Nowaczyk v. N.H. Supreme Court CV-97-635-JD 02/24/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steven J. Nowaczyk
v. Civil No. 97-635-JD
The New Hampshire Supreme Court, et al.
O R D E R
Plaintiff, appearing pro se, filed a civil rights complaint
against, among others, the New Hampshire Supreme Court, the New
Hampshire Committee on Judicial Conduct ("CJC"), Judge Patricia
Coffey, John Coffey, Coffey Legal Services, Judge Walter Murphy,
the towns of North Hampton and Seabrook, several town officials,
Rockingham County, and several county officials. The magistrate
judge reviewed plaintiff's pro se complaint pursuant to 28
U.S.C.A. § 1915A and recommends dismissal of the complaint.
Plaintiff objects to the report and recommendation contending
that his complaint should not have been subjected to the § 1915A
screening process and that the magistrate misconstrued the
factual bases for his claims and misapplied several of the legal
grounds in recommending dismissal of the complaint. After a de
novo review, the court adopts the magistrate's report and
recommendation in part, as modified herein, but declines to accept the recommendation to dismiss the entire complaint.
Background1
Plaintiff was charged with crimes arising from events
pertaining to fires at three restaurants. As he clarifies in his
objection to the magistrate's report and recommendation,
plaintiff's claims in this suit arise from his arrest for
stalking and his arrest for arson of the Copper Penny Restaurant,
neither of which resulted in convictions. He alleges that in
1990 and 1991 he co-owned the Copper Penny Restaurant in North
Hampton, New Hampshire, and that Amy Keegan was an employee of
the restaurant. He consulted with John Coffey, a lawyer of the
firm Coffey Legal Services, at least once in December of 1991
about the Copper Penny Restaurant and the Nifty 50ies Cafe
corporation. After the Copper Penny Restaurant burned in
December 1991, plaintiff sold his interest to the Nifty 50ies
Cafe corporation, and he and Keegan became employees of the Nifty
50ies Cafe corporation. At some point, Keegan and plaintiff
became involved in an "extramarital affair."
In October of 1992, plaintiff plead guilty to federal
charges of filing a false loan application and bank fraud and was
1The facts are summarized from plaintiff's complaint and in large part duplicate the background facts provided in the magistrate's report and recommendation. The guoted portions are also from the complaint.
2 given an eight-month jail sentence and three years of supervised
release. Upon his release from jail in April of 1993, plaintiff
was supervised by defendant, Clayton Foster. Plaintiff alleges
that Foster was "obsessed" with plaintiff's inability to pay the
court ordered restitution. In August of 1993, a safe was stolen
from the Nifty 50ies Cafe. The incident was investigated by the
Hampton Police Department. Plaintiff filed a complaint with the
New Hampshire Attorney General's office that the manner in which
the police conducted their investigation damaged his reputation.
The matter was referred to the Hampton board of selectmen.
Plaintiff also told Foster about the theft, the police
investigation, and his complaint to the Attorney General's
office.
In December of 1993, the Nifty 50ies Cafe also burned.
Keegan and Foster met with investigators, and Keegan told them
that plaintiff had nothing to do with the fire. Keegan and
plaintiff ended their affair on hostile terms because plaintiff
was attempting a reconciliation with his wife. In January of
1994, Foster met with plaintiff and his wife and "was advised as
to all relevant matters concerning plaintiff." Thereafter,
Foster and Keegan met with Seabrook and Hampton police officers,
agents of the Federal Bureau of Alcohol, Tobacco, and Firearms,
and two private citizens, Raymond and Margaret Desilets. At the
3 meeting, Keegan "volunteered erroneous information" and
"misrepresentations" about plaintiff and "provided a script" for
the Desilets to read as part of an "evil plan" to cause
plaintiff's false arrest and imprisonment, and malicious
prosecution. Keegan and the Desilets allegedly had more meetings
with police to further the "evil plan to falsely prosecute and
imprison the plaintiff."
On February 1, 1994, North Hampton police officer Richard
Sawyer obtained a warrant to arrest plaintiff for the offense of
stalking Keegan. Plaintiff alleges that Sawyer misrepresented
facts in the warrant affidavit and failed to allege an offense
under New Hampshire law. Plaintiff was arrested pursuant to the
allegedly defective warrant on February 2. He was arraigned
before Judge Frasier, who is also a defendant in plaintiff's
suit, and Judge Frasier imposed $500.00 in bail for a seventy-two
hour detainer. While plaintiff was held at the Rockingham County
Jail, Northampton police officers "contrived an evil plan" to
send Raymond Desilets to visit plaintiff while wearing a hidden
body wire to record incriminating statements.
In the next few days, plaintiff was arrested and arraigned
on charges of arson of the Copper Penny Restaurant, solicitation
of arson of Wilber's Diner, and conspiracy to commit arson of the
Nifty 50ies Cafe. Bail was imposed for a seventy-two hour
4 detainer. Plaintiff alleges that Judge Frasier contacted Clayton
Foster, plaintiff's parole officer, reguesting him to get a
federal warrant as soon as possible.
Foster then allegedly contacted a federal probation officer
in Florida as part of his effort to get a federal arrest warrant
for plaintiff. Plaintiff alleges that Foster misrepresented
facts in his effort to get the warrant saying that plaintiff had
carried a gun, and had stalked Keegan telling her that he would
kill her if she reported plaintiff's illegal activities.
Foster's statements were based on what Keegan told the Seabrook
and North Hampton police in January of 1994. Despite the lack of
a federal arrest warrant, on February 8, 1994, Judge Frasier
entered a no bail order that plaintiff appealed to the superior
court.
Judge Patricia Coffey, a defendant, held a hearing on
plaintiff's appeal from Judge Frasier's no bail order. Plaintiff
was not then informed that Judge Coffey was the wife of attorney
John Coffey or that she held an interest in Coffey Legal
Services. Judge Coffey imposed bail in the amount of $25,000
resulting in plaintiff's continued pretrial confinement.
In March and April of 1994, plaintiff was indicted on
charges of arson of the Copper Penny Restaurant, conspiracy to
commit arson of the Nifty 50ies Cafe, criminal solicitation to
5 commit arson of Wilber's Diner, being a felon in possession of a
firearm, and "assorted counts" of criminal restraint, kidnaping,
and false imprisonment. During April, Judge Coffey ruled on a
variety of motions pertaining to plaintiff's criminal charges.
Although represented by counsel, plaintiff also filed a pro se
motion for a writ of habeas corpus "which articulated a myriad of
constitutional guestions and grounds concerning an appearance of
bias and prejudice" about Judge Coffey. Plaintiff contended that
Judge Coffey appeared to be asleep during his April bail hearing
and appeared to be predisposed against him. Judge Coffey denied
his pro se petition for habeas relief without a hearing or
further expansion of the record. Again acting pro se, plaintiff
filed a motion to disgualify Judge Coffey, which she also denied.
He then submitted a complaint to the New Hampshire Judicial
Conduct Committee. The CJC dismissed the complaint as meritless
in September of 1994.
The charges against plaintiff were divided into three groups
for trial. The Nifty 50ies Cafe fire charges were tried first
before Judge Coffey. Plaintiff was convicted, and then appealed
to the New Hampshire Supreme Court raising the issue of Judge
Coffey's alleged bias. His conviction was summarily affirmed.
Justice William Johnson, who was vice-chair of the CJC when
plaintiff's complaint against Judge Coffey was considered,
6 participated in plaintiff's appeal to the New Hampshire Supreme
Court. Plaintiff requested reconsideration on grounds of Justice
Johnson's alleged lack of impartiality, but, he alleges, "the
court simply denied the additional pleadings."
Before plaintiff's trial on the Copper Penny Restaurant
charges, plaintiff's counsel moved to disqualify Judge Coffey
raising for the first time allegations that plaintiff consulted
with her husband, John Coffey, of Coffey Legal Services. Judge
Coffey telephoned the firm to ask about representation of
plaintiff, and then granted the motion to disqualify herself.
The case was reassigned to Judge Walter Murphy. After a day of
trial, information about the Nifty 50ies Cafe arson charges was
impermissibly introduced, and a mistrial was declared. On July
3, 1997, the indictments concerning the Copper Penny Restaurant
arson were dismissed.
Plaintiff filed a series of pro se motions to vacate Judge
Coffey's rulings in the criminal proceedings against him. In
November of 1997, Judge Coffey vacated her denial of plaintiff's
request to suspend his sentence on his conviction on the Nifty
50ies Cafe charges and referred the matter to another judge. She
disqualified herself from any further litigation involving
plaintiff. Judge Murphy reviewed Judge Coffey's rulings and
denied all of plaintiff's motions. Plaintiff then moved to
7 disqualify Judge Murphy because he was presiding in civil
litigation involving the Nifty 50ies Cafe and plaintiff's wife.
Plaintiff alleges that "a reasonable person could subjectively
conclude that Judge Walter L. Murphy harbored a bias which would
compel him to taint his rulings." Plaintiff continued his
efforts to report Judge Coffey's alleged bias and complains that
the secrecy requirements of the Judicial Conduct Committee have
prevented him from presenting a complete case as to bias.
Based upon those facts, plaintiff alleges twenty-two counts
against the defendants and seeks to bring a class action on
behalf of persons interested in obtaining information from the
CJC. Count I addresses plaintiff's claims pertaining to Judge
Coffey's alleged bias, and Counts II and V challenge the CJC's
handling of his complaint against her and the application of
various New Hampshire statutes and rules. Counts II and III
complain about Justice Johnson's participation on the CJC and in
consideration of plaintiff's appeal. Count VI alleges
indifference by the New Hampshire Supreme Court, the CJC, Judges
Coffey and Murphy, and "other judicial members" to plaintiff's
rights to an impartial tribunal and equal protection and due
process rights. Count XXII similarly alleges general
dissatisfaction with the operation of the CJC. Count VII focuses
more specifically on Judges Coffey and Murphy alleging due process violations in their handling of plaintiff's cases.
Counts VIII and XI allege that John Coffey and Coffey Legal
Services violated the attorney-client privilege and committed
malpractice. Counts IX and X allege that Judge Coffey and Jane
Doe disclosed confidential attorney-client information and
thereby violated plaintiff's constitutional rights and seeks
money damages.
Count XII alleges that Judge Frasier illegally and
unconstitutionally detained and imprisoned plaintiff and seeks
damages. Count XIII alleges that Timothy Simpson, a bail
commissioner and justice of peace, issued the warrant for
plaintiff's arrest on stalking charges and for arson of the
Copper Penny Restaurant without probable cause in violation of
his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights,
and seeks damages. In Count XIV, plaintiff alleges that a group
of police officers, Foster, Keegan, the Desilets, and two ATF
agents "acted in unification" to deprive him of constitutional
rights and also committed state law torts of false arrest, false
imprisonment, malicious prosecution, abuse of process, invasion
of privacy, and defamation. Counts XV, XVI, XVII, and XVIII
allege the liability of North Hampton, Hampton, Seabrook, and
Rockingham County for negligent hiring, training, and supervision
of defendant police officers and other "public servants" leading to the violation of plaintiff's constitutional rights. Count XIX
alleges that Steven Keable was negligent in his investigation and
prosecution of the allegations against plaintiff resulting in his
malicious prosecution. Count XX charges the clerk of the Hampton
District Court, John Clark, with contributing to the violations
of plaintiff's constitutional rights by others when he
communicated with Foster about plaintiff's second detainer.
Count XXI alleges claims against Foster pertaining to his input
into plaintiff's arrests and his efforts to obtain a federal
warrant.
Discussion
Plaintiff objects to the application of the screening
process pursuant to 28 U.S.C.A. § 1915A to his case. He also
objects to certain factual statements and the magistrate's
conclusions in the report and recommendation. The challenged
portions of a recommendation by the magistrate judge to dismiss a
case are reviewed de novo. 28 U.S.C.A. § 636(b)(1); Fed. R. Civ.
P. 72 (b) .
The Prison Litigation Reform Act, effective in April of
1996, added the screening procedure codified as 28 U.S.C.A. §
1915A that is aimed at discouraging prisoners from filing claims
that are not likely to succeed. See Crawford-El v. Britton, 118
10 S. C t . 1584, 1596 (1998). Section 1915A(a) requires the district
court to review, as soon as possible, "a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity."
Plaintiff argues that § 1915A is limited to suits seeking redress
concerning prison conditions brought against the incarcerating
institution, and, therefore, that the magistrate was not
authorized to review his complaint.
The plain language of § 1915A does not support plaintiff's
interpretation since the statute on its face is not limited to
cases challenging prison conditions as he suggests. In contrast
to § 1915A, 42 U.S.C.A. § 1997e(c), also part of the Litigation
Reform Act, directs the court to dismiss on its own motion or the
motion of another party "any action brought with respect to
prison conditions under section 1983" that is "frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune
from such relief." (Emphasis added.) Other courts have employed
§ 1915A to review complaints that, similar to the one filed by
plaintiff, do not challenge prison conditions and are not brought
against the prison. See, e.g., Sims v. Kernan, N o .3:98-CV-0539-
AS, 1998 WL 856329 at *1 (N.D. Ind. Dec. 4, 1998). The cases
plaintiff cites in support of his interpretation are inapposite.
11 Accordingly, review pursuant to § 1915A is required in this case.
"On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint - (1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief." §
1915A(b). In determining whether the complaint states a
cognizable claim, the court uses the same standard as is
applicable to a motion pursuant to Federal Rule of Civil
Procedure 1 2 (b)(6). See, e.g., Atkinson v. Bohn, 91 F.3d 1127,
1128 (8th Cir. 1996); Sims, 1998 WL 856329 at *1; Sumner v.
Tucker, 9 F. Supp. 2d 641, 642 (E.D. Va. 1998) .
In considering whether a complaint states a claim,
plaintiff's well pleaded factual allegations are accepted as true
with all reasonable inferences drawn in his favor. Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). In addition, a pro se
complaint is generally held to a less stringent standard than
pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). A complaint will not be dismissed for failure to
state a claim "unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957) .
12 A. Claims Arising from the CJC's Actions
Many of plaintiff's claims challenge actions taken by the
CJC and its members. Plaintiff seeks a declaratory judgment to
declare unconstitutional certain New Hampshire Supreme Court
Rules pertaining to the confidentiality of CJC complaints and to
declare that actions by the CJC violated his federal and state
constitutional rights. He also asks that this court enjoin the
New Hampshire state courts from instituting proceedings against
him based on the rules applicable to CJC complaints.
The procedures of the New Hampshire Committee on Judicial
Conduct do not violate plaintiff's federal constitutional rights,
and state constitutional rights are not actionable under 42
U.S.C.A. § 1983.2 Plaintiff, as a complainant, does not have a
constitutional right to have the CJC handle his complaint in a
way that would help him develop evidence about his complaint or
to pursue review of the CJC's decision, as he claims. Plaintiff
has not identified a liberty or property interest that was
affected by the CJC's decisions pertaining to his complaints, and
no such interests are apparent from his pleadings. See, e.g.,
Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir. 1998)
(discussing elements of procedural and substantive due process
2The administrative rules of the CJC are part of the Rules of the New Hampshire Supreme Court, Rules 39 and 40 (West 1998).
13 claims), petition for cert, filed. No. 98-1264 (Feb. 5, 1999);
Frances-Colon v. Ramirez, 107 F.3d 62, 63 (1st Cir. 1997)
(essential elements of due process); Santiago de Castro v.
Morales Medina, 943 F.2d 129, 130-31 (1st Cir. 1991) (same). As
plaintiff has failed to allege an essential element of his due
process claim against the CJC and its members, he fails to state
such a claim.
The Egual Protection Clause of the Fourteenth Amendment
guarantees that the state will not "deny to any person within its
jurisdiction the egual protection of the laws." U.S. Const,
amend. XIV, § 1. The rules, processes, and procedures of the CJC
exist "to provide for the orderly and efficient administration of
the Code of Judicial Conduct," N.H. Sup. C t . Rule 39(1). The CJC
"shall consider all complaints" that are submitted in compliance
with its reguirements but "shall not consider complaints against
a judge or master or referee relating to his rulings." N.H. Sup.
C t . Rule 39(9). Complaints relating to a judge's rulings must be
addressed through the court appellate process. Id. The CJC has
no authority to relieve a complainant from the effects of a
judge's actions or to award compensation for injuries caused by
such actions.
The CJC considered plaintiff's complaint against Judge
Coffey, but apparently, based on plaintiff's allegations, found
14 that it had no merit and dismissed it. See Sup. C t . Rule 40(4).
Plaintiff alleges that the CJC deprived him of equal protection
by failing to make a "complete record" of his complaint against
Judge Coffey and by denying him an opportunity to develop
evidence to support his allegations. He says that the CJC's
"imperviousness to the statutes and the rules" deprived him of
equal protection. Plaintiff, however, does not allege that his
complaint was treated any differently than any other similar
complaint and the circumstances he describes appear to conform to
the CJC's rules.3 Since plaintiff has not identified a basis for
a due process right that would require any greater process than
that afforded by the CJC, an alleged lack of process cannot be
the basis for an equal protection claim.
Plaintiff alleges that the CJC's confidentiality require
ments violate his First Amendment rights by forbidding him to
disclose his filing of a complaint with the CJC and also by
preventing him from obtaining information that he could use as
3If plaintiff intended to bring an equal protection claim based on his pro se status, he has not alleged facts that would tend to show that the CJC treated him in a particular way because he was unrepresented, rather than because of the content of his complaint. Since the Equal Protection Clause "embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly," Vacco v. Quill, 117 S. C t . 2293, 2297 (1997), the CJC had no obligation to treat a facially meritless complaint, from a pro se or represented complainant, as it would complaints that are not facially meritless.
15 evidence in other proceedings. The CJC rule pertaining to the
confidentiality of complaints reguires complainants to
keep confidential the fact that a complaint has been filed with the committee until either the complaint is dismissed, a statement of formal charges is prepared and filed as described in section 7 (a) of this rule, or the complainant is notified that the committee has disposed of the complaint by taking appropriate remedial action as described in subsection (h) of this section.
N.H. Sup. C t . Rule 40(3)(b). The rule does not prevent a
complainant from public disclosure of a judge's conduct that he
believes is inappropriate or violates the code of conduct. N.H.
Sup. C t . Rule 40(3) comment. Plaintiff's suggestion that he may
file another complaint is too speculative to reguire analysis of
whether his right to free speech would be violated by the
confidentiality rule.
The rules also provide for the confidentiality of CJC
proceedings except in particular circumstances. N.H. Sup. C t .
Rule 40(3). On the facts he alleges, plaintiff has not
demonstrated any need for information from the CJC that would
implicate the First Amendment nor has he suggested that the
confidentiality rules impose a violation of his First Amendment
rights in any other way. Furthermore, the purpose of the CJC is
not to permit individuals to obtain evidence for use in other
proceedings, but rather to provide an orderly method of
registering complaints concerning alleged judicial misconduct.
16 Accordingly, plaintiff has not alleged facts to support a claim
that the CJC's confidentiality reguirements have violated or may
in the future violate his First Amendment rights. See, e.g.,
Kamasinski v. Judicial Review Council, 44 F.3d 106, 110-11 (2d
Cir. 1994) .
As the CJC's rules, processes, and procedures are not
unconstitutional in the context of plaintiff's allegations, he
has failed to state claims against the CJC.
B. Related Claims for Declaratory and Injunctive Relief
Plaintiff asks this court to enjoin the New Hampshire
Supreme Court from instituting contempt proceedings against him
in the future and to prevent his transfer from the New Hampshire
State Prison. Plaintiff also asks that a variety of New
Hampshire statutes and court rules be declared unconstitutional.
To the extent plaintiff is seeking injunctive and declaratory
relief based on anticipated future actions, the court lacks
jurisdiction to provide such relief.
A basic tenet of federal jurisdiction is that the plaintiff
must have standing to assert the claims he brings, which reguires
allegations of an "injury in fact," causation, and
redressability. Steel v. Citizens for a Better Environment, 118
S. C t . 1003, 1016 (1998); see also Berner v. Delahantv, 129 F.3d
17 20, 23 (1st Cir. 1997), cert, denied, 118 S. C t . 1305 (1998).
Plaintiff has not any alleged facts to show that he is likely to
be injured by any of the challenged laws or rules in the future.
Although he says that he either is or will in the future file
another complaint with the CJC, as discussed above, the CJC's
actions do not cause injury to him as a complainant. Since the
injury must be "actual or imminent, not conjectural or
hypothetical," a mere general possibility that plaintiff might
find himself embroiled in future criminal prosecution involving
the same issues is insufficient.4 See Luian v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal guotations omitted);
see also Berner, 129 F.3d at 24. In addition, even if plaintiff
could meet the reguirements of alleging an injury in fact, the
abstention doctrines of Younger v. Harris, 401 U.S. 37 (1971) and
its progeny, would preclude the relief sought from this court.
To the extent plaintiff seeks declaratory relief from past
decisions by the New Hampshire Supreme Court, as discussed by the
magistrate, his claims are barred by the Rooker-Feldman doctrine.
Federal district courts lack jurisdiction to review decisions of
4Plaintiff's allegation that his trial on other charges was scheduled for September of 1998 does not create a sufficient likelihood of injury since he does not explain how the challenged CJC rules or the bail statute are implicated in that proceeding. In addition, he has alleged no circumstances making it likely that he will need to invoke the disgualification rules or laws in the future.
18 state courts and to consider claims that are "inextricably
intertwined" with state court decisions. See Wang v. New
Hampshire Bd. of Registration in Med., 55 F.3d 698, 703 (1st Cir.
1995). Accordingly, this court lacks subject matter jurisdiction
to consider plaintiff's claims to the extent he seeks injunctive
or declaratory relief pertaining to particular decisions of New
Hampshire state courts.
Plaintiff's claims based on actions by the CJC and its
members and by the New Hampshire Supreme Court are dismissed.
C. Judicial Immunity
Absolute judicial immunity protects a judge from claims for
money damages based on actions performed in a judicial capacity
and within the judge's jurisdiction. Mireles v. Waco, 502 U.S.
9, 9-10 (1991), citing Forrester v. White, 484 U.S. 219, 229-230
(1988). Plaintiff's claims against Judges Coffey, Murphy, and
Frasier are based entirely on allegations of their actions
performed in their judicial capacities and within their
jurisdiction. Plaintiff's merely conclusory statements to the
contrary are insufficient to avoid dismissal of meritless claims.
Therefore, to the extent plaintiff seeks money damages, his
claims against the judges are barred by judicial immunity.
Plaintiff's claims against the individual justices of the New
19 Hampshire Supreme Court, including Justice Johnson, based upon
their dispositions of his appeals, are also barred by judicial
immunity.
Further, plaintiff's claims against the judges and Justice
Johnson allege that they were not impartial, or acted with an
appearance of bias. In support of his claims, plaintiff asks
that the defendant judges' lack of impartiality be inferred from
decisions made against him and from other circumstances that do
not impugn their impartiality. For the most part, plaintiff
relies on his own conclusory statements about the defendant
judges' appearance of bias and presents little in the way of
concrete facts to sustain his allegations. The invocation of the
"appearance" of partiality is easy and on its face would permit
an individual to make an issue out of almost any conduct.
However, the mere recitation of this mantra is insufficient to
raise an issue. The plaintiff has failed to allege facts that
demonstrate any actual bias against him nor facts that would
support an inference of bias strong enough to overcome the
presumption of judicial impartiality. See, e.g., Marshall v.
Jerrico Inc., 446 U.S. 238, 242-43 (1980); Withrow v. Larkin, 421
U.S. 35, 46-47 (1975); Brooks v. New Hampshire Supreme Court, 80
F .3d 633, 640 (1st Cir. 1996).
While judges are not absolutely immune from claims for
20 prospective declaratory relief, see Pulliam v. Allen, 466 U.S.
522, 536-43 (1984), plaintiff seeks declarations that Judges
Coffey, Murphy, and Frasier and Justice Johnson violated laws and
his rights in their past actions, rulings, and decisions.
Therefore, plaintiff's reguests for declaratory relief ask the
court to review decisions and rulings by the defendant judges.
As noted above, a federal district court is not authorized to
review decisions by state courts, even decisions allegedly
involving constitutional error. See Brown v. Ives, 129 F.3d 209,
212 (1st Cir. 1997), cert, denied, 118 S. C t . 1307 (1998).
To the extent plaintiff seeks prospective injunctive relief,
he has not alleged that the defendant judges are subject to a
declaratory judgment, or that declaratory relief was unavailable,
as a prereguisite to injunctive relief. See 42 U.S.C.A. § 1983.
Plaintiff's arguments in his objection that his unsuccessful
efforts to obtain state habeas relief demonstrate the
unavailability of a declaratory judgment for purposes of § 1983
do not meet the reguirement. The habeas proceedings pertained to
his conviction, not the actions that are at issue in this case,
and he has not alleged that he sought a determination of the
unconstitutionality of any of the challenged laws or rules.
Plaintiff's complaint lacks any basis for awarding the
declaratory or injunctive relief he seeks against the judges.
21 Accordingly, all of plaintiff's § 1983 claims against the
defendant judges and the New Hampshire Supreme Court and its
justices are dismissed.
D . Class Action
Plaintiff proposes a class of persons interested in
obtaining and disclosing information about charges filed with the
CJC and about the process and disposition of complaints to the
CJC. As the magistrate judge explained in his report and
recommendation, a pro se litigant, like plaintiff, may not
represent anyone else in a law suit and is unlikely to be allowed
to represent a class. See, e.g., McGrew v. Texas Bd. of Pardons
& Paroles, 47 F.3d 158, 162 (5th Cir. 1995); Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); Maldonado v.
Terhune, 28 F. Supp. 2d 284, 288 (D.N.J. 1998) . In addition,
since all of plaintiff's claims pertaining to the CJC and to
judicial misconduct are dismissed, his proposed class action is
moot. See McGrew, 47 F.3d at 162.
22 E. Claims Based on Allegations of False Arrest and Malicious
Prosecution
Plaintiff alleges a group of claims arising from the
circumstances of his arrest and prosecution on arson charges
stemming from fires at the Copper Penny Restaurant, Wilber's
Diner, and the Nifty 50ies Cafe and his arrest on charges of
stalking Amy Keegan. The magistrate judge recommended that these
claims be dismissed because plaintiff's convictions on the Nifty
50ies Cafe remain in place and plaintiff's claims constitute an
impermissible collateral attack on his convictions. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) ("[A] section 1983
plaintiff must prove that a conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into guestion by a federal court's
issuance of a writ of habeas corpus.").
In his objection, plaintiff, by way of clarification, states
that his claims are limited to those arising from his arrest on
charges of stalking and his arrest and prosecution on charges
from the Copper Penny Restaurant fire. Plaintiff alleges that he
was never convicted on those charges making the reguirement of
Heck v. Humphrey inapplicable to his claims. Accordingly, for
purposes of this initial review only, plaintiff's claims arising
23 from the charges of stalking Amy Keegan and arson in the Copper
Penny Restaurant fire are not subject to dismissal under Heck v.
Humphrey.
Other infirmities in plaintiff's remaining claims reguire
further review, however. Plaintiff alleges that defendants who
were involved in his arrest and detention violated his First,
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
Although he says in Count XIV that the defendants "acted in
unification" to deprive him of his First Amendment right to
petition the government, he alleges no facts that in any way
suggest deprivation of his First Amendment rights, and those
claims are dismissed. Cf. Britton v. Maloney, 981 F. Supp. 25,
40 n.29 (D. Mass. 1997) (discussing First Amendment claims in
similar circumstances). In addition, as plaintiff has not
alleged any facts that suggest violation of his Eighth Amendment
right to be free of cruel and unusual punishment, see, e.g..
Farmer v. Brennan, 511 U.S. 825, 832 (1994), all claims based on
the Eighth Amendment are also dismissed.
Plaintiff bases his Sixth Amendment claims on allegations
that he was deprived of his right to be tried by a neutral and
impartial court. To the extent plaintiff alleges Sixth Amendment
claims against individual judges, those claims are barred by
judicial immunity. With respect to other defendants, plaintiff
24 fails to allege any facts pertaining to them that would have
deprived plaintiff of his Sixth Amendment right to be tried by an
impartial court. In addition, he has not alleged sufficient
facts to overcome the presumption of judicial impartiality nor
has he alleged facts to show that the outcome of the challenged
proceedings was prejudiced by any lack of impartiality. See
Neron v. Tierney, 841 F.2d 1197, 1206 (1st Cir. 1988) (discussing
reguirements for Sixth Amendment claim of juror bias).
Plaintiff also alleges violations of his due process
rights.5 Plaintiff's due process claims, in summary, allege that
defendants caused him to be arrested, detained, and prosecuted
without probable cause. Neither the procedural nor substantive
due process prongs of the Fourteenth Amendment afford plaintiff
relief for claims essentially alleging false arrest or malicious
prosecution. See Albright v. Oliver, 510 U.S. 266 (1994)
(plurality opinion); Graham v. Connor, 490 U.S. 386, 394 (1989);
Meehan v. Plymouth, No. 97-2235, 1999 WL 44756 (1st Cir. Feb. 3,
1999); Reid v. New Hampshire, 56 F.3d 332, 341 (1st Cir. 1995).
Accordingly, plaintiff's due process claims under § 1983 are
dismissed, although the same claims may be cognizable as state
tort claims. See id.
5Plaintiff's reference to the Fifth Amendment is understood to duplicate his due process claim under the Fourteenth Amendment as he alleges no other grounds for a Fifth Amendment claim.
25 Plaintiff also alleges that defendants violated his right to
egual protection under the Fourteenth Amendment, but he does not
allege any disparate or discriminatory treatment nor does he
identify himself with a protected class.6 To state a claim under
the egual protection clause, plaintiff must allege that he was
the victim of intentional discrimination. Judge, 160 F.3d at 75.
Accordingly, as plaintiff has alleged no facts in support of his
egual protection claim, it must be dismissed.
F. Conspiracy
The magistrate judge recommended that plaintiff's conspiracy
claims brought pursuant to 42 U.S.C.A. § 1985 and § 1986 be
dismissed as plaintiff had not alleged the elements of a § 1985
conspiracy and a § 1986 claim cannot stand alone. The court
agrees and adopts the magistrate's recommendation as to the
disposition of the § 1985 and § 1986 claims.
In his objection, plaintiff argues that he also intended
conspiracy claims based on § 1983. Plaintiff's allegations
construed in his favor are sufficient for purposes of preliminary
review to state a § 1983 conspiracy consisting of "a combination
6Plaintiff's allegations of discrimination against him as a pro se litigant pertain to proceedings before the CJC, the New Hampshire Supreme Court, and Judges Coffey and Murphy and do not involve his surviving claims based on his arrest or prosecution on stalking and arson charges.
26 of two or more persons acting in concert to commit an unlawful
act, or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict a
wrong against or injury upon another." Earle v. Benoit, 850 F.2d
836, 844 (1st Cir. 1988) (guotation omitted); see also Brennan
v. Hendriqan, 888 F.2d 189, 195 (1st Cir. 1989).
Plaintiff includes private individuals as defendants in his
conspiracy claim alleging that they "acted in unification to
deprive the plaintiff" of constitutional rights. State action is
a reguirement for § 1983 claims, but private individuals may be
liable if the private defendant and a state actor acted jointly
to deprive plaintiff of his civil rights. See Rubin v. Smith,
919 F. Supp. 534, 538 (D.N.H. 1996). For purposes of preliminary
review, plaintiff's allegations are sufficient to state a claim
of joint action.
G. Claims Against Particular Defendants
Plaintiff's claims against several individuals who are
protected by immunity are also dismissed.7 As is discussed
7To the extent plaintiff may have intended to bring state tort claims, in addition to § 1983 claims, against these defendants, his claims would be barred by defendants' immunity under state law. See Gould v. Director, New Hampshire D.M.V., 138 N.H. 343, 346 (1994); Belcher v. Paine, 136 N.H. 137, 147 (1992) .
27 above, plaintiff's claims against Judge Frasier are barred by his
judicial immunity from suit for actions taken in his judicial
capacity within his jurisdiction. Plaintiff's allegations
against defendant Timothy Simpson, identified as a bail
commissioner and justice of the peace, claim that Simpson
violated plaintiff's constitutional rights by issuing arrest
warrants for plaintiff that were not based upon probable cause
and by ordering plaintiff held without bail. As all of Simpson's
actions alleged by plaintiff are part of his function as a bail
commissioner and justice of the peace, and within his
jurisdiction in those functions, he is protected by judicial
immunity from plaintiff's claims. See Slotnick v. Garfinkle, 632
F.2d 163, 166 (1st Cir. 1980); Thompson v. Sanborn, 568 F. Supp.
385, 391 (D.N.H. 1983) . Similarly, John Clark, who was acting in
his function as clerk of court and at the direction of Judge
Frasier in all actions alleged by plaintiff, is protected by
guasi-judicial immunity. See Forte v. Sullivan, 935 F.2d 1, 3
(1st cir. 1991). Plaintiff's claims against Steven Keable, based
on Keable's actions within his prosecutorial function preparing,
advocating, and finally dismissing the arson charges against
plaintiff arising from the fire at the Copper Penny Restaurant,
28 are barred by Keable's prosecutorial immunity.8 See Kalina v.
Fletcher, 118 S. C t . 502, 506-7 (1997).
H. State Tort Claims Against the Coffey Defendants
Plaintiff brings claims against Judge Patricia Coffey, John
Coffey, Coffey Legal Services, and a secretary at Coffey Legal
Services for state torts based on malpractice and violation of
the attorney client privilege. All of the federal claims
relating to the same events brought against Judge Coffey are
dismissed. The state law claims against Judge Coffey alleging
her duty to disgualify herself from hearing his criminal case
challenge Judge Coffey's actions in her capacity as a judge and,
therefore, are barred by her judicial immunity. See Gould, 138
N.H. at 346. Plaintiff's claims against the remaining Coffey
defendants allege state tort claims for malpractice and violation
of his attorney client privilege pertaining to his relationship
with Coffey Legal Services in 1991 and Judge Coffey's involvement
in his criminal case on charges from the Nifty 50ies Cafe arson
charges.
8Ordinarily, the claims against Keable, brought in his official capacity only, would be construed as claims plead against the county rather than against Keable individually. Because plaintiff includes a more detailed description of Keable's role, however, he may have also intended an individual claim to which prosecutorial immunity would apply.
29 The claims against the Coffey defendants are based on
entirely different factual circumstances than the claims
remaining against the other defendants. The claims remaining
against the other defendants, alleging malicious prosecution,
false arrest, deprivation of Fourth Amendment rights, and a §
1983 conspiracy, are based on the circumstances of plaintiff's
arrest and initial detention on charges of stalking and arson of
the Copper Penney Restaurant and have nothing to do with the
Coffey defendants' alleged representation of plaintiff or his
resulting attorney client privilege. The Coffey defendants are
not named in connection with any of the stalking or arrest claims
and none of the other remaining defendants are implicated in any
way in the state tort claims alleged the Coffey defendants.
Since plaintiff's state law claims against the Coffey
defendants do not share the same core of facts or the same
central theories as the other remaining claims, the court lacks
supplemental jurisdiction to consider the claims against the
Coffey defendants. 28 U.S.C.A. § 1367(a); see also City of
Chicago v. International College of Surgeons, 118 S. C t . 523, 530
(19 98); Futura Dev't of Puerto Rico, Inc. v. Estado Libre
Asociado de Puerto Rico, 144 F.3d 7, 13 (1st Cir.), cert, denied,
119 S. C t . 338 (1998). Accordingly, all claims against John
Coffey, Coffey Legal Services, and individual employees of Coffey
30 Legal Services are dismissed for lack of subject matter
jurisdiction.
I. Remaining Claims
For purposes of § 1915A review, plaintiff's complaint states
claims in counts XIV through XVIII, pursuant to 42 U.S.C.A. §
1983, for violations of his Fourth Amendment rights, and
conspiracy to do so based on his arrest for stalking and arrest
and prosecution on arson charges related to the fire at the
Copper Penny Restaurant. Count XXI states similar Bivens claims
against Clayton Foster.9 Plaintiff alleges state tort claims in
the same counts for negligent hiring and supervision, abuse of
9Plaintiff brings claims under 42 U.S.C.A. § 1983 against defendant Clayton Foster, identified as a United States Probation Officer, and agents of the Federal Bureau of Alcohol, Tobacco, and Firearms. As these defendants are federal officers acting under color of federal, rather than state, law, the claims against them would be more properly brought directly under the Constitution. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Since § 1983 actions and Bivens actions are "kindred" claims, plaintiff's allegations pertaining to the federal defendants are construed as Bivens claims but evaluated, for purposes of preliminary review, under the same legal standards as the related § 1983 claims. See, e.g., Dav v. Massachusetts Air Nat'l Guard, No. 98- 1727, 1999 WL 44728 *6 (1st Cir. Jan. 29, 1999); Kelly v. Serna, 87 F .3d 1235, 1238 (11th Cir. 1996).
31 process, false arrest, malicious prosecution, defamation,
invasion of privacy, and false imprisonment.
Conclusion
For the foregoing reasons, based upon preliminary de novo
review pursuant to § 1915A, plaintiff's claims alleged in his
amended complaint filed on December 29, 1997, (document no. 4) in
counts I through XIII, XIX, XX, and XXII are dismissed. As to
the remaining counts, all claims based on the First, Fifth,
Sixth, Eighth, and Fourteenth Amendments are dismissed. Also,
any claims in the remaining counts against Judges Coffey, Murphy,
and Frasier, Justice Johnson, individual justices and employees
of the New Hampshire Supreme Court, members and employees of the
CJC, Timothy Simpson, Steven Keable, and John Clark are
dismissed.
The claims and defendants remaining in the complaint are as
follows:
Count XIV: Alleges Fourth Amendment violations actionable
as a conspiracy under 42 U.S.C.A. § 1983 and state tort claims of
false arrest, false imprisonment, malicious prosecution, abuse of
process, invasion of privacy, and defamation. Claims are brought
against the chief of the North Hampton police department, Frank
Beliveau; North Hampton police officers Richard Sawyer, Jr.,
32 David Gigare, Robert Wharem, Jane Doe, Michael Maloney; Seabrook
police officer James Cauley and several unknown Seabrook police
detectives; Chief of the Hampton police department, Robert Marks;
Hampton police officers Shawn Maloney, Philip Russell, William
Lilli, and Dan Gildey; United States Parole Officer Clayton
Foster; two unknown agents of the Federal Bureau of Alcohol,
Tobacco, and Firearms; and individual defendants, Amy Keegan, and
Raymond and Margaret Desilets.
Count XV: Alleges Fourth Amendment violations actionable
under 42 U.S.C.A. § 1983 and state tort claims of negligent
hiring, training, and supervision, that are brought against the
Town of North Hampton and its selectmen, Richard Crowley, Dick
Wollmar, Stanley Knowles, and Mary Herbert.
Count XVI: Alleges Fourth Amendment violations actionable
hiring, training, and supervision, that are brought against the
Town of Hampton and six unknown selectmen.
Count XVII: Alleges Fourth Amendment violations actionable
hiring, training, and supervision, that are brought against the
Town of Seabrook and several unknown selectmen.
Count XVIII: Alleges Fourth Amendment violations actionable
33 hiring, training, and supervision, that are brought against
Rockingham County.10
Count XXI: Alleges Fourth Amendment violations against
Clayton Foster.
Accordingly, the amended complaint (document no. 4)
together with a copy of this order and of the report and
recommendation (document no. 9) shall be served on the defendants
remaining in the suit.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
February 24, 1999
cc: Steven J. Nowaczyk, pro se
10As the individual commissioners and superintendent of the jail are sued only in their official capacities, those claims are construed as claims against the county, not against the individual defendants. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) .