UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Strahan, Plaintiff
v. Case No. 22-cv-391-SM-TSM Opinion No. 2023 DNH 099
William McNamara, Tracy Birmingham, Steven Lee, William Breault, and Rene Kelley, Defendants
O R D E R
Pro se plaintiff, Richard Strahan, brings this action
against three University of New Hampshire (UNH) officials, as
well as the Chiefs of Police for Dover and Durham, New
Hampshire. Generally speaking, he alleges that defendants
unlawfully barred him from using the UNH transportation system
and threatened to arrest him for trespassing if he attempted to
do so during a one-year period. Additionally, Strahan claims
that two of the UNH defendants defamed him.
Pending before the court is a motion to dismiss filed by
Dover Police Chief William Breault and Durham Police Chief Rene
Kelley. For the reasons given, that motion is granted. Standard of Review
In considering a motion to dismiss, the court accepts all
well-pleaded facts alleged in the complaint as true,
disregarding legal labels and conclusions, and resolves
reasonable inferences in the plaintiff’s favor. See Galvin v.
U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). To avoid
dismissal, 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 the “plausibility standard,” the
factual allegations in the complaint, along with reasonable
inferences, must show more 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 that, if assumed to
be true, allow the court to draw the reasonable and plausible
inference that the plaintiff is entitled to the relief sought.
2 See Tasker v. DHL Retirement Savings Plan, 621 F.3d 34, 38-39
(1st Cir. 2010).
Background
Strahan has a brief but prolific history of unsuccessful
pro se litigation in this court. He also has demonstrated a
tendency to engage in behavior that is rude, sophomoric,
profane, aggressive, and threatening (both in this court and
others). See generally Strahan v. O’Reilly, No. 22-CV-52-SM,
2022 WL 4126058, at *1 (D.N.H. Sept. 8, 2022) (collecting
cases). He has also knowingly and defiantly violated case
management orders, sanction orders, and Rule 11 of the Federal
Rules of Civil Procedure. See Strahan v. O’Reilly, No. 22-CV-
52-SM, 2022 WL 5113347, at *1 (D.N.H. Oct. 4, 2022). See also
Strahan v. McCafferty, No. 23-cv-297-JJM (D.N.H. Aug. 4, 2023)
(McConnell, Jr., J) (holding that Strahan’s pro se complaint
was, among other things “frivolous and malicious” and “obviously
retaliatory”).
Given that, it should not be surprising that Strahan
engaged in conduct that prompted the University System of New
Hampshire to ban him from using the university’s Wildcat Transit
buses for one year. See Exhibit 1 to Affidavit of Richard
Strahan (document no. 10-1), Correspondence from William
3 McNamara dated June 10, 2022 (“Dear Mr. Strahan: By means of
this letter, you are officially notified that you are
immediately banned from any and all transportation services
operated by the University System of New Hampshire, including
but not limited to all University of New Hampshire Wildcat
Transit bus lines. . . . This ban is in effect through June 10,
2023 (1-year period).”) (emphasis in original).
In that letter, Mr. McNamara explained to Strahan that the
temporary ban was imposed because of:
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. at 1. In her affidavit, the Associate General Counsel for
the University System of New Hampshire has chronicled numerous
instances during which Strahan behaved in a manner that was
unsafe, uncivil, threatening, disruptive, and abusive while a
passenger on Wildcat Transit buses – incidents that formed the
basis of 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:
4 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. First, he
claims that “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
Strahan also believes that the New Hampshire criminal
trespassing statute – N.H. Rev. Stat. Ann. 635:2 – only applies
to “real estate like a building or 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
transportation.” Id. at para. 7. See also Objection to Motion
5 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.”). As discussed below, both
assertions are incorrect.
With respect to Chief Kelley and Chief Breault, Strahan
claims that after he received notice of his temporary ban from
the UNH Wildcat Transit system, he:
contacted the cop shops employing Defendant[s] Kelley and Breault. He was told by upper level senior employees acting as these Defendants, that their departments will enforce the Trespass Notice. If Strahan attempts at any point in the future to enter upon a UNHWT bus operating in their respective professional jurisdictions [he was told] that he will be summarily arrested for criminal trespass.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Strahan, Plaintiff
v. Case No. 22-cv-391-SM-TSM Opinion No. 2023 DNH 099
William McNamara, Tracy Birmingham, Steven Lee, William Breault, and Rene Kelley, Defendants
O R D E R
Pro se plaintiff, Richard Strahan, brings this action
against three University of New Hampshire (UNH) officials, as
well as the Chiefs of Police for Dover and Durham, New
Hampshire. Generally speaking, he alleges that defendants
unlawfully barred him from using the UNH transportation system
and threatened to arrest him for trespassing if he attempted to
do so during a one-year period. Additionally, Strahan claims
that two of the UNH defendants defamed him.
Pending before the court is a motion to dismiss filed by
Dover Police Chief William Breault and Durham Police Chief Rene
Kelley. For the reasons given, that motion is granted. Standard of Review
In considering a motion to dismiss, the court accepts all
well-pleaded facts alleged in the complaint as true,
disregarding legal labels and conclusions, and resolves
reasonable inferences in the plaintiff’s favor. See Galvin v.
U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). To avoid
dismissal, 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 the “plausibility standard,” the
factual allegations in the complaint, along with reasonable
inferences, must show more 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 that, if assumed to
be true, allow the court to draw the reasonable and plausible
inference that the plaintiff is entitled to the relief sought.
2 See Tasker v. DHL Retirement Savings Plan, 621 F.3d 34, 38-39
(1st Cir. 2010).
Background
Strahan has a brief but prolific history of unsuccessful
pro se litigation in this court. He also has demonstrated a
tendency to engage in behavior that is rude, sophomoric,
profane, aggressive, and threatening (both in this court and
others). See generally Strahan v. O’Reilly, No. 22-CV-52-SM,
2022 WL 4126058, at *1 (D.N.H. Sept. 8, 2022) (collecting
cases). He has also knowingly and defiantly violated case
management orders, sanction orders, and Rule 11 of the Federal
Rules of Civil Procedure. See Strahan v. O’Reilly, No. 22-CV-
52-SM, 2022 WL 5113347, at *1 (D.N.H. Oct. 4, 2022). See also
Strahan v. McCafferty, No. 23-cv-297-JJM (D.N.H. Aug. 4, 2023)
(McConnell, Jr., J) (holding that Strahan’s pro se complaint
was, among other things “frivolous and malicious” and “obviously
retaliatory”).
Given that, it should not be surprising that Strahan
engaged in conduct that prompted the University System of New
Hampshire to ban him from using the university’s Wildcat Transit
buses for one year. See Exhibit 1 to Affidavit of Richard
Strahan (document no. 10-1), Correspondence from William
3 McNamara dated June 10, 2022 (“Dear Mr. Strahan: By means of
this letter, you are officially notified that you are
immediately banned from any and all transportation services
operated by the University System of New Hampshire, including
but not limited to all University of New Hampshire Wildcat
Transit bus lines. . . . This ban is in effect through June 10,
2023 (1-year period).”) (emphasis in original).
In that letter, Mr. McNamara explained to Strahan that the
temporary ban was imposed because of:
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. at 1. In her affidavit, the Associate General Counsel for
the University System of New Hampshire has chronicled numerous
instances during which Strahan behaved in a manner that was
unsafe, uncivil, threatening, disruptive, and abusive while a
passenger on Wildcat Transit buses – incidents that formed the
basis of 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:
4 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. First, he
claims that “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
Strahan also believes that the New Hampshire criminal
trespassing statute – N.H. Rev. Stat. Ann. 635:2 – only applies
to “real estate like a building or 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
transportation.” Id. at para. 7. See also Objection to Motion
5 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.”). As discussed below, both
assertions are incorrect.
With respect to Chief Kelley and Chief Breault, Strahan
claims that after he received notice of his temporary ban from
the UNH Wildcat Transit system, he:
contacted the cop shops employing Defendant[s] Kelley and Breault. He was told by upper level senior employees acting as these Defendants, that their departments will enforce the Trespass Notice. If Strahan attempts at any point in the future to enter upon a UNHWT bus operating in their respective professional jurisdictions [he was told] that he will be summarily arrested for criminal trespass.
Complaint at para. 26 (emphasis supplied). Strahan seeks an
injunction prohibiting those defendants from arresting him for
trespass, as well as $100,000 in compensatory damages from each
for having “threatened to arrest him without the requisite
probable cause” – all allegedly in violation of his
constitutionally protected rights.
It is unclear whether Strahan actually complied with the
temporary ban, but nothing in the record suggests he was ever
arrested for trespassing on a Wildcat Transit bus. His one-year
6 ban expired on June 10, 2023. But, because neither defendant
asserts that Strahan’s claims are moot, the court will address
them on the merits.
Discussion
Strahan’s legal assertion that the New Hampshire criminal
trespass statute does not apply to vehicles is wrong. So, too,
is his claim that defendant William McNamara lacked authority to
temporarily ban Strahan from using the Wildcat Transit system.
Indeed, both issues have already been resolved against him.
In its order denying Strahan’s motion for temporary
restraining order, the court (McCafferty, C.J.) noted that:
Mr. Strahan alleges that UNH’s ban is illegal because New Hampshire’s criminal trespass statute only applies to real property, not a movable object like a bus. The court’s analysis of the pertinent statute suggests otherwise. New Hampshire law provides that a “person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place.” N.H. Rev. Stat. Ann. § 635:2, I. In addition, “criminal trespass is a misdemeanor if: . . . (b) [t]he person knowingly enters or remains: . . . (2) in any place in defiance of an order to leave or not to enter which was personally communicated to him by the owner or other authorized person.” N.H. Rev. Stat. Ann. § 635:2, III(b)(2).
Order Denying TRO (document no. 34) at 7-8 (emphasis supplied).
7 The court then concluded that, “the trespass statute
contains no language limiting the definition of the term ‘any
place’ to ‘real property,’ as Mr. Strahan argues. If the New
Hampshire legislature had intended to restrict the scope of the
word ‘place,’ it could have done so. . . . [T]he court declines
to engraft a limitation onto the words ‘premises’ or ‘any place’
in New Hampshire’s criminal trespass statute where the New
Hampshire legislature has not done so.” Id. at 9-10.
Next, the court concluded that the undisputed record
demonstrated that William McNamara had the authority to ban
Strahan from riding on Wildcat Transit buses. Id. at 8.
Indeed, in her uncontested affidavit, Attorney Birmingham,
Associate General Counsel for the University System of New
Hampshire, testified that William McNamara “has the authority to
enforce the rules relating to the use of UNH’s transportation
services, including banning passengers from using the
transportation services for engaging in conduct that violates
the transportation rules. Affidavit of Tracy Birmingham
(document no. 28-1) at para. 2 (emphasis supplied).
In short, then, 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
8 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. And, finally, defendants Kelley and
Breault did not violate any of Strahan’s constitutional rights
by allegedly affirming (through their agents) that their police
departments will enforce New Hampshire law. 1
Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ legal memorandum, not one of Strahan’s claims
against Chief Kelley and Chief Breault states a viable cause of
action. Accordingly, their Motion to Dismiss (document no. 13)
is granted.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
August 15, 2023
cc: Richard M. Strahan, pro se Counsel of Record
1 For reasons that should be clear, the court need not discuss the nuances of attempting to bring a § 1983 respondeat superior claim against the chiefs of police based upon alleged statements of unspecified subordinates.