Kane v. Town of New Ipswich, et al.

2017 DNH 030

• Court: District Court, D. New Hampshire
• Decided: February 21, 2017
• Docket: 16-cv-123-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Kane

v. Civil No. 16-cv-123-LM Opinion No. 2017 DNH 030 Town of New Ipswich, et al.

O R D E R

Michael Kane moves for reconsideration of the court’s order

granting defendants’ motion to dismiss his amended complaint

(doc. no. 66). In support, Kane contends that the court’s order

is “manifestly wrong and in error” because the Tax Injunction

Act (“TIA”), 28 U.S.C. § 1341, does not apply to his claims and

because he states cognizable constitutional claims. Defendants

object to the motion for reconsideration.

Standard of Review

“The granting of a motion for reconsideration is an

extraordinary remedy which should be used sparingly.” Palmer v.

Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (internal

quotation marks and citation omitted). To succeed, a party

moving for reconsideration must show a “manifest error of law or

newly discovered evidence” or that the court “has patently

misunderstood a party.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008). A motion for reconsideration

cannot be used, however, to advance arguments that could or

should have been raised before judgment was entered. United

States v. Zimny, --- F.3d ---, 2017 WL 344976, at *7 (1st Cir.

Jan. 24, 2017).

Background

In his initial complaint (doc. no. 1), Kane alleged that

his property located in New Ipswich, New Hampshire, was a

“household utensil” which was exempt from property tax pursuant

to RSA 80:9. Defendants moved to dismiss the complaint as

barred by the TIA. The court granted the motion to dismiss but

allowed Kane an opportunity 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.” Doc. no. 50

at 10.

Kane filed a fifty-seven page amended complaint in which he

brought fifteen civil rights claims pursuant to 42 U.S.C. §§

1983, 1985, and 1986 (doc. no. 51). In the amended complaint,

Kane alleges that defendants violated his Fourteenth Amendment

rights and retaliated against him in violation of his First

Amendment right to free speech by failing to adequately answer

2 his questions about his property taxes and respond to his

protests that the imposition of property taxes was a violation

of his constitutional rights. Kane found that the responses

provided to him and defendants’ failure to provide responses

were “extremely insulting, unprofessional and an intentional

slap in the face.” Doc. no. 51 at ¶ 56.

Kane alleges that the town’s attorney’s letters to him to

explain the taxes assessed and to explain that he had not sought

information under the “Right to Know” law were “outrageous” and

“served no purpose other than to outrage me by insisting that

the amount [of taxes] demanded by the Town, which I repeatedly

and lengthily claimed to be fraud, was an ‘amount due.’” Id. at

¶ 64. Kane alleges that the chairman of the town’s board of

selectmen, who is a defendant, hired the attorney and “directed

him to blow me off, rather than answer my questions, in

retaliation for my past exercises of First Amendment free speech

challenging his authority and implying he had no authority over

me.” Id. at ¶ 76. Kane states that “[i]rrespective of the

validity of the tax that was collected by the Town of New

Ipswich, the conduct of the Town and its attorney regarding my

questions, by responding with snarky word games and/or failing

to respond at all to my serious concerns, was unjust,

3 discourteous, and shocking to the conscience” in violation of

his Fourteenth Amendment rights.1 Id. at ¶ 67.

Kane alleges that members of the board of assessors were

aware of his protests in opposition to property taxes and his

challenges to the validity of those taxes. He contends that

those defendants violated his Fourteenth and First Amendment

rights by failing to respond to his tax protests and challenges.

He alleges that he suffered emotional anguish because his

protests were ignored, which chilled his efforts due to a

feeling of powerlessness. He also alleges that defendants

conspired to retaliate against his First Amendment rights by

hiring an attorney and by failing to properly respond to his

protests.

Kane brings a separate claim against Jessica Olson based on

her notice to him of an impending tax deed and his interaction

with her on August 26, 2015, the deadline provided in the

notice. Kane alleges that the notice of an impending tax deed

was intended to “snub and outrage me, which it did.” Id. at ¶

122. Kane sent a letter about the notice but did not receive a

1 Neither the town nor the town’s attorney is a defendant in this suit. Although Count III refers to the town, Kane did not list the town as a defendant in the complaint and states that all claims are brought against the individual defendants personally.

4 response, “again slapping me in the face by ignoring my beliefs

of my rights being violated.” Id. at ¶ 123.

On the deadline for paying his property taxes, August 26,

2015, Kane appeared at the tax collector’s window in the town

office. Olson asked if she could help him, which upset Kane

because she did not acknowledge that she knew him, despite all

of his protest letters. Kane called his payment an extortion

fee, rather than payment of property taxes due. Olson disagreed

with his explanation. Kane insisted on a receipt before he

tendered the money, and began to toss bundles of money on the

counter.

Olson said that she felt threatened. Unbeknownst to Kane,

Olson called the police who responded and were present in the

office while Kane completed payment of his taxes. Kane noticed

the police officers after he left the counter. Because Kane

appeared to be calm, no further interaction with the police

occurred.

Kane alleges, nevertheless, that Olson attempted to “cause

[the police] to kill or otherwise injure me, or to remove me

from the town office” and “prevent me from paying my taxes so

she could use the statutory tax deed process to take my shelter

and extinguish my family.” Id. at ¶ 136. Kane alleges

additional claims of constitutional violations and conspiracy

5 based on his theory that defendants violated his rights by

instigating the incident with Olson and by ignoring his tax

For relief, Kane states that he requires the eight

individual defendants, whom he alleges are town officials

involved in tax assessment and collection, “be immediately

removed and/or prohibited from holding any and all government

employment or offices, Federal, State, and Local, now and in the

future.” Id. at 51 of 57. He also demands compensatory

damages of one million dollars from each of the defendants and

an additional 10 million dollars from Jessica Olson, whom he

alleges is the town clerk and tax collector.2

The court granted defendants’ motion to dismiss the amended

complaint on the grounds that the claims were barred by the TIA

and that Kane failed to state any actionable civil rights

claims. See doc. no. 66.

Discussion

In support of his motion for reconsideration, Kane argues

that the court improperly applied the TIA to bar his claims and

that “[t]he facts and evidence currently within the record of

this case do prove my claims when properly noticed, interpreted,

2 Kane also seeks 40 million dollars from the town.

6 and construed.”3 Doc. no. 68 at 2. Kane contends that the court

misunderstood his factual allegations. Defendants object to the

motion, arguing that the court properly decided that Kane’s

requested relief of removing defendants from their town offices

would disrupt the town’s tax collection process and that Kane

did not identify a constitutional right requiring defendants to

respond to his tax protests in a particular way.

A. TIA Bar

Kane contends that the Supreme Court narrowed the scope of

the TIA in Direct Marketing Ass’n v. Brohl, 135 S. Ct. 1124

(2015), so that the court erred in concluding that his claims

were barred by the TIA because of the relief he was seeking. In

Direct Marketing, the plaintiff challenged a Colorado law that

required retailers who did not collect state use taxes to notify

their customers of their “use-tax liability” and to report that

tax information to the customers and the state.4 135 S. Ct. at

1127. The Court noted that the TIA applies to the assessment,

Kane further states that “[t]his court’s order has shocked 3

me so greatly that 12 days after, I still can barely compose myself and my thoughts enough to address this Court’s errors of my facts.” Doc. no. 68 at 2. He asserts that the order has caused him emotional distress of the same kind that defendants have caused.

Use taxes are “the equivalent of sales taxes for out-of- 4

state purchases.” Direct Marketing, 135 S. Ct. at 1134 (Kennedy, J., concurring).

7 levy, or collection of taxes and concluded that gathering

information related to taxes was a procedure that preceded

assessment, levy, and collection of taxes. Id. at 1129-30. The

Court rejected the lower court’s broad interpretation of the TIA

as barring all acts that inhibit taxation. Id. at 1132-33. The

Court held that, as a result, Colorado’s law requiring notice

and reporting of tax information did not implicate the TIA. Id.

at 1133.

Here, however, Kane sought an order that would remove the

town’s employees and officers who assess, collect, and levy

taxes for the town. Such an order would “restrict or stop

official action” of tax assessment, collection, and levy, at

least until new employees and officers could replace those who

were removed. See Direct Marketing, 135 S. Ct. at 1132.

Therefore, because of the relief requested, Kane’s claims are

barred by the TIA.

B. Civil Rights Claims

As explained in the court’s order granting defendants’

motion to dismiss, even if the claims were not barred by the

TIA, they would be dismissed for failure to state cognizable

civil rights claims. Kane’s claims are that defendants failed

to respond to his tax protests and letters in a manner that he

8 found acceptable. He did not identify any constitutional right

to receive particular responses from the town or its officers.

The circumstances that Kane describes do not violate the

Fourteenth Amendment’s procedural or substantive due process

requirements. To state a due process claim, a plaintiff

generally must assert facts showing that he has suffered a

deprivation of a protected interest in life, liberty, or

property. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 541-42 (1985) (elements of procedural due process); Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) (same); Cty. of Sacramento

v. Lewis, 523 U.S. 833, 845-47 (1998) (elements of substantive

due process); Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13

(1st Cir. 2010) (noting that action does not infringe

substantive due process unless it deprives an individual of a

protected interest). Kane does not allege such a deprivation in

his amended complaint.

Nor has Kane alleged facts to support an equal protection

claim. To establish an equal protection claim, a plaintiff

generally must demonstrate that, (1) compared with others

similarly situated, he was selectively treated, and (2) that the

selective treatment was motivated by purposeful discrimination

on some improper basis, such as plaintiff’s membership in a

particular race or religion. See Macone v. Town of Wakefield,

9 277 F.3d 1, 10 (1st Cir. 2002). Although Kane states that he

was not treated as nicely as others who objected to their

property taxes, he provides no specific factual support for that

conclusion and alleges no facts to show that he was treated

differently from others, who were similarly situated, based on

race or another impermissible reason. See Lopera v. Town of

Coventry, 640 F.3d 388, 402 (1st Cir. 2011). Kane also does not

allege facts to support an equal protection claim based on a

“class of one.” See Engquist v. Oregon Dep’t of Agric., 553

U.S. 591, 602-09 (2008).

Kane claims that defendants violated his right to free

speech under the First Amendment and retaliated against him for

exercising his First Amendment right. Kane alleges that

defendants did not like him because of his tax protests and

inflicted emotional distress on him by their responses and lack

of response to his tax protests and letters. He provides no

facts, however, that suggest defendants took any action against

him in reprisal for his tax protests which inhibited his free

expression. Instead, Kane alleges that despite the responses he

received, or the lack of response, he continued to challenge the

town’s property taxes as unconstitutional and continued to

assert that his home is a “household utensil” that is not

subject to property tax and that property taxes are fraudulent

10 and constitute extortion fees. In the absence of any inhibition

or chilling effect on Kane’s right to free speech, he has not

alleged a First Amendment violation. See United States v.

Alvarez, 132 S. Ct. 2537, 2543-51 (2012) (discussing generally

First Amendment speech protection); Mattei v. Dunbar, --- F.

Supp. 3d. ---, 2016 WL 6634871, at *3-*4 (D. Mass. Nov. 8,

2016).

Kane provides no grounds for reconsideration of the court’s

order that granted defendants’ motion to dismiss.

Conclusion

For the foregoing reasons, plaintiff’s motion for

reconsideration (doc. no. 68) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 21, 2017

cc: Michael Kane, pro se Michael P. Courtney, Esq. Russell F. Hilliard, Esq.