,

defendants had ample reason to act as they did because they were

told by Marshall’s attorney that she was authorized to enter

Fiumara’s home and remove certain items specified in a court

order. The fact that they might have uncovered additional

information if they had investigated further before acting does

not subject them to liability under the equal protection clause.

Accordingly, defendants Towler and Roach are entitled to summary

judgment with respect to plaintiff’s claims against them.

B. Claim Against Marshall

Fiumara has sued Marshall for conspiring with Towler and

Roach to deprive Fiumara of his equal protection rights.

Although a private citizen may be liable pursuant to 42 U.S.C.

1983 if she conspires with a governmental official to violate a

defendant’s constitutional rights, a § 1983 claim cannot be

sustained without proof that the plaintiff’s constitutional

rights were infringed as a result of the alleged conspiracy. See

Dixon v . City of Lawton, OK, 898 F.2d 1443, 1449 (10th Cir.

1990); Landrigan v . Warwick, 628 F.2d 736, 742 (1st Cir. 1980).

-5- As I have already explained, Fiumara has failed to support his

claim that Towler or Roach violated his constitutional rights.

Nor has he identified any other state actors who violated his

constitutional rights. At most, he has alleged that Marshall and

her attorney improperly used the police to accomplish an illegal

end. Such allegations are insufficient to support a § 1983

conspiracy claim against Marshall. Accordingly, Marshall is

entitled to summary judgment with respect to Fiumara’s claim

against her.

III. CONCLUSION

Defendants’ motions for summary judgment (document nos. 44

and 45) are granted.

SO ORDERED.

Paul Barbadoro Chief Judge

May 10 , 1999

cc: Joseph Fiumara John Bosen, Esq. John McEachern, Esq. William Scott, Esq.

-6-