Richard Strahan, Plaintiff v. William McNamara, Tracy Birmingham, and Steven Lee, Defendants

2023 DNH 150

• Court: District Court, D. New Hampshire
• Decided: December 7, 2023
• Docket: 22-cv-391-SM-TSM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard Strahan, Plaintiff

v. Case No. 22-cv-391-SM-TSM Opinion No. 2023 DNH 150

William McNamara, Tracy Birmingham, and Steven Lee, Defendants

O R D E R

What remains of pro se plaintiff Richard Strahan’s original

complaint are three claims against three University of New

Hampshire (UNH) officials. First, he alleges that William

McNamara unlawfully (and in violation of various

constitutionally protected rights) barred him from using the UNH

transportation system and threatened to have him arrested for

trespassing if he attempted to do so during a one-year period.

Next, Strahan claims the two remaining defendants - Steven Lee

and Tracy Birmingham – “bullied and intimidated” other UNH

employees into refusing to provide him with educational and

transportation services routinely provided to other members of

the public, allegedly in violation of Strahan’s rights under the First and Fourteenth Amendments. Finally, Strahan brings a

common law defamation claim against Lee and Birmingham.

Pending before the court is defendants’ motion for judgment

on the pleadings. For the reasons given, that motion is

granted.

Standard of Review

A motion for judgment on the pleadings under Fed. R. Civ.

P. 12(c) is subject to the same standard of review applicable to

a motion to dismiss under Rule 12(b)(6). See Portugues-Santana

v. Rekomdiv Int’l, Inc., 725 F.3d 17, 25 (1st Cir. 2013).

Accordingly, the court must accept as true all well-pleaded

facts in Strahan’s complaint and indulge all reasonable

inferences in his favor. The court may also consider documents

referenced by or incorporated into the complaint. See Kando v.

Rhode Island State Bd. of Elections, 880 F.3d 53, 56 (1st Cir.

2018).

To survive defendants’ motion, the complaint must allege

sufficient facts to support a “plausible” claim for relief. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To satisfy that

plausibility standard, the factual allegations in the complaint,

along with reasonable inferences drawn from them, must show more

2 than a mere possibility of liability – that is, “a formulaic

recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also

Lyman v. Baker, 954 F.3d 351, 359–60 (1st Cir. 2020) (“For the

purposes of our [12(b)(6)] review, we isolate and ignore

statements in the complaint that simply offer legal labels and

conclusions or merely rehash cause-of-action elements.”)

(citation and internal punctuation omitted).

In other words, the complaint must include well-pled (i.e.,

non-conclusory, non-speculative) factual allegations as to each

of the essential elements of a viable claim which, if assumed to

be true, would allow the court to draw the reasonable and

plausible inference that the plaintiff is entitled to the relief

sought. See Tasker v. DHL Retirement Savings Plan, 621 F.3d 34,

38-39 (1st Cir. 2010).

Background

On August 15, 2023, the court granted the motion to dismiss

filed by two former defendants in this action. Order on Motion

to Dismiss (document no. 53) (“Strahan I”). In that order, the

court set forth much of the relevant background to this case.

Given that, the entire history between these parties need not be

recounted here; it is sufficient to note the following.

3 In response to a series of disruptions Strahan caused while

riding the University of New Hampshire’s Wildcat Transit buses,

he was banned from riding those buses for one year (through June

10, 2023). See Exhibit 1 to Affidavit of Richard Strahan

(document no. 10-1), Correspondence from William McNamara dated

June 10, 2022. In that letter, Mr. McNamara explained to

Strahan that the temporary ban was imposed because of Strahan’s:

repeated instances of refusal to abide by UNH transportation rules, disregard of directions from transportation service employees, verbal abuse and intimidation of University staff members and other transportation services patrons, and refusal to comport yourself in a manner consistent with behavioral expectations. Your conduct has disrupted transportation service and detracted from the quality of life and safety of the University community.

Id.

Defendant Tracy Birmingham is the Associate General Counsel

for the University System of New Hampshire. In her affidavit

(filed in opposition to Strahan’s motion for a temporary

restraining order), she has chronicled numerous occasions on

which Strahan behaved in a manner that was unsafe, uncivil,

threatening, disruptive, and abusive while a passenger on

Wildcat Transit buses. She also identified several occasions on

which Strahan attempted to use an invalid student I.D. in an

effort to avoid paying transportation fees. Strahan was warned

4 at least twice about his unacceptable conduct and, when he

failed to modify his behavior, the decision was made to impose

the temporary ban. See Affidavit of Tracy Birmingham (document

no. 28-1). See also The University of New Hampshire’s

Department of Transportation website (“Passenger Conduct:

Passengers are expected to conduct themselves civilly for the

safety and comfort of all on board.”) (https://www.unh.edu/

transportation/buses-shuttles/fares-information). Strahan was

specifically warned that, “should you violate this ban, you will

be subject to immediate arrest for criminal trespass pursuant to

New Hampshire RSA 635:2.” McNamara Correspondence at 1.

Strahan was served in hand with a copy of the temporary ban

and informed of his right to appeal it to the UNH Police Chief

and Associate Vice President for Public Safety and Risk

Management. He pursued that appeal, but it was denied.

Strahan takes issues with the temporary ban. He argues

that McNamara lacked the legal authority to impose it and

asserts that New Hampshire’s criminal trespassing statute does

not apply to vehicles. So, the argument seems to go, when he

was threatened with arrest if he violated the ban, he was

subjected to a form of anticipatory “unconstitutional seizure”

and “malicious prosecution.”

5 In addition to challenging his temporary ban from the

Wildcat Transit buses (count one), Strahan also alleges that

defendants Lee and Birmingham unlawfully intimidated and coerced

other University System employees to unconstitutionally deny him

University services and to interfere with his First Amendment

rights (count two). Finally, Strahan alleges that defendants

Lee and Birmingham defamed him to members of the UNH Community

(count three).

Discussion

I. Count 1 - Unlawful Seizure and Denial of Due Process.

As noted, the claim(s) advanced in count one of Strahan’s

complaint stem from McNamara’s imposition of the temporary ban

on his use of the Wildcat Transit buses. According to Strahan,

“Defendant McNamara does not have any lawful authority to

unilaterally as a UNH employee deny any member of the Public

from riding on UNHWT buses and has no authority as a UNH

employee to order anyone to stay off UNH property.” Complaint

(document no. 1) at para. 5 (cleaned up). Additionally, Strahan

argues that the New Hampshire criminal trespassing statute –

N.H. Rev. Stat. Ann. 635:2 – only applies to “real estate like a

building or on a parcel of land.” Complaint at para. 6.

According to Strahan, that statute does not apply to “unwanted

access by a person on a bus or other form [of] mass

6 transportation.” Id. See also Objection to Motion to Dismiss

(document no. 31) at 4 (“I am claiming that [the] use [of]

property of another on a Public right of way is not subject to

the N.H. Trespass Statute.”). Based upon that (faulty)

interpretation of the law, Strahan believes the temporary ban

was unlawful (and, somehow, unconstitutional), as was the threat

to have him arrested if he violated it.

As discussed in Strahan I, the legal and factual assertions

upon which his claim rests are incorrect. See Strahan I at 7-9

(concluding that “defendant McNamara had the legal authority to

ban Strahan from the Wildcat Transit system for his repeated

refusal to comport himself with the system’s terms of use, and

for his recurring offensive, unsafe, threatening, and abusive

conduct. It is equally plain that New Hampshire’s criminal

trespass statute applies to the buses operated by the University

System of New Hampshire.”). Consequently, Strahan’s

“unconstitutional seizure” claim lacks merit.

As to his claim that he was denied due process, that too

fails as a matter of law. Strahan was afforded all the process

to which he was entitled (and likely more) when the temporary

ban was imposed upon him. As noted in the court’s prior order,

Strahan was served in hand with a copy of the temporary ban and

7 informed of his right to appeal that ban to the UNH Police Chief

Management. Strahan pursued that appeal, but it was denied.

Strahan I, at 5. See also Affidavit of Tracy Birmingham at

para. 7.

In short, count one of Strahan’s complaint – his claim

pursuant to 42 U.S.C. § 1983 that he was denied due process and

subjected to an “unlawful seizure” and “malicious prosecution”

when he was threatened with arrest if he trespassed on the

Wildcat Transit buses - fails to assert the essential elements

of a viable cause of action.

II. Count 2 – Interference with First Amendment Rights.

In Count two of his complaint, Strahan seeks to vindicate

rights allegedly protected by the First and Fourteenth

Amendments. See generally 42 U.S.C. § 1983. Specifically, he

claims that defendants Lee and Birmingham:

deliberately made it impossible for me to obtain any services at all from UNH. They have bullied and intimidated almost every UNH employee from the Dean of Students to most UNH academic employees from directly communicating with me or offering me any UNH services at all. They have done so without any of them possessing the lawful authority as UNH employees to order any other UNH employee not to provide me the services that UNH routinely supplies to any other member of the Public.

8 . . . This is retaliation and retribution for their considering me as a threat to their vested interests to their acting outside the law and authority as UNH employees to control the behavior and constitutionally protected speech of students and academic employees of UNH. These Defendants despise me as a perceived threat to sue them and other disgruntled UNH employees for their unlawful actions.

Complaint at paras. 31-32 (emphasis supplied). First, it

probably goes without saying that Strahan lacks standing to

assert the First Amendment claims of “students and academic

employees of UNH.” As importantly, however, count two lacks any

plausible factual allegations that might support a viable claim

that defendant Lee and/or Birmingham violated any of Strahan’s

constitutionally protected rights.

As the court previously concluded, defendant McNamara had

the lawful authority to temporarily ban Strahan from the Wildcat

Transit buses. None of the defendants named in this action

violated any of Strahan’s constitutional rights in connection

with that ban. To the extent Strahan claims Lee and/or

Birmingham interfered with his ability to obtain educational

services at UNH, Strahan has no constitutionally protected right

to such services. See, e.g., San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not

among the rights afforded explicit protection under our Federal

9 Constitution. Nor do we find any basis for saying it is

implicitly so protected.”). So, to the extent Strahan claims

defendants Lee and Birmingham deprived him of access to

transportation and/or academic services provided by UNH, neither

“right” is constitutionally protected and those claims fail to

state viable causes of action.

Moreover, even if Strahan had plausibly alleged the

essential elements of viable constitutional claims against Lee

and Birmingham, those claims would be barred by the federal

doctrine of res judicata. See generally Merrick v.

CitiMortgage, Inc., No. 12-CV-263-SM, 2013 WL 798234, at *2

(D.N.H. Mar. 5, 2013) (discussing the circumstances under which

a federal court’s final judgment is entitled to preclusive

effect in subsequent litigation). In an earlier federal case

against defendants Lee and Birmingham, Strahan raised claims

that are virtually identical to those advanced here. See

Strahan v. O’Reilly, et al., no. 22-cv-52-SM, Amended Complaint

(document no. 30), Caption to Count VI and paras. 50-51

(restating, nearly verbatim, the claims advanced in count two of

this litigation). Indeed, because Strahan appears to have

simply copied and pasted that portion of his prior amended

complaint into the complaint in this proceeding, he

inadvertently included a party from that earlier litigation –

10 Joseph DiGregorio or “DG” as Strahan calls him – in the caption

to count two of his complaint in this action. DiGregorio is not

a defendant in this proceeding.

Strahan’s prior case was dismissed on the merits and with

prejudice by order dated October 4, 2022. See Strahan v.

O’Reilly, et al., Order of Dismissal (document no. 80). See

also Fed. R. Civ. P. 41(b) (a dismissal under this rule

“operates as an adjudication on the merits”). Strahan cannot

relitigate those dismissed claims in this proceeding.

Parenthetically, the court notes that it is aware that

Strahan has appealed the dismissal of his claims in Strahan v.

O’Reilly, et al., No. 22-cv-52-SM, to the United States Court of

Appeals for the First Circuit and that appeal remains pending as

of this date. See Strahan v. O’Reilly, et al., Case no. 22-1799

(1st Cir. 2022). That pending appeal does not, however, prevent

this court’s earlier final judgment from having preclusive

effect in this case. For purposes of federal res judicata, this

court’s dismissal of all claims in the earlier case is a final

order on the merits, entitled to preclusive effect. See Taunton

Gardens Co. v. Hills, 557 F.2d 877, 879, n.2 (1st Cir. 1977)

(“it is well settled that in the federal courts the pendency of

an appeal does not destroy the res judicata effect of a

11 judgment.”). See also Hazel v. Curtiss-Wright Corp., No. IP 86-

909-C, 1992 WL 436236, at *3 (S.D. Ind. Mar. 9, 1992) (“The

overwhelming majority rule in the federal courts is that a

judgment may be given res judicata effect during the pendency of

an appeal.”) (collecting cases); Wright & Miller, Federal

Practice and Procedure, § 4433 Finality — Appeals Forgone,

Pending, or Unavailable, 18A Fed. Prac. & Proc. Juris. § 4433

(3d ed.) (“The bare act of taking an appeal is no more effective

to defeat preclusion than a failure to appeal. The Supreme

Court long ago seemed to establish the rule that a final

judgment retains all of its res judicata consequences pending

decision of the appeal, apart from the virtually nonexistent

situation in which the “appeal” actually involves a full trial

de novo. The lower courts have taken the rule as settled ever

since.”) (footnotes omitted).

III. Count 3 – Defamation.

For the same reason, Strahan is precluded from pursuing his

defamation claims against defendants Lee and Birmingham.

Identical claims were advanced in count seven of Strahan’s

earlier complaint, which was dismissed with prejudice. Compare

Strahan v. O’Reilly, et al., Amended Complaint (document no. 30)

at paras. 57-58 with the complaint in this action (document no.

1) at paras. 34-35.

12 If more were needed, count three of Strahan’s complaint

fails to allege sufficient non-conclusory factual claims for the

court to plausibly infer that the content of any one or more of

defendants’ statements was false or defamatory, rather than

merely protected expressions of opinion. Indeed, not a single,

specific, allegedly defamatory statement is attributed to either

defendant, nor does the complaint identify the person(s) with

whom such allegedly defamatory statements were shared. Rather,

count three of the complaint is characterized by vague,

conclusory, and hyperbolic allegations that are plainly

insufficient to form the basis of a viable defamation claim.

See, e.g., Complaint at para. 34 (“Defendants Lee and Birmingham

consistently from 2017 to the present time freely slandered and

defamed me with every member of the UNH community that they

encountered.”).

Conclusion

For the foregoing reasons, as well as those set forth in

defendants’ legal memorandum (document no. 57-1), none of

Strahan’s remaining claims plausibly alleges the essential

elements of a viable cause of action. The complaint’s

contentions are, at best, vague and conclusory and they are

unaccompanied by specific allegations of actionable

constitutional deprivations or common law causes of action.

13 Moreover, the claims advanced in counts two and three (against

defendants Lee and Birmingham) are precluded by the doctrine of

res judicata.

Defendants’ Motion for Judgment on the Pleadings (document

no. 57) is granted and all remaining pending motions (including,

but not limited to, documents no. 58, 67, 68, 69, and 73) are

denied as moot.

Additionally, documents no. 64, 65, 66, 67, 68, 69, 72, and

73 are all also stricken from the docket for including language

similar to that used in previously stricken filings – language

plainly violative of Rule 12(f) insofar as it is immaterial,

impertinent, and/or scandalous. See generally Strahan v.

O’Reilly, No. 22-cv-52-SM, Show Cause Order (D.N.H. Sept. 8,

2022) (document no. 72) and Dismissal Order (D.N.H. Oct. 4,

2022) (document no. 80). Use of that language also violates

prior court directives to Strahan. See, e.g., Id., Order at 2

(D.N.H. May 26, 2022) (document no. 42) (“The court warned

Strahan that if he violated the court’s order, or if his “future

written communications or personal interactions with the court

exhibit insulting, offensive, or harassing content, Mr. Strahan

will be subject to further sanction, including the dismissal of

this case with prejudice. Strahan’s abusive conduct has

14 continued.”); Case Management Order (document no. 9) (“Any

filings Mr. Strahan makes that include such content will be

stricken from the docket.”).

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 7, 2023

cc: Richard Strahan, pro se Counsel of Record