UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Kane
v. Civil No. 16-cv-123-LM Opinion 2016 DNH 129 Town of New Ipswich, et al.
O R D E R
Michael Kane, proceeding pro se, filed a complaint listing
the Town of New Ipswich, New Hampshire, and present and former
town officials. Kane challenges defendants’ efforts to collect
property taxes from him, asserting that his property is a
“household utensil” that is exempt from property tax pursuant to
RSA 80:9. Defendants move to dismiss on the ground that the
complaint is barred by the Tax Injunction Act.1 Kane objects to
the motion to dismiss.
Standard of Review
Defendants move to dismiss under both Federal Rule of Civil
Procedure 12(b)(1) and Rule 12(b)(6). For purposes of this
motion, where extrinsic evidence is not an issue, the standard
of review under both rules is the same. Cf. U.S. ex rel.
1 Defendants also move under Local Rule 67.1(a) to require Kane to pay a bond to secure their costs in defending this suit. Kane also objects to that motion. Winkelman v. CVS Caremark Corp., --- F.3d ---, 2016 WL 3568145,
at *5 (1st Cir. June 30, 2016).
In considering motions under Rules 12(b)(1) and 12(b)(6),
the court accepts as true the properly pleaded facts and takes
all reasonable inferences from those facts that support the
plaintiff’s claims. Mulero-Carrillo v. Roman-Hernandez, 790
F.3d 99, 104 (1st Cir. 2015); New England Patriots Fans v. Nat’l
Football League, 2016 WL 3248207, at *2 (D. Mass. June 10,
2016). Based on the properly pleaded facts, the court
determines whether the plaintiff has stated “a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible if the facts as
pleaded, taken in the context of the complaint and in light of
“judicial experience and common sense,” allow the court to draw
“the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).
Background
The background information provided here is summarized from
Kane’s complaint. As such, the summary of Kane’s allegations is
provided for purposes of the present order only and does not
include factual findings or rulings.
2 In identifying the parties in the case, Kane states that he
is “a flesh-and-blood man created by God and endowed with
unalienable rights.” Complaint, doc. 1, ¶ 35. He alleges that
the individual defendants are or have been town officials in
various capacities.
The circumstances that lead to the complaint began twenty
years ago. Kane alleges that he and his wife bought property
with a mobile home in New Ipswich in 1995. He began building a
house on the property in 1999. On May 10, 2000, defendants
George H. Lawrence and Joanne Meshna, on behalf of New Ipswich,
sent Kane a letter notifying him that he was required to have a
building permit. Kane challenged that requirement.
Beginning in 1996, Kane asked defendant George K. Slyman,
the New Ipswich tax collector, for proof of his authority to
collect taxes from Kane, but received no response. When
defendant Amy Thibault was elected to serve as tax collector in
2005, Kane questioned her authority to collect taxes from him
but received no response. Kane also requested past tax records
from Thibault, but then was able to compile his own tax records
from his retained receipts.
On April 9, 2012, Kane sent a notarized letter by certified
mail to defendant Cynthia Lussier, as an agent of New Ipswich,
to notify New Ipswich “and its agents and principal” that Kane
believed the town’s tax collection process violated his
3 constitutional rights. He asked the town to provide proof of
their authority to collect taxes and to return the taxes he had
paid with interest. Lussier responded two days later to his
request, explaining that his request was unclear and that he
would have to be more specific about what documents he was
seeking. She also cited RSA chapters 76 and 80 as law that
governed tax collection.
Kane then sent additional correspondence to the town.
Defendant Jonathan Sistare responded, but Kane was not satisfied
with the response. Kane continued to challenge the town’s
authority to collect taxes from him. He faults defendants
George H. Lawrence, James Coffey, Jeanne Cunningham, and Slyman
for not using their authority to aid him by abating his taxes.
Kane states that he was coerced to pay taxes assessed under
threat of property seizure and that he suffered anxiety and
emotional distress as a result.
Kane continued to challenge the town’s tax collection
process through correspondence and to pay his taxes only because
of tax liens and the possibility of tax deeds. On May 28, 2013,
Kane went to the town office to obtain a list of all registered
voters in New Ipswich and to get the mailing addresses of the
voters. Lussier told Kane that he had to make that request in
writing to the Supervisor of the Checklist. When he talked to
the Supervisor of the Checklist in person, she confirmed that
4 the request must be made in writing and that there was a $25 fee
for the list. Kane also asked Meshna for all property owners
and assessed properties in New Ipswich and was told that the
request had to be in writing and a fee would be required.
In July of 2015, Kane sent the town a letter in which he
claimed a tax exemption under RSA 80:9, describing his property
as a “household utensil.” In response, defendant Jessica Olson
sent Kane a notice of impending tax deed by certified mail.
Kane sent Olson a letter to inform her that she was violating
his constitutional rights.
Kane did not receive a response to his assertion that he
had a constitutional right not to pay property taxes. Kane
alleges in the complaint that on August 21, 2015, “at
approximately 3:30 PM, [he] appeared at the Town Office” because
he had not received a response to his letter. Complaint, doc.
1, ¶ 113. His property was scheduled to be seized the next day
because of the property tax owed unless he paid the amount due.
Kane showed Olson the cash he brought with him and told her he
was there to pay the “extortion fee, under duress, to prevent
taking of my private property by statutory tax deeding the next
day.” Id. ¶ 114. He also asked Olson why she had disregarded
his letters.
Olson called the police and reported that Kane was unruly.
Olson also explained to Kane that if he did not pay the amount
5 owed, his property would be subject to a tax deed to the town
the next day. Kane paid the amount required.
As he turned to leave the building, he saw that there were
two New Ipswich police officers behind him. Kane spoke to the
officers outside. The police report of the incident said that
Kane was upset about having to pay taxes but was calm and the
situation was cleared without incident.
On October 21, 2015, Kane received a letter from Coffey and
Cunningham explaining that the town did not consider his
property that he used as his residence to be a “utensil” under
RSA 80:9. The letter also notified Kane that he could file for
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Kane
v. Civil No. 16-cv-123-LM Opinion 2016 DNH 129 Town of New Ipswich, et al.
O R D E R
Michael Kane, proceeding pro se, filed a complaint listing
the Town of New Ipswich, New Hampshire, and present and former
town officials. Kane challenges defendants’ efforts to collect
property taxes from him, asserting that his property is a
“household utensil” that is exempt from property tax pursuant to
RSA 80:9. Defendants move to dismiss on the ground that the
complaint is barred by the Tax Injunction Act.1 Kane objects to
the motion to dismiss.
Standard of Review
Defendants move to dismiss under both Federal Rule of Civil
Procedure 12(b)(1) and Rule 12(b)(6). For purposes of this
motion, where extrinsic evidence is not an issue, the standard
of review under both rules is the same. Cf. U.S. ex rel.
1 Defendants also move under Local Rule 67.1(a) to require Kane to pay a bond to secure their costs in defending this suit. Kane also objects to that motion. Winkelman v. CVS Caremark Corp., --- F.3d ---, 2016 WL 3568145,
at *5 (1st Cir. June 30, 2016).
In considering motions under Rules 12(b)(1) and 12(b)(6),
the court accepts as true the properly pleaded facts and takes
all reasonable inferences from those facts that support the
plaintiff’s claims. Mulero-Carrillo v. Roman-Hernandez, 790
F.3d 99, 104 (1st Cir. 2015); New England Patriots Fans v. Nat’l
Football League, 2016 WL 3248207, at *2 (D. Mass. June 10,
2016). Based on the properly pleaded facts, the court
determines whether the plaintiff has stated “a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible if the facts as
pleaded, taken in the context of the complaint and in light of
“judicial experience and common sense,” allow the court to draw
“the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).
Background
The background information provided here is summarized from
Kane’s complaint. As such, the summary of Kane’s allegations is
provided for purposes of the present order only and does not
include factual findings or rulings.
2 In identifying the parties in the case, Kane states that he
is “a flesh-and-blood man created by God and endowed with
unalienable rights.” Complaint, doc. 1, ¶ 35. He alleges that
the individual defendants are or have been town officials in
various capacities.
The circumstances that lead to the complaint began twenty
years ago. Kane alleges that he and his wife bought property
with a mobile home in New Ipswich in 1995. He began building a
house on the property in 1999. On May 10, 2000, defendants
George H. Lawrence and Joanne Meshna, on behalf of New Ipswich,
sent Kane a letter notifying him that he was required to have a
building permit. Kane challenged that requirement.
Beginning in 1996, Kane asked defendant George K. Slyman,
the New Ipswich tax collector, for proof of his authority to
collect taxes from Kane, but received no response. When
defendant Amy Thibault was elected to serve as tax collector in
2005, Kane questioned her authority to collect taxes from him
but received no response. Kane also requested past tax records
from Thibault, but then was able to compile his own tax records
from his retained receipts.
On April 9, 2012, Kane sent a notarized letter by certified
mail to defendant Cynthia Lussier, as an agent of New Ipswich,
to notify New Ipswich “and its agents and principal” that Kane
believed the town’s tax collection process violated his
3 constitutional rights. He asked the town to provide proof of
their authority to collect taxes and to return the taxes he had
paid with interest. Lussier responded two days later to his
request, explaining that his request was unclear and that he
would have to be more specific about what documents he was
seeking. She also cited RSA chapters 76 and 80 as law that
governed tax collection.
Kane then sent additional correspondence to the town.
Defendant Jonathan Sistare responded, but Kane was not satisfied
with the response. Kane continued to challenge the town’s
authority to collect taxes from him. He faults defendants
George H. Lawrence, James Coffey, Jeanne Cunningham, and Slyman
for not using their authority to aid him by abating his taxes.
Kane states that he was coerced to pay taxes assessed under
threat of property seizure and that he suffered anxiety and
emotional distress as a result.
Kane continued to challenge the town’s tax collection
process through correspondence and to pay his taxes only because
of tax liens and the possibility of tax deeds. On May 28, 2013,
Kane went to the town office to obtain a list of all registered
voters in New Ipswich and to get the mailing addresses of the
voters. Lussier told Kane that he had to make that request in
writing to the Supervisor of the Checklist. When he talked to
the Supervisor of the Checklist in person, she confirmed that
4 the request must be made in writing and that there was a $25 fee
for the list. Kane also asked Meshna for all property owners
and assessed properties in New Ipswich and was told that the
request had to be in writing and a fee would be required.
In July of 2015, Kane sent the town a letter in which he
claimed a tax exemption under RSA 80:9, describing his property
as a “household utensil.” In response, defendant Jessica Olson
sent Kane a notice of impending tax deed by certified mail.
Kane sent Olson a letter to inform her that she was violating
his constitutional rights.
Kane did not receive a response to his assertion that he
had a constitutional right not to pay property taxes. Kane
alleges in the complaint that on August 21, 2015, “at
approximately 3:30 PM, [he] appeared at the Town Office” because
he had not received a response to his letter. Complaint, doc.
1, ¶ 113. His property was scheduled to be seized the next day
because of the property tax owed unless he paid the amount due.
Kane showed Olson the cash he brought with him and told her he
was there to pay the “extortion fee, under duress, to prevent
taking of my private property by statutory tax deeding the next
day.” Id. ¶ 114. He also asked Olson why she had disregarded
his letters.
Olson called the police and reported that Kane was unruly.
Olson also explained to Kane that if he did not pay the amount
5 owed, his property would be subject to a tax deed to the town
the next day. Kane paid the amount required.
As he turned to leave the building, he saw that there were
two New Ipswich police officers behind him. Kane spoke to the
officers outside. The police report of the incident said that
Kane was upset about having to pay taxes but was calm and the
situation was cleared without incident.
On October 21, 2015, Kane received a letter from Coffey and
Cunningham explaining that the town did not consider his
property that he used as his residence to be a “utensil” under
RSA 80:9. The letter also notified Kane that he could file for
an abatement and could appeal an abatement decision in state
court and could raise an issue about returning past tax payments
in state court. The letter further explained that town tax
authority was based on the New Hampshire Constitution and New
Hampshire laws.
The complaint is forty-one pages long without any
identifiable separate claims and appends sixty-five exhibits.
In the section titled “Jurisdiction and Venue,” Kane states that
the action “arises under” 42 U.S.C. §§ 1983, 1985, 1986, and
“[t]he common law torts of fraud; intentional infliction of
emotional distress; theft; conversion of property; extortion;
trespass; harassment; threatening; witness tampering; witness
intimidation; and attempt to commit the same.” Complaint, doc.
6 1, ¶ 17. As relief, Kane “require[s]” that defendants “suffer
civil death;” “forfeit any and all Town and/or Military
pensions, severance pay, compensation, bonds, and life insurance
proceeds to [Kane]”; be removed from office and be barred from
holding office; and each pay Kane $1 million. He also demands
that Olson be required to pay him $10 million, that the town
compensate him $40 million, that defendants Rebecca Doyle, Woody
Meiszner, and David Lage each pay $100,000, and that the town
return the taxes Kane has paid totaling $124,033.21.
Discussion
Defendants move to dismiss the complaint on the ground that
it is barred by the Tax Injunction Act (“TIA”), 28 U.S.C. §
1341, because Kane is challenging the validity of New Ipswich’s
tax assessment against him and seeks damages for the town’s and
its officials’ collection efforts. Kane objects, arguing that
his complaint “arises from defendants’ long term willful
ignorance and disregard” of his constitutional rights. He
contends that his complaint alleges the defendants contributed
to and conspired “to disregard, ignore and thwart my enjoyment
of my constitutional rights, which is a cause of action.”
The TIA “provides that federal district courts ‘shall not
enjoin, suspend or restrain the assessment, levy or collection
of any tax under State law where a plain, speedy and efficient
7 remedy may be had in the courts of such State.’” Direct Mktg.
Ass’n v. Brohl, 135 S. Ct. 1124, 1129 (2015) (quoting § 1341).
For that reason, federal courts lack jurisdiction to entertain
suits that implicate the bar imposed by the TIA, Pleasures of
San Patricio, Inc. v. Mendez-Torres, 596 F.3d 1, 5 (1st Cir.
2010), including claims that seek reimbursement or refund of
taxes paid, Pegross v. Oakland County Treasurer, 592 F. App’x
380, 386-87 (6th Cir. 2014); Wright v. Pappas, 256 F.3d 635, 637
(7th Cir. 2001); Tonya Washington v. Franchise Tax Board, 2016
WL 3267717, at *6 (C.D. Cal. May 5, 2016); Black v. Lefebvre,
2006 WL 1582395, at *2 (D.R.I. June 6 2006). Therefore, this
court lacks jurisdiction over claims barred by the TIA
“[b]ecause New Hampshire provides plain, speedy, and efficient
remedies for violations of federal rights arising from the
levying and collection of state taxes.” Nemetz v. Town of
Sanbornton, 2013 WL 1049852, at *1 (D.N.H. Mar. 14, 2013)
(internal quotation marks omitted).
In support of his complaint, Kane contends that his claims
are not barred by the TIA because his property is exempt from
taxation under RSA 80:9. He also asserts that the defendants
have violated his constitutional rights by demanding taxes from
him and contends that his complaint alleges claims under the
Civil Rights Act, 42 U.S.C. § 1983. For relief, he seeks an
order to require the town to reimburse him for all taxes he has
8 paid and seeks damages from the individual defendants for their
roles in collecting taxes from him.
Kane plainly challenges the validity of the taxes assessed
against him by New Ipswich and seeks relief on the grounds that
New Ipswich and its officials collected taxes in violation of
his rights.2 Kane’s allegations of violations of his
constitutional rights do not save his complaint from the bar of
§ 1341.3 See Tomaiolo v. Mallinoff, 281 F.3d 1, 6-7 (1st Cir.
2002); see also Terry v. Crawford, 2014 WL 11279818, at *2 (N.D.
Ala. Dec. 18, 2014). Therefore, this court lacks jurisdiction
to consider the federal claims raised in Kane’s complaint. In
the absence of federal claims, the court declines to exercise
supplemental jurisdiction over any state law claims Kane may
have intended to bring. 28 U.S.C. § 1367(c)(3).
2 To the extent Kane intended to allege a claim against Olson based on the incident when the police were called to the town office when Kane appeared there to address the issue of his taxes, he has not alleged facts that could support a plausible claim. In addition, Kane’s reference to a claim of involuntary servitude in his objection to the motion to dismiss does not effectively amend his complaint or provide facts to support such a claim.
3 In addition, “taxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts.” Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 115 (1981).
9 Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(document no. 34) is granted without prejudice to plaintiff’s
opportunity, as provided below, to file an amended complaint.
Defendants’ motion for security (document no. 36) is
terminated as moot, without prejudice to filing a similar motion
in the event an amended complaint is filed.
Plaintiff is given leave to file an amended complaint to
state claims arising out of the events alleged in this case that
do not challenge the validity of the New Ipswich tax assessment
and collection process, if any such claims exist. Each claim
must be stated separately with an appropriate title stating the
claim. An amended complaint must be filed no later than August
29, 2016, failing which judgment will be entered and the case
will be closed.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
August 4, 2016
cc: Michael Kane, pro se Michael P. Courtney, Esq. Russell F. Hilliard, Esq.