Miller v . Conway, et a l . CV-01-103-M 09/03/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
William Dexter Miller, Jr., Plaintiff
v. Civil N o . 01-103-M Opinion N o . 2002 DNH 160 Richard Conway, et a l . , Defendants
O R D E R
Pro se plaintiff, William Dexter Miller, Jr., brings this
action against numerous individuals and entities, including local
police officers from the towns of Barrington, Rochester, Dover
and Farmington; state police officers; state judicial officers;
town selectmen; a county prosecutor; the director of the New
Hampshire Division of Motor Vehicles; and the Strafford County
Correctional Facility. Miller also seeks relief against several
other individuals who are not named as defendants in his
complaint (e.g., “Governor Shaheen should be reprimanded by this
Court” (complaint at para. 5 2 ) ; “We ask this Court to issue an
injunction against any further [local] tax collection activities”
(id.)). By order dated June 2 5 , 2002, the court granted the motions
to dismiss filed by the following defendants: Scott Roberge,
Lincoln Soldati, William Tsiros, Gerald McCarthy, John Fitch,
Ernest Creveling, Franklin Jones, Robert Carignan, Marilyn Drues,
Virginia Beecher, and Strafford County, New Hampshire,
concluding that the claims against those defendants either failed
to state viable causes of action and/or were not properly served
upon the defendants.
Although it is difficult to discern precisely what claims
Miller advances against each of the various remaining defendants,
he describes his complaint, in general terms, as an effort to
recover (on behalf of himself and others) compensatory and
punitive damages, as well as injunctive and declaratory relief,
for what he says is a “Campaign of Mixed War - Administrative
Abuse, Harassment, False Arrest, Deprivation of Rights, Criminal
Trespass, Assault, Battery, Unlawful Search and Seizure, Slander,
[and] Racial Abuse.” Complaint at 1 .
As to defendant Walter “Bubba” Haycock, it appears that
Miller’s claims are based upon alleged violations of New
2 Hampshire common law, over which he implicitly asks the court to
exercise supplemental jurisdiction. See Complaint at para. 23
(“On June 8 , 1998, Marie L. Miller [no longer a party to this
action], was subjected to indecent exposure, racial slurs, and
slander, by “Bubba” Haycock, S r . ” ) . See also id. at para. 19
(complaining about harassing conduct in which Haycock’s sons are
alleged to have engaged). It i s , however, possible that Miller
is also attempting to advance claims against Haycock pursuant to
42 U.S.C. § 1983. See Complaint at para. 21 (“Haycock is known
to be a recipient of federal ‘entitlement’ aid. Certainly, this
strengthens the case for federal jurisdiction, in that the
Plaintiffs will ask the Court to compel an investigation from
some level and agency of government, to investigate whether
Haycock is being federally subsidized in some form of
racketeering.”).
Haycock moves to dismiss all claims against him, saying they
fail to set forth viable, cognizable causes of action. See Fed.
R. Civ. P. 12(b)(6). Miller objects.
3 Discussion
To the extent Miller has attempted to articulate claims
against Haycock under 42 U.S.C. § 1983, his complaint fails to
allege at least one essential element of such claims: that
Haycock acted under color of state law.1 As the Supreme Court
has observed, “Section 1983 provides a federal cause of action
against any person who, acting under color of state law, deprives
another of his federal rights.” Conn v . Gabbert, 526 U.S. 286,
290 (1999). See also Lugar v . Edmondson Oil Co., 457 U.S. 922,
924 (1982). S o , to state a viable claim under § 1983, a
plaintiff must allege “both the existence of a federal
constitutional or statutory right, and a deprivation of that
right by a person acting under color of state law.” Rockwell v .
Cape Cod Hosp., 26 F.3d 254, 256 (1st Cir. 1994) (citation
omitted). See also Roche v . John Hancock Mut. Life Ins. Co., 81
F.3d 249, 253 (1st Cir. 1996) (“Since § 1983 is aimed at state
action and state actors, . . . persons victimized by the tortious
conduct of private parties must ordinarily explore other avenues
of redress.”) (citation omitted).
1 It is also unclear exactly which of his federally protected rights Miller claims were violated by Haycock’s alleged conduct.
4 There are, of course, exceptions to this general rule. For
example, “private actors may align themselves so closely with
either state action or state actors that the undertow pulls them
inexorably into the grasp of § 1983.” Id. at 253-54. This case,
however, does not fall within the scope of such an exception.
While Miller says that Haycock is “known to be a motorcycle
traveling partner of Farmington Police Chief, Scott Roberge,” id.
at para. 2 0 , that allegation is insufficient to create even an
inference that Haycock, who is not a public official or state
actor, acted in concert with state actors to deprive Miller of
federally protected rights. See generally Perkins v . Londonderry
Basketball Club, 196 F.3d 1 3 , 18 (1st Cir. 1999) (observing that
courts have traditionally concluded that a private actor becomes
a “state actor” if it assumes a traditional public function when
it undertakes to perform the challenged conduct, or an elaborate
financial or regulatory nexus ties the challenged conduct to the
State, or a symbiotic relationship exists between the private
entity and the State). See also Nat’l A-1 Advertising, Inc. v .
Network Solutions, Inc., 121 F. Supp. 2d 156 (D.N.H. 2000). As
to Miller’s related argument, he is incorrect to the extent he
asserts that simply because Haycock (allegedly) receives some
5 sort of federal aid, he is a state actor for purposes of § 1983. Because Miller’s complaint fails to allege the essential elements
of viable claims against Haycock under 42 U.S.C. § 1983, those
claims are dismissed.
As to Miller’s state law claims against Haycock, they too
must be dismissed.2 First, the majority of claims against
Haycock relate to his conduct toward third parties, none of which
is alleged to have resulted in direct harm to Miller. See
2 Parenthetically, the court notes that it is appropriate to exercise supplemental jurisdiction over Miller’s state law claims against Haycock, since they arise out of the same core of operative facts that give rise to Miller’s federal claims.
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Miller v . Conway, et a l . CV-01-103-M 09/03/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
William Dexter Miller, Jr., Plaintiff
v. Civil N o . 01-103-M Opinion N o . 2002 DNH 160 Richard Conway, et a l . , Defendants
O R D E R
Pro se plaintiff, William Dexter Miller, Jr., brings this
action against numerous individuals and entities, including local
police officers from the towns of Barrington, Rochester, Dover
and Farmington; state police officers; state judicial officers;
town selectmen; a county prosecutor; the director of the New
Hampshire Division of Motor Vehicles; and the Strafford County
Correctional Facility. Miller also seeks relief against several
other individuals who are not named as defendants in his
complaint (e.g., “Governor Shaheen should be reprimanded by this
Court” (complaint at para. 5 2 ) ; “We ask this Court to issue an
injunction against any further [local] tax collection activities”
(id.)). By order dated June 2 5 , 2002, the court granted the motions
to dismiss filed by the following defendants: Scott Roberge,
Lincoln Soldati, William Tsiros, Gerald McCarthy, John Fitch,
Ernest Creveling, Franklin Jones, Robert Carignan, Marilyn Drues,
Virginia Beecher, and Strafford County, New Hampshire,
concluding that the claims against those defendants either failed
to state viable causes of action and/or were not properly served
upon the defendants.
Although it is difficult to discern precisely what claims
Miller advances against each of the various remaining defendants,
he describes his complaint, in general terms, as an effort to
recover (on behalf of himself and others) compensatory and
punitive damages, as well as injunctive and declaratory relief,
for what he says is a “Campaign of Mixed War - Administrative
Abuse, Harassment, False Arrest, Deprivation of Rights, Criminal
Trespass, Assault, Battery, Unlawful Search and Seizure, Slander,
[and] Racial Abuse.” Complaint at 1 .
As to defendant Walter “Bubba” Haycock, it appears that
Miller’s claims are based upon alleged violations of New
2 Hampshire common law, over which he implicitly asks the court to
exercise supplemental jurisdiction. See Complaint at para. 23
(“On June 8 , 1998, Marie L. Miller [no longer a party to this
action], was subjected to indecent exposure, racial slurs, and
slander, by “Bubba” Haycock, S r . ” ) . See also id. at para. 19
(complaining about harassing conduct in which Haycock’s sons are
alleged to have engaged). It i s , however, possible that Miller
is also attempting to advance claims against Haycock pursuant to
42 U.S.C. § 1983. See Complaint at para. 21 (“Haycock is known
to be a recipient of federal ‘entitlement’ aid. Certainly, this
strengthens the case for federal jurisdiction, in that the
Plaintiffs will ask the Court to compel an investigation from
some level and agency of government, to investigate whether
Haycock is being federally subsidized in some form of
racketeering.”).
Haycock moves to dismiss all claims against him, saying they
fail to set forth viable, cognizable causes of action. See Fed.
R. Civ. P. 12(b)(6). Miller objects.
3 Discussion
To the extent Miller has attempted to articulate claims
against Haycock under 42 U.S.C. § 1983, his complaint fails to
allege at least one essential element of such claims: that
Haycock acted under color of state law.1 As the Supreme Court
has observed, “Section 1983 provides a federal cause of action
against any person who, acting under color of state law, deprives
another of his federal rights.” Conn v . Gabbert, 526 U.S. 286,
290 (1999). See also Lugar v . Edmondson Oil Co., 457 U.S. 922,
924 (1982). S o , to state a viable claim under § 1983, a
plaintiff must allege “both the existence of a federal
constitutional or statutory right, and a deprivation of that
right by a person acting under color of state law.” Rockwell v .
Cape Cod Hosp., 26 F.3d 254, 256 (1st Cir. 1994) (citation
omitted). See also Roche v . John Hancock Mut. Life Ins. Co., 81
F.3d 249, 253 (1st Cir. 1996) (“Since § 1983 is aimed at state
action and state actors, . . . persons victimized by the tortious
conduct of private parties must ordinarily explore other avenues
of redress.”) (citation omitted).
1 It is also unclear exactly which of his federally protected rights Miller claims were violated by Haycock’s alleged conduct.
4 There are, of course, exceptions to this general rule. For
example, “private actors may align themselves so closely with
either state action or state actors that the undertow pulls them
inexorably into the grasp of § 1983.” Id. at 253-54. This case,
however, does not fall within the scope of such an exception.
While Miller says that Haycock is “known to be a motorcycle
traveling partner of Farmington Police Chief, Scott Roberge,” id.
at para. 2 0 , that allegation is insufficient to create even an
inference that Haycock, who is not a public official or state
actor, acted in concert with state actors to deprive Miller of
federally protected rights. See generally Perkins v . Londonderry
Basketball Club, 196 F.3d 1 3 , 18 (1st Cir. 1999) (observing that
courts have traditionally concluded that a private actor becomes
a “state actor” if it assumes a traditional public function when
it undertakes to perform the challenged conduct, or an elaborate
financial or regulatory nexus ties the challenged conduct to the
State, or a symbiotic relationship exists between the private
entity and the State). See also Nat’l A-1 Advertising, Inc. v .
Network Solutions, Inc., 121 F. Supp. 2d 156 (D.N.H. 2000). As
to Miller’s related argument, he is incorrect to the extent he
asserts that simply because Haycock (allegedly) receives some
5 sort of federal aid, he is a state actor for purposes of § 1983. Because Miller’s complaint fails to allege the essential elements
of viable claims against Haycock under 42 U.S.C. § 1983, those
claims are dismissed.
As to Miller’s state law claims against Haycock, they too
must be dismissed.2 First, the majority of claims against
Haycock relate to his conduct toward third parties, none of which
is alleged to have resulted in direct harm to Miller. See
2 Parenthetically, the court notes that it is appropriate to exercise supplemental jurisdiction over Miller’s state law claims against Haycock, since they arise out of the same core of operative facts that give rise to Miller’s federal claims. See, e.g., Roche, 81 F.3d at 256 (“A federal court exercising jurisdiction over an asserted federal-question claim must also exercise supplemental jurisdiction of asserted state-law claims that arise from the same nucleus of operative facts.”). This is particularly true in this case, since some federal claims, arising out of the same operative facts, still remain against other defendants. Although it appears that the court of appeals for this circuit has yet to address this particular situation, at least one legal commentator has suggested that when all federal claims against one defendant have been dismissed, but other federal claims remain against other defendants, courts may not decline to exercise supplemental jurisdiction. See 16 Moore’s Federal Practice, § 106.66[1] (3rd ed. 1998) (“If a defendant faces only state claims, the court must exercise its supplemental jurisdiction over those claims as long as claims remain against other defendants for which original jurisdiction is present.”). See also 28 U.S.C. § 1367(c) (“The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.”) (emphasis supplied).
6 Complaint at paras. 20-23 (alleging that Haycock assaulted an
unidentified third party, is being “federally subsidized in some
form of racketeering,” and indecently exposed himself to Marie L.
Miller and shouted racial slurs at h e r ) . The remaining allegedly
wrongful conduct identified in the complaint and at least
arguably pertaining to Haycock actually relates to “Haycock
partisans,” complaint at paras. 20 and 2 8 ; “associates of
Haycock,” id. at para. 2 8 ; and Haycock’s sons, id. at para. 19
and 2 9 . The complaint fails, however, to identify any legal
theory under which Haycock might be liable for the unlawful
conduct of those third parties. Nor does it allege sufficient
facts to permit the court to infer that Miller has implicitly
alleged such a cause of action (e.g., negligent supervision,
respondeat superior, e t c . ) .
Conclusion
In light of the foregoing, Miller’s complaint fails to state
viable claims against defendant Haycock under either New
Hampshire common law or 42 U.S.C. § 1983. Accordingly, Haycock’s
motion to dismiss (document n o . 43) is granted and all claims
against him are dismissed.
7 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 3 , 2002
cc: William G. Scott, Esq. Edgar D. McKean, III, Esq. William D. Miller, Jr.