UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Peter Macdonald
v. Civil No. 18-cv-1100-JL Opinion No. 2019 DNH 056 Strafford County Sup. Court Tina L. Nadeau Mark E. Howard Town of Lee, NH
MEMORANDUM ORDER
In this zoning case, plaintiff Peter Macdonald seeks to
overturn decisions rendered in the Strafford County Superior
Court. He alleges that members of the Court conspired with the
Town of Lee to oppress his religious organization and seeks
relief under the Constitution and anti-discrimination statutes,
as well as substantial damages. Even setting aside serious
standing concerns, Macdonald’s claims against the individual
judges and the Superior Court are barred by judicial immunity,
the Rooker-Feldman doctrine, and the Eleventh Amendment. His
claims against the Town of Lee must be dismissed by a
combination of the Rooker-Feldman and res judicata doctrines and
for failure to allege sufficient facts to state a claim.
Applicable legal standard
Defendants may move to dismiss a case for several reasons,
including lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6).
In assessing whether a plaintiff has alleged sufficient
facts to show jurisdiction or state a claim, the court must
“take the complaint’s well-pleaded facts as true,” and “draw all
reasonable inferences in the plaintiff’ favor.” Barchock v. CVS
Health Corp., 886 F.3d 43, 48 (1st Cir. 2018) (Rule 12(b)(6)
motion); see Valentin v. Hospital Bella Vista, 254 F.3d 358, 363
(1st Cir. 2001) (Rule 12(b)(1) sufficiency challenge). A
complaint must “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010).
But “[w]ell-pleaded facts must be ‘non-conclusory’ and
‘non-speculative.’” Barchock, 886 F.3d at 48. “If the factual
allegations in the complaint are too meager, vague, or
conclusory to remove the possibility of relief from the realm of
mere conjecture, the complaint is open to dismissal.” Id.
Documents outside of the pleadings are generally not
considered in ruling on a motion to dismiss. Flores v. OneWest
Bank, F.S.B., 886 F.3d 160, 167 (1st Cir. 2018). But the court
may consider documents attached to or explicitly incorporated in
the complaint, and “narrow exceptions [exist] for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to plaintiffs’
2 claim; or for documents sufficiently referred to in the
complaint.” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). The parties’ filings and Superior Court’s orders
attached to the Town of Lee’s motion to dismiss fall within
these exceptions, and Macdonald has not objected to their
inclusion, so the court will consider them.
Background
A. Veteran Resort-Chapel
Macdonald is a United States Marine Corps veteran. He is
the leader of the Veteran Resort-Chapel (“VRC”), a nonprofit
corporation registered in New Hampshire.1 He alleges that the
VRC is a church begun in 1980.2 In 2013, Macdonald and his wife
Agnes S. Macdonald conveyed to VRC a property at 101 Stepping
Stones Road in Lee, New Hampshire.3 The deed provided that the
property would revert to the Macdonalds or their heirs,
1 The New Hampshire Department of State’s directory indicates that VRC was registered in 2012. Between 2014 and 2015, it operated as “Veterans Village NH” before reverting to the name VRC. In September of 2018, VRC amended its name to “Veterans Church of God.” See NH Dep’t of State QuickStart, https://quickstart.sos.nh.gov/. The parties have briefed the motions to dismiss using the name VRC; the court does likewise. 2 Compl. (doc. no. 1) ¶ 1. 3 Warranty Deed, attached to Compl. (doc. no. 1) at 7-9. The briefing and documents provided to the court contain varied spellings of “Stepping Stones Road,” but none of the differences are material or relevant.
3 successors, or assigns if VRC were ever dissolved and not
revived within 6 months or if land ceased to be used as either
“a place for veterans of the United States Armed forces to live
free of charge; or as a place for veterans of the United States
Armed Forces to express and practice their religious beliefs.”4
Macdonald and VRC’s efforts to use the property as a haven for
homeless veterans have led to numerous disputes with the Town of
Lee, including zoning and permitting issues. See, e.g.,
Veterans Village of New Hampshire v. Town of Lee, 14-cv-279-SM
(D.N.H. filed June 24, 2014) (concerning property-tax
exemption); Veterans Village of NH v. Lee Zoning Board of
Adjustment, 13-cv-356-JL (D.N.H. filed Aug. 7, 2013)(concerning
septic-system requirements and compost toilets).
B. 2015 settlement agreement
In 2014, the Town of Lee sued Macdonald and VRC in
Strafford County Superior Court, seeking to enforce the town’s
zoning ordinance against various violations related to VRC
allowing a person to live in a camper on the property.5 In early
2015, the Superior Court issued a judgment and stipulation
4 Id. at 9. 5 This case was docketed as #219-2014-CV-00220.
4 document in the case, signed by the Town of Lee and Macdonald,
for both himself and VRC.6
Under the judgment, Macdonald and VRC were to pay the town
$10,000 by February 1, 2016.7 They also agreed not to build any
structure without a building permit or violate any zoning
ordinance of the town.8 The judgment specifically enjoined
Macdonald and the VRC from erecting signage on the property
without a permit, permitting permanent or temporary
accommodations in any structure on the property without town
approval, or permitting the use or storage of any “temporary
toilet/out-house/porta-potty” on the property without the
express written permission of the town.9 If any of these
specific violations were discovered and not cured, the judgment
provided that the town could file a Motion to Enforce the
Settlement Agreement. If the town prevailed, it would be
entitled to statutory fines under N.H. Rev. Stat. Ann.
§ 676:17,I which, along with attorney’s fees, would constitute a
post-judgment attachment on the property.10 Finally, the
6 Judgment and Stipulation (doc. no. 4-2). 7 Id. ¶¶ 2-6. 8 Id. ¶¶ 8, 12. 9 Id. ¶ 9. 10 Id. ¶¶ 10-11.
5 stipulated judgment provided that “[b]y entering into this
agreement, [Macdonald and VRC] give up no rights under the
zoning ordinance or state or federal law and they reserve their
right to present any and all such claims or defenses in court or
any other venue.”11
The town later moved to enforce the settlement agreement
based on its claim of an unpermitted sign. It also moved for a
writ of execution after Macdonald and VRC failed to pay the
$10,000 required by the judgment. The Superior Court granted
both motions on March 4, 2016.12
C. 2016 zoning appeal and consolidation
Later in 2016, VRC filed a site review application with the
town seeking to build a “single person church” on the property.
The town’s Planning and Zoning administrator determined that
application was not in fact for a church, but was instead for
impermissible lodging quarters, and so denied the application.
On December 7, 2016, the town’s Zoning Board of Adjustment
affirmed that decision.13
11 Id. ¶ 15. 12 Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3). 13See Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 5.
6 On December 12, 2016, VRC, represented by Macdonald,
appealed the Zoning Board of Adjustment’s decision to the
Strafford County Superior Court.14 VRC sought a ruling that VRC
is a church, that VRC could build a church on the property in
accordance with zoning regulations, and that VRC could build
“religious reading rooms AKA solo Churches” on the property. It
also sought $1.15 million from the town, “as they agreed by
default” in consideration for zoning meetings that VRC attended
in support of its application.15
Around the same time, the town again moved to enforce the
2015 settlement agreement, alleging that VRC housed individuals
on the property in violation of the zoning ordinance and the
settlement agreement.16 The Stafford County Superior Court
consolidated this reopening of the settled case with VRC’s new
zoning appeal. After a hearing on the consolidated cases, the
Superior Court dismissed VRC’s claims for damages, but allowed
post-hearing briefing on the remaining issues.17
14Appeal of ZBA Decision (doc. no. 4-6). This appeal was docketed as 219-2016-CV-455. 15 Id. at 5. 16See Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 3-7. 17Superior Ct. Order on Post-Hearing Briefing and the Town’s Motion to Dismiss Damage Claim of June 8, 2017 (doc. no. 4-7).
7 On November 13, 2017, after the briefing, the Superior
Court issued a “Final Order,”18 finding that VRC had breached the
settlement order by constructing tiny homes without permits and
allowing people to sleep there.19 Applying the settlement
agreement and N.H. Rev. Stat. Ann. § 676:17,I, the Court imposed
a penalty of $70,675 as a post-judgment attachment on the
property, and assessed costs and attorney’s fees.20
The Superior Court also affirmed the Zoning Board of
Adjustment’s decision. It found that, for the purposes of the
town’s zoning ordinance, VRC is not a church. As “church” is
not a defined term in the ordinance, it looked to the common and
approved usage, citing several dictionaries and finding that VRC
lacked the commonly understood hallmarks of a church.21 The
Superior Court rejected VRC’s arguments that an organization is
a church for zoning purposes if it is registered as a tax-exempt
religious organization with the state and federal government.22
Furthermore, the Superior Court affirmed the Zoning Board, in
the alternative, because VRC was bound by the limitations on
18 Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8). 19 Id. at 6. 20 Id. at 7. 21 Id. at 8-10. 22 Id. at 10.
8 human occupancy in the settlement agreement. Even if VRC itself
is a church, the Superior Court reasoned, the proposed
structures were clearly not “churches.”23
The Superior Court also rejected Macdonald and VRC’s
contention that the Zoning Board decision violated the land use
provision of the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc(a). RLUIPA limits
land use regulations that impose “a substantial burden on the
religious exercise of a person, including a religious assembly
or institution.” Id. The Superior Court found both that VRC’s
effort to construct tiny homes for veterans did not constitute
“religious exercise” and that there was no evidence that
requiring compliance with the town’s zoning ordinance imposed a
“substantial burden” within the meaning of RLUIPA.24
D. Writs and sheriff’s sale
A month later, the town filed an ex parte motion for a
judgment lien against the property in the amount of $93,447.95,
reflecting that statutory fines plus costs and attorney’s fees.25
The town moved ex parte because Macdonald had told the media
23 Id. at 8 n.2. 24Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 10-11. 25 Verified Ex Parte Motion for Judgment Lien (doc. no. 4-9).
9 that he was attempting to sell the property, which could
frustrate the town’s recovery. The Superior Court granted the
motion. It also approved the amount of attorney’s fees and
denied various motions to reconsider the final order.26
Clerks of the Superior Court issued a writ of attachment
and later a writ of execution against the property of Macdonald
and VRC.27 These writs were “witnessed” by the Chief Justice of
the Superior Court.28 The Superior Court presiding over the case
rejected several attempts by Macdonald and VRC to void these
writs and approved the town’s request for a sheriff’s sale of
26Superior Ct. Order on Post-Decision Motions of January 20, 2018 (doc. no. 4-10). 27 Attachments to Compl. (doc. no. 1) at 10-11, 13. 28The Chief Justice of the Superior Court’s name is printed on the writs as witness. Writs issued by New Hampshire courts “shall be in the name of the state of New Hampshire, shall be under the seal of the court, shall bear the teste of the chief, first, senior or other justice of the court who is not a party” and be signed by the clerk. N.H. Rev. Stat. § 509:2; N.H. Const., pt. II, art. 87. The justice’s witness is “in practice a mere matter of form.” Opinion of the Justices, 119 N.H. 325, 326 (1979) (quoting Parsons v. Swett, 32 N.H. 87, 88 (1855)). These requirements were intended to differentiate state writs from royal writs, not to require a substantive review of the merits underlying the writ by the witnessing justice. See id. (explaining that by 1855 it was standard practice to print the chief justice’s name onto blank writs).
10 the property.29 At the sheriff’s sale, Macdonald attempted to
submit a bid. It was refused.30
E. Federal complaint
Macdonald filed this suit on November 29, 2018, challenging
several of the Superior Court’s actions.31 He alleges that the
Chief Justice, the presiding judge, and the town conspired
against him and VRC in various ways. Macdonald objects to the
determination that VRC is not a church for zoning purposes and
argues that VRC meets all the guidelines provided by the
Internal Revenue Service for determining church status for
federal tax purposes. He contends that the town has
discriminated against him and VRC in violation of RLUIPA, the
First Amendment, and the Americans with Disabilities Act
(“ADA”).32
Macdonald also alleges that the Chief Justice’s involvement
in the case represents a conflict of interest because she is a
resident of the town and knows Macdonald.33 He alleges that the
29Superior Ct. Notices of Decision (doc. no. 4-11, 4-12, and 4- 13). 30 Compl. (doc. no. 1) ¶ 6. 31Id. The complaint is dated both November 18, 2018 and December 3, 2018, but was filed on November 29, 2018. 32 Id. ¶¶ 1-2. 33 Id. ¶ 3.
11 Chief Justice and the presiding judge violated various
constitutional provisions and the ADA by consolidating the two
cases, ruling for the town, and rejecting Macdonald’s objections
to the writs and sheriff’s sale.34
For relief, Macdonald requests the recognition of VRC as a
church and religious organization, discipline of both state
judges, $20 million each from the Strafford County Superior
Court and town based upon “default signed” contracts, and other
damages.35 All defendants have moved to dismiss his complaint.36
Analysis
The defendants argue that Macdonald’s claims must be
dismissed because of the Rooker-Feldman and res judicata
doctrines, judicial immunity, the Eleventh Amendment, and
failure to state a claim upon which relief can be granted. The
Court agrees, but addresses two preliminary issues. First,
Defendants’ motions to dismiss are not void even though they
misspell Macdonald’s name and the name of his organization,
34Id. ¶¶ 2-9. Macdonald also argues that he was entitled to a jury trial. But “[t]he Supreme Court has consistently held that states are not constitutionally required to provide a jury trial in civil cases.” Gonzalez-Oyarzun v. Caribbean City Builders, Inc., 798 F.3d 26, 29 (1st Cir. 2015). 35 Compl. (doc. no. 1) at 6. 36Chief Justice Nadeau, Judge Howard, and the Superior Court’s Mot. to Dismiss (doc. no. 3); Town of Lee’s Mot. to Dismiss (doc. no. 4).
12 because the errors did not impair Macdonald’s notice of the
motions. Second, Macdonald lacks standing to assert claims that
rely entirely on injuries to VRC, which is not a plaintiff and
cannot be represented pro se by Macdonald. But because all of
Macdonald’s claims must be dismissed for other reasons, the
Court does not further evaluate standing.
A. Misspellings
Macdonald argues that the defendants’ motions to dismiss
are void because they misspelled his name and the name of VRC.37
Macdonald spells his surname with an “a” in “Mac” and a lower-
case first “d.” VRC’s full name is Veteran Resort-Chapel, with
no “s” at the end of “Veteran”. Portions of the defendants’
motions and documents from the Superior Court proceedings,
however, refer to “Peter McDonald,” “Peter MacDonald,” or the
“Veterans Resort-Chapel.”38 The court understands Macdonald’s
frustration with these inaccuracies, but he has not shown that
they have had any material or prejudicial effects. If “a
document containing a discrepancy or variation in the spelling
of a name still put[s] the party against whom the document is to
be applied on adequate notice of the obligations or consequences
37 See, e.g. Mot. for Summ. J. (doc. no. 9) ¶ 3. 38The defendants have apologized for these misspellings. Mot. to Stay Pl.’s Mots. For Summ. J. (doc. no. 12) at 2, fn.2.
13 flowing from it,” the inaccuracies do not render the document
void. See Brady v. Mullen, 139 N.H. 67, 71–72 (1994).
Macdonald clearly received notice of the motions to dismiss and
understood their intended effect, because he responded to them.39
B. Standing
The town has raised serious questions about Macdonald’s
standing to bring several of his claims. Most of Macdonald’s
claims involve the rights of VRC and seek relief for VRC, but
VRC is not a plaintiff in this case. In two earlier cases, VRC,
represented by Macdonald, filed complaints in state court which
the town removed to this court. On both occasions, this court
ultimately dismissed the actions because VRC failed to obtain
qualified legal counsel and the law does not allow Macdonald to
represent VRC, a non-profit corporation, pro se. See Veterans
Village of NH v. Lee Zoning Board of Adjustment, 13-cv-356-JL
(D.N.H. July 22, 2014); Veterans Village of New Hampshire v.
Town of Lee, 14-cv-279-SM (D.N.H. September 8, 2014) (McAuliffe,
J.). If VRC were a plaintiff in this action, it would need to
be represented by counsel, not by Macdonald.
39The court does not reach Macdonald’s arguments that the writs of attachment and execution were similarly void, for the reasons explained infra Part III.C-D. But the same logic would likely apply. Macdonald has not alleged that he or any other relevant party lacked notice because the writs referred to “Peter MacDonald” and the “Veterans Resort-Chapel.”
14 Macdonald cannot sidestep this problem by bringing the case
in his own name while asserting claims belonging to VRC and
seeking relief for VRC. A plaintiff must have standing to bring
claims, and “must not only allege injurious conduct attributable
to the defendant but also must allege that he, himself, is among
the persons injured by that conduct.” Hochendoner v. Genzyme
Corp., 823 F.3d 724, 731–32 (1st Cir. 2016) (citing Lujan v.
Defs. of Wildlife, 504 U.S. 555, 563 (1992)). Macdonald has
certainly alleged that VRC was harmed by the Superior Court’s
rulings and by the town’s treatment of the property, but he has
not shown that all of these actions separately injured him.
Macdonald does allege some injuries to himself, however.
The writs of attachment and executions, for instance, both name
Macdonald as well as VRC. Macdonald thus may have standing to
raise claims related to these writs in his own name. But he
does not have standing to raise claims that solely involve
injuries to VRC. The court need not, however, delve into
precisely which claims Macdonald has standing to bring. As
explained below, the court finds that all the claims must be
dismissed for other reasons.
C. Claims against the Chief Justice, presiding judge, and the Superior Court
As explained below, Macdonald’s claims against the
individual judges must be dismissed because of the judicial
15 immunity and Rooker-Feldman doctrines. Any derivative claims
against the Superior Court are barred for the same reasons.
Further, Macdonald’s contract claim against the Superior Court
fails to state a claim on which relief can be granted. Finally,
any damages claims against the Superior Court are barred by the
Eleventh Amendment.
1. Judicial immunity
Judges have “absolute immunity from civil liability for any
normal and routine judicial act.” Cok v. Cosentino, 876 F.2d 1,
2 (1st Cir. 1989) (citing Stump v. Sparkman, 435 U.S. 349, 356–
57 (1978)). “This immunity applies even when the judge is
accused of acting maliciously and corruptly,” because the proper
means for correcting errors is appeal. Pierson v. Ray, 386 U.S.
547, 554 (1967). A judge “should not have to fear that
unsatisfied litigants may hound him with litigation charging
malice or corruption. Imposing such a burden on judges would
contribute not to principled and fearless decisionmaking but to
intimidation.” Id. “This immunity applies no matter how
erroneous the act may have been, how injurious its consequences,
how informal the proceeding, or how malicious the motive. Only
judicial actions taken in the clear absence of all jurisdiction
16 will deprive a judge of absolute immunity.” Cok, 876 F.2d at 2
(citations omitted).40
Macdonald has not alleged that the Chief Justice or the
presiding judge acted in the absence of jurisdiction. New
Hampshire law gives the Superior Court jurisdiction over zoning
appeals and the power to issue writs of execution. See RSA
527:2; 677:4. The judges’ decisions could be challenged by
appeals through the New Hampshire courts and to the United
States Supreme Court, but the judges are not subject to
liability in this court for actions within their judicial
jurisdiction. All of Macdonald’s claims against the Chief
Justice and the presiding judge, and those claims against the
Strafford County Superior Court based upon the judges’ actions,
must therefore be dismissed.
2. Rooker-Feldman doctrine
Most, if not all, of Macdonald’s claims against the
judicial defendants also implicate the Rooker-Feldman doctrine.
As the First Circuit Court of Appeals recently explained, “[t]he
Rooker-Feldman doctrine preserves the Supreme Court’s exclusive
jurisdiction over appeals from final state-court judgments, by
40Injunctive relief against judges under Section 1983 is also extremely limited. 42 U.S.C. § 1983 (only available if “a declaratory decree was violated or declaratory relief was unavailable”). There is no suggestion that the exceptions apply here.
17 divesting lower federal courts of jurisdiction to hear certain
cases brought by parties who have lost in state court.
Klimowicz v. Deutsche Bank Nat’l Tr. Co., 907 F.3d 61, 64 (1st
Cir. 2018)(citations omitted). “Specifically, the doctrine
applies to ‘cases brought by state-court losers complaining of
injuries caused by state-court judgments [that were] rendered
before the district court proceedings commenced and invit[e]
district court review and rejection of those judgments.” Id. at
65 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005)).
Macdonald asks this court to reconsider various Superior
Court findings and to award VRC damages based upon the Superior
Court proceedings. These are clearly injuries allegedly “caused
by state-court judgments.” Most of the relevant Superior Court
judgments, including those most directly addressed by the
complaint, occurred and became final before proceedings in this
court commenced.
Again, the proper route for Macdonald and VRC to challenge
the decisions of the Superior Court was appeal to the New
Hampshire Supreme Court and, if necessary, to the United States
Supreme Court. This court lacks jurisdiction to consider
alleged injuries caused by completed state court proceedings. 41
41Even apart from judicial immunity, Macdonald’s allegations that the judicial defendants conspired against him are
18 3. Contract claim
Macdonald claims that the Superior Court should be made to
pay $20 million to VRC because it “knew of and violated the
contract presented in this case from the beginning of the
consequences if the [town] took this case to court. The [town]
signed this contract by default and it should be honored.”42
Macdonald has not presented any contract to the court or clearly
described the alleged terms. He appears to be claiming that, at
some stage of this dispute, he told the town that they would owe
him $20 million if they did not acquiesce to his position. The
Superior Court rejected a similar “default contract” argument.43
A mere demand is not a contract, and so Macdonald has failed to
state a claim upon which relief can be granted. Fed. R. Civ. P
12(b)(6). Moreover, any claim for damages against the Superior
Court, whether contractual, under the ADA, or any other theory,
is barred by the Eleventh Amendment. See Stegeman v. Georgia,
290 Fed. Appx. 320, 322 (11th Cir. 2008) (“actions against state
courts are barred by the Eleventh Amendment”).
conclusory and speculative, and he thus fails to state claims for relief on those allegations. 42 Compl. (doc. no. 1) at 5. 43Superior Ct. Order on Post-Hearing Briefing and the Town’s Motion to Dismiss Damage Claim of June 8, 2017 (doc. no. 4-7).
19 D. Claims against the Town of Lee, NH
Most of Macdonald’s claims against the town seek to reopen
issues decided by the Superior Court. As explained below, these
claims are barred by the Rooker-Feldman and res judicata
doctrines. In addition, Macdonald fails to state a cognizable
claim under the ADA or a contract claim upon which relief can be
granted.
1. Rooker-Feldman doctrine
The town argues that Macdonald’s claims against it are
barred by the Rooker-Feldman doctrine. This is true only of
those claims where the injury alleged depends on the outcome of
the state court proceedings. The doctrine does not “override or
supplant preclusion doctrine or augment the circumscribed
doctrines that allow federal courts to stay or dismiss
proceedings in deference to state-court actions,” applying only
where the plaintiff is “complaining of an injury caused by the
state-court judgment.” Exxon Mobil, 544 U.S. at 284, 291.
Thus, “[i]f a federal plaintiff presents some independent
claim, albeit one that denies a legal conclusion that a state
court has reached in a case to which he was a party, then there
is jurisdiction and state law determines whether the defendant
prevails under principles of preclusion.” Id. at 293 (quotation
omitted). To the extent that Macdonald premises any of his
claims against the town on an injury caused by a Superior Court
20 ruling, the court dismisses those claims for lack of
jurisdiction. But many of his claims, although “attempts to
litigate in federal court a matter previously litigated in state
court,” see id., are within the court’s jurisdiction. As
explained below, however, these remaining claims are subject to
preclusion.
2. Res Judicata
“Under federal law, a state court judgment receives the
same preclusive effect as it would receive under the law of the
state in which it was rendered.” Dillon v. Select Portfolio
Servicing, 630 F.3d 75, 80 (1st Cir. 2011). Under New Hampshire
law, “[r]es judicata precludes the litigation in a later case of
matters actually decided, and matters that could have been
litigated, in an earlier action between the same parties for the
same cause of action.” Brooks v. Trs. of Dartmouth Coll., 161
N.H. 685, 690 (2011). “For the doctrine to apply, three
elements must be met: (1) the parties must be the same or in
privity with one another; (2) the same cause of action must be
before the court in both instances; and (3) a final judgment on
the merits must have been rendered in the first action.” Id.
The town bears the burden of establishing that res judicata bars
Macdonald’s claims. See Dillon, 630 F.3d at 80.
21 All three factors are met here. The parties are the same,
as the Superior Court proceedings were between Macdonald, VRC,
and the town.44 The Superior Court’s “Final Order” constitutes a
final judgment, and ruled on the merits of several of the causes
of action that Macdonald attempts to revive against the town
here.45 Macdonald’s claims against the town for violation of
RLUIPA, the First Amendment, and the Fourteenth Amendment are
thus barred by res judicata. So are claims alleging that the
town’s Zoning Board misinterpreted the zoning ordinance,
disputing whether Macdonald and VRC violated the conditions of
the settlement agreement, or challenging the validity of the
sheriff’s sale. These issues were litigated to their final
conclusion by the same parties before the Superior Court. The
remedy for any alleged error there is appeal, not a new lawsuit.
3. ADA claim
Macdonald does not specify under which title of the ADA his
claim falls, and the town does not address how the claim should
44Given the confusion of Macdonald and VRC’s interests in the complaint, no distinction between their roles in the state proceedings is relevant to the res judicata analysis. 45Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8). The Superior Court rejected an ADA claim against the town in its March 4, 2016 order, but the present claim is arguably based at least in part on subsequent town conduct, and so not barred by res judicata. See Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3) at 5-6.
22 be classified. But the zoning decisions of a city can be
activities subject to challenge under Title II. Trovato v. City
of Manchester, N.H., 992 F. Supp. 493, 498–99 (D.N.H. 1997)
(McAuliffe, J.).46 The court therefore addresses Macdonald’s
challenge to the town’s zoning decisions under that Title.
To prevail on a claim under Title II, a plaintiff must
prove:
(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.
Buchanan v. Maine, 469 F.3d 158, 170–71 (1st Cir. 2006). Even
assuming that Macdonald has met the first requirement, he has
not sufficiently alleged the second and third elements. He
alleges that the town sought to exclude homeless veterans
because of misconceptions about veterans and substance abuse.47
But these allegations are conclusory and speculative. Macdonald
has not, for example, alleged that other landowners or churches
have been allowed to build lodging structures absent proper
permitting, or that the town has defined “church” in the zoning
46The Superior Court analyzed Macdonald’s previous ADA claim under Title II. See supra n.42; Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3) at 5. 47 Compl. (doc. no. 1) at 6.
23 ordinance more broadly in other cases. For animus, he makes
only a bare and unsupported allegation that certain selectmen
made derogatory comments about veterans. Macdonald thus fails
to set out factual allegations sufficient to allege
discrimination “by reason of” his disability. Even reading the
complaint generously in light of Macdonald’s pro se status, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), he has failed to
state a cognizable ADA claim.
4. Contract claim
Macdonald claims that the town owes VRC $20 million. As
discussed supra Part III.D.3, Macdonald does not sufficiently
allege the existence of any contract. Accordingly, Macdonald
has failed to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6).
Conclusion
Macdonald seeks to reverse decisions rendered by the
Strafford County Superior Court. For the reasons discussed, the
proper route to challenge those decisions was appeal, and this
court is barred from reopening the issues already decided. The
defendants’ motions to dismiss are GRANTED.48
48 Document nos. 3, 4.
24 SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: March 27, 2019
cc: Peter Macdonald, pro se Nancy J. Smith, Esq. Corey M. Belobrow, Esq.